author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Dale C. NATHAN, a Minnesota Attorney, Registration No. 77227.
    No. C5-02-519.
    Supreme Court of Minnesota.
    Nov. 26, 2003.

      Kenneth L. Jorgensen, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Relator.
    Dale C. Nathan, Eagan, MN, pro se.
   OPINION

PER CURIAM.

This disciplinary action arises out of the misconduct of the respondent, Dale C. Nathan, in a child custody matter and a CHIPS proceeding. The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action on May 2, 2002. A hearing was held on October 2 and 3, 2002, before the Honorable Warren E. Litynski acting as referee. The referee found that Nathan: (1) violated Minn. R. Prof. Conduct 3.1, 3.4(c), 4.4, and 8.4(d) by engaging in a pattern of harassing and frivolous litigation; (2) violated Rules 3.4(c) and 8.4(d) by violating, threatening to violate, and assisting his client in violating court orders; (3) violated Rules 3.4(c) and 8.4(d) by violating and threatening to violate confidentiality statutes and rules; (4) made baseless and derogatory statements about judges in violation of Rules 8.2(a) and 8.4(d); (5) made false statements contrary to Rules 4.1 and 8.4(c); and (6) failed to pay or arrange to pay sanctions, violating Rules 3.4(c) and 8.4(d). The referee recommended that Nathan be indefinitely suspended from the practice of law, with leave to apply for reinstatement after six months.

Nathan was admitted to practice law in Minnesota in 1965. Nathan has been admonished twice before. Nathan’s misconduct in these matters falls into three general categories. The first is a pattern of harassing and frivolous conduct; the second is a pattern of violating, threatening to violate and assisting others in violating court orders and confidentiality statutes; and the third is making unfounded derogatory statements about judges and false statements to others. We will consider Nathan’s conduct in the child custody and CHIPS matters in turn.

Child Custody Matter

In late 1999 or early 2000, Nathan began representing a mother in a child custody matter arising out of a paternity proceeding. The father was seeking unsupervised visitation of the child and the mother sought to prevent unsupervised visitation. The pattern of harassing and frivolous litigation that the referee found Nathan engaged in was pervasive in this matter.

Nathan sent the guardian ad litem several harassing letters. In one letter he called her “worse than worthless” and threatened to “deal with her accordingly.” In another letter addressed to her, he threatened to inform others involved in the case that she was not “truthful or impartial and cannot be trusted.” Nathan also wrote letters to the judge complaining that the guardian ad litem was biased. Because of Nathan’s conduct, an attorney was appointed to represent the guardian ad litem. Nathan then sent the guardian ad litem’s attorney a letter threatening to publish the guardian ad litem’s letters to him and the judge on Nathan’s website “as examples of outrageous actions by a court-appointed quasi-expert.”

Nathan engaged in a similar pattern of conduct towards the individual appointed as the visitation investigator. The judge ordered the parties to split the cost of hiring the investigator and to cooperate with her by giving her access to all necessary records and individuals. In a letter to the investigator, Nathan stated that he would not pay for her services, as he believed that the judge’s order was “premature and unjustified.” Nathan was also upset because he learned that during a supervised visitation session the investigator asked the child to refer to her father as “Dad.” Nathan stated that this was “not acceptable” and threatened to discontinue visitation. Three days later, Nathan sent the investigator another letter, stating that she could not have direct contact with the mother or any member of her family. That letter included several derogatory statements about the investigator’s professional reputation and. threatened to publish a description of her actions on Nathan’s website.

In addition to threatening to violate the court order to cooperate with and pay for the investigator, the referee found that Nathan violated and assisted his client in violating other court orders in this matter. After the judge adopted the investigator’s visitation recommendation and ordered a transition from supervised to unsupervised visitation, the mother did not bring the child to a scheduled supervised visitation. The father’s attorney moved for a contempt hearing and the mother went into hiding and did not appear. In an affidavit, the mother stated that she did not appear on Nathan’s advice, and that throughout the time she was in hiding with the child, Nathan advised her not to turn herself in. The father did not see the child again for over a year.

The judge asked Nathan multiple times to disclose his client’s location and whether his client was in the state. Nathan stated that he advised his client not to appear but refused to give the legal basis for that advice. Nathan repeatedly refused to disclose any information relating to his client’s location, citing attorney-client privilege. The judge found Nathan in contempt. Nathan still refused to disclose the location of his client and was incarcerated for 54 days. Nathan never complied with the court’s order.

The referee also found that Nathan made a frivolous request for a stay in this matter when he requested that visitation be stayed until a claim of abuse was investigated. The same claim of abuse had been raised one year earlier and after an investigation was determined to be unfounded.

There are two statements that Nathan made about the judge in this case that the referee found to be baseless or derogatory. Both statements came in a petition that Nathan filed in the court of appeals to overturn the visitation order. In that petition, Nathan wrote that the judge “is a bad judge,” who “substituted his personal view for the law” and “won election to the office of judge by appealing to racism.” The referee found that the only evidence of a personal view the judge expressed was not inconsistent with the law. The referee also found that Nathan’s sole basis for the allegation that the judge won election by appealing to racism was that the judge’s opponent in the previous election had what Nathan referred to as a Hmong-sounding name.

In addition to the false statements Nathan made about the judge, the referee found that Nathan made a false statement to opposing counsel. During a telephone conversation, Nathan told opposing counsel that he had been recording the conversation without counsel’s knowledge. Nathan did not in fact record the conversation.

CHIPS Proceeding

Nathan represented the mother of four children in a CHIPS proceeding in which Ramsey County sought to terminate the mother’s parental rights to the two youngest children. The referee found that Nathan engaged in a pattern of harassing and frivolous litigation, violated and threatened to violate court orders and confidentiality statutes and rules, made baseless derogatory statements about judges, and made false statements.

The pervasive nature of the harassing and frivolous litigation and the threats to violate and violations of court orders and confidentiality statutes and rules in this matter are closely linked. Nathan sent a letter to the psychologist hired by the county demanding that she provide a written response to 31 questions. Nathan wrote: “If you do not provide satisfactory bases for your allegations, I will publish your letter on my website.” Nathan also harassed the social worker in the case. In a memorandum to the court Nathan wrote: “What is happening in this case is madness. It is uncivilized. [The mother] is being denied custody of her children * * * by an out-of-control power crazed social worker on the basis of a report by a psychologist * * *. The person who is crazy is [the psychologist].” Nathan also repeatedly called the social worker a racist, including a statement in a memorandum to the court of appeals. Nathan continued with a similar course of conduct toward all involved in the case. For example, Nathan asked the court to order the foster parent of one of the children to send the child to the school of the mother’s choice and threatened to sue the foster parent if the court did not grant his request.

As a result of Nathan’s conduct and threats to disclose information, the judge issued a protective order restraining “Nathan from making public any part of the juvenile protection case record in this case without first obtaining a court order.” The judge also ordered Nathan to pay $1,500 in sanctions and restrained him from further harassing any witnesses or parties. After the judge issued this order Nathan sent him a letter threatening to publish an article about the case “regardless of the consequences to me.” Nathan then published an article on his website describing the case entitled The Young Sex Perverts and placed an ad in the newspaper directing individuals to the article. Nathan also sent letters to the assistant county attorney and others threatening to violate the protective order. In a memorandum responding to a contempt motion that followed, Nathan admitted that he published materials in violation of the court order because “[occasionally, it is necessary to violate a court order or even a law in order to correct serious injustices.”

The court found Nathan in contempt for violating the protective order and ordered him to remove all information regarding the case from his website, fined him $500, and again restrained him from publishing any information regarding the case. Two days later Nathan sent the judge a letter stating that if the judge did not schedule a hearing and provide 10 items of relief he was requesting, he would publish an article in area newspapers. Enclosed was an article entitled The Young Sex Perverts with the judge’s name prominently displayed below the title. Nathan published the article in the St. Paul Pioneer Press as a paid advertisement on November 3, 2000, shortly before election day.

The final piece of harassing and frivolous conduct in this matter is a federal lawsuit Nathan filed against the social worker, judge, assistant county attorney, psychologist, and one of the foster parents, among others, alleging their actions violated 42 U.S.C. § 1983 (2000). The defendants moved for summary judgment, and the federal district judge granted the motion and awarded the psychologist $2,607.09 in attorney fees.

In addition to the article Nathan published, he made other baseless and derogatory statements about judges in this matter. One of the other statements Nathan made was in a brief to the court of appeals. In that brief, Nathan called the judge “an extremely bad judge” and stated “I am aware that this Court is determined to support trial court judges in whatever action they take in order to preserve the almost unlimited power of judges to do what they wish.”

The referee found that Nathan made false statements in two separate instances in this matter. First on October 3, 2000, Nathan requested permission from the judge to order a transcript of two witnesses’ testimony. The request stated: “I will use the transcripts only for the purpose of preparing for cross-examination.” (Emphasis added.) Then in a November 8 letter requesting the transcript for a different purpose, Nathan wrote: “As I thought I made clear, my purpose in obtaining this transcript is not to prepare for cross-examination.” (Emphasis added.) After the judge pointed out these discrepancies Nathan sent another letter to the judge stating: “[Ojne of my purposes of ordering the * * * transcript was to prepare for cross-examination. Although not stated in that letter, a second purpose was to provide a copy of the * * * transcript to [the] psychologist.”

