author: GILBERTSON, Justice SABERS, Justice

text:
    2001 SD 50
    STATE of South Dakota, Plaintiff and Appellee, v. Richard RYYTH, Defendant and Appellant.
    No. 21537.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2001.
    Decided April 18, 2001.
    Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Gustav K. Johnson, Rapid City, SD, Attorney for defendant and appellant.
   GILBERTSON, Justice

[¶ 1.] Richard Ryyth appeals from a judgment ordering his payment of extradition costs in the amount of $1,175.00 to Pennington County. Ryyth claims County is not a “victim” under the victim restitution statute, SDCL 23A-28-2(5), and therefore cannot recover these costs from him. We affirm, and hold these costs are recoverable as costs of prosecution pursuant to SDCL 23A-27-26.

FACTS AND PROCEDURE

[¶ 2.] In 1996, Ryyth pled guilty to his fourth DUI offense in Pennington County and was sentenced to thirty months in the state penitentiary, suspended, with driving privileges revoked for one year and five years probation. Within a year of sentencing, he had violated probation and was sentenced to thirty months in the state penitentiary, suspended, with five years probation and other conditions. In November 1999, a second petition to revoke Ryyth’s probation was filed, claiming he had been arrested in Mississippi for DUI, had consumed alcohol, and had refused to submit his body fluids for testing.

[¶ 3.] Ryyth was in custody in a Gulf-port, Mississippi county jail when a warrant issued from Pennington County for his arrest for a parole violation. County contracted with the U.S. Marshals Service to transport Ryyth to Rapid City at a cost of $1,175.00. The county sheriffs office requested restitution from Ryyth in this amount through the Victims’ Assistance Program, which investigated the request and forwarded it to the trial court. Ryyth admitted he had violated probation and appeared before the court for sentencing. He received a sentence of thirty months in the state penitentiary, with credit for time served in jail awaiting sentencing, and ordered to pay extradition costs of $1,175.00 and court costs of $50.00.

[¶ 4.] At the sentencing hearing, Ryyth’s attorney raised the propriety of Ryyth’s paying extradition costs, citing State v. Garnett, 488 N.W.2d 695 (S.D.1992). The State was unable to inform the court whether the requested amount in Ryyth’s case included overtime or salary expense. At the close of the hearing, after pronouncing sentence, the court asked Ryyth’s attorney to call the Victim’s Assistance Program and obtain a breakdown of the requested extradition costs. The court further instructed Ryyth’s attorney to appear in court with this information at which time the court would reduce the amount of restitution accordingly and enter an amended judgment based on Gar-nett. Ryyth’s attorney did not come forward with any additional information and no further record was made regarding this issue.

[¶ 5.] Ryyth appeals the part of the judgment ordering him to pay extradition costs.

ANALYSIS AND DECISION

[¶ 6.] Did the trial court err in ordering Ryyth to pay the cost of extraditing him to South Dakota.

[¶ 7.] Garnett holds that a defendant is not liable for costs attributable to salary expense of the county in bringing him to justice. 488 N.W.2d 695. There, the defendant was found guilty of burglary and ordered to pay restitution in the amount of $1,085.00 to the burglarized businesses for damages and lost business, and restitution in the amount of $2,326.48 to Pennington County for overtime paid to law enforcement involved in the arrest of Gar-nett and his two companions. Id. at 697. We affirmed the order of restitution to the businesses, but reversed the order of restitution to Pennington County for salary expenses, holding that County did not fit the statutory definition of “victim” under SDCL 23A-28-2(5) and that salary expenses were also expressly excluded under SDCL 23A-27-26 from reimbursement as prosecution costs. Id. at 698-99.

[¶ 8.] Although given the opportunity to do so, Ryyth provided no information to the trial court that any part of his extradition costs were attributable to salary expenses. He makes no such claim on appeal. The contract for this service between County and the U.S. Marshals Service is part of the settled record and indicates the charged amount of $1,175.00 was for transportation and jail costs. There is no evidence that any part of this cost was due to salary expense.

[¶ 9.] However, both statutes examined in Garnett are relevant to the determination of the question in the present appeal. SDCL 23A-28-2(5), the victim restitution statute provides that a “victim” is:

any person, as defined in subdivision 22-1-2(31), ivho has suffered 'pecuniary damages as a result of the defendant’s criminal activities, including any person who has by contract or by statute undertaken to indemnify another or to pay or provide a specified or determinable amount or benefit upon determinable contingencies. Any victim who has suffered pecuniary damages has priority of claim as opposed to any person who has a claim to indemnity or subrogation as a result of the same defendant’s criminal activity.

(emphasis added). SDCL 23A-27-26 provides for payment of prosecution costs:

In all criminal actions, upon conviction of the defendant, the court may adjudge that the defendant pay the whole or any part of the costs of that particular prosecution in addition to the liquidated costs provided by § 23-3-52. However, the costs shall not include items of governmental expense such as juror’s fees, bailiffs fees, salaries and expenses of special agents, and reporter’s per diem. Payment of costs may be enforced as a civil judgment against the defendant,

(emphasis added).

[¶ 10.] Ryyth claims County does not fit the statutory definition of victim under the restitution statutes. He is correct. SDCL 22-1-2(53) defines victim as “any natural person against whom the defendant in a criminal prosecution has committed or attempted to commit a crime[.]” In this case, County is not a victim under this definition, except in the indirect sense that the public itself is a victim of any crime committed against the State. This is not the type of “victim” the legislature sought to make whole under the restitution statute (“any person ... who has suffered pecuniary damages as a result of the defendant’s criminal activities.... ” SDCL 23A-28-2(5)). See State v. Wildman, 296 N.J.Super. 565, 687 A.2d 340, 341 (1997) (extradition costs cannot be recovered by county under the guise of restitution as county does not qualify as victim who has sustained a loss); State v. Schmaling, 198 Wis.2d 756, 543 N.W.2d 555, 557 (Ct.App.1995) (restitution to the county cannot be ordered where county was not “actual victim of crimes”); State v. Maupin, 166 Ariz. 250, 801 P.2d 485, 488 (Ct.App.1990) (“extending the term ‘victim’ to include a county seeking reimbursement for extradition costs would strain the commonly accepted meaning of the word ‘victim’ ”). See also State v. Sprecher, 2000 SD 17, 606 N.W.2d 138 (holding that there must be a causal connection between the loss and defendant’s criminal acts; Sprecher’s maintaining a public nuisance on his property did not cause County’s pecuniary loss in abating the nuisance where it acted on its own initiative).

[¶ 11.] State argues in the alternative that extradition costs are recoverable as costs of prosecution under SDCL 23A-27-26. This question has not previously been raised and requires our de novo interpretation of the statute. State v. Robinson, 1999 SD 141, ¶ 9, 602 N.W.2d 730, 732. “We will uphold the judgment of the trial court if it is right for any reason.” In re C.W., 1997 SD 57, ¶ 14, 562 N.W.2d 903, 906.

[¶ 12.] A sentencing court may impose only those sentences authorized by statute. SDCL 23A-27-26 provides that upon conviction, the defendant may be ordered to pay, in whole or in part, the costs incurred in prosecution. The statute expressly excludes from this definition of costs “items of governmental expense such as juror’s fees, bailiffs fees, salaries and expenses of special agents, and reporter’s per diem.” Extradition costs are not among these exclusions, thus, we must determine whether extradition costs are costs incurred in prosecution and therefore recoverable from a defendant.

[¶ 13.] Several jurisdictions, under statutes awarding costs of “investigation or prosecution,” have held that costs of prosecution include extradition costs. Maupin, 801 P.2d at 487; State v. Balsam, 130 Ariz. 452, 636 P.2d 1234, 1235 (Ct.App.1981) (sum expended to send a deputy sheriff to Ohio, where defendant was arrested, and bring him back to Arizona for prosecution was a prosecution cost); Skillman v. State, 696 So.2d 1341, 1342 (Fla.Dist.Ct.App.1997); People v. Lemons, 824 P.2d 56 (Colo.Ct.App.1991) (extradition cost to bring defendant to answer charges was a cost of prosecution and improperly designated as restitution to the police department which did not fall into “victim” category); Comm’wlth v. Coder, 490 Pa. 194, 415 A.2d 406, 409 (1980) (statute providing for recoupment from defendant of prosecution costs interpreted as encompassing cost of extradition); Ex parte Williams, 71 S.D. 95, 21 N.W.2d 593, 593 (1946) (where defendant was charged in Nebraska, arrested in South Dakota and extradited to Nebraska, noting the Nebraska court required him to “pay the costs of the criminal prosecution including the costs of the first extradition.”). Cf. State v. Lewis, 167 Vt. 533, 711 A.2d 669, 673 (1998) (cost of extraditing a defendant after he escaped from custody and fled the jurisdiction were not costs of prosecution, and were properly chargeable to him as restitution owed to the Department of Corrections, the victim of his crime of escape).

