author: HANSON, Justice. ANDERSON, Russell A.

text:
    Gary ROSENBERG dba Shelter Consultants, Appellant, v. HERITAGE RENOVATIONS, LLC, and Heritage Marketing, LLC, Respondents.
    No. C7-03-94.
    Supreme Court of Minnesota.
    July 29, 2004.
    Rehearing Denied Aug. 19, 2004.
   OPINION

HANSON, Justice.

Appellant Gary Rosenberg, a licensed real estate broker, seeks review of a grant of summary judgment dismissing his claim for commissions on condominium sales that closed after his listing agreement was terminated. The main questions presented are whether Rosenberg’s agreement with respondent Heritage Marketing LLC (“Marketing”) was terminable-at-will and, if so, whether Rosenberg was due any commissions on purchase agreements or reservation agreements that he obtained before termination but that closed after termination. Inherent in the latter question is the issue whether Minn.Stat. § 82.195 (2002), which regulates the content of real estate listing agreements, should be construed to abrogate a broker’s equitable remedy to recover a commission as a procuring cause of a sale that is completed after the listing agreement is terminated. We affirm in part, reverse in part and remand to the district court.

In 1996, Dan Hunt and Arnie Gregory met with Rosenberg to discuss the marketing and sale of approximately 350 individual condominium units in a real estate development that was to be constructed in four phases over several years. In April of 1997, Hunt and Gregory entered into an agreement with Timothy Burnham (doing business as Builders Alliance), as project and sales manager, and Rosenberg (doing business as Shelter Consultants), as sales person. The April agreement contemplated that Hunt, Gregory and Burnham would form a new corporation that would be the party to the agreement with Rosenberg. In fact, while Gregory signed individually, Hunt signed as “Chief Manager, Heritage Marketing, LLC.”

Gregory and Hunt subsequently formed two corporations, respondent Heritage Renovations, LLC (“Renovations”), to be the owner and developer of the project, and Marketing, to provide marketing and sales services to Renovations. The April agreement was then replaced in July 1997 by a new agreement that was signed by Gregory and Hunt on behalf of Marketing (hereafter the “July Agreement”). The July Agreement describes Rosenberg’s role under the heading “Sales Person Proposal.” It states that Rosenberg will receive commissions of “2.5% on coop sales and 3.5% on in house sales” and that Rosenberg will receive a draw against commissions of $3,000 per month together with an advance of $1,500 per unit at the time that each purchase agreement was approved. The July Agreement does not explicitly state a date for its expiration, but does state that Rosenberg is “to work the model sales center hours throughout the time frame of the project.”

Under a section entitled “Advance Payment to Shelter Consultants [Rosenberg],” the July Agreement provides:

BUILDING 1, 23 UNITS $1,500 TO BE PAID TO SHELTER CONSULTANTS AT TIME OF APPROVED P.A. BALANCE OF COMMISSION DUE AT CLOSING LESS ANY ACCUMULATED DRAW.
BUILDING 2 AND ALL OTHERS $500 TO BE PAID TO SHELTER CONSULTANTS AT TIME OF APPROVED P.A. AND ADDITIONAL $1,000 TO BE PAID AT THE TIME OF 50% PRESALE IN EACH BUILDING BALANCE OF COMMISSION TO BE PAID AT CLOSING LESS ANY ACCUMULATED DRAW.
IF A SALE CANCELS MONEY ADVANCED WILL BE CREDITED AGAINST NEXT NEW SALE OR SHELTER CONSULTANTS WOULD PAY BACK THE $1,500.

Rosenberg sold units for phases 1 and 2 from July 1997 through 2000. In September 2000, Rosenberg also began to sell units for phase 3. On February 14, 2001, Marketing sent Rosenberg a fax effectively terminating his services and instructing him to stop selling units on Marketing’s behalf. Rosenberg claims that he had almost 40 purchasers under contract at the time of his termination; 18 as purchase agreements and 20 as reservation agreements. He claims that he is entitled to receive commissions on sales to these purchasers even though the sales were not closed until after his termination. Rosenberg agrees that he has been paid his full commission on all sales that closed before his termination.

Renovations and Marketing moved for summary judgment, arguing that the July Agreement was invalid because it did not include all of the terms required for a “Listing Agreement” under Minn.Stat. § 82.195 (2002). The district court denied Marketing’s motion, determining that the July Agreement was valid because it satisfied the critical requirements of the statute and Marketing had waived the right to object to its deficiencies by operating under the Agreement for several years. The court further determined that the Agreement was terminable at will, but that issues of fact were still present as to what Rosenberg was owed. The court dismissed Renovations as an unnecessary party because it was not named in the July Agreement.

After continued discovery, Rosenberg moved to amend his complaint to include a claim that the arrangement between the parties was actually a joint venture. Marketing renewed its motion for summary judgment. The district court denied Rosenberg’s motion to amend and granted Marketing’s motion for summary judgment, determining that Rosenberg had been lawfully terminated and that he had been paid all commissions due to him through his termination date. The court concluded that Rosenberg’s failure to include an “override clause” in the July Agreement, as authorized by Minn.Stat. § 82.195, precluded any claim for commissions on sales that closed after his termination date.

The court of appeals affirmed, concluding that (1) the July Agreement did not create a joint venture and (2) summary judgment was appropriate because the July Agreement was terminable at will and Rosenberg had been paid all of the commissions due at the time of termination. Rosenberg v. Heritage Renovations, LLC, No. C7-03-94, 2003 WL 21694604 at *2-4 (Minn.App. July 22, 2003) (unpublished opinion). We granted review.

On an appeal from summary judgment, we must determine whether (1) there exist any genuine issues of material fact, and (2) whether the district court correctly applied the law. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 345 (Minn.2003). We view the evidence in a light most favorable to the nonmoving party. Id. The construction of a contract, unless ambiguous, is a question of law, as is the construction of a statute. Id. at 346. Questions of law are reviewed by this court de novo. Id. at 345.

I.

Marketing argues that the July Agreement is void, and Rosenberg’s action cannot be brought, because the July Agreement does not contain all of the “contents” of a listing agreement that are specified in Minn.Stat. § 82.195, subd. 2 (2002). As relevant here, the required “contents” include:

All listing agreements must be in writing and must include:
(1)a definite expiration date;
(2) a description of the real property involved;
(3) the list price and any terms required by the seller;
(4) the amount of any compensation or commission or the basis for computing the commission;
(5) a clear statement explaining the events or conditions that will entitle a broker to a commission;
(6) information regarding an override clause, if applicable, including a statement to the effect that the override clause will not be effective unless the licensee supplies the seller with a protective list within 72 hours after the expiration of the listing agreement;
(10) for residential listings, a notice stating that after the expiration of the listing agreement, the seller will not be obligated to pay the licensee a fee or commission if the seller has executed another valid listing-agreement pursuant to which the seller is obligated to pay a fee or commission to another licensee for the sale, lease, or exchange of the real property in question. This notice may be used in the listing agreement for any other type of real estate.

Id. Marketing argues that the July Agreement is deficient in that, among other things, it failed to include “a definite expiration date” or “information regarding an override clause.”

Rosenberg argues that the only statutory section relevant to this action is Minn. Stat. § 82.33 (2002). That section specifically addresses “Civil Actions” for the “collection of compensation” by a “duly licensed real estate broker” and is in the form of a statute of frauds; that is, it states “No person shall bring or maintain any action” for commissions unless he was a duly licensed real estate broker at the time the cause of action arose and “there is a written agreement with the person required to be licensed.” MinmStat. § 82.33, subds. 1 & 2 (2002). Rosenberg argues that he was duly licensed and the July Agreement satisfied the requirement for a writing.

The district court determined that section 82.195 applied but ruled that the July Agreement was valid because it substantially complied with section 82.195 and Marketing had waived any deficiencies by its course of conduct.

Substantial Compliance

In Rueben v. Gibbs, 297 Minn. 321, 322-23, 210 N.W.2d 857, 858 (1973), we addressed a previous statutory requirement that a listing agreement be in writing before the real estate broker can maintain an action for a commission. There, the broker had written an informal sales agreement after the seller had signed a purchase agreement with the buyer. Id. at 322-23, 210 N.W.2d at 858. We observed that there were no rules or statutes defining the contents of a listing agreement. Id. at 323, 210 N.W.2d at 858. We concluded that the informal sales agreement substantially complied with the statute because it described the commission and provided an authorization to sell. Id., 210 N.W.2d at 858.

After Rueben, the Minnesota Commerce Department promulgated a rule that delineated the requirements for a listing agreement. This rule was substantially similar to and was later codified in Minn.Stat. § 82.195. We have not had the opportunity to address the question of whether section 82.195 or the predecessor rule required strict or only substantial compliance. The court of appeals did so in R.M. Parranto Co. v. Bernick, 354 N.W.2d 600, 603 (Minn.App.1984). The court of appeals concluded that the substantial compliance doctrine of Rueben applied to the rule. Id. The court held that the writing in question satisfied the requirements under both the statute and the rule even though it did not contain a definite expiration date. Id. We agree with R.M. Parranto Co. and hold that the substantial compliance doctrine of Rueben applies to section 82.195.

Course of Dealing

Even if section 82.195 were viewed as a statute of frauds, we have generally recognized that the requirements of a statute of frauds may be superceded by the parties’ performance. Berg v. Carlstrom, 347 N.W.2d 809, 812 (Minn.1984) (“An agreement may be taken out of the statute of frauds * * * by part performance * * Doyle v. Wohlrabe, 243 Minn. 107, 110, 66 N.W.2d 757, 761 (1954) (“That adherence to the strict letter of the statute or perfection in the drafting of the written conveyance are not ends in themselves is illustrated by the equitable doctrine that the statute may not be used as an instrument of fraud and that part performance may, in some instances, place the transaction wholly outside the statute.”). This was the view taken by the Wyoming Supreme Court of an oral real estate listing agreement in Wyoming Realty Co. v. Cook, 872 P.2d 551, 554 (Wyo.1994) (holding that, because the statute of frauds can be satisfied by full performance of one of the parties, the lack of a written listing agreement would not bar enforcement of the oral agreement).