The second false statement occurred when Nathan filed a motion seeking permission to provide information about the case to an organization performing research on juvenile crime. In that motion Nathan wrote that the research director requested information on the CHIPS case and that the “research director [of the organization] believes there may be major problems in the work of the Ramsey County Juvenile Court.” The referee found that Nathan made this statement with knowing or reckless disregard for the truth because a research assistant from the organization contacted Nathan for general information only and did not ask for any material relating to a specific case.

Finally, the referee found that Nathan violated the rules of professional conduct by failing to pay-or arrange to pay the $1,500 and $500 sanctions imposed in the CHIPS matter, and the $2,607.09 in attorney fees imposed in the federal lawsuit. At the time of the referee’s decision in November of 2002, Nathan had not paid any of the sanctions owed Ramsey County. In his reply brief, Nathan claims that he has paid the sanctions; however, there is no evidence in the record that indicates payment.

Disciplinary Action

If a respondent orders a transcript of the referee’s hearing, the referee’s findings of fact and conclusions of law are not conclusive and either party may challenge the findings of fact or conclusions of law. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). Nevertheless, this court gives “great deference to a referee’s findings on disputed facts and will not reverse the referee’s findings and conclusions unless they are clearly erroneous.” In re Westby, 639 N.W.2d 358, 367 (Minn.2002).

Nathan does not cite which of the referee’s findings of fact and conclusions of law are clearly erroneous. However, there appear to be four primary issues that Nathan raises: (1) he did not file a frivolous motion in violation of Rule 3.1 by asking for a stay in the child custody matter; (2) he did not violate Rules 3.4(c) and 8.4(d) by failing to disclose the location of his client; (3) his statements about judges did not violate Rules 8.2(a) and 8.4(d); and (4) the alleged false statements were either justified or honest mistakes and therefore did not violate Rules 4.1 and 8.4(c). We will consider each argument in turn.

Nathan asserts that his request to stay unsupervised visitation in the child custody matter until the county could investigate the abuse allegation was not frivolous because the child verified the abuse to the psychologist, which constituted new evidence. The same claim of abuse had been raised one year earlier and after an investigation was determined to be unfounded. For this reason the referee’s finding that the request for a stay was frivolous is not clearly erroneous.

Nathan contends that he did not violate the rules of professional conduct by refusing to disclose the location of his client. However, in an affidavit to this court on December 12, 2002, in support of his request to order a partial transcript, Nathan stated: “I do not and will not challenge any of the findings in the Findings of Fact, Conclusions of [L]aw, and Recommendations for Discipline dated November 22, 2002 in the subject proceedings that relate in any way to Conclusion] of Law Number 2.” (Emphasis added.) Conclusion of Law Number 2 concerns the referee’s findings of fact that Nathan violated the order to disclose his client’s location. Therefore, Nathan has waived any objections to the referee’s conclusions on this issue.

“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.” Minn. R. Prof. Conduct 8.2(a). Nathan argues that in order to warrant discipline his statements had to constitute a clear and present danger to the administration of justice; his statements are protected because they are opinion, and that he believed there was a basis for the statements. However, statements about judges need not constitute a clear and present danger to the administration of justice to violate the rules of professional conduct. The cases Nathan cites to support his contention that we should apply a clear and present danger standard are inapposite. See, e.g., Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947) (discussing the prevention of publication of statements that could prejudice ongoing trials). Moreover, Nathan’s statements about judges are not protected statements of opinion. Merely cloaking an assertion of fact as an opinion does not give that assertion constitutional protection. In re Westfall, 808 S.W.2d 829, 832-33 (Mo.1991) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), for the proposition that one cannot create an “artificial dichotomy” between opinion and fact by couching an assertion of fact as an opinion). The standard used to determine if a statement is false or made with reckless disregard as to its truth or falsity is “an objective one dependent on what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.” In re Graham, 453 N.W.2d 313, 322 (Minn.1990).

The referee’s findings regarding Nathan’s statements about judges are not clearly erroneous, as the statements plainly were made with knowing or reckless disregard for the truth. Additionally, Nathan’s argument that he felt some of the statements are true is not.germane because the standard for judging statements is an objective one. See Graham, 453 N.W.2d at 322.

Likewise, the referee’s findings that Nathan made false statements are supported by the record and not clearly erroneous. Nathan admits that his statement to opposing counsel in the child cus-' tody proceeding that he was recording a telephone conversation was false, but contends that the statement was justified because opposing counsel became agitated during the conversation. Nathan does not cite any authority for the proposition that an attorney may lie to opposing counsel without violating the rules of professional conduct if that attorney believes the lie to be justified.

Nathan next contends that he requested court documents be released to the community organization based on what he believed was said in a voice mail message left by a research assistant. Nathan asserts that there may have been some confusion about the content of the message, but that he did not knowingly make a false statement. However, the record clearly demonstrates that the research assistant never requested-documents relating to a specific case. Therefore, the evidence supports the referee’s finding that the request for information was made with knowing or reckless disregard for the truth.

Nathan claims that his statements regarding the use of the transcript in the CHIPS proceeding were not false. Instead, Nathan argues that there was merely an inconsistency in two letters sent more than one month apart. The text of the three letters detailed above support the referee’s findings. The discrepancies among these three letters are more than a mere, inconsistency. In each letter, using unambiguous language, Nathan makes a different representation to the court regarding the use of the transcript.

The final issue we must consider is the appropriate discipline. “The purpose of discipline is not to punish the lawyer but, rather, ‘to protect the courts, the public, and the profession and to guard the administration of justice.’ ” Westby, 639 N.W.2d at 370 (quoting In re Flanery, 431 N.W.2d 115, 118 (Minn.1988)). “In evaluating the appropriateness of the disciplinary sanction,” this court considers, “the misconduct, the cumulative weight of the disciplinary rule violations, the potential harm to the public, and the harm to the legal profession.” Id. “Although prior cases may be helpful by analogy, each case must be decided on its unique facts and circumstances.” In re McCoy, 4A1 N.W.2d 887, 890 (Minn.1989). ‘ A failure to acknowledge or express remorse for disciplinary violations is an aggravating factor. See, e.g., In re Selmer, 568 N.W.2d 702, 704 (Minn.1997); In re Jensen, 542 N.W.2d 627, 634 (Minn.1996); In Re Pokorny, 453 N.W.2d 345, 348 (Minn.1990).

Nathan’s briefs and statements at oral argument demonstrate that he does not acknowledge his actions were wrong. Nathan made it clear both in his briefs and at oral argument that he does not believe that violating a court order one feels is unjust is necessarily wrong. Additionally, Nathan apparently believes that violating a court order that has been appealed but not stayed is permissible. Nathan also implies in his brief that he will not engage in harassing conduct again solely because he now realizes that such conduct is ineffective. Furthermore, Nathan’s threats to judges and parties if they refused to comply with his demands, and the fact that Nathan’s client was convicted of a crime as a result of following his advice not to appear in court and produce the child, are particularly troubling examples of misconduct.

We have imposed indefinite suspensions in similar cases where attorneys engaged in a pattern of harassing and frivolous litigation. Jensen, 542 N.W.2d at 632-34 (indefinitely suspending attorney for a minimum of 18 months for engaging in a pattern of “harassing and frivolous litigation, neglecting professional obligations, and misrepresentations to judicial officers”); Selmer, 568 N.W.2d at 702-03 (indefinitely suspending attorney for a minimum of 12 months for engaging in a pattern of frivolous and harassing conduct). We concur with the referee’s recommendation that Nathan should be indefinitely suspended from the practice of law with leave to apply for reinstatement after six months. However, considering the quantity and severity of Nathan’s misconduct, we disagree with the referee’s finding that Nathan should be given credit against the suspension for the 54 days he was incarcerated for contempt.

Accordingly, we order that:

1.Respondent Dale Nathan is hereby indefinitely suspended from the practice of law with no right to reapply for reinstatement for six months from the date of this opinion;

2. Nathan shall comply with Rule 26, RLPR;

3. Nathan shall successfully complete the professional responsibility portion of the bar examination within one year of the date of this opinion;

4. Nathan shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR;

5. Nathan shall provide to the Director proof of satisfaction of all outstanding sanctions and attorney fees;

6. Any petition for reinstatement shall comply with the requirements of Rule 18(a)-(e), RLPR;

7. As a condition of reinstatement Nathan shall submit a sworn affidavit or testify under oath that he will not intentionally disobey a court order; and

8. If Nathan is reinstated to the practice of law, he shall be placed on supervised probation for two years following reinstatement, with the terms and conditions of probation to be determined at the time of reinstatement.

So ordered.

BLATZ, C.J., took no part in the consideration or decision of this ease.