[¶ 14.] Other states expressly provide by statute for payment by defendant of extradition costs as a cost of prosecution. People v. Johnson, 175 Ill.App.3d 908, 125 Ill.Dec. 469, 530 N.E.2d 627, 634-35 (1988) (citing IURevStat ch 38, ¶ 180-3 and discussing amendment by legislature to supersede earlier court decision that interpreted statute to preclude recovery of extradition costs as prosecution costs) State v. Garrett, 14 Kan.App.2d 8, 780 P.2d 168, 169 (1989) (citing KanStatAnn § 22-2724); State v. Lopez-Solis, 589 N.W.2d 290, 292 (Minn.1999) (citing MinnStat § 631.48); Wickert v. Wash. State Bd. of Prison Terms & Paroles, 13 Wash.App. 917, 538 P.2d 826, 828 n. 1 (1975) (citing WashRevCode § 9.92.060); State v. Perry, 215 Wis.2d 696, 573 N.W.2d 876, 882 (Ct.App.1997) (citing WisStat § 973.06(l)(a)).

[¶ 15.] The majority of jurisdictions having considered the question presently before this Court hold that the definition of prosecution costs includes extradition costs. Their logic is sound and persuasive. Certainly, monies expended to return a defendant to this state for prosecution are recoverable from the defendant as prosecution costs under SDCL 23A-27-26.

[¶ 16.] Affirmed.

[¶ 17.] MILLER, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 18.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 19.] Ryyth was ordered to pay extradition costs in the amount of $1,175.00 to Pennington County. The majority opinion correctly determines that the County cannot recover these costs under the victim restitution statute. See State v. Sprecher, 2000 SD 17, 606 N.W.2d 138 (stating a county is not a proper party to recover under the victim restitution statute).

[¶ 20.] However, the majority opinion attempts to justify these extradition costs as costs of prosecution under SDCL 23A-27-26:

In all criminal actions, upon conviction of the defendant, the court may adjudge that the defendant pay the whole or any part of the costs of that particular prosecution in addition to the liquidated costs provided by SDCL 23-3-52. However, the costs shall not include items of governmental expense such as juror’s fees, bailiff’s fees, salaries and expenses of special agents, and reporter’s per diem. Payment of costs may be enforced as a civil judgment against the defendant,

(emphasis added). Obviously, the costs at issue are statutorily excluded as governmental expense.

[¶ 21.] Although some states have interpreted general costs of prosecution statutes to include extradition costs, see State v. Maupin, 166 Ariz. 250, 801 P.2d 485, 487 (App.1990) (allowing costs of extradition to be imposed), these costs are inappropriate under our definition for costs of prosecution. SDCL 23A-27-26 generally excludes governmental expense and specifically excludes salaries and expenses of special agents. In other words, these expenses for extradition are prohibited generally as governmental expense and specifically as salary and expenses of special agents.

[¶ 22.] The majority’s construction scheme is completely against the long established principle of ejusdem generis. See O’Neill v. South Dakota Bd. of Charities and Corrections, 377 N.W.2d 587 (S.D.1985) (stating the “ejusdem generis principle holds that where general words follow ... the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general kind as those enumerated”). If properly construed, plain meaning can not be any plainer.

[¶ 23.] SDCL 59-1-2 provides that a special agent is “[a]n agent for a particular act or transaction.” Pennington County hired the United States Marshall service to return Ryyth to South Dakota. This created a special agency relationship. The expenses associated with this employment is specifically and statutorily excluded from consideration as costs of prosecution. The legislative pronouncement is clear and unambiguous. Plain meaning could not be plainer.

[¶ 24.] The better approach is demonstrated by Illinois Courts. In People v. Johnson, the Illinois appellate court determined that a general cost statute is not specific enough to include costs of extradition. 175 Ill.App.3d 908, 125 Ill.Dec. 469, 530 N.E.2d 627, 634 (1988). See also State v. Wildman, 296 N.J.Super. 565, 687 A.2d 340, 342 (1997) (refusing to allow such costs without specific statutory support). In so deciding, it noted that “statutory provisions allowing the recovery of costs must be strictly construed.” Id. As such, extradition costs could not be imposed in the absence of a specific grant of authority.

[¶ 25.] Only after the Johnson holding did the Illinois Legislature modify the costs of prosecution statute to include costs of extradition. Id. Our legislature must do the same, if it is so inclined. Our costs of prosecution statute supports the same interpretation as Johnson. Id. SDCL 23A-27-26 identifies examples of governmental expense which are excluded as costs of prosecution. It is not an all-inclusive list of costs which can not to be taxed to a defendant. These excluded costs relate to incidental costs of prosecution, such as juror and bailiff fees and salaries and expenses of special agents. Extradition costs are also incidental to the prosecution and derived entirely in this case from the employment of special agents to return Ryyth to South Dakota.

[¶ 26.] “The allowance and recovery of costs rests entirely upon statutory provisions which must be strictly construed.” People v. Bratcher, 149 Ill.App.3d 425, 102 Ill.Dec. 853, 500 N.E.2d 954, 958 (1986). The Illinois court found that extradition costs were not costs of prosecution. Id. 102 Ill.Dec. 853, 500 N.E.2d at 960. In so reasoning, the court found that the imposition of such costs could be boundless unless specificity is provided, hypothesizing that these costs of prosecution could include meals and medical care. The court refused to extend the scope of the statute for costs without specific legislative guidance. We should do the same and construe this statute in accordance with South Dakota law. If the legislature wishes to add extradition costs as costs of prosecution they must do so with specificity. The trial court and the majority opinion should not do it for them.

[¶ 27.] Additionally, the trial court and majority opinion improperly place the burden on Ryyth to demonstrate which costs were for salary (prohibited from recovery by Garnett, 488 N.W.2d 695) and those that were for transportation of the defendant. Because the prosecution is the party asserting that the assignment of costs was appropriate, “the burden of justifying the costs by the preponderance of evidence is on the plaintiff, the [State] here.” Commonwealth v. Coder, 490 Pa. 194, 415 A.2d 406, 410 (1980). As such, the State must establish the costs “sufficiently specific to meet [its] burden of proof.” Id. It has not.

[¶ 28.] We should simply reverse these improper costs of $1,175.00.

      . Governmental entities are not precluded from this definition of “natural person.” SDCL 22-1-2(31).

      . I invite the reader to compare the inconsistent statutory construction scheme of the majority in this case and in State v. Olson-Lame, 2001 SD 51, 624 N.W.2d 833, with that of Maryott v. First National Bank of Eden, 2001 SD 43, 624 N.W.2d 96.


source: Caselaw Access Project

author: STONEBURNER, Judge SCHUMACHER, Judge

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. David Richard LOEFFLER, Appellant.
    No. C5-00-1181.
    Court of Appeals of Minnesota.
    March 20, 2001.
    Jennifer Inz, Craighton T. Boates, Assistant Eden Prairie City Attorneys, Lang, Pauly, Gregerson & Rosow, LTD., Minneapolis, MN, for respondent.
    David Richard Loeffler, Certified Student Attorney, Eden Prairie, MN, pro se appellant.
    Considered and decided by KALITOWSKI, Presiding Judge, SCHUMACHER, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge

Appellant David Richard Loeffler, who was tab-charged for a petty misdemeanor speeding violation, argues that the district court erred by denying him a formal complaint upon his timely demand, in denying his motion for additional discovery, and in refusing to issue subpoenas, and that he was prejudiced by the prosecutor’s ex-parte request for continuance of the trial. Because Loeffler did not receive a formal complaint within 30 days after his request, we reverse.

FACTS

On March 29, 2000, appellant David Richard Loeffler was charged by citation with violating Minn.Stat. § 169.14 (2000), driving in excess of the posted speed limit. At his arraignment on May 24, 2000, Loef-fler requested a formal complaint. The district court denied Loeffler’s request. The matter was set for trial on June 21, 2000.

On June 1, 2000, Loeffler wrote to the Eden Prairie Assistant City Attorney requesting discovery and a formal complaint. By letter dated June 13, 2000, the Assistant City Attorney sent Loeffler copies of the citation, police officer’s notes, and Loeffler’s driving record, and the name and address of the charging police officer, but refused to provide a formal complaint. This letter also advised Loeffler that the trial date had been continued by the Assistant City Attorney’s ex parte request to the court administrator’s office and that trial was now set for July 5, 2000. About a week later, the Assistant City Attorney sent Loeffler the certificate of field calibration of the radar unit and tuning fork calibration certificates.

On June 26, 2000, Loeffler filed a notice of motion and motion stating that on July 5, 2000, he would move the court for an order dismissing the tab charge because the prosecutor failed to file a fonnal complaint and because of the ex parte communication by the prosecutor with the court regarding a continuance. In the alternative, Loeffler moved the court for a new trial date, and an order compelling the prosecutor to provide discovery set out in the motion, and he requested that he be allowed to subpoena four witnesses.

