source: Caselaw Access Project

author: /s/ Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Alfred PEREZ, Jr., a Minnesota Attorney, Registration No. 181353.
    No. A03-1327.
    Supreme Court of Minnesota.
    April 8, 2004.
   ORDER

On November 4, 2003, this Court appointed a referee to conduct a hearing on a petition for disciplinary action filed by the Director of the Office of Lawyers Professional Responsibility against respondent Alfred Perez, Jr.

On March 23, 2004, the referee filed his Findings of Fact, Conclusions of Law and Recommendation for Discipline. The referee found that respondent engaged in professional misconduct and recommended that respondent be disbarred.

The Director of the Office of Lawyers Professional Responsibility has requested that respondent be placed on interim suspension pending a final determination of the discipline proceedings under Rule 16(e), Rules on Lawyers Professional Responsibility (RLPR). Rule 16(e) provides that upon a recommendation of disbarment by a referee, “the lawyer’s authority to practice law shall be suspended pending final determination of the disciplinary proceeding, unless the referee directs otherwise or the Court orders otherwise.”

The referee recommended that respondent be suspended at this time. We agree that interim suspension under Rule 16(e), RLPR, is appropriate pending the final determination in this matter.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Alfred Perez, Jr., is suspended from the practice of law in Minnesota pending final determination of the disciplinary proceedings under Rule 16(e), RLPR. Respondent shall notify his clients, opposing counsel and tribunals of this suspension as required under Rule 26, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: MEYER, Justice. GILBERT, Justice

text:
    Darby Jon OPSAHL, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A03-298.
    Supreme Court of Minnesota.
    April 8, 2004.

      Edward B. Magarian, Christopher A. Young, Shari Jerde, Heather D. Redmond, Thomas M. Jancik, Dorsey & Whitney LLP, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Michael K. Junge, McLeod County Attorney, Amy E. Olson, Asst. McLeod County Attorney, Glencoe, MN, for Respondent.
   OPINION

MEYER, Justice.

This case comes to us from the district court’s denial of an evidentiary hearing for post-conviction relief. On October 23, 1992, a jury convicted appellant, Darby Jon Opsahl, of the 1986 murder of Margaret Rehmann. The state based its case on statements Opsahl made to police during the initial investigation of the crime and on testimony of several of Opsahl’s acquaintances who claimed to have heard Opsahl make certain admissions about the murder. We affirmed. Opsahl then brought this claim for posteonviction relief. In support of his claim, Opsahl presented affidavits that allege several state witnesses provided fabricated or unreliable trial testimony, with some of the trial witnesses claiming that the prosecuting attorney pressured them into testifying falsely. The district court denied posteonviction relief without granting an evidentiary hearing. We reverse and remand for a hearing.

On the afternoon of October 16, 1986, Margaret Rehmann was murdered in her home in rural Lester Prairie, Minnesota. The McLeod County Sheriffs Department conducted an extensive investigation but was initially unable to trace the crime to a suspect. Nearly a year later, Jeff Olson informed police that he believed Opsahl and John Kannianen were involved in the Rehmann murder. Based on Opsahl’s incriminating statements and other leads, Opsahl was charged with first- and second-degree murder in violation of Minn.Stat. §§ 609.185(3); 609.05, subd. 1; 609.19(1), (2) (1986).

When Olson first spoke to the police, he called Deputy Larry Wittsack of the Carver County Sheriffs Department. In response to that call, Deputy Wittsack and Detectives Wayne Vinkemeier and Richard Waage arranged a meeting with Olson and Opsahl at Olson’s residence. Opsahl told Vinkemeier that he and an acquaintance, John Kannianen, often got drunk and high on drugs and drove around the Lester Prairie area looking for homes to burglarize. Opsahl related that, during one of these “booze cruises,” Opsahl waited in the car while Kannianen went up to a house, was greeted by a middle-aged woman in a red shirt, and went inside. Opsahl heard a “poof’ approximately ten minutes later, which he subsequently identified to the officers as a gunshot. According to Op-sahl’s story, Kannianen came out of the house about twenty minutes later with some coins, which he showed to Opsahl. Irvin Rehmann, the murder victim’s husband, confirmed that he stored a can of half-dollar coins underneath the laundry room sink. In a taped statement Opsahl gave to police, Opsahl indicated that Kan-nianen told him that he had shot a woman in the house.

According to Vinkemeier, Opsahl appeared “very nervous * * * teary eyed [and] * * * somewhat emotional about the conversation.” After their initial meeting, Vinkemeier and two other sheriffs officers accompanied Olson and Opsahl on a car ride through rural McLeod County. During that trip, Opsahl focused on the Reh-mann residence as they drove by and commented that it “could be the place” where Kannianen allegedly shot Rehmann. Op-sahl commented that another farm site also looked familiar. After the drive, Op-sahl provided police with similar information in a recorded statement.

Approximately a week later, Vinkemeier and Agent Dennis Sigafoos of the Bureau of Criminal Apprehension (BCA) met with Opsahl and took his fingerprints and palm prints. None of these prints matched any fingerprints or palm prints left at the scene of the crime. On June 16, 1989, Opsahl provided police with another statement and accompanied Vinkemeier to a Hutchinson, Minnesota, hardware store to identify the weapon that Kannianen allegedly used in the murder. Opsahl pointed out a .44 caliber handgun. A .44 caliber gun was used in the shooting.

In 1988, the police informed Opsahl that Kannianen could not have been involved in the Rehmann murder, as he was in New Jersey in October 1986. In a 1990 interview, Opsahl changed the story he told the investigators. Opsahl recanted his previous statements, claiming that neither he nor Kannianen were involved in the murder, and that he and Olson agreed to place the blame for the murder on Kannianen because Olson did not like Kannianen.