      . Subsequently, the mother was convicted of depriving another of custodial or parental rights under Minn.Stat. § 609.26 (2002).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Larry Allen NELSON, Appellant.
    No. C4-03-229.
    Court of Appeals of Minnesota.
    Nov. 18, 2003.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Rochester, MN, for respondent.
    David T. Redburn, Brooklyn Park, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge; TOUSSAINT, Chief Judge; and SHUMAKER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

On appeal from his conviction of criminal nonsupport of a child, appellant argues that Minn.Stat. § 609.375, subd. 2b requires the state to attempt to obtain a contempt order against an obligor for failure to pay child support during the time period specified in the complaint. Because the district court erred in concluding that contempt orders obtained for failure to pay during unrelated time periods satisfied the statutory prerequisite, but the statute does not apply to four of the five counts, we affirm in part and reverse in part.

FACTS

Following the dissolution of appellant Larry Nelson’s marriage, the district court ordered him to pay $739 per month in child support and child-care reimbursement for his two children. Subsequently, the court modified Nelson’s obligation multiple times to reflect changes in circumstances and cost-of-living adjustments.

In December 1995, the district court found Nelson in civil contempt for failure to divulge information on his current income and assets. The court ordered Nelson to remain in custody until he paid $2,000 toward his arrearages, disclosed information regarding his income and assets, and worked out a payment agreement for his child-support arrearages. In May 1996, the court released Nelson after finding that incarceration would not induce him to comply with the court’s order and that continued incarceration would be in violation of his due-process rights.

Nelson made partial child-support payments from August 1996 through February 1997, but stopped making payments when he quit his job. As of October 1997, Nelson’s child-support and child-care ar-rearages totaled $17,671.

In January 1998, the district court found Nelson in civil contempt for consciously and willfully failing to pay child support despite having the ability to do so. The district court stayed Nelson’s jail sentence, provided that Nelson complied with several purge conditions, including the requirement that he remain current in his child-support, child-care, and arrearage obligations. As of February 1998, Nelson’s child-support and child-care arrearages totaled $19,985.

In April 1998, the district court found Nelson in civil contempt once again, for failing to pay his child-support obligation and for failing to comply with the district court’s order. Nelson was incarcerated. In June 1998, the district court denied Nelson’s motion for release because he had not complied with the purging conditions of the district court’s order. Nelson’s appeal to this court was dismissed, and the Minnesota Supreme Court denied further review. At a contempt-review hearing in September 1998, however, the district court released Nelson, finding that he was unresponsive to the coercive aspects of incarceration.

From January 1998 to August 2001, only four payments, all involuntary, were made toward Nelson’s child-support obligation. In January 2002, the state charged Nelson with one count of felony nonsupport of a child, in violation of Minn.Stat. § 609.375, subd. 2a (2000 & Supp.2001). The complaint alleged that except for the four payments, Nelson did not pay child support between January 1, 1998 and January 24, 2002. In May 2002, the state filed an amended complaint, charging Nelson under the same statute with five counts of felony nonsupport of a child. The complaint charged that Nelson failed to pay child support during five 180-day periods: January 24 through December 31, 1999; January 1 through June 30, 2000; July 1 through December 31, 2000; January 1 through June 30, 2001; and July 1, 2001 through January 24, 2002.

On the morning of Nelson’s October 2002 trial, Nelson brought a motion to dismiss the amended complaint because the state had not first attempted to obtain a court order finding Nelson in contempt for nonpayment during each of the five different time periods set forth in the complaint. The district1 court denied Nelson’s motion, reasoning that the statute did not contain a time limitation regarding when the state must attempt to obtain a contempt order, and that sufficient probable cause existed because the attempt requirement had been satisfied by the previous contempt orders. The district court found Nelson guilty on all five counts of criminal nonsupport following a stipulated-facts trial. This appeal followed.

ISSUE

As a prerequisite to prosecution of an obligor for criminal nonsupport of a child, does Minn.Stat. ■§ 609.375, subd. 2b require that the state attempt to obtain a contempt order for failure to pay support during the same time period specified in the criminal complaint?

ANALYSIS

Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). The fundamental rule of statutory construction is to look first to the specific statutory language and be guided by its natural and most obvious meaning. State v. Edwards, 589 N.W.2d 807, 810 (Minn. App.1999), review denied (Minn. May 18, 1999). But when a statute is reasonably susceptible to more than one meaning, it is ambiguous and subject to statutory construction. Westchester Fire Ins. Co. v. Hasbargen, 632 N.W.2d 754, 756 (Minn.App.2001). The object of all statutory interpretation is to ascertain and effectuate legislative intent. Minn.Stat. § 645.16 (2002); In re Welfare of C.R.M., 611 N.W.2d 802, 805 (Minn.2000).

The state may not charge a person with criminal nonsupport of a child “unless there has been an attempt to obtain a court order holding the person in contempt for failing to pay support or maintenance under chapter 518.” Minn.Stat. § 609.375, subd. 2b (2002). Nelson concedes that the state obtained at least two contempt orders before filing the criminal complaint against him for nonsupport. But, because the periods of failure to pay covered by the contempt orders did not match the times specified in the complaint, Nelson argues that subdivision 2b’s contempt-order requirement was not satisfied.

As a preliminary matter, subdivision 2b was not effective until August 1, 2001. 2001 Minn. Laws ch. 158, §§ 10, 13. Because the first four of the five counts against Nelson are for crimes entirely committed before that date, the contempt-order requirement does not apply to them. The fifth count, covering July 1, 2001 through January 24, 2002, was based on conduct occurring, at least in part, on and after August 1, 2001. Therefore, only the fifth count is subject to the contempt-order requirement. See State v. Robinson, 480 N.W.2d 644, 645 (Minn.1992) (holding defendant is subject to amended criminal statute if his criminal acts occurred at least in part after effective date of statute). Accordingly, we affirm Nelson’s conviction as to the first four counts relating to crimes committed before the effective date of the statute and consider only the effect of the statute on the fifth count.

The state argues that subdivision 2b is “unambiguously” satisfied by the state’s attempt to obtain contempt order at any time and that the facts supporting the contempt need not be tied in time to the criminal complaint. We agree that subdivision 2b does not expressly contain the requirement of identical time periods, but we conclude that, read in context, the subdivision reasonably could require this consistency and therefore is ambiguous.

First, looking at the specific statutory language, subdivision 2b references chapter 518 as the source of the contempt provision serving as the prerequisite to criminal prosecution. Minn.Stat. § 609.875. Three sections in chapter 518 authorize contempt citations for failure to pay court-ordered support. Minn.Stat. 518.24, .617, .64 (2002). Under these sections, the child-support order itself is a prerequisite for civil-contempt orders. Underlying any child-support order are detailed findings reflecting the ability to pay and the specific support obligation. See Minn.Stat. 518.551 (2002).

By tying the criminal prosecution and the civil-contempt proceedings to the child-support order, the legislature created a three-step process to enforce child support: (1) a child-support order setting the appropriate amount and duration of payments under chapter 518; (2) civil contempt based on a violation of that child-support order; and (3) criminal nonsupport based on a violation of that child-support order.

Nonpayment of ordered child support is prima facie evidence of civil contempt. Minn.Stat. 518.24. A showing of nonpayment of court-ordered support necessarily means that there was a legal obligation to pay support on certain dates and that the obligor failed to pay on certain dates. The offense of criminal nonsupport similarly requires proof of both a legal obligation and a failure to pay. Thus, we conclude that subdivision 2b could reasonably be interpreted as requiring that the contempt-order attempt embrace the same time period of nonpayment of child support as the criminal complaint.

Second, the felony nonsupport offense is based either on a violation continuing for over 180 days or on a violation amounting to nine times the monthly obligation. Minn.Stat. 609.375, subd. 2a. Here, the county alleged a continuing violation and set out the specific time period involved. An attempt to obtain a contempt order for a period outside of the alleged 180-day period could have no relevance to that period. Because both the civil-contempt order and the criminal conviction are time specific, we conclude that a reasonable interpretation of the statute could require the state to attempt to obtain contempt orders against Nelson for the same time period for which the charges are brought.

If a statute is ambiguous, it is permissible to look at legislative history to determine how the language should be read. Baumann v. Chaska Bldg. Ctr., Inc., 621 N.W.2d 795, 797 (Minn.App.2001). By requiring as a prerequisite to prosecution an attempt to obtain a contempt order, the legislature provided a civil incentive to spur an obligor to remain current on child-support obligations. This is consistent with the purpose of civil contempt which is to induce compliance with an order favoring the opposing party through imposition of a sanction of indefinite duration, to be lifted upon compliance. Minn. State Bar Ass’n v. Divorce Assistance Ass’n, 311 Minn. 276, 285, 248 N.W.2d 733, 741 (1976). The legislative history of subdivision 2b indicates that the legislature added the contempt-order attempt prerequisite out of concern that nonsupport cases were “moving too fast to criminal prosecution and not compliance” and that seeking compliance with child-support orders should take precedence. See Hearing on S.F. No.1944 Before the Senate Comm, on Crime Prevention (Mar. 30, 2001) (comments of Sen. Knutson).