At trial on July 5, 2000, Loeffler informed the court that he had filed a motion to dismiss instead of going to trial. The prosecutor responded:

Your Honor, as a procedural matter, it is the procedure in this courthouse or in this court district to schedule the motions on the special term motions. Since it is set for trial and the officer’s here, we believe that it’s not procedurally appropriate before the Court.

The motion was denied and the matter proceeded to trial. At the conclusion of the testimony, the district court found Loeffler guilty. This appeal follows.

ISSUES

I. Does a defendant who is tab-charged with a petty misdemeanor have the right to a formal complaint on demand?

II. Did the trial court err by denying defendant’s request for discovery and subpoenas?

III. Did the trial court err by denying defendant’s request for a continuance after having granted the prosecutor’s ex parte request for a continuance?

ANALYSIS

I.

Loeffler argues that the district court erred in denying him a formal complaint upon his timely demand and erred by failing to dismiss the case when a formal complaint was not provided. The interpretation of the rules of criminal procedure is a question of law subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

The rules of criminal procedure provide that the procedure in a petty misdemeanor case is the same as the procedure for misdemeanors. See Minn. R.Crim. P. 23.05, subd. 3. The accused in a misdemeanor case is entitled to a formal complaint within 30 days after a demand by the defendant. Minn. R.Crim. P. 4.02, subd. 5(3).

The state argues that Loeffler has demonstrated no prejudice from the district court’s refusal to compel a formal complaint and that he is therefore not entitled to dismissal. The rules of criminal procedure, .however, provide that “[i]f no valid complaint has been made and filed within the time required ⅜ ⅜ ⅞ the defendant shall be discharged, the proposed complaint, if any, and any supporting papers shall not be filed, and no record shall be made of the proceedings.” Minn. R.Crim. P. 4.02, subd. 5(3). The rule does not require a defendant show prejudice. Loef-fler did not receive a formal complaint within 30 days after his request and he is entitled, under the rules, to dismissal and removal of all papers regarding the charge from the record. Failure to grant the motion to dismiss was error.

Because we find that failure to timely provide the requested formal complaint entitled Loeffler to dismissal, we need not address the irregular manner in which the prosecutor obtained a continuance of the trial date or the district court’s denial of Loeffler’s motion to compel additional discovery and issue subpoenas.

DECISION

Loeffler was entitled to dismissal of the petty misdemeanor charge against him when he did not receive a timely formal complaint after demand. The trial court erred by denying his motion to dismiss.

Reversed.

SCHUMACHER, Judge

(dissenting)

I cannot agree with the majority that appellant was entitled to a formal complaint for this petty misdemeanor speeding charge. But assuming for the sake of argument that he is, not every violation of a procedural rule requires reversal of a conviction. See generally Minn. R.Crim. P. 31.01 (providing that errors not affecting substantial rights should be disregarded). Even violations of rules that protect a defendant’s constitutional rights do not automatically give rise to so severe a sanction. See State v. Jackson, 472 N.W.2d 861, 863 (Minn.1991) (holding violation of prompt arraignment rule does not necessarily require suppression of statement); State v. Genung, 481 N.W.2d 130, 132 (Minn.App.1992) (holding violation of deadline for submission of homicide case to grand jury did not require dismissal), review denied (Minn. Apr. 13, 1992). Appellant received a copy of everything in the police file, which was all the discovery he was entitled to. Minn. R.Crim. P. 7.03. This discovery fulfilled the purpose that would have been served by a formal complaint. See State v. Jannetta, 355 N.W.2d 189, 194 (Minn.App.1984); 1 Martin J. Costello et al., Minnesota Misdemeanors and Moving Traffic Violations 95 (3rd ed.1999). Appellant cannot show prejudice from the denial of a formal complaint, and therefore is not entitled to reversal of his conviction.


author: STONEBURNER, Judge

text:
    Russell Howard WEBER, et al., for themselves, and on behalf of all similarly situated persons, Appellants, v. Sheryl Ramstad HVASS, individually and in her official capacity as Commissioner of the Minnesota Department of Corrections, et al., Respondent.
    No. C6-00-1707.
    Court of Appeals of Minnesota.
    April 24, 2001.
    Review Denied June 27, 2001.

      Robert J. Hennessey, Sandra S. Smal-ley, Lindquist <& Vennum, P.L.L.P., Minneapolis, MN, for appellants.
    Teresa Nelson, Minnesota Civil Liberties Union, St. Paul, MN, of counsel for appellants.
    Michael A. Hatch, Minnesota Attorney General, Kurt J. Erickson, Asistant Attorney General, Jennifer K. Park, Asis-tant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, KALITOWSKI and HALBROOKS, Judges.
   OPINION

STONEBURNER, Judge

Appellants, a putative class of adult inmates in correctional facilities administered by the Minnesota Department of Corrections (DOC) and a putative class of non-inmates who send money gifts to inmates, filed this class-action lawsuit against respondent Sheryl Ramstad Hvass, Commissioner of Corrections for the State of Minnesota, individually and in her capacity as commissioner of the DOC, and Dennis L. Benson, individually and in his capacity as Deputy Commissioner of Corrections, challenging the imposition of a 10% cost-of-confinement surcharge on money sent as gifts to adult inmates incarcerated in DOC correctional facilities. The district court granted summary judgment in favor of respondents on all claims. We affirm.

FACTS

The material facts are undisputed. On July 5, 1999, Commissioner Ramstad Hvass issued a memorandum that, effective September 1, 1999, DOC would collect costs of confinement from funds sent to adult, inmates incarcerated in DOC correctional facilities. The policy was posted at all DOC facilities. Before the policy was implemented, on August 31, 1999, DOC revised the policy by exempting some funds from the surcharge. Pursuant to the policy, before non-exempt, non-wage funds are deposited to an inmate’s account, DOC deducts 10% for partial reimbursement of confinement costs.

In January 2000, appellants, adult inmates in DOC correctional facilities and non-inmates who send gifts of money to inmates, filed this class-action lawsuit challenging the cost-of-confinement policy. The classes were never certified. The named inmate appellants are: Russell Howard Weber, surcharged approximately $12.50; Harold John Wilwert, Jr., surcharged approximately $157.50; and Gustavo Dion Saucedo, surcharged approximately $79. The named non-inmate appellants are Betty Rairdon, whose inmate-husband was surcharged approximately ten cents; Re-becka Hall, whose inmate-husband was surcharged approximately $12.80; and Jacky Baily, whose inmate-son was surcharged approximately $24.

On July 31, 2000, the district court, in a thorough and well-reasoned opinion, granted summary judgment for respondents on all claims. This appeal follows.

ISSUES

I. Do the non-inmate appellants have standing to challenge the cost-of-confinement policy?

II. In enacting the cost-of-confinement policy, did DOC act beyond its statutory authority under Minn.Stat. § 243.23 (2000)?

III. In enacting the cost-of-confinement policy, did DOC violate the rulemaking requirements of the Minnesota Administrative Procedures Act?

IV. Does the cost-of-confinement policy violate appellants’ procedural due-process rights?

V. Does the cost-of-confinement policy constitute an unconstitutional governmental taking?

VI. Does the cost-of-confinement policy impose a differential tax on the non-inmate appellants in violation of Minn. Const. Art. X, § 1?

ANALYSIS

On appeal from summary judgment, this court considers (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion reviewed de novo by -the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998) (citing Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn.1995)).

I.

The non-inmate appellants argue that the district court erred in finding that they have no standing. They contend that because the inmates did not have possession and control of the money at the time the surcharge was imposed, title to those funds never vested with the inmate and only the non-inmate appellants have suffered the actual injury.

“A litigant has standing when he or she has suffered an actual injury or otherwise has a sufficient stake in a justiciable controversy to seek relief from a court.” Leffler v. Leffler, 602 N.W.2d 420, 422 (Minn.App.1999) (citing Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 433 (Minn.App.1995), review denied (Minn. May 31, 1995)). “Economic injury or the prospect of economic injury may be sufficient to establish standing.” In re Application of Crown CoCo, Inc., 458 N.W.2d 132, 135 (Minn.App.1990). The district court concluded that once a non-inmate appellant sends money to DOC for an inmate, the gift is delivered and the donor has relinquished all control over the money. We agree.