At trial, Irvin Rehmann testified that he arrived home at approximately 5:45 p.m. on the afternoon of the murder and found the jamb on the door to the garage “busted” and the door kicked in. Once in the 'kitchen, he found his wife lying dead on the kitchen floor. Daniel Murphy, an officer who arrived later, found a footprint on the exterior of the door that was kicked in. That footprint bore the impression of a shoe tread design but was never matched to any specific shoe.

The state’s case relied on statements made by Opsahl to several acquaintances that implicated him in the murder. Ross Reinitz testified that he heard Olson tell Opsahl that they “could always take care of [Opsahl’s neighbor] like [they] took care of that old bitch by Lester Prairie.” Allan Kroells provided similar testimony. Laura Roberts testified that Opsahl told her that he had hurt someone during a robbery near Winsted, a small town near Lester Prairie. Marina Allan, Opsahl’s former live-in girlfriend, testified that during a fight Opsahl told her to “shut up or I’m going to shoot you like I did that little old lady.” Richard Rogowski testified that at a Fourth of July party in 1988, Opsahl admitted to him that he burglarized a house where someone was shot. Dean Johnson testified that Opsahl told him that he had shot and killed a woman during a burglary. According to Robert Beckman, Opsahl told him that Olson shot a woman in the head with a .44 caliber handgun. Corey Telthoester testified that Olson told him that he and Opsahl burglarized the house and that Opsahl shot an older woman in the house while Olson was on his way out the window of the house. The state presented no physical evidence linking Op-sahl to the murder.

Opsahl testified in his own defense but called no other witnesses. He denied that he was involved in the Rehmann murder, that he was at a burglary scene in McLeod County, or that he ever told anyone that he had committed a murder. Opsahl admitted to “booze cruising” with Kannianen around the time of the murder. He testified that Olson, who was familiar with Opsahl’s and Kannianen’s activities, asked Opsahl if Kannianen could have been involved in the murder. Opsahl testified that he cooperated with the police in order to help them in their investigation by informing them that Kannianen could have committed the crime. He explained that he reacted emotionally during the investigation because the photographs of the deceased victim reminded him of his own grandmother. Opsahl denied making any admissions to Rogowski at a Fourth of July party in 1988, claiming instead that he attended a fireworks display in Minneapolis.

The jury convicted Opsahl of two counts of second-degree murder and one count of first-degree murder. We affirmed the conviction on direct appeal and held, inter alia, that the record contained sufficient evidence to support the conviction. State v. Opsahl, 513 N.W.2d 249, 255 (Minn.1994).

On October 29, 2002, Opsahl filed this petition for postconviction relief in district court in McLeod County. Opsahl claimed that he was entitled to a new trial or, alternatively, an evidentiary hearing, based on recanted trial testimony and prosecutorial misconduct. In addition, Op-sahl argued that he was entitled to a new trial or a Schivartz hearing based on juror misconduct. Finally, he alleged that he was deprived of his Sixth Amendment right to effective assistance of counsel by his counsel’s failure to fully investigate possible exculpatory evidence. The state opposed each claim on the merits and argued that the lapse in time between conviction and Opsahl’s petition should bar him from obtaining postconviction relief.

In support of his petition, Opsahl submitted affidavits in which three of the state’s witnesses recant their testimony. Rogowski claims that he “made up the entire story” and never even attended a Fourth of July party with Opsahl. Reinitz states that he told the prosecutor that he did not hear the exchange between Opsahl and Olson clearly and that he was unsure of who made the original comment about the murder. Reinitz further states that, at the time of the conversation, he knew of the murder investigation and assumed that the two were joking. Similarly, Roberts states that she used large amounts of illicit drugs around the time of the events to which she testified, which affected her memory. In addition, she states that her knowledge of the Rehmann murder was gleaned from a letter written to her by Kannianen.

Opsahl also submitted the affidavits of individuals who claim to have heard certain state witnesses recant trial testimony. William O’Keefe, a private investigator hired by Opsahl’s counsel, describes an interview with Dean Johnson. Although Johnson did not alter the substance of his testimony, he implied to O’Keefe that he lied on the stand when he testified that he had just opened up his first beer of the night when Opsahl made his incriminating statements. Maury Beaulier, an attorney who represented Opsahl in 1998, states that Marina Allan completely recanted her testimony to him, claiming that she fabricated her testimony out of anger at Op-sahl, who had been an abusive boyfriend.

Opsahl’s prosecutorial misconduct claims are intertwined with the recantations he presents. According to Opsahl, each of the recanting witnesses provided misleading testimony under pressure from the prosecutor. Reinitz and Rogowski were on probation at the time of the trial and claim that they provided incriminating testimony in response to threats from the prosecutor that he would revoke their probation if they did not testify favorably to the state. In addition, Roberts states in her affidavit that, despite informing the prosecutor of her unreliability, he encouraged her to “testify without qualification” about the conversation she allegedly had with Opsahl. Furthermore, Opsahl claims that the failure of the prosecutor to disclose the substance of these threats violated Opsahl’s due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The petition before this court is not Opsahl’s first attempt to obtain postconviction relief. In May 1996, Opsahl retained counsel to represent him in postconviction proceedings. Despite Opsahl’s repeated telephone calls, counsel did no work on his case and the Office of Lawyers Professional Responsibility began investigating the matter. In re Disciplinary Action Against Pucel, 588 N.W.2d 741, 742 (Minn.1999). Opsahl then enlisted the help of other counsel to prepare his petition for postconviction relief. Opsahl’s current defense team filed his petition for postconviction relief in October 2002.