Based on the language of Minn. Stat. § 609.375 as a whole, related statutes, and relevant history, we conclude that subsection 2b is reasonably susceptible to the interpretation that the state is required to attempt to obtain a contempt order for failure to pay support during the time period specified in the criminal complaint. Minn.Stat. §§ 645.16, .17 (2002). Because subdivision 2b is reasonably susceptible to this alternative meaning, we must resolve all reasonable doubt concerning the legislature’s intent in favor of Nelson. State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002) (holding that penal statutes are to be construed strictly so that all reasonable doubt concerning legislative intent is resolved in favor of the defendant). Thus, we hold that Minn.Stat. § 609.375, subd. 2b requires the state, as a prerequisite to prosecution, to attempt to obtain a contempt order for failure to pay child support during the time period specified in the complaint.

DECISION

Before charging a person with criminal nonsupport of a child, the state must attempt to obtain a court order holding the person in contempt for failing to pay support during the time period specified in the complaint. Because the district court erred in its application of this amendment to Minn.Stat. § 609.375, we affirm appellant’s convictions on the first four counts and reverse the conviction on the fifth count.

Affirmed in part, reversed in part.


text:
    STATE of Minnesota, Respondent, v. Archie B. BLOOFLAT, Appellant.
    No. C0-02-2095.
    Court of Appeals of Minnesota.
    Nov. 18, 2003.

      Mike Hatch, Attorney General, St. Paul, and Joseph Sylvan Mayers, Sauk Rapids, for respondent.
    Jeffrey Stephen Sheridan, Eagan, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; KLAPHAKE, Judge and HALBROOKS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

On appeal from his convictions of driving after cancellation and aggravated driving under the influence (DWI), appellant-defendant argues that imposing mandatory consecutive sentences for a crime and its lesser-included offense is unconstitutional because it creates sentences of more than one year without the right to a twelve-person jury trial. After reviewing the statutes at issue, we hold that driving after cancellation is not a lesser-included offense of aggravated DWI. But because we hold that the statute mandating consecutive sentences exceeding one year for gross misdemeanors violates Article I, section 6 of the Minnesota Constitution, we reverse and remand.

FACTS

The facts of the present case are not disputed. On April 15, 2000, appellant Archie B. Blooflat was arrested and subsequently charged with five alcohol-related gross misdemeanor driving offenses, including aggravated driving under the influence under Minn.Stat. §§ 169.129, 169.123 (Supp.1999)driving under the influence under Minn.Stat. § 169.121 (Supp.1999); and gross misdemeanor driving after cancellation under Minn.Stat. § 171.24, subd. 5 (Supp.1999). At the time of arrest, Blooflat’s driving record indicated that he had already been convicted of similar alcohol-related driving offenses on five previous occasions.

At trial, the district court informed Blooflat that, because of his prior alcohol-related offenses, he faced consecutive sentences if convicted of aggravated DWI and any other gross misdemeanor for which he was charged. The statute empowering the court to impose the sentences at that time read, in relevant part:

When a court is sentencing an offender for a violation of section ... 169.129 [aggravated DWI] and a violation of [section 171.24 (driving without a valid license) or section 169.121 (driving while intoxicated)], and the offender has five or more prior impaired driving conditions, five or more prior license revocations, or a combination of the two based on separate instances, within the person’s lifetime, the court shall sentence the offender to serve consecutive sentences for the offenses, notwithstanding the fact that the offenses arose out of the same course of conduct.

Minn.Stat. § 609.035, subd. 2(g) (Supp. 1999). ■.

Having been charged with violating Minn.Stat. §§ 169.129, 169.121, and 171.24, and having five previous impaired-driving convictions, Blooflat faced mandatory consecutive sentences and the possibility of two years incarceration. He therefore moved for a twelve-person jury. The district court denied the motion, noting that the maximum sentence for each count was one year, and that he was not therefore entitled to a twelve-person jury. A six-person jury, presented both with the arresting officer’s testimony and with Bloof-lat’s. driving record, subsequently found Blooflat guilty on all five counts.

The district court sentenced Blooflat to one year for aggravated DWI, and a consecutive sentence of one year for driving after cancellation. Blooflat now appeals.

ISSUES
I. Does Minn.Stat. § 609.035, subd. 2(g) (Supp.1999) have an unconstitutional effect by mandating consecutive sentences for two included offenses?
II. Is Minn.Stat. § 609.035, subd. 2(g) (Supp.1999) unconstitutional because it subjects non-felony defendants to felony-like sentences, while only providing six-person juries?
III. Were errors at trial sufficient to warrant reversal of Blooflat’s conviction?

ANALYSIS

The constitutionality of a statute presents a question of law that this court reviews de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998), review denied (Minn. Feb. 24, 1999). “In evaluating constitutional challenges, the interpretation of statutes is a question of law.” State v. Manning, 532 N.W.2d 244, 247 (Minn.App.1995), review denied (Minn. July 20, 1995). A statute will be presumed constitutional unless the party challenging the statute proves beyond a reasonable doubt that the statute is unconstitutional. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989).

I.

Blooflat challenges Minn.Stat. § 609.035, subd. 2(g) (Supp.1999), arguing that by mandating consecutive sentences for included offenses, the legislature has effectively re-created a sentencing scheme that the Minnesota Supreme Court declared unconstitutional in Baker v. State, 590 N.W.2d 636 (Minn.1999). While we disagree with Blooflat’s basic interpretation of Minnesota law, we do find Baker authoritative.

In Baker, the supreme court examined a legislatively-created class of crime known as “enhanced gross misdemeanors,” which permitted a court to impose two-year sentences without providing the twelve-member jury required for felonies. 590 N.W.2d at 637. The supreme court struck down the legislation, finding it deprived defendants facing more than one year incarceration — in other words, defendants facing a felony sentence — of their constitutional right to a twelve-person jury. Id. at 638.

Blooflat argues that section 609.035 has the same unconstitutional effect as an enhanced gross misdemeanor because it simply “piggy-backs” the sentences of sections 171.24 and 169.129, regardless of the fact that the crimes are “included offenses” and arose out of the same course of conduct. He argues, therefore, that the statute necessarily penalizes him with the same felony-like jail term the supreme court rejected in Baker. See Minn. Const, art I, § 6.

This court has not previously addressed whether Minn.Stat. § 171.24 is, in fact, a lesser-included offense of Minn.Stat. § 169.129. According to statute, in relevant part, an “included offense” may be either a “lesser degree of the same crime,” or a “crime necessarily proved if the crime charged were proved.” Minn.Stat. § 609.04, subd. (1), (4) (2002).

Blooflat contends that section 171.24, subdivision 5 is a “lesser degree” of section 169.129 because both offenses share the element of driving after an alcohol-related license cancellation. Although these offenses may often be proven with the same facts, Blooflat ignores the historical purpose and scope of the two laws. Historically, driving after cancellation, revocation, or suspension under section 171.24 was a misdemeanor offense, designed to punish those who drove without a valid drivers license. See Minn.Stat. § 171.24 (1941). Early incarnations of the section made no distinction between alcohol-related cancellation and non-alcohol-related revocation or suspension. Id. Aggravated DWI under section 169.129, however, has always been associated solely with alcohol-related driving offenses, and was created to enhance the penalty of driving under the influence. See 1978 Minn. Laws ch. 727, § 9. It is therefore improbable that the legislature intended the crime of driving after cancellation to be a “lesser degree” of aggravated driving under the influence.

Nor can one crime be “necessarily proved” if the other crime were proved. Although both offenses may be partially proven when the defendant is operating a motor vehicle while his license is cancelled, section 171.24 additionally requires that “the person has been given notice of or reasonably should know of the cancellation.” Minn.Stat. § 171.24, subd. 5(2) (Supp.1999). Section 169.129, on the other hand, is silent as to notice, but requires that the defendant be under the influence of alcohol while he or she is operating the motor vehicle. Minn.Stat. § 169.129, subd. 1 (Supp.1999). As such, each crime has separate elements that must be proven in order to be convicted, and either can be proven without necessarily proving the other.

Because section 171.24, subdivision 5 is not a “lesser degree” of section 169.129, and is not necessarily proven when section 169.129 is proven, the two offenses are not “included” as defined by statute. We cannot, therefore, agree with Blooflat’s assertion that “piggy-backing” consecutive sentences for these offenses, in and of itself, is unconstitutional.

II.

We now turn to the broader question of whether section 609.035 deprives defendants of their constitutional rights by mandating consecutive sentences exceeding one year for a single behavioral incident, without providing the twelve-person jury required for felonies. In considering this question, we are both guided and limited by the same history that led to the supreme court’s holding in Baker.

For more than a century, all Minnesota juries consisted of twelve people, even though the constitution was silent on the matter. Baker, 590 N.W.2d at 638. In 1988, however, Minnesota voters adopted a constitutional amendment requiring twelve-person juries “[i]n all prosecutions defined by law as felonies,” but only six-person juries in all other criminal prosecutions. Minn. Const, art. I, § 6. The effect of this amendment was notable, because guaranteeing twelve-person juries only in felony cases suddenly gave the definition of felony constitutional significance. Baker, 590 N.W.2d at 638.