The elements of a gift are (1) delivery; (2) intention to make a gift; and (3) absolute disposition by the donor of the thing which the donor intends as a gift. In re Estate of Lobe, 348 N.W.2d 413, 414 (Minn.App.1984). A gift requires that the donor “deliver the property to the donee, or to someone for him, with intent to vest title in the donee, and without reserving any right to reclaim the property.” Oehler v. Falstrom, 273 Minn. 453, 142 N.W.2d 581, 585 (1966) (emphasis added). The only method by which the non-inmate appellants can make a monetary gift to an inmate is by sending money to DOC for deposit in an inmate’s account. See Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S.Ct. 1861, 1877-78, 60 L.Ed.2d 447 (1979) (finding inmates’ rights and privileges limited by considerations of penal system); Mahers v. Halford, 76 F.3d 951, 954 (8th Cir.1996) (recognizing inmates not entitled to complete control over their money).

DOC controls the receipt of money and property from outside sources for the inmates in order to safely and efficiently manage its facilities. DOC constructively receives funds on behalf of an inmate and then imposes a surcharge on the funds before depositing the gift into the inmate’s account. The district court correctly concluded that the non-inmate appellants make an absolute disposition of their gifts once they send the money to DOC. The non-inmate appellants have not suffered an actual injury and do not have standing to challenge DOC’s cost-of-confinement policy-

II.

Appellants argue that DOC exceeded its statutory authority under Minn.Stat. § 243.23 (2000) by creating a debt for costs of confinement and surcharging all incoming non-wage funds.

If an administrative agency’s authority is questioned, this court independently reviews the enabling statute. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). “[A] determination of an administrative agency is void and subject to collateral attack where it is made either without statutory power or in excess thereof.” Crown CoCo, 458 N.W.2d at 136 (quotation omitted).

The purpose of statutory interpretation is to effectuate legislative intent. Minn.Stat. § 645.16 (2000). “Every law shall be construed, if possible, to give effect to all its provisions.” Id. A statute should be construed so no phrase is “superfluous, void, or insignificant.” Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn.1999) (citation omitted).

This court will examine legislative history as a tool for construing statutory language only when the language is ambiguous. State v. Sebasky, 547 N.W.2d 93, 99 (Minn.App.1996), review denied (Minn. June 19, 1996). When the words of a statute are unambiguous, “the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2000).

Minn.Stat. § 243.23, subd. 1 provides that the commissioner may pay inmates for work performed and control that compensation:

Notwithstanding any law to the contrary, the commissioner of corrections may provide for the payment to inmates of correctional facilities under the com.missioner’s management and control any pecuniary compensation the commissioner deems proper, the amount of compensation to depend upon the quality and character of the work performed as determined by the commissioner of corrections and the chief executive officer.

Subdivision 2 gives the commissioner specific authority to require inmates to pay part of the costs of confinement out of their earnings:

The commissioner may promulgate rules requiring the inmates of adult correctional facilities under the commissioner’s control to pay all or a part of the cost of their board, room, clothing, medical, dental and other correctional services. These costs are payable from any earnings of the inmate, including earnings from private industry established at state correctional facilities pursuant to section 243.88.

Id., subd. 2. Subdivision 3 provides:

Notwithstanding sections 241.26, subdivision 5, and 243.24, subdivision 1, the commissioner may make deductions from funds earned under subdivision 1, or other funds in an inmate account, and section 243.88, subdivision 2. The commissioner shall make deductions for the following expenses in the following order of priority:
(1) federal and state taxes;
(2) repayment of advances;
(3) gate money as provided in section 243.24;
(4) support of families and dependent relatives of the respective inmates;
(5) payment of court-ordered restitution;
(6) room and board or other costs of confinement;
(7) medical expenses incurred under section 243.212;
(8) payment of fees and costs in a civil action commenced by an inmate;
(9) payment of fines, surcharges, or other fees assessed or ordered by a court;
(10) contribution to the crime victims reparations board created under section 611A.55, provided that the contribution shall not be more than 20 percent of an inmate’s gross wages;
(11) the payment of restitution to the commissioner ordered by prison disciplinary hearing officers for damage to property caused by an inmate’s conduct;
(12) restitution to staff ordered by a prison disciplinary hearing officer for damage to property caused by an inmate’s conduct;
(13) restitution to another inmate ordered by a prison disciplinary hearing officer for personal injury to another caused by an inmate’s conduct; and
(14) discharge of any legal obligations arising out of litigation under this subdivision.
The commissioner may authorize the payment of court-ordered restitution from an inmate’s wages when the restitution was ordered by the court as a sanction for the conviction of an offense which is not the offense of commitment, including offenses which occurred prior to the offense for which the inmate was committed to the commissioner.

Id., subd. 3(emphasis added).

Appellants argue first that the statute, read as a whole, unambiguously relates only to deductions from wages and does not authorize DOC to deduct costs of confinement from non-wage funds. In the alternative, appellants contend that, if the statute is ambiguous, the legislative history demonstrates that DOC may only deduct costs of confinement from wages. We disagree with both analyses.

Subdivision 3 is unambiguous. Although compensation paid to an inmate is specifically referenced, subdivision 3 also authorizes deduction from “other funds.” If deductions could only be taken from wages, then the phrase “or other funds in an inmate account” would be superfluous. This phrase is an open-ended term with no limitation on the sources of the funds in an inmate account. See MinmStat. § 645.08(1) (2000) (“Words and phrases are construed according ⅜ * * to their common and approved usage.”). The language of Minn.Stat. § 243.23, subd. 3 unambiguously authorizes DOC to deduct costs of confinement from non-wage funds. The district court correctly concluded that DOC has statutory authority to create the debt for costs of confinement and to make deductions from non-wage funds to satisfy the debt.

III.

Appellants argue that DOC failed to properly adopt the cost-of-eonfinement policy according to the rulemaking procedures in the Minnesota Administrative Procedures Act (MAPA).

This court must declare an agency’s action invalid if the agency adopts policy without complying with statutory rulemaking requirements. In re Assessment Issued to Leisure Hills Health Care Ctr., 518 N.W.2d 71, 74 (Minn.App.1994) (citing Cable Communications Bd. v. Nor-West Cable Communications P’ship., 356 N.W.2d 658, 667-68 (Minn.1984)), review denied (Minn. Sept. 16, 1994). An agency must promulgate as rules all formal and informal procedures “to the extent that those procedures directly affect the rights of or procedures available to the public.” Minn.Stat. § 14.06 (2000). A rule is “every agency statement of general applicability and future effect.” Minn.Stat. § 14.02, subd. 4 (2000). DOC’s cost-of-confinement policy is clearly a rule, because it has general applicability over all inmates confined in DOC’s facilities and will have a future effect on their accounts.

The legislature included all agency activities within the general definition of “rule,” and then excluded specific activities from the definition “as it deemed beneficial to the concerns of efficient government and public participation.” McKee v. Likins, 261 N.W.2d 566, 577 (Minn.1977). After determining the policy is a “rule,” we inquire whether the policy falls within an exception. See id.

A general exception exempts from the definition of a rule

[rjules concerning only the internal management of the agency or other agencies that do not directly affect the rights of or procedures available to the public.

Minn.Stat. § 14.03, subd. 3(a)(1) (2000); see Leisure Hills, 518 N.W.2d at 74 (finding Department of Health not required to promulgate inspection procedures of nursing homes pursuant to APA because procedures involved only internal management and did not affect rights available to the public); Stony Ridge & Carlos View Terrace Ass’n. v. Alexander, 353 N.W.2d 700, 704 (Minn.App.1984) (finding DNR policy regarding the location of public water access sites only controls internal management and is not a rule).

A specific exception exempts from the definition of a rule

[r]ules of the commissioner of corrections relating to the placement and supervision of inmates serving a supervised release term, the internal management of institutions under the commissioner’s control, and rules adopted under section 609.105 governing the inmates of those institutions.

Minn.Stat. § 14.03, subd. 3(b)(1) (2000). The district court relied on the specific exemption, finding that the cost-of-confinement policy provides the mechanism to implement the surcharge authorized by Minn.Stat. § 243.23, subd. 3, helps defray the costs of housing inmates, and instills a sense of responsibility necessary for rehabilitation and preparation for eventual release. The district court found that the policy also falls within Minn.Stat. § 609.105. We agree that the cost-of-confinement policy falls within these exemptions to the definition of “rule” and that DOC was not required to engage in formal rulemaking procedure to promulgate the policy.

IY.

Appellants argue that because there is no individual pre- or post-deprivation hearing, the cost-of-confinement policy violates their procedural due-process rights under Minn. Const, art. I, § 7 and U.S. Const, amend. XIV, § 1. To support their due-process claim, appellants rely, at least in part, on their argument that no statutory authority exists for the debt or for its collection from non-wage sources. We have rejected that argument and have specifically found statutory authority for the debt and its collection pursuant to the policy. DOC points out that “[w]hen the legislature passes a law which affects a general class of persons, those persons have all received procedural due process— the legislative process.” Oklahoma Educ. Ass’n. v. Alcoholic Beverage Laws Enforcement Comm’n, 889 F.2d 929, 936 (10th Cir.1989) (quoting 2 R. Rotunda et. al., Treatise on Constitutional Law: Substance & Procedure § 17.8, at 251 (1986)).