The district court’s conclusions, that the July Agreement substantially complied with section 82.195 and that Marketing waived its objections to any deficiencies by a course of dealing, reflect the sound application of these principles. The July Agreement did contain the essential contents required by section 82.195 and the extensive performance by both parties satisfied any statute of frauds aspects of section 82.195.

II.

Our conclusion that the July Agreement is a valid listing agreement brings us to the question of whether the Agreement extends for the entire 4-phase project or is terminable at will. Under Minnesota law, an employment agreement with no definite expiration date is presumed to be at will. Martens v. Minnesota Min. & Mfg. Co., 616 N.W.2d 732, 741 (Minn.2000). In Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn.1983), we said that “[wjhere the hiring is for an indefinite term, * * * the employment is said to be ‘at-will.’ This means that the employer can summarily dismiss the employee for any reason or no reason * * *.”

The July Agreement does not express a definite termination date. It refers to some events that could be used to determine a termination date, such as the reference to “the time frame of the project” or to “Building 2 and All Others.” But it is not clear that these references were intended to describe the termination event because they are incidental to other terms that do not deal with termination.

Rosenberg does not argue that different legal principles apply to listing agreements, but instead argues that the July Agreement is not silent on the issue of duration. Rosenberg argues that the duration was defined by an event, not a date, because no one knew when the sale of these multiple units would be completed. He suggests that the duration was to be until the last unit was sold.

Because there is no definite date in the contract or even an event from which one could reasonably determine a definite date, we hold that the district court could properly conclude that the lack of a specific termination date rendered the July Agreement terminable at will.

III.

The conclusion that the July Agreement is terminable at will presents the next question: what commissions, if any, did Rosenberg earn prior to his termination? This question requires us to look both at the terms of the July Agreement and at the equitable “procuring cause” remedy. Earned Commissions

Generally, a broker earns his commission “when he has performed all that he undertook to perform.” Greer v. Kooiker, 312 Minn. 499, 510, 253 N.W.2d 133, 141 (1977). But what constitutes a broker’s full performance depends on the exact agreement between the broker and the seller. Olson v. Penkert, 252 Minn. 334, 342, 90 N.W.2d 193, 200 (1958). In Olson, we said:

The great weight of authority is that, unless the broker and his employer have expressly stipulated to the contrary, the broker is entitled to his compensation upon the completion of the negotiations which he undertook, irrespective of whether or not the contract negotiated is actually consummated or whether the failure to complete the contract is due to the default or refusal of the employer or to that of the party procured by the broker, so long as the failure to carry it through is not due to any fault of the broker or so long as he has not been guilty of fraud or bad faith.

Id. at 344, 201, 90 N.W.2d at 201 (emphasis added).

Rosenberg argues that he earned his commission when he obtained signed purchase agreements, but applying Olson, we conclude that the parties have “expressly stipulated to the contrary.” The July Agreement specifies that if a sale does not ultimately close, any advance given to Rosenberg for the purchase agreement would be refunded or applied to the next signed purchase agreement. Accordingly, the claim for commissions cannot be decided on the simple ground that Rosenberg had earned the commissions when the purchase agreements were signed.

Procuring Cause

In Spring Co. v. Holle, 248 Minn. 51, 55, 78 N.W.2d 315, 318 (1956), we recognized that a broker has a right to a commission when the broker has been the procuring cause for the sale, even though the sale is completed after the listing agreement has terminated and the commission had not been earned prior to termination. As stated in Olson, this rule is based on the contract principle that “no one can avail himself of the nonperformance of a condition precedent who has himself occasioned its nonperformance.” 252 Minn, at 343, 90 N.W.2d at 200.

As applied here, this rule would lead to the conclusion that, because the termination of Rosenberg by Marketing caused the nonperformance of the closing, which was the only remaining condition for Rosenberg to earn commissions, Marketing cannot rely on the failure of that condition and is liable for commissions on all sales for which Rosenberg was the procuring cause. This conclusion brings us to the question of whether the common law remedy for a real estate broker who was the procuring cause of a sale has been abrogated by section 82.195, and replaced with the statutory “override” remedy.

Generally, statutes in derogation of the common law are to be strictly construed. Shaw Acquisition Co. v. Bank of Elk River, 639 N.W.2d 873, 877 (Minn.2002); Bloom v. Am. Express Co., 222 Minn. 249, 253, 23 N.W.2d 570, 573 (1946). See also 73 Am.Jur.2d Statutes § 191 (2001) “[I]t is not presumed that the legislature intended to abrogate or modify a rule of the common law on the subject any further than that which is expressly declared or clearly indicated.”). In addition, statutes that are in derogation of an equitable remedy are likewise to be strictly construed so as not to “supplant[], impair!] or restrict!] equity’s normal function as an aid to complete justice.” Swogger v. Taylor, 243 Minn. 458, 465, 68 N.W.2d 376, 382 (1955). See also In re Lakeland Dev. Corp., 277 Minn. 432, 442, 152 N.W.2d 758, 765 (1967)).

One proposed interpretation of section 82.195 is that it provides an alternative remedy, allowing brokers to establish a right to commissions even where they were not the procuring cause, but then limits access to that more liberal remedy by requiring that the listing agreement include the precise terms, and that the broker take the precise actions, specified in section 82.195. This interpretation is consistent with the permissive nature of section 82.195, which does not mandate override clauses, but only describes what such clauses must contain if they are included. This interpretation is also supported by the fact that the override remedy is much broader than the procuring cause remedy. For the procuring cause remedy, “there must be evidence that [the broker] originated a course of events which without a break in their continuity created a cause of which the sale was the result. It is not enough that his services merely contributed to the result. They must be the producing and effective means thereof.” Spring Co., 248 Minn, at 56, 78 N.W.2d at 318. The standard override clause, on the other hand, can preserve the right to a commission for the sale to any person who merely contacted the broker or who showed an interest in the property during the term of the listing. Minn.Stat. § 82.195, subd. 5 (2002).

A second proposed interpretation of section 82.195 is that it so comprehensively addresses the subject of the effect of the termination of a listing agreement on a broker’s right to commissions that the statutory override remedy was intended to be exclusive. In Lynn Beechler Realty Co. v. Wamygora, 396 N.W.2d 717, 720 (Minn.App.1986), the court of appeals held that the administrative rule that preceded section 82.195, and authorized an override remedy, superceded the procuring cause principles recognized in Spring Co. The court of appeals held that the failure of the broker to provide a protective customer list within 72 hours after the expiration of the listing agreement precluded the broker’s claim for any commission. Lynn Beechler Realty Co., 396 N.W.2d at 720. The court did not explain why the requirements of the rule regarding override clauses (now section 82.195) abrogated the procuring cause remedy, except to say that Spring Co. preceded the rule. Lynn Beechler Realty Co., 396 N.W.2d at 720.

There are several factors that weigh against the conclusion that the override remedy authorized by section 82.195 was intended to be exclusive, and these factors suggest that the court of appeals decision in Lynn Beechler Realty Co. was not correct.

First, section 82.195 makes no explicit reference to the procuring cause remedy and does not state that the override remedy displaces any other remedies that might be available at common law. In many instances where the legislature has intended to replace a common law remedy with a statutory one, it has done so expressly. Here, the legislature did not in-elude any language in chapter 82 to expressly abrogate or modify any common law remedies.

Second, and more importantly, the legislature expressly disclaimed any intent to abrogate the common law in the “Scope and Effect” section of chapter 82. When chapter 82 was first enacted, the legislature described the scope and effect of the chapter as follows: “The requirement for disclosure of agency relationships set forth in this chapter are intended only to establish a minimum standard for regulatory purposes, and are not intended to abrogate common law.” Act of May 20, 1993, ch. 309, § 9, 1993 Minn. Laws 1794, 1801 (emphasis added). In 1994, this scope and effect language was amended, but the amendment reinforced the idea that the statute did not replace the common law, providing: “Disclosures made in accordance with the requirements for disclosure of agency relationships set forth in this chapter are sufficient to satisfy common law disclosure requirements.” Minn. Stat. § 82.197, subd. 3 (2002). Thus, the initial version of section 82.197 expressly disclaimed any intent to abrogate the common law and the amended version expressly recognized that common law requirements continue to exist and are not replaced by the statute.

Third, we have been reluctant to imply an intent to abrogate a common law right where the statute does not do so expressly. This is particularly true with respect to equitable principles and remedies. Thus, in Swogger, 243 Minn, at 464, 68 N.W.2d at 382, we said that equity “functions as a supplement to the rest of the law where its remedies are inadequate to do complete justice.” We held that in the absence of express language or necessary implication, the partition statute, which had modified the procedures for partition actions be interpreted as restricting the court’s equitable jurisdiction to consider other plans where necessary to provide complete justice. Id. at 464-65, 68 N.W.2d at 382. We said:

Statutory enactments, even though they provide new procedures to enforce preexisting rights at law and in equity, are to be read in harmony with the existing body of law, inclusive of existing equitable principles, unless an intention to change or repeal it is apparent.

Id. at 465, 68 N.W.2d at 382.

Similarly, we have said that even though the statutes governing the dissolution of a corporation prescribed specific procedures and grounds for dissolution, the statute should not be construed as eliminating the court’s pre-existing powers in equity. Lakeland Dev. Corp., 277 Minn, at 441, 152 N.W.2d at 764-65. Thus we recognized that the court’s authority by statute to dissolve a corporation was an alternative remedy that did not eliminate the court’s general equitable power to do so. As applied here, all would likely agree that the strict application of section 82.195 to deprive Rosenberg of any recovery of compensation for extensive work that produced significant benefit to Marketing would not do complete equity.