The postconviction court reviewed the affidavits submitted by Opsahl and concluded that the recanting witnesses’ assertions were “inherently suspect,” as the witnesses were all friends and acquaintances of Opsahl. The court also found that there were “numerous other witnesses” who testified to statements Opsahl made, such that the recantations could not have affected the jury’s verdict. These conclusions led the court to deny Opsahl’s claims for relief that rested on prosecutorial misconduct and recanted testimony. Similarly, the court rejected the ineffective assistance of counsel and juror misconduct arguments and denied Opsahl’s petition without an evidentiary hearing.

Opsahl now appeals, claiming that the postconviction court abused its discretion by denying his motion for an evidentiary hearing or a new trial. The postconviction court abused its discretion, Opsahl argues, because the court concluded, without the benefit of an evidentiary hearing, that the recanting witnesses were unreliable and the jury would not have reached a different result without the recanted testimony.

I.

Opsahl claims that the postcon-viction court abused its discretion by failing to grant a new trial or evidentiary hearing on his ineffective assistance of counsel claim. Because claims of ineffective assistance of counsel involve mixed questions of law and fact, our review of decisions by the postconviction court is de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003). The party alleging ineffective assistance must show that “ ‘representation fell below an objective standard of reasonableness’ ” and “ ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). That objective standard is defined as “representation by an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” State v. Gassler, 505 N.W.2d 62, 70 (Minn.1993) (quoting White v. State, 309 Minn. 476, 481, 248 N.W.2d 281, 285 (1976)). We have repeatedly stated that we generally will not review attacks on counsel’s trial strategy. See, e.g., Boitnott v. State, 631 N.W.2d 362, 370 (Minn.2001). The extent of counsel’s investigation is considered a part of trial strategy. See State v. Jones, 392 N.W.2d 224, 236 (Minn.1986).

Our reluctance to scrutinize trial tactics is grounded in the public policy of allowing counsel to “have the flexibility to represent a client to the fullest extent possible.” Id. For example, in Jones, the defendant claimed that his trial counsel was ineffective for, among other things, failing to hire an investigator and interview prospective witnesses. Id. We rejected the defendant’s claim, reasoning that it attacked the trial strategy rather than the professional performance of counsel. Id. We relied on Jones in Scruggs v. State, in which we rejected a claim that trial counsel was ineffective for failing to call three potential witnesses. Scruggs v. State, 484 N.W.2d 21, 26-27 (Minn.1992).

Opsahl argues that his trial counsel was ineffective for failing to conduct a thorough investigation into two alternative suspects and the tire tracks that were left at the crime scene. The police investigated those suspects, Mark Winkleman and Kevin Westphal, in the weeks following the murder, but eventually abandoned their investigation. Second, Opsahl argues that' his counsel should have presented evidence that ■ Opsahl’s car would not likely have created the tire tracks left outside the Rehmann residence. Opsahl now offers evidence that a Camaro such as Opsahl drove would have left distinctive tire tracks, yet Deputy Vinkemeier’s report stated that the marks at the scene “showed no definite pattern or characteristics.”

Similarly to the defendants in Jones and Scruggs, Opsahl attacks decisions that reflect on his counsel’s strategy rather than his counsel’s performance. We are in no position to second-guess counsel’s decision to focus his strategy on other defenses instead of investigating Winkleman and Westphal as suspects. Counsel’s decision not to pursue the tire track evidence similarly falls within the realm of defense strategy. Because Opsahl only challenges his counsel’s defense strategy, we will not challenge the district court’s conclusion that counsel provided “most adequate” representation. We, therefore hold that the postconviction court did not abuse its discretion by failing to grant a new trial or an evidentiary hearing on Opsahl’s ineffective assistance of counsel claim.

II.

We now turn td Opsahl’s claim that the postconviction court abused its discretion by denying his juror misconduct claim without granting a Schwartz hearing. We review denials of Schwartz hearings on an abuse of discretion standard. State V. Church, 577 N.W.2d 715, 721 (Minn.1998).

In cases in which a petitioner alleges juror misconduct, the trial court may order a hearing with jurors who were privy to the alleged misconduct in the presence of all interested parties. Minn. R.Crim. P. 26.03, subd. 9; Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). Although a court 'will not generally consider the affidavits of jurors impeaching the verdict, it may hear testimony that a juror was influenced by “extraneous prejudicial information” in reaching a verdict. Minn. R. Evid. 606(b); see also Minn. R.Crim. P. 26.03, subd. 19(6); Minn. R. Evid. 606(b) Advisory Committee’s Note. To obtain a Schivartz hearing, the petitioner has the burden of adducing “sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.” Church, 577 N.W.2d at 720 (quoting State v. Larson, 281 N.W.2d 481, 484 (Minn.1979)). The court is never obligated to accept the allegations of the party challenging the verdict, however, and may consider contradictory affidavits from the party opposing the hearing. See Larson, 281 N.W.2d at 484.

Opsahl alleges that the jury’s decision was tainted when one juror learned of incriminating information that was not in evidence and shared that information with his fellow jurors. Opsahl submits the affidavit of juror Omer Lentsch who states that “to the best of [his] recollection,” he learned from the Worm family, the employer of Opsahl and Olson at the time of the murder, that Opsahl left work early the day of the murder and that Olson remained at work all day. Lentsch claims that he relied on this information in voting to convict Opsahl and that “to the best of [his] recollection,” he told the other jurors about the conversation. In response, the state submits the affidavit of Gerald Worm, who admits he spoke to Lentsch about the case but contends that the conversation occurred six months to one year after the trial concluded.

The postconviction court concluded that Lentsch’s affidavit, taken alone and unchallenged, did not support the conclusion of juror misconduct. Opsahl claims that the postconviction court abused its discretion by discrediting Lentsch’s affidavit with that of Gerald Worm. By considering Worm’s affidavit, Opsahl argues that the district court violated our holding in Church that a court consider a juror affidavit “standing alone and unchallenged.”