The district court evaluated the procedural due-process challenge using the three-part balancing test enunciated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn.1996). Under this test, a court considers whethér the process adequately balances: (1) the private interest; (2) the risk that the process will result in an erroneous deprivation of the private interest and the probable value of additional or substitute procedural safeguards; and (3) the state’s interest. Id.

Here the inmate-appellants have a limited private interest. An inmate’s rights and privileges are limited by the considerations of the penal system. Bell, 441 U.S. at 545-46, 99 S.Ct. at 1877-78. Inmates are not entitled to complete control over their money while in prison. Mahers, 76 F.3d at 954-56 (finding due-process rights not violated by 20% deduction from all money received from outside sources to satisfy restitution). In addition, the 10% surcharge has not resulted in a significant economic impact on individual appellants. Appellants pay only a small portion of the costs of their confinement, and their basic needs are met without need for any additional incoming funds. See id. at 954-55 (noting inmates not absolutely deprived of the benefit of money).

The risk of an erroneous deprivation of the appellants’ interest in the money is small. Statutory authority supports the policy, the appellants received notice of the policy prior to its implementation, and despite the fact that the statute does not require any exemptions, the policy provides for exemptions and for a process to claim exemptions.

The state has a considerable interest in the appellants’ contribution to the significant costs of confinement, and DOC cannot reasonably be expected to hold a hearing for each individual surcharge. The Eighth Circuit noted, “We are in no position to determine the administrative costs of providing a hearing before deducting from each incremental deposit that a prisoner receives from an outside source.” Id. at 956 (acknowledging courts cannot oversee details of prison administration).

The district court did not err in concluding that the cost-of-confinement policy does not violate appellants’ due-process rights, because the government’s interest substantially outweighs the private interest and the risk of an erroneous deprivation of that interest.

V.

Appellants argue that the costs-of-confinement surcharge is an improper governmental taking of their private property in violation of Minn. Const, art. I, § 13 and U.S. Const, amend. V.

The U.S. Takings Clause states: “[N]or shall private property be taken for public use, without just compensation.” U.S. Const, amend. V. “[A] constructive taking occurs when the state, in the exercise of its police power, * * * unfairly diminishes the value of the individual’s property, thus causing the individual to bear the burden rightly borne by the public.” Westling v. County of Mille Lacs, 581 N.W.2d 815, 823 (Minn.1998) (citation omitted). Generally, determining whether a taking has occurred is a fact-specific inquiry. Id. (citation omitted). A court must look both at the “character of the action” and at the “nature and extent of the interference with rights in the parcel as a whole.” Id. (quoting Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 130-31, 98 S.Ct. 2646, 2662, 57 L.Ed.2d 631 (1978)).

The district court analyzed the “takings” challenge using three factors from Penn Central: (1) the economic impact of the regulation on the people suffering the loss; (2) the extent to which the regulation interferes with distinct investment-backed expectations; and (3) the character of the government action to assess whether the complained-of action effected a taking of private property for public use. See Zeman v. City of Minneapolis, 552 N.W.2d 548, 552 (Minn.1996) (citing Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 225, 106 S.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986)). The first two factors involve the economic impact on the appellants, which, as discussed above, is minimal. Regarding the third factor, the appellants clearly do not bear a public burden alone, but rather, pay only a portion of their own costs of confinement. DOC has determined that inmates gain a sense of responsibility for their actions through this payment. The district court did not err in concluding that the cost-of-confinement policy does not constitute an unconstitutional governmental taking.

VI.

The non-inmate appellants argue that the DOC violated Minn. Const, art. X, § 1 in applying a differential tax on the same class of property. Because we found that the non-inmate appellants do not have standing, we need not reach this issue.

DECISION

Non-inmate appellants do not have standing to challenge DOC’s 10% cost-of-confinement surcharge on non-exempt, non-wage inmate funds. DOC did not exceed its statutory authority or engage in improper rulemaking in promulgating the cost-of-confinement policy. DOC policy does not violate appellants’ due-process rights and does not constitute an unconstitutional governmental taking of appellants’ property. The district court properly granted summary judgment to respondents.

Affirmed.

      . The policy exempts money coming from Veterans' Administration and Social Security benefits received directly from the federal agency; proceeds from civil rights claims filed pursuant to 42 U.S.C. § 1983; certain funds distributed to Native Americans; intra departmental transfers of offender money including interstate returns; vendor refunds from offender purchases when the offender has proof the purchase was made with funds from their facility account; funds received for interstate travel expenses; scholarship funds from Metro State University for higher education; and property claim settlements from joint house/senate committee claims process. If the DOC receives money for an inmate that may qualify for an exemption, the DOC sends the inmate a notification of the possible exemption, and forwards to the sender of the check a "Request for Information Regarding Offender Receipt of Funds.”

      . The statute is titled "Compensation Paid to Inmates,” but appellants’ reliance on the title is impermissible under the rules of statutory construction. Minn.Stat. § 645.49 (2000); Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 303 n. 23 (Minn.2000); Minter-Weisman Co. v. Commissioner of Revenue, 520 N.W.2d 1, 3 (Minn.App.1994) (holding that statute’s heading is not part of the statute for purposes of construing it), review denied, (Minn. Sept. 28, 1994).

      . See Murray v. MINNCOR, 596 N.W.2d 702, 704 (Minn.App.1999), review denied (Minn. Sept. 28, 1999) (recognizing statute authorizes DOC to deduct court filing fees and medical costs from non-wage funds in inmate account).

      . Minn.Stal. § 609.105, subd. 2 (2000) provides that:
      ”[t]he commissioner of corrections shall determine the place of confinement in a prison, reformatory, or other facility of the department of corrections established by law for the confinement of convicted persons and prescribe reasonable conditions and rules for their employment, conduct, instruction, and discipline within or without the facility.”

      . Appellants’ taking argument appears to be based only on the non-inmate appellants’ rights and the assertions that authority does not exist for a cost-of-confinement debt, grounds we have found to be without merit.

      . Minn. Const, art. I, § 13 provides: "Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid and secured.”


author: TOUSSAINT, Chief Judge

text:
    SHEPHERD OF THE VALLEY LUTHERAN CHURCH OF HASTINGS, a Minnesota Non Profit Corporation, Respondent, v. HOPE LUTHERAN CHURCH OF HASTINGS, Minnesota, a Minnesota Non Profit Corporation, and Greg Collins, Appellants.
    No. C3-00-1518.
    Court of Appeals of Minnesota.
    May 8, 2001.

      Kathy S. Kimmel, Tim Nolan, Eric Mag-nuson, Rider, Bennett, Egan & Arundel, L.L.P., Minneapolis, MN, for respondent.
    George L. May, May Law Offices, Hastings, MN, for appellants.
    Considered and decided by TOUSSAINT, Chief Judge, SHUMAKER, Judge, and PORITSKY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

TOUSSAINT, Chief Judge

This lawsuit arises out of an intra-con-gregational dispute that resulted in the congregation of Shepherd of the Valley Lutheran Church (SOTV) voting to separate; the creation of a new church, Hope Lutheran Church (Hope); and SOTV’s congregation voting to transfer SOTV’s church property to Hope.

SOTV filed suit alleging that it had suffered damages as a result of a breach of fiduciary duty by its former vice president and the current president of Hope, Gregory Collins. A jury found that Collins had breached his fiduciary duty to SOTV and awarded SOTV monetary and equitable relief. Because the jury’s verdict, affirmed by the trial court in its original and amended findings of fact, and conclusions of law is supported by evidence in the record, we affirm. However, we reverse and remand as to the trial court’s summary denial of SOTV’s taxable costs and disbursements.

FACTS

Shepherd of the Valley Lutheran Church (SOTV) was founded in 1985 and is a member of the Lutheran Church, Missouri Synod (LCMS). Congregations which affiliate themselves with LCMS agree to accept the doctrinal positions, constitution, bylaws, and resolutions of LCMS.

SOTV, as a member of LCMS, is served by a called pastor, who may be terminated only for specific reasons. In August 1997, Reverend Bruce King became SOTV’s called pastor. As a part of his duties, King conducted communion. According to LCMS, King was required to allow only those who were members of LCMS to participate in communion. King’s refusal to allow non-LCMS members to participate in communion became a point of contention that eventually led to a division in the congregation.

In the spring of 1998, the vice president of SOTV, Gregory Collins, sought the termination of King. The board of elders unanimously determined that there was no basis to remove King. Collins’s attempts to remove King continued — a severance package was offered to King, which he refused; an unsuccessful motion proposed reduction of King’s salary to $0; and another unsuccessful motion proposed the amendment of the termination provisions in SOTV’s constitution relating to called pastors.