The Baker court, after recounting and analyzing the development of felonies in Minnesota, determined that felonies had traditionally been defined as any crime subjecting the accused to more than one year imprisonment. Id. at 639. And with the constitutional implications created by the 1988 amendment, the court held that the legislature could not manipulate this historical definition “in a manner which impinges on an accused’s constitutional rights, including the right to a twelve-person jury.” Id. at 638. The court therefore concluded that the “enhanced gross misdemeanor” legislation, which reclassified and redefined criminal conduct in a manner allowing two-year sentences for offenses not defined as felonies, could not pass constitutional muster. Id.

Although we recognize that section 609.035 is unlike the statutes in Baker in that it does not reclassify or redefine any of the crimes delineated within it, we find the constitutional ramifications just as serious. By mandating consecutive sentences, the legislature effectively created two-year sentences for a single behavioral incident while continuing to label the crimes gross misdemeanors, so as to deny defendants their constitutional right to a twelve-person jury. This, as Baker notes, is expressly forbidden. Id. at 638.

Further, without a felony classification, we are unable to “graft” a twelve-person jury requirement onto the statute. As the supreme court observed, “voters did not constitutionally guarantee a defendant accused of a crime other than a felony the right to a twelve-person jury.” Id. at 640. Were we to uphold the statute by reading such a requirement into it, we would essentially be holding that violating the statute constitutes a felony, “as only individuals accused of felonies have a right to a twelve-person jury.” Id. We cannot ignore the legislature’s clear language, which labeled the crimes listed in Minn.Stat. § 609.035, subd. 2(g) as gross misdemeanors, simply to uphold the statutes. Id. Thus, while we are mindful of our power to declare a statute unconstitutional “only when absolutely necessary,” In re Haggerty, 448 N.W.2d 363, at 364 (Minn.1989), we hold that the legislature overstepped its constitutional authority in enacting Minn. Stat. § 609.035, subd. 2(g). We must therefore reverse Blooflat’s sentence, and remand to the district court for re-sentencing.

III.

Although we reverse Blooflat’s sentence, there is no basis to reverse his convictions. Blooflat asserts that the state failed to produce sufficient evidence to prove beyond a reasonable doubt (a) that his license status was cancelled as inimical to public safety, as required for conviction under Minn.Stat. § 169.129; and (b) that he had a “prior impaired driving conviction” within five years preceding the incident in the present case, as required for his conviction under Minn.Stat. § 169.121. To the contrary, Blooflat’s driving record, in evidence at trial, clearly indicates both his driver’s license status and a 1998 conviction for aggravated DWI. Additionally, Blooflat’s arresting officer testified that Blooflat’s license at the time of his arrest was canceled as mimical to public safety, a term that was later explained to the jury. Viewed in the light most favorable to conviction, a jury could reasonably accept this evidence as truthful, and disbelieve any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). As such, we find no reason to disturb the convictions.

Blooflat also raises several arguments concerning the propriety of the district court’s jury instructions. Since he failed to object to the jury instructions at trial, we decline to address his arguments here. State v. Cross, 577 N.W.2d 721, 724 (Minn.1998).

DECISION

Minn.Stat. § 171.24, subd. 5 (Supp. 1999) is not a lesser-included offense of Minn.Stat. § 169.129 (Supp.1999); a defendant may be convicted of both offenses, even if the offenses arose out of the same course of conduct. Nonetheless, we conclude Minn.Stat. § 609.035, subd. 2(g) (Supp.1999) is unconstitutional because, by mandating consecutive sentences, it deprives defendants facing more than one year incarceration of their constitutional right to a twelve-person jury.

Reversed and remanded.

      . All references to statutes refer to the laws in effect at the time of Blooflat's arrest. Chapter 169 was significantly modified in 2000, reco-difying all alcohol-related driving offenses to the newly-created Chapter 169A.2000 Minn. Laws ch. 478.

      . Section 171.24 remained virtually unchanged until a 1993 legislative amendment, which enhanced the crime of driving after cancellation as inimical to public safety to gross misdemeanor status. 1993 Minn. Laws ch. 347, § 16.


author: KLAPHAKE, Judge.

text:
    In the Matter of the Welfare of C.M.A.
    No. A03-773.
    Court of Appeals of Minnesota.
    Nov. 18, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Alan L. Mitchell, St. Louis County Attorney, Angela K. Shambour, Assistant St. Louis County Attorney, Duluth, MN, for appellant county.
    Mark D. Nyvold, St. Paul, MN, for respondent C.M.A.
    Considered and decided by MINGE, Presiding Judge, KLAPHAKE, Judge, and PETERSON, Judge.
   OPINION

KLAPHAKE, Judge.

The State of Minnesota appeals from an order denying its motion to reconsider a prior order dismissing a delinquency petition charging 15-year-old respondent C.M.A with second-degree burglary under Minn.Stat. § 609.582, subd. 2(a) (2002). The district court determined that the delinquency petition lacked probable cause because respondent’s confession was not sufficiently corroborated by independent evidence that the charged offense had been committed, as required by Minn.Stat. § 634.03 (2002).

Because the district court erred in its application of Minn.Stat. § 634.03 and in dismissing the petition for lack of probable cause, we reverse and remand with instructions to reinstate the petition against respondent.

FACTS

On February 11, 2003, at about 3:00 p.m., Roger Rose returned home to find the front door and the sliding glass door to the deck open. When he went inside, he discovered that someone had rummaged through all of the bedrooms. He called his wife, Bonnie Rose, and they contacted the St. Louis County Sheriffs department after ascertaining that approximately $1,500 in cash was missing from the home.

When Deputy Pat Olson arrived, he notice footprints in the snow leading to the deck. The tracks led Olson to believe that the burglar had stood on top of some pipes to look into a bedroom window. The Roses reported that they had a spare key hidden under a deck joist, which apparently had been used to enter the home without force and which was found inside on top of the bed in the master bedroom.

The Roses provided Olson with a list of things missing from the bedrooms, including approximately $1,500 in paper bills and several containers of change and old coins. The family suspected several of one daughter’s former friends and gave the names of those suspects to Olson. They mentioned respondent and indicated that she knew the location of the spare key.

Chief Shawn Padden of the Duluth Township Police Department conducted a follow-up investigation and prepared a supplemental report that formed the basis for the delinquency petition. His report indicated that respondent had stayed with the Rose family for a period of time and that she knew the location of the spare key. When Padden checked school records, he discovered that respondent had skipped school on the day of the burglary and that she had been arrested at about 3:00 p.m. that day for shoplifting at a mall. Padden’s report also stated: “It is believed the arresting [Duluth Police Department] officer, Kelly Greenwalt, located approximately $300.00 cash on [respondent’s] person.” Padden’s report further noted that other officers had reported that respondent had been associating with a male who owned a white Chevrolet Lumina.

On February 20, Padden visited respondent at her home. Padden “outlined the burglary,” and told respondent that she was a suspect. Respondent initially denied any involvement, but eventually admitted that she committed the burglary. Respondent provided the following written confession:

Tuesday February ll[a]t about 1 p.m. I drove my friend[’]s white Chevy Lumina out to the house. I pulled up in the driveway and parked then went up to the door and knocked. Nobody was there. I remembered where the key was so I went in the house. I went in the parents room and looked through everything and found money. Then I went downstairs in the basement and found two buckets of change. I went in [one of the daughter’s rooms] and found a couple of dollars. I then left and went to the bank with the buckets of change. Then I went up to the Mall and bought a pair of pants, a zip up jacket and a t-shirt. Then got caught stealing and they brought me home. Then when I went home and went downtown. I was just spending money. I spent money at Subway and Sharks. I spent money at Coney Island. I took cabs everywhere. I got a motel room at Motel 6.

Respondent turned several items of clothing over to Padden, which she claimed to have purchased with the stolen money. That evening, respondent’s father, who had not been at home when Padden visited, called Padden and reported to him that respondent wanted to move to Arizona to avoid the consequences of her involvement in the burglary.

A delinquency petition was filed and respondent was arrested. At the omnibus hearing, respondent challenged the corroboration of her confession and moved to dismiss for lack of probable cause. The district court excluded the confession from the probable cause determination because “[n]one of the facts or evidence in the police reports is sufficient to corroborate [r]espondent’s confession under the requirements of Minn.Stat. § 634.03.” Without the confession, the court found no probable cause and dismissed the charges against respondent.

The state filed a motion for reconsideration, which the district court denied. This appeal followed.

ISSUES

1. Is this appeal taken from a nonap-pealable order?

2. Did the district court err in applying Minn.Stat. § 634.03 (2002) to this probable cause determination and in concluding that respondent’s confession could not be considered because it was not corroborated?

ANALYSIS

I.

Respondent initially challenges the state’s appeal as taken from a nonap-pealable pretrial order. The state is generally prohibited from appealing a pretrial order dismissing a juvenile petition for lack of probable cause. Minn. R. Juv. P. 21.04, subd. 1 (“Orders dismissing a petition for lack of probable cause ... are not appealable.”). But case law provides an exception to this rule and allows the state to appeal when the lack of probable cause determination presents a legal question. In re Welfare of C.P.W., 601 N.W.2d 204, 207 (Minn.App.1999) (holding that state may appeal from district court’s dismissal of juvenile petition for lack of probable cause if based on legal question), review denied (Minn. Nov. 23,1999).