Opsahl’s allegations that the postconviction court abused its discretion are unpersuasive. The court was presented with an affidavit that contradicted the Lentsch affidavit on which Opsahl relies. The court may have relied upon the fact that Lentsch qualified that his statements were “to the best of [his] recollection,” whereas Worm’s were unqualified. Therefore, the court acted within its discretion when it concluded that Opsahl had not made out a prima facie showing of juror misconduct.

III.

Opsahl claims that the post-conviction court abused its discretion by denying his motion for a new trial on his claim that several witnesses for the state gave false testimony. Alternatively, he argues that the court abused its discretion by disposing of his claim without granting an evidentiary hearing. We review post-conviction proceedings to determine whether there is sufficient evidence to support the postconviction court’s findings. Ferguson v. State, 645 N.W.2d 437, 442 (Minn.2002). We will not disturb a post-conviction court’s ruling absent an abuse of discretion. Id.

Minnesota follows the three-prong test set forth in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928), in determining whether to grant a new trial based on witness recantations. State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn.1982). In order to receive a new trial, the petitioner must establish the following three prongs of Larrison by a fair preponderance of the evidence: (1) the court must be reasonably well-satisfied that the testimony in question was false; (2) without that testimony the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial. Ferguson, 645 N.W.2d at 442. We have held that the third prong is not a condition precedent for granting a new trial, but rather a factor a court should consider when deciding whether to grant the petitioner’s request. Id. at 445.

The showing required for a petitioner to receive an evidentiary hearing is lower than that required to receive a new trial. Id. at 446. Minnesota Statutes § 590.04, subdivision 1 (2002), mandates that the postconviction court hold an evi-dentiary hearing and make findings of fact and conclusions of law “[ujnless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” We have interpreted this section to require the petitioner to allege facts that, if proven, would entitle him to the requested relief. Ferguson, 645 N.W.2d at 446. These allegations must be “ ‘more than argumentative assertions without factual support.’ ” Id. (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)). However, a court must grant an evidentiary hearing “whenever material facts are in dispute that * * * must be resolved in order to determine the issues raised on the merits.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995). If the postconviction court harbors any doubts as to whether to conduct an evidentiary hearing, it should resolve those in favor of granting the hearing. King v. State, 649 N.W.2d 149, 156 (Minn.2002). In addressing this standard, postconviction courts must consider the nature of the evidence presented at trial. State v. Rhodes, 627 N.W.2d 74, 88 (Minn.2001). Therefore, we have noted that evi-dentiary hearings are particularly appropriate when the petition attacks important evidence in a circumstantial case. Ferguson, 645 N.W.2d at 446.

The postconviction court stated that it was not “reasonably well satisfied” that the' testimony of the, recanting witnesses was false based upon Opsahl’s showing. Based on its recollection of the trial, the court concluded that Marina Allan’s recantation was not reliable. The court concluded that Reinitz and Roberts had a better recollection of events at trial than at the postconviction stage. With respect to Johnson, the court noted that Johnson did not change the substance of his testimony. The court did not address the affidavit of Rogowski. Based upon these evaluations, the court concluded that it was “dealing with a chorus of liars, with the only question being whether the concert was at trial, or * * * at the motion for a retrial.” The court also concluded that the jury would not have reached a different result without the recanted testimony. Based upon its assessment of the credibility of the witnesses and the strength of the state’s case, the court denied Opsahl’s motion for a new trial without granting an evidentiary hearing.

The allegations in Opsahl’s petition and supporting affidavits meet the minimal standard for an evidentiary hearing under Minn.Stat. § 590.04, subd. 1 (2002). Although we are generally reluctant to challenge the basis for a conviction, we are more reluctant to deny a hearing for post-conviction relief when our decision turns on the credibility of recanting witnesses. By concluding that the recantations were unreliable without first evaluating the credibility of the witnesses at an evidentia-ry hearing, the postconviction court misapplied Minn.Stat. § 590.04 and, therefore, abused its discretion.

Turning to the second prong of the Lar-rison inquiry, we believe that the district court abused its discretion by concluding that the jury would not have reached a different result without the recanted testimony. The petition and affidavits challenge the truth or believability of five out of seven witnesses who testified that they heard Opsahl make incriminating statements. These recantations are particularly significant because there was no physical evidence linking Opsahl to the murder. Because Opsahl’s petition calls into question such a significant part of the state’s circumstantial case, we conclude that the postconviction court abused its discretion by concluding that the jury would have reached the same result without the recanted testimony.

IV.

Opsahl argues that the postconviction court abused its discretion by failing to grant an evidentiary hearing on his claim that the prosecutor threatened to revoke the probation of Reinitz and Ro-gowski if they did not testify favorably to the state, and coerced Roberts into providing misleading testimony.

Threatening to revoke the probation of witnesses if they do not testify a certain way clearly constitutes prosecutorial misconduct. See Minn. R. Prof. Conduct 3.8 cmt.; 8.4(c), (d). The remedy for such misconduct is a new trial unless that misconduct was harmless beyond a reasonable doubt. State v. Hunt, 615 N.W.2d 294, 301-02 (Minn.2000). For serious instances of prosecutorial misconduct, the prosecutor’s conduct “is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” Id. at 302. Even if a court does not grant a new trial, however, it must grant an evidentiary hearing if the petitioner alleges facts that, if proven, entitle the petitioner to relief. Minn.Stat. § 590.04, subd. 1.

The postconviction court dismissed the statements of Rogowski and Reinitz regarding prosecutorial misconduct. The court implied that the statements were unreliable because these witnesses “ha[d] axes to grind” with the prosecutor, who also charged them with drug offenses. The court concluded that Roberts’ assertions of prosecutorial coercion were unreliable because she was a friend of Opsahl’s and “a reluctant witness.”