Fourth, as noted earlier, the permissive language of section 82.195 does not suggest an intention of exclusion. The statute does not require that an override clause be included in a listing agreement but treats it as optional-“if applicable.” Moreover, the only language that could be construed as restricting civil actions on a listing agreement is subdivision 4, which is narrowly limited to proscribe that “Licensees shall not seek to enforce an override clause unless * * Minn.Stat. § 82.195, subd. 4(a) (2002). Rosenberg does not seek to enforce an override clause in this action and thus does not violate the statute’s only proscription.

The dissent’s reliance on subdivision 2(5) of section 82.195 is misplaced. The requirement in that subdivision that all listing agreements contain “a clear statement explaining the events or conditions that will entitle a broker to a commission” addresses the question of when commissions are contractually earned. As we discussed earlier, the July Agreement did explain how commissions were to be contractually earned, and we have concluded that because Rosenberg did not earn any further commissions under the July Agreement, he had no contract remedy. But the procuring cause doctrine is an equitable remedy that is only available where there is no contract remedy; that is, where commissions were not contractually earned at the time of termination. We do not read subdivision 2(5) (or any other statute of frauds provision, for that matter) as requiring that a party seeking an extra-contractual, equitable remedy must first show that the contract expressly gave notice that the equitable remedy might be available.

Weighing all of these considerations, we conclude that the override remedy provided in section 82.195 was intended to provide an alternative to, but not to abrogate, the court’s equitable authority to use the procuring cause remedy where necessary to do complete equity. A similar conclusion was reached by the Colorado Court of Appeals in Telluride Real Estate Co. v. Penthouse Affiliates, LLC, 996 P.2d 151, 154 (Colo.App.1999). The court rejected the argument that a statute regulating the relationships between real estate brokers and sellers was intended to supplant existing common law, holding that the statute did not eliminate the common law procuring cause remedy.

Because genuine issues of material fact exist with respect to Rosenberg’s procuring cause claims, we reverse the grant of summary judgment for Marketing and remand for trial of those claims.

rv.

Our reversal of summary judgment for Marketing necessitates a review of Rosenberg’s claim against Renovations. Rosenberg contends that the district court erred in dismissing all claims against Renovations because Marketing was acting as an agent for Renovations and he should be able to pursue both corporations. Marketing argues that the district court correctly dismissed Renovations as a party because Renovations was not a party in the listing agreement. Marketing also argues that Marketing was not an “agent” for Renovations because Renovations did not have continuous control over Marketing.

The court of appeals did not address the “agency” issue because it held that there was no valid claim against Marketing and, thus, there could be no valid claim against Renovations. Rosenberg, 2003 WL 21694604, at *4. But, because we reverse the decision of the court of appeals on the procuring cause claim against Marketing, the issue of whether Rosenberg has stated a valid claim against Renovations takes on renewed significance.

Rosenberg argues that the rules of civil procedure do not authorize the dismissal of a party merely on grounds that the party is not “necessary.” It is true that the district court’s use of the word “necessary” was a misnomer. The concept of a necessary party only arises where a party is not joined and that party’s presence in the action is necessary to the ability of the court to grant complete relief or avoid inconsistent obligations. Minn. R. Civ. P. 19.01. A plaintiff has the right to join a person against whom the plaintiff can state a claim, even though the joinder of that person is not technically “necessary” but only “permissive.” Minn. R. Civ. P. 20.01.

The question is whether Rosenberg has stated a claim against Renovations, which turns on the question whether Renovations should be considered a party, albeit unnamed, to the July Agreement. According to the Restatement, a disclosed principal “is subject to liability upon an authorized contract in writing * * * although it purports to be the contract of the agent, unless the principal is excluded as a party by the terms of the instrument or by the agreement of the parties.” Restatement (Second) of Agency § 149 (1958). The comments state:

The fact that the principal’s name is not in the instrument and that there is no appearance of agency upon the writing is some evidence that the parties intended that the agent alone was to be liable. However, it is not sufficient evidence to rebut the inference that a disclosed or partially disclosed principal is a party to a contract made by his agent.
Upon the question whether or not, under the circumstances, the third person accepted the credit of the agent only, the written memorandum binding the agent is not conclusive evidence, unless by its specific terms the principal is excluded as a party.

Id. at cmt. a. The same rule applies to undisclosed principals: “[a]n undisclosed principal is bound by contracts and conveyances made on his account by an agent acting within his authority.” Id. at § 186. And the rule is not changed by the fact the contract must be in writing. Id. at §§ 153 and 193. Section 82.195 recognizes the possibility that a listing agreement may be signed by an agent by stating that a listing agreement may be signed either by the owner or “another person authorized to offer the property for sale.” MinmStat. § 82.195, subd. 1 (2002).

Evidence supporting the view that Renovations was intended to be a party to the July Agreement includes the fact that commission payments to Rosenberg were made by Renovations, not Marketing; the Reservation Agreements identify Renovations as “Seller” and Rosenberg’s company, Shelter Consultants, as “Seller’s agent”; and the New Construction Purchase Agreements likewise list Rosenberg as “Seller’s Agent.” Further, the May 1997 Agreement between Renovations and Marketing has a provision for “subcontracts” which authorized Marketing to provide services to Renovations through subcontractors, subject to approval by Renovations.

Because the district court did not address these agency issues and dismissed Renovations on an inappropriate ground, Rosenberg was not given a foil opportunity to present a record on these agency issues. The record that does exist is sufficient to preclude dismissal of Renovations under either Minn. R. Civ. P. 12 or 56. We reverse the summary judgment dismissing Rosenberg’s claims against Renovations.

V.

Finally, Rosenberg argues that the district court erred in denying his motion to amend his complaint to include a claim for breach of a joint venture. A party may amend its complaint after a responsive pleading is served only by leave of the court. Minn. R. Civ. P. 15.01. We have stated that the amendment of pleadings should be liberally allowed unless the adverse party would be prejudiced. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). But we have cautioned that the court should deny a motion to amend a complaint where the proposed claim could not withstand summary judgment. M.H. v. Caritas Family Services, 488 N.W.2d 282, 290 (Minn.1992).

Under Minnesota law, four requirements must be met in order to create a joint venture. These four requirements are “(1) contribution by all parties, (2) joint proprietorship and control, (3) sharing of profits but not necessarily of losses, and (4) a contract.” Delgado v. Lohmar, 289 N.W.2d 479, 482 n. 2 (Minn.1979) (citing Treichel v. Adams, 280 Minn. 132, 158 N.W.2d 263 (1968); Rehnberg v. Minnesota Homes, Inc., 236 Minn. 230, 52 N.W.2d 454 (1952)). Although it appears that Rosenberg may have participated in the initial stages of the development, he provides no evidence that he had joint proprietorship or control or that he was to share in the profits of the development. To the contrary, the listing agreement states that Rosenberg was employed as a salesperson for specified commissions. And the parties’ conduct under the listing agreement demonstrates that they regarded Rosenberg as a commission agent, not a joint venturer.

We conclude that the district court did not abuse its discretion when it denied Rosenberg’s motion to amend because the claim of a joint venture would not survive a summary judgment motion.

Affirmed in part, reversed in part and remanded.

ANDERSON, Russell A.

(dissenting).

Because the majority ignores both the intent of the legislature and our longstanding precedent, I respectfully dissent. Chapter 82 of the Minnesota Statutes is a comprehensive and mandatory statutory scheme for the regulation of real estate brokers and salespersons. No person is to act as a real estate broker, salesperson, or real estate closing agent unless licensed. Minn.Stat. § 82.19, subd. 1 (2002). In fact, we have made clear that an unlicensed real estate broker may not maintain an action for the collection of a commission. Relocation Realty Services Corp. v. Carlson Companies, Inc., 264 N.W.2d 643, 645 (Minn.1978); accord Dellwood Enter., Inc. v. Pac. Am. Real Estate Fund, 505 F.Supp. 187, 189 (D.Minn.), ajfd, 653 F.2d 350 (8th Cir.1981).

In addition to requiring a license to maintain an action such as this, brokers, such as Rosenberg, are required to obtain a signed listing agreement that includes, among other things, “a clear statement explaining the events or conditions that will entitle a broker to a commission.” Minn.Stat. § 82.195, subd. 2(5) (2002). A broker “shall not” seek to enforce an override clause unless a protective list has been furnished to the seller within 72 hours after the expiration of the listing agreement. Minn.Stat. § 82.195, subd. 4 (2002). See also Douglas v. Schuette, 607 N.W.2d 142, 145 (Minn.App.2000); Lynn Beechler Realty Co. v. Warnygora, 396 N.W.2d 717, 720 (Minn.App.1986). The length of the override provision may not extend more than 6 months beyond the expiration of the listing agreement and, with exception not applicable here, a broker “shall not” include in a listing agreement a holdover clause, automatic extension, “or any similar provision * * *.” Minn.Stat. § 82.195, subd. 3 (2002).

The majority apparently believes that beneath these clear and comprehensive statutory requirements and prohibitions is a surviving common law equitable remedy which allows a broker to recover a commission when the broker is the procuring cause of a sale completed after termination of the listing agreement. In my view, the majority has read into this listing agreement a “similar provision” to an override clause that the legislature has clearly prohibited. See Minn.Stat. § 82.195, subd. 3. The listing agreement that Rosenberg seeks to enforce has no override clause that would allow, upon proper notice, recovery of commissions after termination of the listing agreement. The common law principle relied upon by the majority is nowhere referenced in the listing agreement, which, according to statute, must contain “a clear statement explaining the events or conditions that will entitle a broker to a commission.” Minn.Stat. § 82.195, subd. 2(5). Wh,en the legislature provides that events or conditions that will entitle a broker to a commission must be explained in a “clear statement” in the listing agreement, I would conclude that a common law claim, neither mentioned nor explained by a clear statement in a listing agreement, is barred.