Following these unsuccessful attempts to remove King, Collins and his supporters discontinued patronage and financial support of SOTV. Collins began organizing meetings that consisted of only those members of the SOTV congregation who opposed King. This group became known as the Hope faction.

Collins, leading the Hope faction, reviewed the provisions of the SOTV constitution. SOTV’s constitution provides that:

If, at any time, a separation should take place within this congregation * * * [and] a division into factions of the congregation shall occur because of doctrinal issues, the property of the congregation and all benefits therewith Connected shall remain with those members who adhere in confession and practice [of LCMS].
If division takes place for non-doctrinal reasons, the property shall remain with the majority of the communicant members.

After reviewing the SOTV constitution, Collins and other members of Hope faction laid the groundwork for the creation of Hope Lutheran Church by drafting the articles of incorporation, a constitution, and bylaws. Collins designated himself as president of Hope. Collins also met with an attorney to prepare a warranty deed conveying the church property located at 1450 West Fourth Street, Hastings, MN from SOTV to Hope.

Throughout this time period, Collins retained his position as vice president of SOTV. Collins did not inform other SOTV officers, or the general congregation, of his plans to seek separation and his efforts to form a new church. Collins also encouraged members of the Hope faction to remain quiet about their activities.

On November 13, 1998, Collins informed the president of SOTV, A1 Johnson, that he intended to seek separation of the congregation at the annual meeting that was to be held on November 15, 1998. At the annual meeting, a motion to separate was put before the congregation. A majority of those present at the meeting voted to separate based on non-doctrinal reasons and to transfer SOTV’s real estate and personal property (church property) to Hope without any payment of money or consideration to SOTV.

Following the annual meeting, Collins changed the locks on the SOTV sanctuary and informed the SOTV faction that they would not be welcome. On November 19, 1998, Collins executed a warranty deed, signing as the vice president of SOTV. Since November 1998, Hope has operated at 1450 West Fourth Street in Hastings. SOTV, on the other hand, has been wor-shipping in members’ homes and rented space.

SOTV subsequently filed suit, alleging a breach of fiduciary duty by Collins. SOTV sought, as remedies for the breach of fiduciary duty, monetary damages from Collins and equitable relief in the form of the return of the church property. After hearing the evidence, the jury, by special verdict, found that (1) Collins had breached his fiduciary duty owed to SOTV, for which he was liable in the amount of $7,782.99; and (2) SOTV had a present right to possess the church property, thereby, ejecting Hope from the church property.

The trial court subsequently issued findings of fact, conclusions of law, additional and amended findings of fact, and denied judgment notwithstanding verdict (JNOV) motions by both parties. The trial court affirmed the jury verdict, awarding respondents equitable relief in the form of the return of the church property, plus monetary relief in the amount of $7,782.99 as compensation for Collins’s breach of fiduciary duty. This appeal followed.

ISSUES

I. Whether the record supports a finding that Gregory Collins, the former vice president of Shepherd of the Valley Lutheran Church (SOTV), breached a fiduciary duty owed to SOTV, entitling SOTV to monetary and equitable relief?

II. Whether SOTV, as the prevailing party, is entitled to taxable costs and disbursements?

ANALYSIS

I.

The underlying issue that gave rise to this lawsuit involves a doctrinal dispute amongst the congregation of SOTV. However, a court can apply neutral principles of law in resolving church property disputes so long as it does not determine disputes by examining the basis of the religious doctrine. Jones v. Wolf, 443 U.S. 595, 601-605, 99 S.Ct. 3020, 3024-3026, 61 L.Ed.2d 775 (1979); Piletich v. Deretich, 328 N.W.2d 696, 701 (Minn.1982). Because it is not necessary for us to examine the religious doctrine underlying this lawsuit, we may resolve the property dispute between SOTV and Hope Lutheran Church by applying neutral principles of law.

Appellants argue that the trial court erred when, based on the special verdict rendered by the jury, it ordered judgment in favor of SOTV and awarded equitable and monetary relief for the breach of fiduciary duty by Collins. It is the responsibility of a trial court to interpret a jury’s special verdict and harmonize the jury’s responses where possible. Bartosch v. Lewison, 413 N.W.2d 530, 532 (Minn.App.1987). The court “must consider the evidence in a light most favorable to the verdict and sustain that verdict if possible, on any reasonable theory of evidence.” Dang v. St. Paul Ramsey Med. Ctr., 490 N.W.2d 653, 659 (Minn.App.1992), review denied (Minn. Dec. 15, 1992) (citation omitted). Where there is a reasonable theory to reconcile the verdict, we will not disturb a trial court’s decision to uphold the verdict. Tsudek v. Target Stores, Inc., 414 N.W.2d 466, 470 (Minn.App.1987), review denied (Minn. Dec. 13, 1987).

By special verdict the jury found that (1) SOTV had a present right to the church property located at 1450 West 4th Street, Hastings, Minnesota; (2) SOTV was the proper owner of the church property; (3) Collins breached his fiduciary duty to SOTV; (4) SOTV suffered damages or losses which were caused by the breach of fiduciary duty by Collins; and (5) $7,752.99 would fairly and adequately compensate SOTV for the breach of fiduciary duty by Collins. Based on the jury’s verdict, the trial court awarded SOTV both monetary damages and the right, title, and interest in the church property on the theory that SOTV was entitled to monetary and equitable relief as the result of Collins’s breach of his fiduciary duty.

Appellants specifically argue (1) that the finding of breach of fiduciary duty by Collins is not supported by the weight of the evidence; and (2) that a finding of breach of a fiduciary duty does not support the award of monetary and equitable relief.

A. Fiduciary Duty

An officer of a nonprofit corporation owes a fiduciary duty to that corporation to act in good faith, with honesty in fact, with loyalty, in the best interests of the corporation, and with the care of an ordinary, prudent person under similar circumstances. Minn.Stat. § 317A.361 (2000); see also Miller v. Miller, 301 Minn. 207, 219, 222 N.W.2d 71, 78 (1974) (recognizing the common law principle that officers of a corporation occupy a fiduciary relationship with the corporation); Wenzel v. Mathies, 542 N.W.2d 684, 641 (Minn.App.1996) (same), review denied (Minn. Mar. 28, 1996). In order to establish a breach of fiduciary duty claim, a plaintiff must show that

the action attacked is so far opposed to the true interests of the corporation as to lead to the clear inference that no officer thus acting could have been influenced by an honest desire to secure such interests.

Westgor v. Grimm, 318 N.W.2d 56, 59 (Minn.1982) (quoting Warner v. E.C. Warner Co., 226 Minn. 565, 573, 33 N.W.2d 721, 726 (1948)).

Collins concedes that as an officer of SOTV he owed a fiduciary duty to SOTV; but Collins argues that the evidence does not support a finding that he breached his fiduciary duty because his actions were consistent with the wishes of the SOTV members who made up the Hope faction.

Contrary to Collins’s argument, as the bearer of a fiduciary duty, the law imposed on Collins the highest standard of integrity in his dealings with the other officers of SOTV and the entire SOTV congregation, not just those who were members of the Hope faction. See Wenzel, 542 N.W.2d at 640 (holding that a fiduciary duty is owed to all persons who have equal interests and concerns in the corporation and are subject to harm). Therefore, Collins’s actions must be viewed in light of the fact that as an officer of SOTV his fiduciary duty prevented him from assuming positions, and taking actions, that conflicted with the interests of SOTV and the congregation as a whole.

Reviewing the evidence presented to the jury in the light most favorable to the verdict, there is sufficient evidence in the record to establish that Collins breached his fiduciary duty to SOTV. Collins admitted that while he was vice president of SOTV, he organized the Hope faction for the purpose of forming another church to directly compete with SOTV. Further, the formation of a new church was intended to be a method of circumventing the LCMS termination provisions governing King’s pastoral services.

To achieve his goals, Collins held secret meetings and continuously encouraged secrecy among the Hope faction. Collins did not inform other SOTV officials and members of the SOTV faction of his plans to form Hope, separate from SOTV, and transfer the church property from SOTV to Hope without compensation. In fact, when Collins was asked on cross-examination, “[y]ou kept information from [SOTV’s president] of a material nature, didn’t you?”; Collins testified, “[y]es, I did.” Holding secret meetings and advance preparation of legal documents is improper conduct by an officer, amounting to a breach of fiduciary duty. Evans v. Blesi, 345 N.W.2d 775, 779-80 (Minn.App.1984), review denied (Minn. June 12, 1984). Based on Collins’s own testimony, we cannot say that the jury’s verdict or the trial court’s amended order finding that Collins breached his fiduciary duty to SOTV was unsupported by the evidence.