As with the allegations of falsified testimony, we believe that the allegations of prosecutorial misconduct in Opsahl’s petition and supporting affidavits meet the minimal standard for an evidentiary hearing under Minn.Stat. § 590.04, subd. 1. If the allegations of Reinitz, Rogowski, and Roberts are credible, they create a material issue of fact with respect to the circumstances surrounding Opsahl’s conviction. These are more than mere “argumentative assertions”; they are sworn statements that allege the prosecuting attorney pressured three witnesses into providing testimony that he knew was false or misleading. After an evidentiary hearing, the posteonvietion court may conclude that these three witnesses are only coming forward to satisfy their grudge against the prosecutor. Nevertheless, when a petitioner presents sworn statements that some of the testimony used to convict him was falsified and the product of improper coercion by the prosecution, such allegations satisfy the minimal requirements for a postconvietion evidentiary hearing.

V.

The state argues in the alternative that the lapse in time between Opsahl’s conviction and the filing of his petition for postconvietion relief should preclude him from receiving relief. The postconvietion court did not address this argument.

If a party’s deliberate, inexcusable delay in filing a petition for postcon-viction relief rises to the level of “an abuse of the judicial process,” the court may deny relief without reaching the merits of the claim. McMaster v. State, 551 N.W.2d 218, 218-19 (Minn.1996). Notwithstanding the diligence of a petitioner, a court may refuse to grant a new trial if the state shows that it would be “unduly prejudiced” by a new trial. Hoagland v. State, 518 N.W.2d 531, 536 (Minn.1994). As the state points out, a court should consider the lapse of time between conviction and a petition for postconvietion relief when it determines whether or not to grant a retrial. Host v. State, 356 N.W.2d 680, 682-83 (Minn.1984). Although the timeliness of a petition is a factor in deciding whether or not to grant a new trial, it is not disposi-tive. See Hoagland, 518 N.W.2d at 536 (holding that an eight-year delay in filing for postconvietion relief did not constitute an abuse of the judicial process). A court should also examine the nature of the issues and the ability of the state to reconstruct its case on retrial. See id.; Wensman v. State, 342 N.W.2d 150, 151 (Minn.1984).

The level of prejudice the state may suffer from a retrial will not be apparent until the state presents evidence to the postconvietion court regarding the difficulties it would encounter in a retrial. At that time, the court is to make findings of fact with respect to the specific difficulties that the state may experience in a retrial. The court should then make conclusions of law as to whether those difficulties rise to the level of “undue prejudice.” Because the record is not fully developed on this point, we decline to address this issue until the district court has held an evidentiary hearing.

We retain jurisdiction over this case and remand it to the postconvietion court with instructions to grant Opsahl an evidentiary hearing under Minn.Stat. § 590.04 on his claims of falsified testimony and prosecuto-rial misconduct. When the court conducts the evidentiary hearing, it shall make findings of fact and conclusions of law on the issues of recanted testimony and prosecu-torial misconduct. If, based on the trial record and the testimony at the evidentia-ry hearing, the district court determines that Opsahl is entitled to a new trial, it shall address the state’s alternative argument that the ten-year lapse in time between Opsahl’s conviction and the filing of his petition for postconvietion relief should preclude him from receiving relief.

Affirmed in part, reversed in part, and remanded.

GILBERT, Justice

(concurring in part, dissenting in part).

While I concur in the majority’s discussion of this case in sections I, II, IV & V and its decision that the postconvietion court did not abuse its discretion in denying appellant’s petition for a new trial, I respectfully dissent as to the majority’s decision to remand this case for a further evidentiary hearing based on the alleged recanted testimony of five trial witnesses. Appellant chose to submit his evidence to the postconviction court in affidavit form— a form of evidence that is provided for by MinmStat. § 590.04, subd. 3 (2002) — but the majority nevertheless holds that the postconviction court abused its discretion in failing to grant an evidentiary hearing. Furthermore, the majority errs in concluding that the postconviction court abused its discretion because the allegations, even if true, do not attack the overwhelming amount of inculpatory (non-recanted) evidence supporting the guilty verdict. For these reasons, I would affirm the postcon-viction court’s decision to deny a further evidentiary hearing.

Minnesota Statutes § 590.04, subd. 3 (2002), provides that “[i]n the discretion of the court, it may receive evidence in the form of affidavit, deposition, or oral testimony.” Contrary to this clear language, the majority today holds that the postcon-viction court abused its discretion because it did not “evaluate] the credibility of the witnesses at an evidentiary hearing,” presumably meaning it erred in not taking oral testimony. This is an unwarranted expansion of the need for an evidentiary hearing that we recognized in Ferguson v. State, 645 N.W.2d 437, 446 (Minn.2002). In Ferguson, we held that a statement by the father of the primary witness against the defendant that the witness told him he lied at trial entitled the defendant to an eviden-tiary hearing on his claim. Id. We did so because “the state’s case against Ferguson was wholly circumstantial” and the witness’s testimony “was pivotal to Ferguson’s conviction.” Id. The state’s case against appellant, in contrast, was more than circumstantial and not dependent on the testimony of the alleged recanting witnesses.

In affirming appellant’s conviction on direct appeal, we held that there was more than sufficient evidence to sustain the conviction including, but not limited to, numerous incriminating statements and admissions against penal interest made by appellant that could have only been known by someone at the crime scene. State v. Opsahl, 513 N.W.2d 249, 255 (Minn.1994). Appellant’s admissions occurred during four separate statements that he made to the police in 1987, 1988, 1989, and 1990. Appellant identified the .44 caliber weapon that was used in the murder by pointing out a similar weapon at a local hardware store and provided a description of the residence after driving by it with the police. Appellant also knew details about the farm where the murder occurred. After the police confronted appellant about his false alibi with John Kannianen, appellant responded that if Kannianen had done it, then he was not involved. Appellant took the stand and had an opportunity to present his theory of the case, provide rebuttal testimony to what numerous witnesses had testified to, and to explain to the jury why he had initially lied. In appellant’s direct appeal, we applied the traditional standard of viewing the evidence presented in the light most favorable to the verdict. See id. The alleged recanted testimony in this case was not pivotal to appellant’s conviction.