The rationale for this exception is that when the court’s order involves an issue of law, a dismissal for lack of probable cause effectively prevents further prosecution and makes any attempt by the state to reissue the complaint fruitless; the order is thus final and appealable. See State v. Diedrich, 410 N.W.2d 20, 22 (MinmApp. 1987); State v. Aarsvold, 376 N.W.2d 518, 520 (Minn.App.1985), review denied (Minn. Dec. 30, 1985). When the dismissal is based on factual determinations or when the prosecution has additional evidence that it could present, the order is not appealable because the prosecution could later reinstate its case and does not need the right of appeal. Id.

Here, the district court’s dismissal of the petition for lack of probable cause is premised on its determination that respondent’s confession could not be considered under Minn.Stat. § 634.03 (2002). Because our review of the district court’s decision involves a legal question based upon the legal interpretation of this statute, we conclude that the district court’s order is ap-pealable.

II.

A probable cause determination is designed to determine if it is fair and reasonable to require the defendant to stand trial. State v. Florence, 306 Minn. 442, 457, 239 N.W.2d 892, 902 (1976). The court must determine whether there is probable cause to believe that an offense has been committed and that the defendant committed that offense. State v. Hookom, 474 N.W.2d 624, 630 (Minn.App.

“The facts establishing probable cause may be set forth in writing in the charging document or police reports may be attached to the charging document.” Minn. R. Juv. P. 6.05, subd. 1. Even though a police report or even a confession might not be admissible at trial, these documents, if reliable, may be considered to establish probable cause. See In re Welfare of E.Y.W., 496 N.W.2d 847, 850 (Minn.App.1993) (when determining whether probable cause has been shown, entire record must be examined, including evidence which would not be admissible at trial, such as police reports and hearsay), review denied (Minn. Apr. 20,1993).

Minn.Stat. § 634.03 is entitled “Confession, Inadmissible When,” and provides:

A confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed; nor can it be given in evidence against the defendant whether made in the course of judicial proceedings or to a private person, when made under the influence of fear produced by threats.

(Emphasis added.) Minnesota cases have stated that the statute serves to discourage coercively acquired confessions and make admissions reliable. In re Welfare of M.D.S., 345 N.W.2d 723, 735 (Minn. 1984); State v. Brant, 436 N.W.2d 468, 470-71 (Minn.App.1989). But the statute also serves the more “modest objective [of] protecting against the risk of conviction for a crime that never occurred.” 1 Charles T. McCormick, McCormick on Evidence § 145, at 523 (John W. Strong, et al. eds., 5th ed.1999).

The statute is generally cited when challenging the sufficiency of evidence to support a conviction on appeal. See State v. Koskela, 536 N.W.2d 625, 629 (Minn.1995) (rejecting defendant’s claim, on appeal from conviction, that his statements to others were insufficient to sustain his conviction for burglary); M.D.S., 345 N.W.2d at 735 (rejecting defendant’s argument on appeal from conviction that state produced insufficient independent evidence of crime so as to corroborate her own inculpatory statement). It may also be used, in an appropriate case, by a trial judge when deciding whether there is sufficient evidence for a case to go to the jury. McCormick on Evidence § 145, at 521.

Minn.Stat. § 634.03 represents a codification of the requirement that the corpus delecti, or the “body of the crime,” be established by evidence independent of a confession. State v. Lalli, 338 N.W.2d 419, 420 (Minn.1983). Thus, the statute requires that the corroborating evidence show the harm or injury and that it was occasioned by criminal activity; it need not show that the defendant was the guilty party because the confession itself provides that link. See McCormick on Evidence § 146, at 525-26. The requirement has also been read to require the state to produce “enough evidence to identify [a] defendant and to bolster and substantiate [his or her] own admissions.” M.D.S., 345 N.W.2d at 735.

Here, the corpus delecti was un-disputedly established by evidence independent of respondent’s confession. That evidence consisted of the Roses’ report to police on the day of the burglary and the report of the officer who responded to the scene and who confirmed the Roses’ statements. This evidence, which was independent of respondent’s confession, established that the Roses’ home was burglarized on February 11, 2003, prior to 3:00 p.m., that entry was gained by discovery of a hidden spare key, that respondent knew the location of the key, and that approximately $1,500 in bills and change was taken from the bedrooms located throughout the house. The district court thus erred in reading Minn.Stat. § 634.03 to require independent evidence to corroborate the confession and in refusing to consider the confession at the probable cause stage of these proceedings.

We further note that, even without respondent’s confession, sufficient evidence appears to have existed to link respondent to the crime so as to establish probable cause. “Probable cause exists if evidence worthy of consideration ... brings the charge ... within a reasonable probability.” State v. Flicek, 657 N.W.2d 592, 596 (Minn.App.2003) (quotation omitted). Besides the Roses’ report to police and the responding officer’s report, the state presented evidence in the form of Padden’s follow-up investigation and report, which established that respondent was not in school at the time of the burglary and that she had been arrested at the mall for shoplifting that afternoon, reportedly with approximately $300 in cash on her. Thus, even without respondent’s confession, the evidence links respondent to the crime so as to establish probable cause. See Lalli, 338 N.W.2d at 420 (rejecting defendant’s claim that, without his confession, there was insufficient evidence to establish that evidence was sufficient for grand jury to indict him).

DECISION

The district court erred in its application of MinmStat. § 643.03 to require independent corroboration of respondent’s confession; the statute requires corroboration of the corpus delecti independent of the confession. The district court also erred in concluding that, without respondent’s confession, probable cause did not exist to charge respondent with burglary. We therefore reverse the district court’s dismissal of the delinquency petition and remand for reinstatement of the petition.

Reversed and remanded.


author: HUDSON, Judge.

text:
    In re the Marriage of Gail P. BENDER, f/k/a Gail Papermaster, Petitioner, Respondent, v. Alan Paul Bender, Appellant.
    No. C1-03-172.
    Court of Appeals of Minnesota.
    Nov. 25, 2003.

      Jane Binder, Christine Howard, Binder Law Offices, P.A., Minneapolis, MN, for respondent.
    Michael L. Perlman, Perlman Law Office, Minnetonka, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; RANDALL, Judge; and HALBROOKS, Judge.
   OPINION

HUDSON, Judge.

This is an appeal from a dissolution judgment. Appellant Alan Bender claims that the district court erred by (1) adjusting the valuation dates for three investment accounts awarded to respondent Gail Bender, while refusing to adjust the valuation dates for any of the retirement accounts awarded to him; (2) failing to find that respondent used marital assets to pay her attorney fees and to adjust the property division accordingly; and (3) not calculating child support in accordance with the Hortis/Valento formula. We affirm the district court’s decisions regarding the valuation date of the investment accounts and decline to address the question of attorney fees. We reverse on the issue of child support and remand for the district court to readdress that question.

FACTS

The parties married in 1970 and divorced in 2002. The parties have three adult children and one 13-year-old child, H.B. Respondent is self-employed as an oncologist, and the district court found respondent’s annual income to be $147,500. Appellant is an epidemiologist with the State of Minnesota and his gross annual salary is $98,134. The parties have various assets including retirement accounts, investment accounts, and a homestead. Appellant argues that the parties stipulated to valuing all of the accounts to be awarded to respondent as of December 31, 2000. But the district court found that because of the subsequent downturn in the market, it was unfair not to “update” the values of the certain investment accounts. The property distribution ultimately awarded each party $1,169,449, including a requirement that respondent pay appellant $260,943 to effectuate the distribution. The district court did not award either party attorney fees.

Regarding custody, the parties entered a parenting plan pursuant to Minn.Stat. § 518.1705 (2000). The plan did not label their custody arrangement. The district court identified the custodial arrangement as joint legal and physical custody. The district court reserved child support and ordered that each party pay for H.B.’s expenses when H.B. was in his or her care. Additionally, the district court ordered respondent to pay for H.B.’s clothing expenses and appellant to pay for extracurricular and sports-related expenses. The district court found that because the parties spend roughly equal time with H.B. and because there was no designated child-support “obligor,” neither party needed to pay child support. Further, the district court concluded that calculating child support using the Hortis/Valento formula would have produced only a nominal amount of child support. Finally, the district court found that this child-support arrangement was appropriate because “it is important for [H.B.] to understand that both of his parents are contributing directly toward his care and support.”

While appellant filed a notice of appeal, he did not order a transcript, stating that the transcript would cost about $10,000. Respondent unsuccessfully moved the district court for an order compelling appellant to order a transcript. Respondent then filed a motion with this court to dismiss the appeal because of the lack of a transcript. This court issued an order declining to dismiss the appeal at that time, but deferring a final ruling on the motion to dismiss to the panel considering the merits of the appeal.

ISSUES

I. Can this court decide this case without a trial transcript?

II. Do the district court’s findings support its adjustment of the values of the accounts awarded to respondent?

III. Should this court address appellant’s allegation that the district court failed to find that respondent used marital assets to pay her attorney fees?