Moreover, Collins is not protected by the immunity provision of the Minnesota Nonprofit Corporation Act (MNCA), Minn.Stat. § 317A.257 (2000). The MNCA provides immunity from civil liability to unpaid directors of nonprofit organizations if the director (1) acts in good faith; (2) within the scope of his responsibilities as a director; and (3) does not commit recMess or willful misconduct. Id., subd. 1; Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997). The party relying upon the immunity bears the burden of proving he or she fits within the scope of the immunity. Rehn, 557 N.W.2d at 333.

Appellants argue, in their reply brief, that the jury instructions were improper because they failed to inform the jury of the fact that Collins is immune from a breach of fiduciary duty claim. This argument fails outright for two reasons: (1) issues not raised or argued in an appellant’s brief cannot be revived in a reply brief, McIntire v. State, 458 N.W.2d 714, 717 n. 2 (Minn.App.1990), revieiv denied (Minn. Sept. 28, 1990); and (2) immunity is not an issue for the jury, but a legal question to be decided by the court in the first instance. Rehn, 557 N.W.2d at 331-333.

Further, Collins is not entitled to statutory immunity because his actions in bringing about the separation of the congregation and the transfer of the church property constituted “willful or reckless misconduct.” It is misconduct for an officer to withhold material information from other officers and members of the corporation. Appletree Square I Ltd. P’ship v. Investmark, Inc., 494 N.W.2d 889, 892 (Minn.App.1993), review denied (Minn. Mar. 16, 1993). Because Collins testified that he intentionally withheld material information from other SOTV officials and certain members of the SOTV congregation, Collins’s actions constituted willful misconduct. See Black’s Law Dictionary 1014 (7th ed.) 1999 (stating that the term willful misconduct is commonly understood as intentional misconduct); cf. Maras v. City of Brainerd, 502 N.W.2d 69, 76 (Minn.App.1993), review denied (Minn. Aug. 16, 1993) (denying official immunity to a police officer because officer’s actions met the willful conduct exception where evidence established that he acted intentionally). Accordingly, the trial court did not err in determining that Collins was not entitled to the statutory immunity under the MNCA.

B. Relief for Breach of a Fiduciary Duty

Appellants argue that it was error for the trial court to award SOTV the church property as a remedy for Collins’s breach of fiduciary duty. However, a claim of breach of fiduciary duty is an equitable claim. Minn.Stat. § 317A.467 (2000); R.E.R. v. J.G., 552 N.W.2d 27, 30 (Minn.App.1996). Thus, the trial court was presented with a reasonable theory by which it could vest the right, title, and interest in the church property in favor of SOTV.

Further, it was within the trial court’s discretion to return the church property to SOTV. The purpose of fashioning an equitable remedy is to restore the injured party to the position it occupied before the breach of fiduciary duty. R.E.R., 552 N.W.2d at 30. The fashioning of an equitable remedy is committed to the sound discretion of the trial court. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979).

Prior to Collins’s breach of his fiduciary duty, SOTV had a right, title, and interest in the church property. By awarding SOTV the church property, SOTV was returned to the position it occupied before the breach of fiduciary duty. See Wright v. Wright, 311 N.W.2d 484, 485 (Minn.1981) (holding that if legal title to property is obtained through a breach of fiduciary relationship, a constructive trust arises in favor of the person equitably entitled to the property). Therefore, we will not disturb the trial court’s order awarding SOTV the church property as equitable appropriate relief for the breach of fiduciary duty by Collins.

Appellants also argue that the trial court erred when it awarded SOTV an additional $7,782.99 as monetary damages. Monetary damages may supplement a grant of equitable relief. R.E.R., 552 N.W.2d at 30 (citing Leach v. Leach, 167 Minn. 489, 493, 209 N.W. 636, 638 (1926)). SOTV presented evidence that it suffered out-of-pocket expenses of $7,782.99 as a result of the breakup of the church. Appellants do not argue, nor do they provide any evidence that contradicts this amount. Because the trial court, which adopted the jury’s findings, did not reach a conclusion contrary to evidence in the record, we will not disturb the trial court’s award of monetary damages. See Highview N. Apartments v. County of Ramsey, 323 N.W.2d 65, 73 (Minn.1982) (reviewing courts must sustain damages if they are within the limits of credible estimates presented at trial).

II.

In its cross-appeal, SOTV argues that the trial court erred when it failed to award its taxable costs and disbursements. The trial court has discretion in determining a party’s reasonable expenses. Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn.1984). Pursuant to Minn.Stat. § 549.02 (2000), costs and disbursements are available to the prevailing party in all cases in district court. The prevailing party in any action is one in whose favor the decision or verdict is rendered and judgment entered. Borchert v. Maloney, 581 N.W.2d 838, 840 (Minn.1998). The trial court does not have the power to deny costs and disbursements to the prevailing party. Quade & Sons Refrigeration, Inc. v. Minnesota Mining & Mfg., Co., 510 N.W.2d 256, 260 (Minn.App.1994), review denied (Minn. Mar. 15, 1994).

SOTV is the prevailing party because the jury found SOTV had suffered an injury as a result of Collins’s actions and awarded SOTV both monetary and equitable relief. See Kusniryk v. Arrowhead Reg’l Corr. Bd., 413 N.W.2d 182, 184 (Minn.App.1987) (sustaining trial court’s determination that plaintiff who was found equally negligent as defendant but was awarded damages by jury was prevailing party under section 549.04). The district court, however, summarily denied SOTV’s motion for taxable costs and disbursements. Because SOTV is the prevailing party, the trial court abused its discretion when it denied costs and disbursements. Therefore, we reverse and remand for determination o'f respondent’s taxable costs and disbursements.

DECISION

The trial court did not error in harmonizing the jury’s special verdict answers to award SOTV monetary and equitable relief based on the theory that Collins breached a fiduciary duty owed to SOTV. The trial court, however, erred in summarily denying SOTV’s claim for taxable costs and disbursements.

Affirmed in part, reversed in part, and remanded.


author: AMUNDSON, Judge

text:
    STATE of Minnesota, Appellant, v. Juan Lopez ORTIZ, Respondent.
    No. C2-00-2188.
    Court of Appeals of Minnesota.
    May 8, 2001.
    Review Denied June 27, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney, Albert Lea, MN, (for appellant).

      Mark D. Nyvold, St. Paul, MN, (for respondent).
    Considered and decided by TOUSSAINT, Presiding Judge, AMUNDSON, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

AMUNDSON, Judge

On appeal from a pretrial order dismissing a first-degree assault count for lack of probable cause, the state argues that the district court erred by requiring the state to establish probable cause by evidence that would be admissible at trial and by rejecting the state’s theory that, under the circumstances, respondent’s use of his fists could constitute “deadly force.”

FACTS

On August 3, 2000, officers of the Albert Lea Police Department were dispatched to the jail area of the law enforcement center in Albert Lea (the jail) where an assault had allegedly occurred. .Responding to the call, Officer Ben Mortensen found Mark Oakland, a correctional employee at the jail, disoriented and lying in a jail cell with his head, hands, and uniform covered in blood coming from a one-and-one-half-inch laceration on the back of Oakland’s head. Even when prompted, Oakland was unable to recall how he was injured. An ambulance transferred Oakland to the Albert Lea Medical Center where an emergency room doctor concluded that he had a concussion and possible intra-cranial bleeding. Because of the danger of intra-cranial bleeding, Oakland was flown by helicopter to the Mayo Clinic where he continued to experience trouble with short-term memory. Two days after his admission, Oakland was released from the hospital. He has never been able to recall the assault.

Detective Spencer Osterberg also responded to the call. He found Juan Lopez Ortiz in the control room of the jail with keys to the jail in hand. At the sight of Osterberg with his weapon drawn, Ortiz dropped the keys and was arrested.

Ortiz is a five-foot, eight-inch, 265-pound former carnival worker. He is a powerfully built man, large enough that, instead of handcuffs, leg restraints had to be used to bind his hands behind his back. In statements made to several law enforcement officers, Ortiz admitted hitting Oakland in an unprovoked attack to avoid returning to prison in Maryland. He stated that he had nothing to lose because he was going away for 75 years. He described hitting Oakland three times and said that, because he knew he was strong, he hoped he did not hurt Oakland too badly. He described his initial blow as so hard that it “scared” him, and he openly speculated that he might have killed Oakland.

Ortiz was charged with assault in the first degree involving the use or attempted use of deadly force on a correctional employee. The investigators interviewed several inmates who witnessed the assault. At the probable cause hearing, Detective Terry Cochran, an investigating officer, testified that Jon Quam, another inmate at the jail, had described the attack to him. According to Quam, Ortiz first struck Oakland “extremely hard” causing Oakland to fall and hit his head on the heavy steel control box, rendering him unconscious. Ortiz continued to strike Oakland several more times in the face while Oakland was lying defenseless on the floor. These blows were sufficiently forceful to cause Oakland’s head to bounce on the concrete. Ortiz then pulled Oakland’s body partially into a jail cell, with Oakland’s head dragging on the floor. While attempting to close the cell door electronically, Ortiz repeatedly closed it on Oakland.