The postconviction court in this case made 39 pages of findings. “We review a postconviction proceeding to determine if there is sufficient evidence to sustain the postconviction court’s findings, and we will not disturb the court’s decision absent an abuse of discretion.” State v. Rhodes, 627 N.W.2d 74, 86 (Minn.2001). Furthermore, determining the credibility of witnesses is best left to the district court. The post-conviction court judge who made these findings was also the original trial judge. The postconviction court pointed out that the alleged recanting witnesses were all appellant’s personal friends and may have felt remorse after appellant had served over 10 years in jail. The manner and quality of the “recanted” testimony was taken into consideration by the postconviction court through sworn affidavits, as was the effect of cross-examination by defense counsel during the initial trial of these same witnesses. Contrary to what the majority holds, the postconviction court did evaluate the credibility of the witnesses. The court found their recantations to be “inherently suspect” and further found that appellant “has not shown by a fair preponderance of the evidence that material facts are in dispute.”

Because this court has decided to remand this matter for a further evidentiary hearing, and the matter may well appear before us again, I do not deem it necessary or prudent to detail my views on each of the witness’s recantations. Suffice it to say, I would affirm the postconviction court’s finding that these recantations were “inherently suspect” based on the record before us. I agree with the post-conviction court, which aptly stated:

In the final analysis and upon review of the affidavits of the recanting witnesses, one can speculate that we are dealing with a chorus of liars, with the only question being whether the concert was at the trial, or is it now, at the motion for a retrial. If it was at the trial, then they are perjurers all and if it is now, then they have the unique ability to have their memory sharpen with the passage of time.

I also agree with the postconviction court’s findings and conclusion that whether these witnesses were lying in 1992 at the time of trial or now, the jury would not have reached a different result without the recanted testimony. The postconviction court did not harbor any doubts as to whether to conduct an evidentiary hearing. See King v. State, 649 N.W.2d 149, 156 (Minn.2002). Furthermore, although there was no physical evidence linking appellant to the murder, there was significant incul-patory evidence linking appellant to the murder, including statements against his penal interest that he made on numerous occasions. I would affirm the postconviction court’s finding based on the record before it that any error caused by the testimony of these witnesses was harmless.

Finally, because this court has decided to remand the case for a further evidentia-ry hearing, the postconviction court will have to consider the potential prejudice that would face the state if the postconviction court were to order a new trial. In section V, the majority appropriately discusses some of the factors that the post-conviction court should take into consideration on remand. The murder took place 17 years ago and the trial took place 11 years ago. Two material witnesses who testified at trial have since died and two others apparently cannot be located. Prejudice to the state may be a legitimate problem in this case should the postconviction court determine on remand that a new trial would otherwise be warranted.

      . Overruled by United States v. Mitrione, 357 F.3d 712, 719 (7th Cir.2004).

      . Opsahl also claims that the prosecutor's conduct violated his due process rights under Brady. Brady requires the prosecutor to disclose exculpatory evidence to the defense. 373 U.S. at 87, 83 S.Ct. 1194. If Opsahl's allegations are true, however, the prosecutor would have committed misconduct simply by threatening those witnesses with probation revocation. We, therefore, need not address the effect of withholding this information from the defense.

      . Unfortunately, the distinguished trial judge, the Honorable L.W. Yost, died on December 31, 2003. His untimely death further complicates a remand because he had the opportunity to judge the credibility of the witnesses at the trial in 1992.

      . Two of the affidavits submitted alleging recanted testimony are affidavits of attorneys currently representing appellant on appeal. It should be a rare circumstance in which an attorney decides to malte himself or herself a material witness in a case he or she is arguing on appeal.


author: MINGE, Judge.

text:
    In the Matter of Petitions to Adopt T.L.A. and T.E.A. and In the Matter of Children in Custody of the Commissioner of Human Services.
    No. A03-973.
    Court of Appeals of Minnesota.
    April 6, 2004.

      Steven V. Rose, BenePartum Law Group, PA, Minneapolis, MN, for appellants J.A. and S.A.
    Steven L. Gawron, Gawron & Associates, P.A., Bloomington, MN; and Kevin P. Staunton, Staunton Law Group, P.L.L.C., Edina, MN, for respondent M.R.
    Amy Klobuehar, Hennepin County Attorney, Nancy K. Jones, Assistant County Attorney, Minneapolis, MN, for respondent Hennepin County.
    Jonathan G. Steinberg, Chrastil and Steinberg, P.L.L.P., Minneapolis, MN, for Guardian Ad Litem.
    Considered and decided by SHUMAKER, Presiding Judge; KALITOWSKI, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellants, great-aunt and great-uncle of T.L.A. and T.E.A., challenge the commissioner’s decision to withhold consent to their adoption of the children. Because Minnesota law allows a biological parent who relinquishes parental rights to direct that the commissioner not consider relatives as an adoptive placement, because the relative preference for adoptive placement is only one factor in determining a child’s best interests, and because the district court did not abuse its discretion in finding that the commissioner’s decision was in the best interests of the children, we affirm.

FACTS

T.A. is the mother of T.L.A. and T.E.A., who were born in March 1999 and August 2000, respectively. T.A. has a history of prostitution and drug addiction. Shortly after the birth of T.E.A., Hennepin County Department of Children, Family and Adult Services (Hennepin County) filed a petition stating that the children were in need of protection or services.