The majority relies on a specific (and since amended) section of chapter 82 for the proposition that the legislature intended no portion of chapter 82 to abrogate the common law. The section cited by the majority, however, Minn.Stat. § 82.197, subd. 3 (2002), by its very terms applied only to “the requirements for disclosure of agency relationships set forth in this chapter.” (Emphasis added.) Because the dispute before us does not involve the disclosure of an agency relationship, but rather the adequacy of the listing agreement, Minn.Stat. § 82.197 is wholly irrelevant.

By his own admittance, Rosenberg, a licensed real estate broker with over 20 years of experience, failed to comply with the express statutory provisions that would allow entitlement to a commission after termination of the listing agreement. See Marks v. Walter G. McCarty Corp., 33 Cal.2d 814, 205 P.2d 1025, 1030 (1949) (“The plaintiff [a licensed real estate broker], a man of experience in this line of business, knew how to protect himself in the transaction but failed to do so.”). I would not enforce a remedy that the legislature has prohibited. I respectfully dissent.

BLATZ, C.J. (dissenting).

I join in the dissent of Justice Russell A. Anderson.

      . In 1998, Burnham voluntarily withdrew from the project and is not involved with this dispute.

      . Section 82.195 does not define an "override clause.” Black's Law Dictionary defines "override” as follows:
      A commission paid to a real-estate broker who listed a property when, within a reasonable time after the expiration of the listing, the owner sells the property directly to a buyer with whom the broker had negotiated during the term of the listing.
      Black’s Law Dictionary 1129 (7th ed.1999).

      . The rule was first promulgated by the Commerce Department in 1982 as Minn. R. 2800.3800, was later renumbered 2805.1200, and eventually was repealed by Act of May 20, 1993, ch. 309, § 32, 1993 Minn. Laws 1814. See Eileen Roberts, Minnesota Practice-Real Estate Law % 1.11 (2003).

      . See also MacDonald v. Roderick, 158 Vt. 1, 603 A.2d 369, 372 (1992):
      When * * * the claim is that the violation occurred because of failure to use required language or because of the omission or misstatement of a required term, there will be no effect on the broker's right to recover a commission unless the violation makes recovery unfair in the particular case before the court.

        But see Brian Props., Inc. v. Burley, 278 Ill.App.3d 272, 214 Ill.Dec. 956, 662 N.E.2d 522, 525 (1996) (holding that an agreement that violated the requirements of the licensing act by omitting a definite expiration date was void); Bangle v. Holland Realty Invest., 80 Nev. 331, 393 P.2d 138, 140 (1964) ("[e]n-forcement [of the agreement] is precluded because of its failure to contain a definite termination date.”).

      . In Lapadat v. Clapp-Thomssen Co., 397 N.W.2d 606, 609 (Minn.App.1986), the court of appeals applied the principles of employment law to determine that a real estate broker’s agreement to act as sales manager for a brokerage firm was terminable at will, stating: "[t]he April Agreement is silent on the issue of duration; as a result, it is terminable at will as a matter of law.”

      . Minnesota has recognized the procuring cause remedy in numerous cases spanning several decades. See Wright v. M.B. Hagen Realty Co., 269 N.W.2d 62, 66 (Minn.1978); Stead v. Erickson, 182 Minn. 469, 471, 234 N.W. 678, 679 (1931); Armstrong v. Wann, 29 Minn. 126, 127, 12 N.W. 345, 346 (1882).

      . Thus, for example, Minnesota’s Workers’ Compensation law provides:

        The liability of an employer prescribed by this chapter is exclusive and in the place of any other liability to such employee, personal representative, surviving spouse, parent, any child, dependent, next of kin, or other person entitled to recover damages on account of such injuiy or death.
      Minn.Stat. § 176.031 (2002). And Minnesota's No-Fault Automobile Insurance statute modifies the common law "action in negligence accruing as a result of injury arising out of the operation, ownership, maintenance or use of a motor vehicle” by providing that, in such an action, "no person shall recover damages for noneconomic detriment unless” the sum of specified damage elements exceeds $4,000 or the injury results in permanent disfigurement, permanent injury, death or disability for 60 days or more. Minn.Stat. § 65B.51, subds. 1 and 3 (2002).

      . One article specifically recognizes that the override clause provides an alternative to the procuring cause remedy (referring to the override clause as an "extension clause"):
      The purpose of an extension clause is often misunderstood. In some cases the broker was held to be entitled to his commission only if he could show that he was the "procuring cause” of the sale. As has been noted, this analysis is correct only if no extension clause exists. The very reason for the extension clause is to afford the broker additional protections not allowed by the procuring cause doctrine.
      John M. Norwood & Cornelius J. Hyde, Extension Clauses in Louisiana Listing Agreements, 42 La. L.Rev. 1011, 1012-13 (1982) (footnote omitted).

      . There can be no disputing the fact that licensed real estate brokers are required to comply with the provisions of chapter 82. The mandatory nature of Minn.Stat. § 82.195 (2002) is evidenced by the terms utilized by the legislature:
      Subdivision 1. Requirement. Licensees shall obtain a signed listing agreement or other signed written authorization from the owner of real property * * *.
      Subd. 2. Contents. All listing agreements must be in writing and must include: (1) a definite expiration date;
      ⅝ * * *
      (5) a clear statement explaining the events or conditions that will entitle a broker to a commission;

      (6) information regarding an override clause, if applicable, including a statement to the effect that the override clause will not be effective unless the licensee supplies the seller with a protective list within 72 hours after the expiration of the listing agreement;
      Subd. 3. Prohibited transactions. Except as otherwise provided in subdivision 4, paragraph (b), licensees shall not include in a listing agreement a holdover clause, automatic extension, or any similar provision, or an override clause the length of which is more than six months after the expiration of the listing agreement.
      Subd. 4. Override clauses, (a) Licensees shall not seek to enforce an override clause unless a protective list has been furnished to the seller within 72 hours after the expiration of the listing agreement.
      Minn.Stat. § 92.195 (2002) (emphasis added).


source: Caselaw Access Project

author: /s/Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Suzanne K. BASIAGO, a Minnesota Attorney, Registration No. 237139.
    No. A03-1746.
    Supreme Court of Minnesota.
    Aug. 12, 2004.
   ORDER

On April 23, 2003, this court suspended petitioner Suzanne K. Basiago from the practice of law and established the following conditions for petitioner’s reinstatement: (1) completion of a four-month period of suspension; (2) payment of $900 in costs pursuant to Rule 24, Rules on Lawyers Professional Responsibility (RLPR); (3) compliance with the requirements of Rule 26, RLPR; (4) successful completion of the professional responsibility portion of the state bar examination; and (5) satisfaction of continuing legal education (CLE) requirements.

Petitioner has filed a petition requesting reinstatement with this court stating she has fulfilled the terms of the disciplinary order with respect to reinstatement. The Lawyers Professional Responsibility Board Panel, after conducting a hearing on reinstatement on June 2, 2004, concluded that petitioner has satisfied the conditions required for reinstatement and recommends that petitioner be reinstated to the practice of law subject to supervised probation. The panel recommends that the probation terminate two years after petitioner’s reinstatement or two years after petitioner resumes the private practice of law, whichever is later, and be subject to the following terms and conditions, all of which were recommended by the Director of the Office of Lawyers Professional Responsibility (Director) and voluntarily accepted by petitioner:

1. Petitioner shall cooperate fully with the Director’s Office in its efforts to monitor compliance with her probation and promptly respond to the Director’s correspondence by the due date. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, petitioner shall provide authorization for release of information and documentation to verify compliance with the terms of probation.
2. Petitioner shall abide by the Minnesota Rules of Professional Conduct (MRPC).
3. Petitioner shall continue her treatment with Ms. Patricia Peterson or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by Ms. Peterson or other approved mental health professional.
4. Petitioner shall notify the Director when she resumes the private practice of law. Petitioner shall thereafter comply with the following additional terms: (i) Petitioner shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor petitioner’s compliance with the terms of this probation and adherence to the business plan she has developed. Prior to resuming the private practice of law, petitioner shall provide to the Director the names of four attorneys who have agreed to be nominated as petitioner’s supervisor. If, after diligent effort, petitioner is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has been appointed, petitioner shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (ii) below. Petitioner shall make active client files available to the Director upon request.
(ii) Petitioner shall cooperate fully with her supervisor in his/her efforts to monitor compliance with her probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Petitioner shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active client file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Petitioner’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(iii) Petitioner shall initiate and maintain office procedures that ensure that she promptly responds to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which petitioner is handling, and that will ensure that petitioner regularly reviews each and every file and completes legal matters on a timely basis.
(iv) If petitioner maintains a trust account, she shall maintain trust account books and records (including a checkbook register, client subsidiary ledgers, trial balances and reconciliations) in compliance with Rule 1.15, MRPC, and LPRB Opinion No. 9, and shall have those records reviewed and approved by a certified public accountant on at least a monthly basis. Petitioner shall also make her trust account books and records available to the Director at such intervals as the Director deems necessary to verify compliance.

The Director concurs with the panel’s recommendation.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that petitioner Suzanne K. Basiago is reinstated to the practice of law in the State of Minnesota, effective immediately, and is placed on supervised probation for a minimum of two years subject to the terms and conditions recommended by the panel and set forth above.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: MINGE, Judge.

text:
    STATE of Minnesota, Respondent, v. Walter DAVIS, Appellant.
    No. A03-1426.
    Court of Appeals of Minnesota.
    Aug. 17, 2004.

      Mike Hatch, Attorney General; and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; HARTEN, Judge; and HALBROOKS, Judge.
   OPINION

MINGE, Judge.