The district court left the court file open so that the state could supply Oakland’s medical records. However, after failing to produce those records in á timely fashion, the district court dismissed this count without elaboration, finding that the state had failed to produce sufficient admissible evidence to establish reasonable and probable cause to believe the defendant committed the alleged crime. The state moved the court to reconsider and, as the basis for this reconsideration, attached medical records that had been in transit at the time of the first order. Citing the dangers of forum shopping, a different district court judge denied that request. This appeal followed.

ISSUES

I. Where a district court fails to support its conclusions with adequate findings, must this court remand for further findings if there is no conflicting testimony to weigh?

II. Did probable cause exist for the charge of assault in the first degree involving the use or attempted use of deadly force on a correctional employee?

III. Should this court consider portions of the state’s brief containing Deputy Oakland’s medical records, an amended complaint that was not before the district court, and hearsay evidence by prisoners?

ANALYSIS

I.

The district court found that the evidence did not provide probable cause to support the charge of first-degree assault, but did not make any further findings. In State v. Kvam, the supreme court reviewed a case with a similar lack of findings. 336 N.W.2d 525, (Minn.1983). In Kvam, the court stated that it would be easier to review the district court’s decision if the district court had made findings, noting that one of the main reasons for requiring findings is to make it possible to ascertain from the record the basis for the district court’s ruling. Id. at 528 (quoting State v. Rainey, 303 Minn. 550, 550, 226 N.W.2d 919, 921 (1975)). However, in the interests of judicial economy, the court declined to remand the case for further findings. Id. at 529. Despite the fact that there was a factual dispute between the defendant’s testimony and the testimony of the officer, the supreme court “reached the firm conviction that it would be a mistake to reject entirely the officer’s testimony” and reversed the district court’s dismissal of the case. Id.

We need not construe Kvam to be of broad application to, nevertheless, arrive at a similar conclusion. In Kvam there was at least a modicum of conflicting testimony for the court to weigh. Here, there was no conflicting testimony at all. The only testimony before the district court was that of Cochran. Accordingly, we need not remand for clearer findings.

II.

The state appeals the district court’s determination that no probable cause exists. A dismissal for lack of probable cause is appealable if it is based on a legal determination. State v. Ciurleo, 471 N.W.2d 119, 121 (Minn.App.1991). As with other legal determinations, it is reviewed de novo. See State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999) (reviewing a dismissal for lack of probable cause based on statutory interpretation). Here, the facts are largely undisputed. The essential issue then is the application of statutory criteria to those facts, a determination that is also reviewed de novo. State v. Bunde, 556 N.W.2d 917, 918 (Minn.App.1996) (reviewing legality of arrest outside officer’s jurisdiction).

Probable cause exists where the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime. State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978). In addressing a probable cause challenge, the court must determine whether, given the facts disclosed by the record, 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). That is, whether the facts appearing in the record “would preclude the granting of a motion for a directed verdict of acquittal if proved at trial.” Id. at 459, 239 N.W.2d at 903.

The question here is whether the evidence produced at the probable cause hearing supports the first-degree assault charge. First-degree assault of a correctional officer is defined as assaulting a peace officer or correctional employee

by using or attempting to use deadly force against the officer or employee while the officer or employee is engaged in the performance of a duty imposed by law, policy, or rule.

Minn.Stat. § 609.221, subd. 2(a) (2000) (emphasis added). Deadly force is defined as

force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm.

MinmStat. § 609.066, subd. 1 (2000) (emphasis added). Great bodily harm means

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

MinmStat. § 609.02, subd. 8 (2000). There is no requirement that the victim actually suffer great bodily harm. Rather, the force used must be either (1) directed for the purpose of causing great bodily harm or (2) sufficient for the user of force to know he is creating the substantial risk of such harm. See Minn.Stat. § 609.066, subd. 1.

Neither this court nor the supreme court has previously determined whether force not including a firearm is “deadly” under Minn.Stat. § 609.066, subd. 1. Cf. Johnson v. Morris, 453 N.W.2d 31, 38 (Minn.1990) (holding that intentional discharge of gun toward another is “deadly force”). In trying to establish the perimeter of “deadly force,” Ortiz cites to cases discussing whether or not fists can be considered dangerous weapons. E.g., State v. Basting, 572 N.W.2d 281, 282 (Minn.1997) (evidence insufficient to support that fists were used as a dangerous weapon); State v. Davis, 540 N.W.2d 88, 90 (Minn.App.1995) (hands and feet were, dangerous weapons in assault of pregnant woman). Presumably Ortiz cites these eases because, in assaulting Oakland, Ortiz used no weapons other than his bare hands. Nevertheless, these cases are not applicable because deadly force need not involve a dangerous weapon, or any weapon for that matter. Bare hands, even when not deemed “dangerous weapons,” can administer “deadly force” in many situations— for example by choking, pushing a victim into harm’s way, or inflicting a severe beating.

Here, the issue is whether the evidence supports a finding that Ortiz used force by which he either intended to, or should reasonably have known would, create either a substantial risk of causing a permanent or protracted loss or impairment of any bodily member or organ, or other serious bodily harm. The evidence before the district court detailed an attack committed by a very strong man punching a correctional employee “extremely hard” in the face; continuing to beat the victim, after he was rendered unconscious, with several undefended blows to the head that were hard enough to cause the victim’s head to bounce on the concrete floor; dragging his unconscious victim on his head across the concrete floor; and, finally, closing a cell door on the victim several times. Indeed, the attack even alarmed the attacker and caused him to worry that he had killed his victim. The aftermath of the assault (memory loss) was sufficient to substantiate the conclusion that the assault involved a severe beating. It is for the jury to decide whether these facts, if proven at trial, constitute the use of deadly force.

III.

Medical Records

Ortiz requests this court to strike the portion of the state’s brief containing the medical records of Deputy Oakland. His basis for this motion is Minn.R.Civ. App.P. 110.01, which states that the record on appeal is limited to the papers filed, the exhibits, and the transcript of the proceedings.' Ortiz suggests that this action is justified because the district court stated in its memorandum that it was not supplied with the medical records, and therefore the information regarding Oakland’s injuries came from the briefs alone. Although the medical records did not become available to the state until after the initial district court decision, they were submitted along with the motion to reconsider the omnibus order, the denial of which was also appealed. Accordingly, this information is properly part of the record. Furthermore, we note that the medical records here are only relevant to the extent of Oakland’s injuries. As the determination of whether “deadly force” was used is a question of the intent of the actor, and not the extent of the injury, this information is of limited importance.

Amended Complaint

In fashioning several of the facts, most notably the facts regarding Deputy Oakland’s injuries, the state used information contained in the unsigned amended complaint that was filed after the initial order. Ortiz has moved to strike this amended complaint. But the medical records account for all of the “new” facts in the amended complaint. As the medical records are appropriately considered part of the record on appeal, these statements and facts are part of the record regardless of the validity of the amended complaint. Furthermore, because the state appeals from the denial of the motion to reconsider as well as the dismissal itself, the amended complaint stands as part of the record.

Hearsay Evidence

Ortiz also suggests that much of the evidence presented to the court was hearsay and therefore should not be considered. But the Minnesota Rules of Criminal Procedure provide that reliable hearsay may be, in whole or in part, the basis for a finding of probable cause. Minn.R.Crim.P. 11.03. Ortiz suggests that these hearsay statements are not reliable because they were made by anonymous inmates. But, in reality, the most extensive and significant hearsay statement made in the omnibus hearing was in specific reference to John Quam’s observations. Clearly, Quam was not anonymous. Furthermore, any other hearsay statements considered were also not anonymous. Ortiz here confuses anonymous individuals with those who are merely unidentified. The testifying deputy conducted interviews of many of the prisoners and, at trial, those prisoners would be expected to testify.

DECISION

The district court erred by failing to consider reliable hearsay in evaluating probable cause, failing to explain its conclusions with regard to probable cause, and by concluding that probable cause did not exist for a first-degree assault charge when a jury could find that the facts supported the conclusion that deadly force was used in the assault.

Reversed, motions denied.

      . The district court also appears to have applied the wrong standard when it erroneously found that the state had not produced sufficient admissible evidence to establish probable cause. In determining probable cause, the district court may consider evidence in a form that is not necessarily admissible at trial. See Minn.R.Crim.P. 11.03 (probable cause determinations are to be based upon the entire record, including reliable hearsay). It is only if the defense presents exonerating evidence that the court must assess, from a record that may include inadmissible evidence, that the prosecutor possesses substantial evidence admissible at trial and sufficient to withstand a motion for a directed verdict of acquittal. State v. Rud, 359 N.W.2d 573, 579 (Minn.1984).