Appellants J.A. and S.A. are sister and brother and T.A. is their niece. In August 2000, T.E.A. was placed in emergency foster care with appellant J.A. T.L.A. was placed with J.A. a month later. Within a few days of T.L.A.’s arrival, appellant J.A. contacted Hennepin County demanding that the children be removed immediately. Hennepin County offered J.A. supportive services and advised her that if she gave up the children it might affect subsequent adoption decisions. J.A. insisted, however, and the children were placed in an emergency shelter home until respondent M.R. took them into her home.

T.A. and respondent M.R. are close friends. T.A. considers M.R. to be “kin” and chose M.R. to be her godmother. T.A. heavily relied on M.R. for help with the children and M.R. has cared for the children for extended periods of time.

In 2001, the district court ordered that the children be reunified with T.A. This reunification lasted for approximately one year. During this period of time, appellant S.A. visited with the children once. J.A. did not have any contact with the children. M.R., however, was a frequent visitor. When T.A. became incapable of caring for the children, M.R. intervened on the children’s behalf and they were placed with her where they now remain.

Both T.A. and the father of the children voluntarily terminated their parental rights, and the district court ordered their rights terminated. By law, the commissioner of the Minnesota Department of Human Services (commissioner) became the guardian and legal custodian of the children. Appellants and M.R. both filed petitions for adoption. After first identifying M.R. as the preferred adoptive parent, and then favoring adoption by appellants, T.A. finally directed that the commissioner reject appellants as adoptive parents and designated M.R. as the preferred adoptive parent. The commissioner reviewed the matter and determined that the state would not consent to adoption by appellants. A contested adoption hearing was scheduled and the district court determined that the issue of whether the commissioner reasonably withheld consent would be tried first, and bifurcated from consideration of the competing adoption petitions of appellants and respondent.

The district court held a six-day hearing on the commissioner’s refusal to consent to adoption by appellants and the facts as they pertained to adoption placement. There was evidence that appellants had not had significant contact with T.A. until she was unable to care for her children and that T.A. felt unsupported and abandoned by appellants. There was also testimony that, apparently because of T.A.’s history of drug use and prostitution, appellants were not willing to have contact with T.A. and the children as long as she retained her parental rights and that, if appellants became adoptive parents, they would not allow her contact with the children. The district court found that M.R. had been loving and supportive of the children and maintained contact with them despite T.A.’s drug abuse and prostitution. The district court entered an amended order finding that the commissioner did not unreasonably withhold his consent for appellants to adopt. This appeal followed.

ISSUES

1. Did the commissioner improperly withhold its consent from appellants to adopt?

2. Did the district court err in admitting the testimony of Robert Denardo?

3. Did the district court err in assigning the burden of proof to appellants?

ANALYSIS

I.

The first issue is whether the commissioner improperly withheld its permission from appellants to adopt. Appellants argue that the district court misapplied the adoption statute by failing to give them a relative preference over respondent M.R. Because appellants raise a question of statutory interpretation, this court’s standard of review is de novo. In re Adoption of C.H. and A.H., 554 N.W.2d 737, 742 (Minn.1996).

In making adoption decisions, the overriding policy of the state of Minnesota and the purpose of the adoption statutes are to ensure that the best interests of children are met. Minn.Stat. § 259.20, subd. 1 (2002). When a petition for adoption is filed, and the children who are the subject of the adoption are without a parent or guardian, the commissioner is the legal custodian and guardian of the children and is authorized to consent to an adoption. MinmStat. § 259.24, subd. 1(d) (2002). “Consent to an adoption shall not be unreasonably withheld by ... the commissioner or by an agency.” Minn.Stat. § 259.24, subd. 7 (2002).

Appellants’ argument that they should be the preferred placement over M.R. is based on caselaw developed from previous versions of the adoption statute. At this time, the Minnesota statutes state that the commissioner must consider the following in consenting to and preferring adoption placements:

PROTECTION OF BEST INTERESTS IN ADOPTIVE PLACEMENTS
Subdivision 1. Best interests of the child, (a) The policy of the state of Minnesota is to ensure that the best interests of the child are met by requiring individualized determination of the needs of the child and of how the adoptive placement will serve the needs of the child.
Subd. 2 Placement with relative or friend. The authorized child-placing agency shall consider placement, consistent with the child’s best interests and in the following order, with (1) a relative or relatives of the child, or (2) an important friend with whom the child has resided or had significant contact....
If the child’s birth parent or parents explicitly request that placement with relatives or important friends not be considered, the authorized child-placing agency shall honor that request consistent with the best interests of the child.

Minn.Stat. § 259.29 (2002) (emphasis added). We note that once this request by the birth parent is made, the statute mandates that the commissioner honor the request so long as it is consistent with the best interests of the children. There is no requirement that the commissioner first determine whether appellants would provide an appropriate home so long as the alternative placement is in the children’s best interests.

Even though earlier versions of the statute may have created a stronger preference for relatives, the resulting caselaw still required that the best interests of the child take priority over any other statutory considerations. See, e.g., In re Adoption of C.H. and A.H., 554 N.W.2d at 742 (“[T]he [relative] preference is not to be applied so as to override the overall best interests of the child.”); In re S.T. and N.T., 512 N.W.2d 894, 898 (Minn.1994) (holding that the relative preference “is only a preference. It is not a commandment to be followed blindly or mechanically irrespective of the particular needs of the individual children”). While the plain language of Minn.Stat. § 259.29 requires that relatives be given preference for adoptive placement, the preference is clearly lost if contrary to the best interests of the child or if the birth parent, consistent with the child’s best interest, requests that relatives not be considered. We find no compelling reason to adopt appellants’ interpretation that the statute mandates a mechanical and automatic preference for relative placement. Such a reading is contrary to the plain language of the statute and caselaw.