Appellant challenges his conviction of felon in possession of a firearm, arguing that (1) the district court abused its discretion in denying appellant’s request for an accomplice-testimony jury instruction; (2) the district court abused its discretion in excluding evidence that the state collected gunpowder residue samples from appellant but never tested them; and (3) the prosecutor committed prejudicial misconduct in referring to evidence that appellant was present during another gun-related incident earlier in the day. Because we conclude that the district court erred in declining to give the accomplice-testimony jury instruction, we reverse and remand.

FACTS

On January 4, 2003, appellant Walter Davis and a group of his friends went to a Wendy’s restaurant. The group included appellant’s brother, Dana Davis (“Dana”), and Perry Williams. While waiting in line to order food, another group arrived at the restaurant, including Robert Brown and Glen Aeon. Appellant and his friends have had difficulties with Brown and his friends in the past.

Brown’s group started a fight by attacking appellant’s group with fists and chairs. Williams went to the car, retrieved a gun, and handed it to Dana as he was standing near an entrance. Dana fired the gun approximately four times. The facts as to what occurred next are contested. Williams testified that after he handed Dana the gun, he ran back to the vehicle and found appellant already inside. According to Dana, after Williams handed him the gun, Dana then handed the gun to appellant. Dana contends that as he turned to run, he heard more shots fired. Dana claims that appellant was' directly behind him as they fled the scene and that they left in the same vehicle. Appellant denies ever having had the gun in his hands.

Officer Chad Degree arrived at the scene and discovered that three people, including Brown and Aeon, had been shot by a small caliber handgun. Degree spoke to Brown at the scene and testified that Brown told him that there had been an argument and a fight, that Dana had the gun initially, but then handed the gun to appellant and that appellant, Dana, and Williams shot at them. At trial, Brown testified that he did not recall if he saw appellant with a gun that evening, but that he saw appellant run out of the building after Dana started firing.

Officer Degree also testified that when he interviewed Aeon at the hospital, Aeon told him that he saw appellant with a handgun, that Williams handed appellant the gun, and that appellant had shot him. Aeon testified at trial that he did not see appellant with a gun.

Sergeant Bruce Wynkoop interviewed Dana two days after the incident. Dana told Wynkoop that Williams gave him the gun as the fight progressed, that he fired it before handing it to appellant, and that he heard a couple more shots as he ran away. Wynkoop also interviewed Ebony Green, a customer at Wendy’s who knew appellant. Wynkoop testified that Green told him that someone from appellant’s group retrieved a gun from a car, fired a couple shots, and then handed it to appellant. Green testified at trial that while she heard shots, she really did not see anyone with a gun. Timeka Lowe, Breisha Smith, and Jerrine Powers, who were also witnesses to the incident, testified that they never saw appellant with a gun.

Appellant was charged with one count of felon in possession of a firearm under Minn.Stat. § 624.713, subd. 1(b) (2002). Dana pleaded guilty to second-degree assault for his role in the incident, with an agreement that before sentencing he would testify honestly and truthfully against appellant. The parties stipulated that appellant was a person prohibited from possessing a firearm. Appellant testified at trial that he did not possess a gun that evening, that after fighting with Aeon in the doorway, he escaped and went to the car, and that he left in a different car than Dana. Although appellant requested a jury instruction on accomplice testimony, the district court refused to give the instruction. The jury found appellant guilty. The district court sentenced appellant to the mandatory minimum sentence of 60 months in prison. This appeal followed.

ISSUES

I. Did the district court abuse its discretion in denying appellant’s request for an accomplice-testimony jury instruction?

II. Did the district court abuse its discretion in excluding evidence that a gunpowder residue test was performed on appellant after the shooting, but was never submitted for analysis?

III. Did the prosecutor elicit improper evidence at trial thereby committing prejudicial misconduct?

ANALYSIS

I. Accomplice-testimony jury instruction

The first issue is whether the district court abused its discretion in denying appellant’s request for an accomplice-testimony jury instruction. The accomplice-testimony instruction states that “[a jury] cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime, unless that testimony is corroborated by other evidence that tends to convict the defendant of the crime.” 10 Minnesota Practice, CRIMJIG 3.18 (1999). Regarding accomplice-testimony instructions, the Minnesota Supreme Court has stated:

While such an instruction need not be given in every criminal case, it must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime. If it is unclear whether or not a witness is an accomplice to the crime, the jury should make that determination, and if it is clear as a matter of law that a witness is an accomplice, then the trial court must so inform the jury.

State v. Shoop, 441 N.W.2d 475, 479 (Minn.1989) (emphasis added). In determining whether a witness is an accomplice for the purpose of an accomplice instruction, the inquiry is whether the witness “could have been indicted and convicted for the crime with which the accused is charged.” State v. Flournoy, 535 N.W.2d 354, 359 (Minn.1995) (quotation omitted). The question here is whether Dana is an accomplice to the crime with which appellant is charged: felon in possession of a firearm.

Minn.Stat. § 609.05, subd. 1 (2002), states, “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” Dana admits he gave the gun to appellant. Although some witnesses state that appellant did not have the gun, Officer Degree testified that two witnesses had earlier told him that appellant had the gun and one witness claimed that Dana handed the gun to appellant. One item is clear: if appellant in fact did have the gun, there is a fact question as to whether Dana intentionally aided appellant in the commission of the crime and therefore could have been indicted or convicted of illegal possession of a firearm. Because we conclude that it is unclear whether Dana is an accomplice as a matter of law, the issue should have been submitted to the jury, and the accomplice-testimony instruction should have been given for the jury’s use in case the jury determined Dana was an accomplice.

This is not a situation where there is sufficient corroboration in the record to make the lack of an accomplice-testimony instruction harmless error. The testimony is conflicting as to whether Dana handed the gun to appellant and as to whether appellant ever had possession of the gun during the incident. Interestingly enough, the only person who has consistently stated that appellant possessed a gun during the incident is Dana, appellant’s brother, and the possible accomplice. The victims, who are members of a rival group, told Officer Degree that appellant had the gun but testified differently at trial. Although Dana consistently stated that he handed the gun to appellant, he was awaiting sentencing; a highly vulnerable position. The accomplice testimony instruction is too important to overlook when the evidence is so contradictory. Therefore, we conclude that the district court abused its discretion in denying appellant’s request for the accomplice testimony instruction and that a new trial is required.

II. Excluding evidence of gunpowder residue test

The next issue is whether the district court abused its discretion in excluding evidence that the state collected gunpowder-residue sampling from appellant after the shooting but never submitted it for analysis. We choose to address this issue for remand purposes.

A district court has wide discretion in matters concerning the relevancy of evidence, and its determination will not be disturbed unless there has been a clear abuse of discretion. State v. Swain, 269 N.W.2d 707, 714 (Minn.1978). The rules of evidence allow the admission only of relevant evidence at trial. Minn. R. Evid. 402. Evidence is relevant when it tends to “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401.

Here, the simple fact that the test was taken, but not analyzed, does not make appellant’s possession of the firearm any more or less probable. Also, the fact that the test was taken does not tend to show bias because appellant was not singled out in the testing; the gunpowder-residue tests were performed on four suspects. Furthermore, the assertion that the state’s failure to analyze the tests somehow suggests appellant’s innocence is mere speculation. Therefore, the fact that the test was performed, but not analyzed, is irrelevant, and the district court did not abuse its discretion in excluding this evidence.

III. Prosecutorial misconduct

Appellant argues that the prosecutor committed prejudicial misconduct by eliciting improper character evidence during cross-examination. Because we reverse and remand for a new trial, we need not reach this issue. However, we note that after the alleged improper remark was uttered, the district court sustained appellant’s attorney’s objection, instructed the jury to disregard it, and the remark was stricken from the record. Therefore, it appears that any potential prejudice was cured. See, e.g., State v. Eggert, 358 N.W.2d 156, 162 (Minn.App.1984) (“If appellant had objected, a cautionary instruction by the court following the objection, together with the rebuttal argument offered by appellant, could have cured any prejudicial effect.”).

DECISION

The district court abused its discretion in denying appellant’s request for an accomplice-testimony jury instruction.

Reversed and remanded.


text:
    STATE of Minnesota, Respondent, v. Kevin Paul KURZ, Appellant.
    No. A03-1747.
    Court of Appeals of Minnesota.
    Aug. 17, 2004.
    Mike Hatch, Attorney General, St. Paul, MN; and Patrick W. Flanagan, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney, Austin, MN, for respondent.
    John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; TOUSSAINT, Chief Judge; and STONEBURNER, Judge.
   OPINION

MINGE, Judge.

Appellant argues that the district court erred in denying his motion to dismiss the charges against him on the ground that, under the Uniform Mandatory Disposition of Detainers Act, the time to prosecute him had expired and the court no longer had jurisdiction. Because the six-month period for prosecution under the Act was tolled by appellant’s earlier motion to dismiss for lack of probable cause, we affirm.

FACTS

On May 30, 2002, appellant Kevin Kurz was arrested in Mower County for fleeing a police officer, felony theft, and assisting a theft. On June 6, 2002, appellant was transferred to Rice County authorities to face charges in that county. Appellant remained in the Rice County jail until November 21, 2002, when he was sentenced for the Rice County charges and imprisoned.

While incarcerated in St. Cloud, appellant made a demand under the Uniform Mandatory Disposition of Detainers Act (UMDDA) for a speedy trial on the Mower County complaint. Mower County authorities received his demand on December 17, 2002. On February 26, 2003, respondent state submitted a settlement offer to appellant’s counsel. On April 14, 2003, when appellant’s counsel failed to respond, the offer was sent directly to appellant. On April 17, 2003, appellant rejected the offer.

On May 2, 2002, a default Mower County omnibus hearing was held. At this hearing, appellant requested a contested omnibus hearing and informed the court that he planned to seek dismissal of the felony-theft charge for lack of probable cause. Appellant filed his motion to dismiss for lack of probable cause on May 6, 2003, and the district court scheduled a contested omnibus hearing for May 27, 2003. On May 15, 2003, respondent filed an amended complaint, dropping the felony-theft charge. On May 27, 2003, appellant withdrew his motion to dismiss, waived the omnibus hearing, and pleaded not guilty to the remaining two counts.