IV. Do the district court’s findings support its child-support determination?

ANALYSIS

I

We first address whether to dismiss some or all of the appeal because the lack of a transcript precludes us from reviewing some or all of the issues that appellant raises.

On appeal, the duty to provide a transcript is on the party seeking review of the rulings being challenged. See Mesen-bourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App.1995) (citing Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968)). While the lack of a transcript does not automatically require dismissal of an entire appeal, lack of a transcript does limit the scope of appellate review to whether the district court’s conclusions of law are supported by its findings of fact. See Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970) (addressing limited scope of review); Mesenbourg, 538 N.W.2d at 494 (reviewing issues within limited scope of review despite lack of transcript). Because we can review aspects of the issues raised by appellant even without a transcript, the appeal need not be dismissed, and we deny respondent’s motion.

II

Appellant argues that the parties agreed to value all of the assets as of December 31, 2000, and that it was unfair for the district court to use a more current valuation date — March 31, 2001 — with respect to certain accounts awarded to respondent, without similarly adjusting the valuation date for accounts awarded to appellant. On this limited record and in light of our limited scope of review, we affirm the district court’s lack of a symmetrical adjustment in the valuations of the accounts awarded to the parties for four reasons. First, Minn.Stat. § 518.58, subd. 1 (2002), provides the district court with the discretion to adjust both valuations and valuation dates for individual assets:

The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable. If there is a substantial change in value of an asset between the date of valuation and the final distribution, the court may adjust the valuation of that asset as necessary to effect an equitable distribution.

(Emphasis added.) Here the district court found that, due to market forces, the value of the accounts awarded to respondent decreased by $31,331 between December 31, 2000, and March 31, 2001. Thus, the district court functionally found both that a substantial change in the value of the accounts awarded to respondent occurred between the stipulated December 31, 2000 valuation date and the distribution date and that another valuation date (March 31, 2001) was fair and equitable. Thus, the district court’s findings support the exercise of its statutory power to adjust the valuation date for, and the values of, the accounts awarded to respondent.

Second, at oral argument before this court, appellant’s counsel candidly acknowledged that the district court had the discretion to adjust the valuation of the accounts as necessary to effect an equitable distribution. We note and appreciate the candor displayed by counsel on this point.

Third, to the extent appellant argues that the district court erred when it failed to make a similar adjustment to the accounts awarded to appellant, he fails to recognize that there were no findings that the accounts awarded to appellant suffered a similar decrease in value that would support an alteration of their valuations or their valuation date. Absent such findings, any adjustment to the valuation of, or valuation date for, those accounts would have been unsupported by the findings.

Finally, we note that, after reviewing evidentiary submissions from both parties, the district court used different valuation dates for different assets and that the district court’s findings support both its individual determinations regarding the assets valued, as well as its overall determination that the property distribution was, in the aggregate, equitable. See Minn.Stat. § 518.58, subd. 1 (requiring property distribution to be equitable). Because, on this record, the district court’s findings support its treatment of the valuation issues, we reject appellant’s challenges to the valuation of the accounts awarded to the parties.

III

Next, appellant contends that the district court inadvertently awarded respondent attorney fees by failing to find that respondent paid her attorney fees with marital assets and adjusting the property division accordingly.

Appellant is raising this issue for the first time on appeal. This court will generally not consider matters not argued and considered by the district court. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating appellate courts do not address issues or theories not raised in the district court). Because appellant did not raise the attorney fees issue to the district court, we do not address it here on appeal.

IV

Finally we address appellant’s contention that the district court erred when it did not calculate child support in accordance with the Hortis/Valento child-support formula.

“Parents creating a parenting plan are subject to the requirements of the child support guidelines under section 518.551.” Minn.Stat. 518.1705, subd. 8(a) (2002). The guidelines of Minn.Stat. 518.551 create a presumption that a child-support “obligor” will pay child support at the guidelines amount, unless the district court makes the findings sustaining the setting of support at an amount that deviates from the guidelines amount. Minn. Stat. 518.551, subd. 5(i) (2002). For purposes of Minn.Stat. 518.551, “obligor” is defined as “a person obligated to pay ... support” and includes the caveat that “[a] person who is designated as the sole physical custodian of a child is presumed not to be an obligor for purposes of calculating current support under section 518.551 unless the court makes specific written findings to overcome this presumption.” Minn.Stat. 518.54, subds. 1, 8 (2002). Thus, while the guidelines create a presumption regarding the correct amount of child support to be paid by the support obligor, the negative implication of the caveat in the definition of “obligor,” as well as an extensive body of case law, functionally recognizes additional presumptions that it is the noncustodial parent who is the child-support obligor and that the obligor pays support (directly or indirectly) to the custodial parent. See generally, 1 Minnesota Family Law Practice Manual 7.01, at 7-5 (Cathy E. Gorlin ed., LexisNexis 3d ed.2001) (stating, generally, noncustodial parent pays support to custodial parent); cf. Minn.Stat. 518.551, subd. 5(a) (stating district court “may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the child’s support”).

“Parents voluntarily agreeing to parenting plans may substitute other terms for physical and legal custody, including designations of joint or sole custody, provided that the terms used in the substitution are defined in the parenting plan.” Minn.Stat. 518.1705, subd. 2(c) (2002) (emphasis added). “ ‘May’ is permissive.” Minn.Stat. 645.44, subd. 15 (2002). Thus, parenting plans need not include the traditional designations of “custodial parent” and “noncustodial parent,” which trigger the presumptions regulating application of the child-support guidelines. Implicitly recognizing this possibility, the parenting-plan statute states that “[pjarents may include in the parenting plan an allocation of expenses for the child” and that such an allocation of the child’s expenses “is an enforceable contract between the parents.” Minn.Stat. 518.1705, subd. 8(b) (2002) (emphasis added). Because child-support provisions and traditional custodial designation(s) are both optional in parenting plans, it is possible for a parenting plan to omit either or both of those provisions. If either or both provisions are omitted from a parenting plan, the district court must address the question in the traditional manner. See Minn.Stat. 518.1705, subd. 4 (2002) (stating final judgment including alternate terms to designate child-related decision-making responsibilities “must” identify the custodial arrangement using traditional designations); Minn.Stat. 518.17, subd. 3(a)(3) (2002) (requiring dissolution judgment to address support); Minn.Stat. 518.57, subd. 1 (2002) (same). This requirement is consistent with the parallel requirement in non-parenting-plan cases that custody awards be labeled with a traditional custodial custody designation. See Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn.App.2002) (noting, in a case that did not involve a parenting plan, that “when a district court awards physical custody, whether based on a stipulation of the parties or not, it must also identify whether the physical-custody award is for sole or joint physical custody”).

When a district court imposes traditional custodial designations on a parenting plan that does not include traditional designations, the court-imposed traditional designation “is solely for enforcement of the final judgment and decree where this designation is required for that enforcement and has no effect under the laws of this state, any other state, or another country that do not require this designation.” Minn.Stat. 518.1705, subd. 4. As noted above, the presumptions regulating the identification of a child-support obligor as well as the setting of the amount of child support are based on the traditional custodial designations. Therefore, if a parenting plan omits both use of the traditional custodial designations and a stipulated child-support arrangement, the creation and enforcement of a child-support obligation requires the invocation of the court-imposed traditional custodial designations. Alternatively stated: If a parenting plan omits both use of traditional custodial designations and a child-support stipulation, the statutorily required, court-imposed traditional custodial designations are binding for child-support purposes.

Here, the parenting plan proposed by the parties omitted use of the traditional custodial designations and lacked a child-support stipulation, and the district court, consistent with its duty under Minn. Stat. 518.1705, subd. 4, designated the parties “joint legal and physical custodians.” Thus, because “[pjarents creating a parenting plan are subject to the requirements of the child support guidelines” and because “[ajpplication of the Hortis/Valen-to formula to cases of joint physical custody is an application of the guidelines[,j” the presumptively correct child-support calculation here was that set out by the Hortis/Valento formula. Minn.Stat. 518.1705, subd. 8(a); Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn.App.2001). Under that formula, separate support obligations are set for each parent, but only for the periods of time that the other parent has physical custody of the children, and a single net payment is determined by offsetting the two obligations against each other. Schlichting, 632 N.W.2d at 792. Thus, “the presumptively correct, guideline child-support amount for parents with joint physical custody is the amount calculated under Minn.Stat. 518.551, subd. 5(b), for each parent, less the amount offset by the Hortis/Valento formula. Any deviation from that amount requires the statutory findings [necessary to support a deviation under Minn.Stat. 518.551, subd. 5(c), (i).]” Id. at 793.

Here, not only was the Hortis/Valento formula not used to actually set support, but also there was no calculation of the parties’ obligations under that formula. The court’s findings for deviating from the presumptively correct support application of the Hortis/Valento formula consisted of a single sentence stating that its deviation would allow the minor child to know each parent was contributing to his support. This finding alone is insufficient to support deviating from guidelines child support. Among other things, absent a calculation of the parties’ obligations under the Hor-tis/Valento formula, the support obligation from which the district court is deviating is not known. Therefore, the district court’s findings do not support its child-support determination, and we reverse the district court’s reservation of child support and remand for the district court to calculate the parties’ child-support obligations in accordance with the Hortis/Valento formula. Should the district court determine that a deviation is still appropriate, it shall make sufficient written findings outlining the reasons for the deviation and addressing the criteria in Minn.Stat. 518.551, subd. 5(c), (i).