The district court scheduled a pretrial conference for June 27, 2003, and the trial for July 7, 2003. At the June 27, 2003 pretrial conference, appellant moved the court to dismiss the two remaining charges, arguing that the court no longer had jurisdiction because the UMDDA’s six-month period for prosecuting him had expired. The district court denied appellant’s motion, finding that the UMDDA’s six-month deadline was tolled by the 25-day period from May 2 to May 27, 2003, which was needed to consider appellant’s motion to dismiss for lack of probable cause. On July 8, 2003, appellant pleaded guilty to fleeing a police officer, and the assisting-theft charge was dismissed. On appeal, appellant argues that his motion to dismiss for lack of probable cause did not toll the six-month period, that the court no longer had jurisdiction of his case after June 18, 2003, and that his conviction is void.

ISSUE

Did appellant’s motion to dismiss the complaint for lack of probable cause toll the six-month period under the Uniform Mandatory Disposition of Detainers Act?

ANALYSIS

Whether a district court retains jurisdiction is a legal issue, which we review de novo. State v. Wilson, 632 N.W.2d 225, 229 (Minn.2001). The UMDDA allows “[a]ny person who is imprisoned in a penal or correctional institution ... [to] request final disposition of any untried indictment or complaint pending against the person in this state.” Minn.Stat. § 629.292, subd. 1(a) (2002). “Within six months after the receipt of the request ... or within such additional time as the court for good cause shown in open court may grant,” a trial must be held on such indictment. Id., subd. 3 (2002). If a trial is not held within that period, “no court of this state shall any longer have jurisdiction ... and the court shall dismiss [the indictment] with prejudice.” Id. This is the statutory right to a speedy trial.

Here, the UMDDA’s six-month period began running on December 17, 2002, when the proper authorities received appellant’s request. See id. (stating six-month time limit starts to run upon receipt by the court and the prosecuting attorney). Therefore, by June 18, 2003, the district court either had to hold appellant’s trial or determine whether good cause existed to grant additional time. See Wilson, 632 N.W.2d at 228 (“[T]he statute requires that the district court either set trial within six months or determine whether to grant additional time for good cause shown.”). Because neither occurred in this case, we must determine whether the six-month period was tolled for 25 days by appellant’s motion to dismiss for lack of probable cause. If the UMDDA is tolled by a defendant’s actions, the district court here had jurisdiction over appellant’s case because appellant pleaded guilty within 25 days after the June 18, 2003 deadline.

In State v. Wilson, the Minnesota Supreme Court concluded that the UMDDA’s six-month period was tolled by a defendant’s motion to dismiss his charges for failure to timely honor his UMDDA demand. Id. at 230. In Wilson, the state waited four months after the defendant made his demand under the UMDDA to arraign him and to disclose voluminous discovery. Id. at 226-27. One and a half months before the six-month period expired, the defendant filed a motion to dismiss the complaint because the state failed to “timely honor” his request, asserting the state’s delay made it “impossible to complete discovery and prepare for trial within the time remaining.” Id. at 227. The district court dismissed the complaint, agreeing with the defendant that the state was negligent in waiting four months to arraign the defendant. Id. The court rejected the state’s offer to either try the case within the remaining two months or agree to a continuance, and concluded that “[the defendant] should not have to choose between agreeing to a continuance, thereby waiving his right to a dismissal ... or going to trial unprepared.” Id.

In considering the tolling argument, the Minnesota Supreme Court in Wilson noted that the appellate court in this state had not previously considered the issue and looked to other states with similar laws. Id. at 229-30. Finding that other states tolled the statutory time limit for a speedy trial when the defendant caused the delay, the court determined that the defendant’s motion and subsequent appellate proceedings tolled the period. Id. at 230. The court observed that “[t]o hold otherwise would allow defendants to trigger a UMD-DA violation simply by pursuing a motion to dismiss the complaint.” Id.

The parties here disagree on Wilson’s application. Appellant argues that the holding in Wilson is limited only to those factually similar situations where a defendant files a premature motion to dismiss a complaint under the UMDDA. Appellant contends that six months is sufficient time to litigate straightforward cases like his and that the “good cause” extension provision of the UMDDA provides adequate opportunity for any situation to which the six-month period cannot be strictly adhered. Respondent argues, however, that appellant’s reading of Wilson is too narrow and that its holding should be applied to all instances where the defendant caused the delay.

We recognize the merits of appellant’s argument. “The UMDDA exists for no other reason than to establish a prisoner’s right to speedy disposition of untried charges.” State v. Miller, 525 N.W.2d 576, 583 (Minn.App.1994). The severe penalty of dismissal for failure to comply suggests the legislative intent to go beyond constitutional minimum standards. Id. Appellant’s strict application of the time period would certainly help effectuate such a purpose. Further, the legislature has already built an element of flexibility into the statute by including the “good cause” exception to the six-month period. See Minn.Stat. § 629.292, subd. 3. This exception prevents the unbending impact that the six-month period implies. By including one exception and not others, the implication is that the “good cause” exception is the only exception the legislature intended. The “good cause” exception can certainly be read as encompassing those situations in which the state needs additional time to address a defendant’s motions and as excluding other exceptions.

However, we are not free to decide this issue without further consideration of Wilson. First, Wilson recognized that the “good cause” determination must be made prior to the end of the six-month speedy trial period. 632 N.W.2d at 228. It rejected any retroactive extension. Second, Wilson creates the tolling exception for a delay created by a defendant. Nothing in Wilson suggests that its holding is limited to the narrow facts in that case and cannot be applied to other motions made by defendants. Rather, the discussion in Wilson considered caselaw in which delay was caused by a variety of actions by the defendant. See id. at 230.

In People v. Bell, 669 P.2d 1381, 1384 (Colo.1983), the court concluded that “[i]f the delay is caused by, agreed to, or created at the instance of the defendant, it will be excluded from the speedy-trial calculation made by the court.” In that case, the defendant had either moved for or agreed to continuances based on various matters. Id. at 1383. In State v. Carlson, 258 N.W.2d 253, 258-59 (N.D.1977), the court tolled the UMDDA time period when the defendant caused delay by deferring entry of his plea, asking for a two-week continuance, and failing to indicate his dissatisfaction with the trial date or acceptance of counsel except by writ of habeas corpus filed without the aid of his court-appointed counsel. Further, although not cited to in Wilson, this court has stated that the right to a speedy trial is not absolute, especially when the delay is caused by the defendant. In re Welfare of V.D.M., 623 N.W.2d 277, 280 (Minn.App.2001), review denied (Minn. May 15, 2001).z

The court in Wilson also recognized that if a defendant’s actions did not toll the six months, defendants could create a UMD-DA violation simply by filing motions. 632 N.W.2d at 230. If the district court in such a defendant created delay inadvertently neglects to find good cause and fails to extend the deadline prior to its running, the result of dismissal is absurd. Appellant argues that his motion was not frivolous, as evidenced by respondent dropping the theft charge, and that because his motion was meritorious, the time involved in making such a motion should not count against the six months. We note that the claim brought in Wilson, although ultimately rejected, was not frivolous, and the Wilson court did not base its holding on the distinction between meritorious and frivolous claims.

The Interstate Agreement on Detainers (IAD) further supports the use of tolling. The IAD is a compact among 48 states and the United States to establish procedures for resolving one state’s outstanding criminal charges against a prisoner of another state. State v. Wells, 638 N.W.2d 456, 459 (Minn.App.2002), review denied (Minn. Mar. 19, 2002). Under the IAD, if a prisoner requests final disposition of out-of-state charges for which a detainer has been lodged against him, the prisoner shall be “brought to trial” on the out-of-state charges within 180 days after the request is received or the charges will be dismissed. Minn.Stat. § 629.294, subd. 1, arts. 111(a) and Y(c) (2002). The purpose of the IAD is to “encourage the expeditious and orderly disposition” of outstanding charges pending in another state so that prisoner-rehabilitation programs will not be disrupted or unavailable because of the untried charges. Id., subd. 1, art. I (2002). The time deadlines of the IAD, however, can be either implicitly or expressly waived. Wells, 638 N.W.2d at 461. Because the IAD and the UMDDA are designed to protect similar rights of prisoners and because prisoners have the ability to waive their rights under the IAD, allowing tolling in this case is logical. Based on the Wilson case and the parallels with the IAD, we conclude that in this case the durational limit of the UMDDA is tolled by the time reasonably needed to consider appellant’s motion.

DECISION

Because the six-month period under the UMDDA was tolled by the 25 days reasonably needed to consider appellant’s motion to dismiss, the district court had jurisdiction over appellant’s case when appellant pleaded guilty.

Affirmed.


author: LANSING, Judge.

text:
    STATE of Minnesota, Appellant, v. Wayne Lawrence RUOHO, Respondent, Jacqueline Francis Knutson, Respondent.
    Nos. A03-2015, A03-2016.
    Court of Appeals of Minnesota.
    Aug. 17, 2004.

      Mike Hatch, Attorney General, St. Paul, MN 55101; and Donald F. Ryan, Crow Wing County Attorney, Kristine R. De-May, Assistant County Attorney, Brainerd, MN, for appellant.
    Richard Sand, Daniel S. Adkins, Richard Sand, Adkins1 & Associates, P.A., St. Paul, MN, for respondent Ruoho.
    Richard A. Bowen, Paul, MN, for respondent Knutson.
    Considered and decided by WILLIS, Presiding Judge; LANSING, Judge; and HUDSON, Judge.
   OPINION

LANSING, Judge.

This is a consolidated appeal by the prosecution from a pretrial order suppressing evidence obtained during a warrant-authorized search of Wayne Ruoho and Jacqueline Knutson’s rental unit and dismissing criminal charges. The state argues that the district court erred in concluding that the affidavit offered in support of the warrant failed to establish a nexus between the alleged crimes and the unit to be searched sufficient to support a finding of probable cause. Alternatively, the state argues that the district court erred in concluding that the good-faith exception to the exclusionary rule did not apply. By notice of review, Knutson chai-lenges the legality of her off-premises seizure. Because we conclude that the affidavit offered in support of the warrant established a sufficient nexus between the alleged crimes and the unit to be searched, we reverse the district court’s decision to suppress evidence obtained during the premises search and to dismiss charges based on that evidence. But because we conclude that Knutson was improperly seized under the limited authority to detain implied in the search warrant, we affirm the district court’s decision to suppress evidence obtained as a result of the seizure.

FACTS

A narcotics agent with the Lakes Area Drug Investigative Division obtained a search warrant on July 16, 2002, for rental unit 12 at Deacon’s Lodge, a vacation resort. The warrant authorized the search of the premises and the people residing in the premises for evidence of drug dealing, including controlled substances, drug paraphernalia, address books, cash, records, and cellular phones.

The affidavit offered in support of the warrant indicated that on July 15, 2002, the agent was contacted by a Breezy Point police officer. The officer told the agent that the manager of Grand View Lodge, the company that manages Deacon’s Lodge, had contacted him and told him that since June 23, 2002, Wayne Ruoho had been staying in Deacon Lodge’s unit 3 with Jacqueline Knutson and their four children. According to the manager, people had reported seeing numerous vehicles coming to and leaving from unit 3. The agent indicated that based on his training and experience, he knew that high traffic volume is common at places where narcotics are distributed.

The affidavit also indicated that Ruoho had large amounts of cash on his person and paid only in cash. According to the agent, on July 2, a second Breezy Point police officer responded to a property-damage complaint involving Ruoho’s daughters and saw Ruoho pay the victim $300 in cash. He also saw several $100 bills in Ruoho’s wallet, possibly totaling $1,000. The agent indicated that based on his training and experience, he knew that people who distribute narcotics commonly have large amounts of cash in their possession and pay only in cash to conceal their identity.

Because unit 3 had been rented to another tenant starting on July 13, Ruoho and Knutson moved from unit 3 to unit 12 on July 12, 2002. According to the supporting affidavit, Ruoho and Knutson had refused housekeeping services during their stay in unit 3. But the housekeeper who cleaned unit 3 on July 12, presumably in preparation for the next tenant, saw a white powder on a mirror in one of the bedrooms. The Breezy Point police officer who walked through unit 3 after Ruoho and Knutson moved out stated that the unit smelled like marijuana and that he saw a leafy substance and seeds he believed to be marijuana. He also saw blankets over the windows and ink-pen parts throughout the unit. On a table in the basement, the officer saw white-powder residue. The agent indicated that based on his training and experience, he knew that people who distribute narcotics from rental units commonly refuse housekeeping services and keep the blinds drawn to conceal their activities. He also knew that people who consume narcotics in powder form often use mirrors or glass plates and hollow tubes from ink pens for snorting.

The affidavit also indicated that Ruoho had been convicted of narcotics charges in 1990, 1992, and 1993 and had served time for those convictions.

The warrant authorizing the search of unit 12 was issued on July 16 and was executed on the same day. The search started at approximately 2:23 p.m. and lasted approximately two hours. At the beginning of the search, officers found male and female adult clothing, documents with Knutson’s name, and more than $36,000 in cash. The officers also found a one-month-old child in one of the bedrooms.

The agent learned that Knutson was at the Deacon’s Lodge golf course. Relying on the warrant’s authorization to search persons residing in unit 12, the agent asked an officer to locate Knutson and bring her back to the rental unit. Knutson was seized at approximately 2:45 p.m., and was brought back to unit 12. The agent then advised her that she was not free to leave until officers finished their investigation, and read her a Miranda warning. A search of Knutson’s purse revealed four zip-lock-style bags containing approximately one gram of methamphetamine. After Knutson was seized, officers also found one gram of methamphetamine in the top drawer of a dresser.

Ruoho and Knutson were charged in separate complaints with child endangerment and two counts of fifth-degree controlled-substance crime. At the omnibus hearing, they challenged the issuance of the warrant for lack of probable cause. Knutson also challenged the seizure of her person. The district court concluded that the warrant was not supported by probable cause, reasoning that although the affidavit contained information linking the alleged crimes to unit 3, it set forth no specific facts establishing a nexus between the alleged crimes and unit 12. The court suppressed evidence obtained during the search, rejecting the state’s claim that the evidence was admissible under the good-faith exception to the exclusionary rule. The court reasoned that Minnesota courts have not recognized the good-faith exception and that, even if Minnesota courts had recognized the exception, the exception was inapplicable absent information supporting a probable-cause finding. The court also concluded that Knutson was unlawfully seized and suppressed evidence obtained as a result of the search of her purse. Because the charges were based on evidence obtained during the searches, the court dismissed the complaints. This appeal follows.

ISSUES

I. Did the district court err in concluding that the affidavit offered in support of the warrant application failed to establish a nexus between the alleged crimes and unit 12 sufficient to support a finding of probable cause?

II. Did the district court err in concluding that Jacqueline Knutson was improperly seized?

ANALYSIS

To prevail on a pretrial appeal, the state must show, as a preliminary matter, that the district court’s order will have a critical impact on the outcome at trial unless reversed. State v. Scott, 584 N.W.2d 412, 416 (Minn.1998). When a complaint is dismissed for lack of probable cause, critical impact exists if the dismissal “effectively prevent[s] further prosecutions and [makes] reissuing of the complaints pointless.” State v. Aarsvold, 376 N.W.2d 518, 520 (Minn.App.1985), review denied (Minn. Dec. 30, 1985). Ruoho and Knut-son concede that the district court’s ruling will have a critical impact on the prosecution.

I

The state first argues that the district court erred in concluding that the warrant application failed to provide a sufficient evidentiary basis from which a reasonable person could infer that incriminating evidence would be found in unit 12. We agree.

A warrant application must establish probable cause for the issuing court to believe that a crime has been committed and that evidence of the crime will be found at the place to be searched (the so-called “nexus” requirement). State v. Harris, 589 N.W.2d 782, 788 (Minn.1999). When reviewing a determination of probable cause, the reviewing court’s task is to determine whether the affidavit offered in support of the warrant, viewed as a whole, provides a substantial basis for a finding of probable cause. State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995).

We accord significant deference to the issuing judge’s determination of probable cause, Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983), and will not invalidate a warrant by construing an affidavit in a hyper-technical — rather than a common-sense— fashion, United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). To avoid discouraging police from seeking review by a neutral and detached magistrate, doubtful or marginal cases are resolved in favor of upholding the warrant. Harris, 589 N.W.2d at 791. In sum, we view the issuing judge’s determination flexibly, deferentially, and with an eye to encouraging rather than discouraging the use of warrants by law-enforcement officers.

In determining whether probable cause to issue a search warrant exists, the task of the issuing judge is to make a practical, common-sense decision about whether the affidavit in support of the warrant sets forth sufficient competent evidence from which a person could infer that there is a fair probability that contraband or evidence of a crime will be found in a particular place. Harris, 589 N.W.2d at 788. The probable-cause standard does not require a showing that the inference is correct or more likely true than false. Id. at 789-90 (quotation omitted) (stating that “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity”); see also United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977) (stating that supporting affidavit “need not contain information providing certainty that the objects sought will be found as a result of the search”). Instead, the critical question is whether the totality of facts and circumstances described in the affidavit would justify a person of reasonable caution in believing that the items sought were located at the place to be searched. Maestas, 546 F.2d at 1180.

For purposes of establishing probable cause to issue a search warrant, the required nexus between the place to be searched and the items to be seized need not rest on direct observation; instead, the nexus may be inferred from the totality of the circumstances, including the type of crime involved, the nature of the items sought, the extent of an opportunity for concealment, and reasonable assumptions about where a suspect would likely keep that evidence. Harris, 589 N.W.2d at 788; see also Anthony v. United States, 667 F.2d 870, 874 (10th Cir.1981) (rejecting argument that affidavit supporting warrant was insufficient “because nobody directly observed any evidence of the crime at [defendant’s] residence”). The totality of the circumstances in this case permits an inference that the items to be seized would be found in unit 12, even though nobody directly observed evidence of criminal activity in unit 12.

First, because Ruoho and Knutson were suspected of drug dealing, it was reasonable to assume that they would keep evidence of the alleged crimes in their place of residence. Federal courts have routinely upheld searches in the absence of direct observations or even an allegation of illegal activity in the home itself, when it was reasonable to assume that certain types of evidence would be kept at a suspect’s home or residence. See, e.g., United States v. Williams, 974 F.2d 480, 482 (4th Cir.1992); Maestas, 546 F.2d at 1180.

In Williams, the affidavit offered in support of the warrant indicated only that a drug dealer with seven drug-related arrests, in whose house the police had found controlled substances three weeks earlier, had arranged for a one-week stay at a motel. 974 F.2d at 481. The court held that the affidavit established a sufficient “likelihood that drug paraphernalia would be found in the motel room,” despite the lack of direct observations of drug activity at the motel. Id.

Similarly, in Maestas, the court held that an affidavit disclosing only that defendant was part of an ongoing “large-scale interstate counterfeiting ring” and had personally handled counterfeit checks established probable cause to search her residence, notwithstanding the lack of firsthand evidence that materials subject to seizure were in the residence. 546 F.2d at 1180. The court reasoned that “[d]efen-dant’s apartment was the only logical place to conduct the search for the counterfeiting paraphernalia” and concluded that when it is reasonable to assume that certain types of evidence would be kept at a defendant’s residence, it is not necessary for the affidavit to contain a recital that someone has personally observed evidence at the defendant’s residence. Id.