DECISION

Because the lack of a transcript does not preclude review of the issues addressed here, we deny respondent’s motion to dismiss the appeal. Also, because the district court’s findings support its decision to use a more current valuation date for the investment accounts awarded to respondent to ensure an equitable division of property, we affirm the district court’s decision on this issue. We further hold that when parties stipulate to a physical-custody arrangement pursuant to Minn.Stat. 518.1705 (2002), but fail to make a traditional custody designation of joint or sole physical custody, the district court’s designation of the custody arrangement as sole or joint physical custody is binding for child-support purposes and that when that designation is One of “joint physical custody,” the district court must set support under the HortisfValento formula or make findings explaining why it is not doing so. Because the district court found the parties’ custody arrangement to be one of joint physical custody but failed to make findings supporting its refusal to set support at the guidelines amount, the district court’s findings do not support its support determination and we reverse the district court’s decision to reserve child support and remand for the district court to readdress the support question with or without a reopening of the record, in the district court’s discretion.

Affirmed in part, reversed in part, and remanded; motion denied.


text:
    EISCHEN CABINET COMPANY, Appellant, v. John O. HILDEBRANDT, et al., Respondents, Hampton Bank, n/k/a Merchants Bank, N.A., Defendant, Ameriquest Mortgage Company, Respondent.
    No. A03-358.
    Court of Appeals of Minnesota.
    Nov. 25, 2003.

      George L. May, Terence G. O’Brien, Jr., May & O’Brien Law Offices, Hastings, for appellant.
    Michael J. O’Loughlin, Michael J. O’Loughlin & Associates, P.A., Minneapolis, for respondents Hildebrandt, et al.
    Scott E. Stevens, Dorsey & Whitney, L.L.P., Minneapolis, for respondent Amer-iquest Mortgage Company.
    Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE, Judge, and HALBROOKS, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Eischen Cabinet Company challenges the district court’s grant of partial summary judgment in favor of respondents John and Marlene Hildebrandt, asserting that the district court erred in its interpretation of the mechanics’ lien statute, Minn.Stat. § 514.08 (2002), and that genuine issues of material fact remain, precluding summary judgment. Because the district court did not err in construing the mechanics’ lien statute to require strict adherence to the requirements for creating a lien and because there are no genuine issues of material fact, we affirm.

FACTS

Appellant built custom-made cabinets for respondents’ home, pursuant to a contract entered into on May 4, 2000. Although work was completed in January 2002, respondents failed to pay the balance due of approximately $3,100 out of a total contract value of $30,631.72.

On Friday, May 24, 2002, appellant mailed a mechanics’ lien statement to the Dakota County Recorder for filing. The statement was filed and recorded on May 28, and the district court concluded as a matter of law that the statement was timely. Also on Friday, May 24, 2002, appellant mailed a mechanics’ lien statement by certified mail to respondents at their home address, the site where the work was done. Respondents, however, do not receive mail at their home, but use a post office box located at the Hastings post office. Further, May 27, 2002, was Memorial Day and the post office was closed. The certified letter was received by the Hastings post office on May 28, 2002; respondents picked up their mail on May 30. The mechanics’ lien statement recites January 25, 2002, as the last day work was done. Appellant’s complaint alleges that work was provided through January 29, 2002.

Respondents moved for partial summary judgment, asking that the first count of appellant’s complaint, the mechanics’ lien foreclosure, be dismissed and the lis pen-dens discharged. On March 13, 2003, the district court granted partial summary judgment to respondents, finding that service on them had not occurred until May 30, 2002. The district court concluded that because service did not occur within 120 days after the last work performed at respondents’ home, the mechanics’ lien was untimely and both it and the lis pendens were discharged.

ISSUES

1. Did the district court err in concluding that the mechanics’ lien statement was not served in a timely manner?

2. Are there genuine issues of material fact that preclude summary judgment?

ANALYSIS

1. Mechanics ’ Lien Notice

Construction of a statute, such as the mechanics’ lien statute, is a question of law reviewed de novo on appeal. Ryan Contracting, Inc. v. JAG Invs., Inc., 634 N.W.2d 176, 181 (Minn.2001). Mechanics’ liens are statutory creations, depending for their existence on rights and procedures granted by the legislature, and are strictly construed so as not to give the statutory language “an application and meaning not intended by the legislature.” Pella Prods., Inc. v. Arvig Tel. Co., 488 N.W.2d 316, 318 (Minn.App.1992), review denied (Minn. Sept. 30,1992).

Minn.Stat. § 514.08, subd. 1 (2000), provides that a mechanics’ lien

ceases at the end of 120 days after the last of the work, or furnishing the last item of skill, material, or machinery, unless within this period:
(1) a statement of the claim is filed for record with the county recorder or ... the registrar of titles ...; and
(2) a copy of the statement is served personally or by certified mail on the owner....

Timeliness is essential to the establishment of the lien. Northwest Wholesale Lumber, Inc. v. Citadel Co., 415 N.W.2d 399, 402 (Minn.App.1987), review denied (Minn. Feb. 12, 1988). In Northwest, this court stated that “time limitations under MinmStat. § 514.08, subd. 1, are strictly construed, based on a policy of protecting owners and purchasers from unfair surprise by fixing a definite time when the liens should terminate.” Id. Under MinmStat. § 514.08, subd. 1, a mechanics’ lien ceases unless notice is served within 120 days after the last furnishing of labor or materials. “Personal or certified mail service of a lien statement occurs upon delivery or willful refusal to accept delivery.” Rouse Meek, Inc. v. Dahl, 489 N.W.2d 272, 273 (Minn.App.1992). Appellant had the option of personally serving respondents within the 120-day period, but chose instead to attempt delivery by certified mail.

Appellant urges us to hold that service of a mechanics’ lien statement is complete upon mailing by certified letter by reading MinmStat. § 514.08 in pari materia with Minn.Stat. § 514.06 (2002), which states that “[mjailed service is effective when mailed.” But the purpose and the timing of these two statutes are dissimilar. Minn. Stat. § 514.06 permits subsequent holders of land to refuse responsibility for work not authorized by them by either posting the land or by personal service or mailed notice within five days after knowledge that improvements had been authorized. Further, both statutes were amended in 1997. 1997 Minn. Laws ch. 9, § 4 (amending Minn.Stat. § 514.06); 1997 Minn. Laws ch. 137, § 18 (amending .MinmStat. § 514.08). We find it significant that the legislature could have chosen to amend the language of these two statutes to indicate intent to read them together, but did not do so.

We conclude that the district court did not err by finding that because service was not made within the statutory period, the mechanics’ lien ceased to exist.

2. Summary Judgment

Appellant contends that the district court erred in granting summary judgment because a genuine issue of material fact remains concerning when the last day of work occurred. Summary judgment is not appropriate where there is a genuine issue of material fact. Minn. R. Civ. P. 52.01.

Here, the lien statement prepared by appellant and served on respondents states that January 25, 2002, was the last day work was performed. At oral argument on the summary judgment motion, appellant stated that “[b]ut for the sake of the argument to the court here we have adopted this statement that we made under oath in the mechanics’ lien statement which says January 25.” The complaint, however, alleges that the correct day was January 29, 2002, and appellant states in answers to interrogatories that some adjustments were made on January 29. In its findings, the district court found that “[f]or purposes of this motion, [appellant] agrees that the last date it provided labor or material was January 25, 2002, the date alleged in the mechanic’s lien statement.”

Minn.Stat. § 514.08, subd. 2 (2002) requires the lien claimant to include in the lien statement the dates when the first and last items were provided by the lien claimant. These dates are critical at various stages of the mechanics’ lien process. For example, a subcontractor must provide the pre-lien notice within 45 days after first providing work or materials. Minn.Stat. § 514.011, subd. 2 (2002). The lien statement must be filed within 120 days and an enforcement action must be commenced within one year after the last item is provided. Minn.Stat. §§ 514.08, subd. 1, .12, subd. 3 (2002). Referring to the one-year limitation on commencing an enforcement action, the supreme court stated: “The one-year limitation of the lien statutes is no ordinary statute of limitations; it puts a limit to the life and duration of the lien.” Ryan Contracting, 634 N.W.2d at 183.

The mechanics’ lien statute is based on technical compliance with clearly delineated rules, including issues of timing. The district court’s conclusion that the last item of work was performed on January 25, 2002, is based on the lien statement drafted by appellant and appellant’s stipulation at oral argument on the summary judgment motion. No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted). We therefore conclude that'the district court did not err by granting summary judgment.

DECISION

The requirements for perfecting a lien under the mechanics’ lien statute are strictly construed. Where appellant, based on its own admission on the hen statement and before the district court, failed to serve respondents by certified mail within the 120-day time period, the district court did not err in granting partial summary judgment.

Affirmed.