As in Williams and Maestas, in this case it was reasonable for the issuing judge to assume that Ruoho and Knutson would keep drug-related contraband in unit 12, their new place of residence, despite the lack of first-hand evidence of drug activities in unit 12. The issuing judge could reasonably conclude, based on common experience, that a drug dealer, who, there was reason to believe, had been engaged in drug trafficking in unit 3 only days before the warrant was issued, was unlikely to have suspended his illegal operations after moving to unit 12. Unit 12 was therefore the logical place to conduct the search for incriminating evidence.

Second, Ruoho had an extensive record for drug dealing. Generally, evidence that a defendant is a long-time drug dealer contributes to an inference that a “likely place to seek to find incriminating items would be [his] residence,” even though the probable-cause affidavit does not describe drug activity in the residence. United States v. Feliz, 182 F.3d 82, 88 (1st Cir.1999); see also United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir.1993) (stating that required reasonable nexus between evidence to be seized and defendant’s residence could be inferred from probable-cause affidavit establishing defendant’s ongoing drug dealing); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986) (stating that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live”). The supporting affidavit in this case established that Ruo-ho had been convicted of narcotics charges in 1990, 1992, and 1993 and had served time for those convictions. Ruoho’s criminal record contributed to an inference that evidence of drug trafficking would be found in unit 12.

Third, while Ruoho and Knutson were residing in unit 3, people had observed a large volume of traffic around the unit consistent with drug trafficking. Observations of a suspect’s drug trafficking that occurs at a place other than the suspect’s current residence can support probable cause for the issuance of a search warrant for the suspect’s residence. In United, States v. Lamon, 930 F.2d 1183, 1190 (7th Cir.1991), for example, evidence of drug trafficking found in defendant’s car and temporary residence provided sufficient probable cause to search defendant’s nearby permanent residence. In finding probable cause, the court relied on the affiant’s statement that in his experience as a detective “drug dealers often hide money, drugs, and other incriminating evidence at their permanent residences.” Id.; see also United States v. Thomas, 989 F.2d 1252, 1255 (D.C.Cir.1993) (finding probable cause to search residence of defendant arrested for narcotics trafficking on street); United States v. Cruz, 785 F.2d 399, 406 (2d Cir.1986) (finding probable cause for search of drug dealer’s apartment even though defendant was not seen using the apartment). Similarly, evidence of drug trafficking in unit 3, Ruoho and Knutson’s former residence, provided probable cause to search unit 12, their current residence.

The affidavit in support of the warrant contained allegations of drug trafficking in unit 3 and established that Ruoho and Knutson moved from unit 3 to unit 12 only four days before the warrant was issued. In light of Ruoho’s record, the nature of the alleged crimes, and the nature of the evidence to be seized, the observations of activities that indicated drug trafficking in unit 3 provided probable cause for the issuance of a search warrant for unit 12, despite the lack of direct observations of criminal activity in unit 12. Although only one of these circumstances might not be sufficient, by itself, to establish probable cause to issue a search warrant, the totality of the circumstances sufficiently supported a finding of probable cause. Because we conclude that the affidavit was sufficient to establish probable cause, we do not address the state’s alternative argument that the evidence is admissible based on the good-faith exception to the exclusionary rule.

II

By notice of review, Knutson challenges the legality of her seizure, arguing that the seizure was not justified by the limited authority to detain implied in the search warrant and that the evidence obtained as a result of the seizure was, therefore, properly suppressed. We agree.

When reviewing pretrial orders on motions to suppress evidence, an appellate court may review the facts independently to determine, as a matter of law, whether the district court erred in suppressing, or not suppressing, the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). The district court’s factual findings will not be reversed, however, unless clearly erroneous or contrary to law. State v. Gilbert, 262 N.W.2d 334, 340 (Minn.1977).

It is now well established that, under certain circumstances, police may briefly detain occupants of private premises while they conduct a warrant-authorized search of the premises for contraband. Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981). In Summers, the defendant was walking down the front steps of his house just as officers approached the house to conduct a warrant-authorized search for narcotics. Id. at 693, 101 S.Ct. at 2589. The officers asked for Summers’s assistance in gaining entry to the house and detained him, along with eight other occupants, while they searched the premises.

Id. The officers arrested Summers after finding illegal drugs in the basement. Id.

The Court held that the detention was proper, reasoning that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Id. at 705,101 S.Ct. at 2595 (footnote omitted). The Court balanced the intrusiveness of the detention of a person in his or her home against legitimate law-enforcement interests in (1) preventing flight should incriminating evidence be found, (2) minimizing the risk of harm to the officers from occupants suddenly becoming violent or trying to conceal or destroy evidence, and (3) facilitating the orderly completion of the search with the occupants’ assistance. Id. at 702-03, 101 S.Ct. at 2594.

This court has held that an off-premises detention of a person named in a search warrant is reasonable when the detention satisfies the Summers balancing interests. State v. Ailport, 413 N.W.2d 140, 144 (Minn.App.1987), review denied (Minn. Nov. 18, 1987). In Ailport, we upheld the detention of a suspect who pulled into a motel parking lot at the same time officers were about to execute a search warrant for the room he had reserved. We concluded that the detention was justified because the officers reasonably believed that Ail-port was dangerous, carried weapons, was involved in narcotics, and had a violent criminal history. Id. The intrusion was thus necessary to prevent flight, to prevent Ailport from alerting the occupants of the motel room of the police’s presence, and to minimize the risk of harm to the officers conducting the search. Id.

Courts in other jurisdictions have also upheld off-premises detentions of persons named in a warrant, when the Summers balancing interests are satisfied. See, e.g., State v. Thomas, 603 So.2d 1382, 1383-84 (Fla.Dist.Ct.App.1992) (upholding detention of suspect who approached house being searched); Fromm v. State, 96 Md.App. 249, 624 A.2d 1296, 1299 (1993) (upholding detention of suspect who walked out of neighboring apartment building when his residence was about to be searched).

While Summers did not specify geographic distances by which to measure the intrusiveness of a detention, courts have recognized that the level of intrusiveness of an off-premises detention increases when the suspect is seized in a place other than the place subject to the search warrant. Off-premises detentions are thus more likely to be reasonable when the suspect is detained in a place that is in close proximity to the premises being searched. See, e.g., United States v. Cochran, 939 F.2d 337, 339 (6th Cir.1991) (seizure of person “a short distance” from his residence lawful under Summers); cf. United States v. Hogan, 25 F.3d 690, 693 (8th Cir.1994) (holding that seizure of defendant’s car and person three to five miles from home being searched not justified under Summers); United States v. Boyd, 696 F.2d 63, 65 n. 2 (8th Cir.1982) (stating in dictum that Summers court “certainly did not sanction the search and seizure of residents who, at the time of the search, are several blocks from their home”).

Courts have invalidated, as unduly intrusive, off-premises detentions close to the premises being searched, when the detentions do not seem to advance the law-enforcement interests enumerated in Summers. See, e.g., Leveto v. Lapina, 258 F.3d 156, 169 (3rd Cir.2001) (holding that detention of suspect in parking lot of business for which search warrant had been issued was unlawful because an investigation into possible tax evasion, without more, provided little reason to suspect that he posed a threat); United States v. Sher rill, 27 F.3d 344, 346 (8th Cir.1994) (refusing to extend Summers to detention occurring only one block away from premises to be searched, noting that distance from premises made intrusiveness greater and that “officers had no interest in preventing flight or minimizing the search’s risk because [suspect] had left the area of the search and was unaware of the warrant”).

We agree with Knutson that the seizure of her person was not justified under Summers. Unlike Summers, who was seized on his front steps, Knutson was seized one-half mile away from the search site. The intrusiveness of the detention was thus greater than that in Summers. And the increased intrusiveness did not advance the legitimate law-enforcement interests enumerated in Summers. First, Knutson’s detention would not have prevented flight in the event incriminating evidence was found because she was not aware of the search. See Hogan, 25 F.3d at 693 (seizure not justified under Summers when defendant unaware that search about to be conducted); United States v. Edwards, 103 F.3d 90, 93 (10th Cir.1996) (stop and detention of defendant after he drove away' from house for which police had obtained a search warrant not justified under Summers when defendant did not know warrant was being executed).

Second, Knutson’s detention would not have minimized the risk of harm posed to the officers executing the warrant because there is no evidence that she was armed or otherwise dangerous, or that the officers considered her a threat to their safety. Cf. Ailport, 413 N.W.2d at 144 (off-premises stop and detention of suspect justified by officers’ reasonable belief that suspect was armed and dangerous and had felony record and violent criminal history). Furthermore, unlike people who are inside or just outside of the premises being searched, a person who is one-half mile away from the premises poses no risk of harm to the officers conducting the search. See Edwards, 103 F.3d at 94 (concluding that suspect who left area and was unaware of search warrant posed no threat to officers executing warrant); Hogan, 25 F.3d at 693 (stating that defendant posed no risk of harm to agents from car three to five miles from premises being searched).

Finally, the fact that Knutson could have assisted the officers in conducting the search, the only remaining Summers justification, does not justify the intrusion. Officers knew that Knutson was staying in unit 12 and had no reason to believe that she would not return. They could have waited for her to return and enlisted her assistance with the search, if necessary. In any event, there is no indication that her presence was necessary for an orderly completion of the search. By the time Knutson was seized, officers had already gained entry to the unit and were proceeding with the search.

Because Knutson was improperly seized under the limited authority to detain implied in the search warrant, the district court properly suppressed the evidence obtained in the search of her purse.

DECISION

The district court correctly concluded that Knutson was unlawfully seized under the limited authority to detain implied in the search warrant and properly suppressed the evidence obtained as a result of the seizure. But the district court erred in concluding that the affidavit submitted in support of the application for a search warrant failed to establish a nexus between unit 12 and the evidence to be seized sufficient to support a finding of probable cause.

Affirmed in part and reversed in part.