Appellants argue that the commissioner should not have honored the birth mother’s request that appellants not be considered for adoptive placement, that a non-relative placement was not in the children’s best interests, and that the district court should have investigated the reasons behind T.A.’s request. Appellants’ challenge to the commissioner’s decision was considered by the district court in the course of a six-day hearing. The district court heard evidence from 17 witnesses and received almost 40 exhibits. The district court’s order spans 30 pages and contains 178 detailed findings of facts, concluding that the commissioner’s decision to withhold its consent from appellants to adopt was reasonable and in the children’s best interests.

Citing to the required statutory factors, the district court not only concluded that placement of the children with M.R. would be consistent with their best interests, but also specifically found that placement with appellants would be contrary to their best interests. The district court stated:

[The mother, Hennepin County,] and the Commissioner, in turn, reasonably, and consistent with the best interest of the children, concluded that [M.R.] could provide the best home for [the children]. The core reasons — that [M.R.] is deeply bonded with the children, has always been there for them, has weathered every storm, understands the nuances of their family and their special needs, and has raised them during highly critical, formative years — are fully and overwhelmingly validated by the persuasive and credible evidence at trial. The absence of any similar role played by [appellants], and them lack of parenting skills attuned to the special needs of their children, and certain other characteristics borne out at trial, prove persuasively that the choice of [M.R.] is reasonable, and not arbitrary.

We understand that appellants are sincere family members with a genuine interest in the welfare of the children and are committed to doing the best they can for them. They do not want the children exposed to any bad influence by T.A. given her past lifestyle of drug abuse and prostitution. But, in determining the best interests of the children, the district court considered all dimensions of the situation and explained the basis of its decision in detail. At the time of its order, the district court found that T.A. was drug free, law-abiding, and has gifts and emotional contributions that will enhance the lives of T.L.A. and T.E.A. The court also noted that M.R.’s willingness to allow T.A. to play a role in the children’s lives was contingent on T.A. remaining sober-for 18 months and provided that she also remains law-abiding.

We conclude that the district court did not err in ruling that the commissioner should -withhold consent to relative adoption when the birth parent requests that consent be so withheld and when that request is consistent with the best interests of the children. We further conclude that the district court did not abuse its discretion in determining that the record supported the commissioner’s decision, that the birth mother’s request was consistent with the best interests of the children, and, therefore, that the commissioner’s decision to withhold consent was reasonable.

II.

The second issue is whether the district court committed reversible error in admitting the testimony of Robert Denar-do. Denardo is an employee of the Minnesota Department of Human Services who is familiar with the agency’s role in the adoption process. Appellants contend that Denardo’s testimony was not admissible because he is not an attorney, was not qualified as a legal expert, and should not have been allowed to render an opinion as to whether proper polices and procedures were followed by the commissioner. Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm, Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Id. at 46 (quotation omitted).

Denardo testified to the policies and procedures utilized when the commissioner grants or withholds consent for adoption. As the individual who reviews recommendations for consent from the counties, Denardo explained how he examines files to ensure the county evaluates cases according to statutory mandates — in this case the best interests of the child standard. Despite appellants’ argument, there is no evidence that Denardo’s testimony was offered as an expert opinion or actual legal determination that the agency’s actions were according to statute. Even if the content of Denardo’s testimony was in some way improper, it does not appear that it was prejudicial error that warrants a new trial. Accordingly, we conclude that the district court did not err in allowing the admission of Denardo’s testimony.

III.

The third issue we face is whether the district court erred in assigning appellants the burden of proof to show that the commissioner’s decision was unreasonable. In another area of law, this court has stated:

All agency decisions receive a presumption of regularity; the burden of proof is on the challenger to establish that the agency’s decision was improperly reached. Deference is shown to agency expertise, lest the court substitute its judgment for that of the agency.

M.T. Props., Inc. v. Alexander, 433 N.W.2d 886, 893 (Minn.App.1988) (citation omitted), review denied (Minn. Feb. 22, 1989).

Appellants compare the commissioner’s position here to that of the challengers in In re S.T. and N.T. There, the supreme court determined that the foster parents, who challenged the placement of the children with relatives, bore a “significant burden to overcome given the statutory and common law preference for adoptive placement with relatives.” In re S.T. and N.T., 512 N.W.2d at 898 (Minn.1994). Appellants argue that the commissioner stands in the same position as the foster parents in that case and must therefore bear the burden of overcoming the statutory relative preference.

Appellants’ argument is flawed. First, we note that the case of S.T. applied to a dispute between foster parents and relatives; the state was not a party and there was no directive from a natural parent. Therefore, the language of that case is not applicable to the review of agency decisions. We also note that appellants’ assignment of the burden of proof to the commissioner assumes an automatic relative preference. However, as we conclude above, the language of the current statute and the caselaw clearly reject this position.

Finally, appellants’ argument ignores the district court’s alternative conclusion that, even if the commissioner bore the burden of proof “the Commissioner has proven, by a preponderance of the evidence, that its decision to withhold consent to [appellants] to adopt [the children] is reasonable, supported by substantial evidence, and not arbitrary or capricious.” Based on this and other determinations, we reject appellants’ argument regarding the burden of proof.

DECISION

We conclude that the district court did not err in ruling that the commissioner reasonably withheld consent to relative adoption when the birth parent requested that consent be so withheld and when that request was consistent with the best interests of the children. We further conclude that the district court did not abuse its discretion in upholding the commissioner’s decision that the birth mother’s request was consistent with the best interests of the children. Finally, we find the district court did not abuse its discretion in admitting Denardo’s testimony or err in placing the burden of proof on appellants.

Affirmed.

      . The statutes identify several factors that must be considered in determining the best interests of children in adoption cases. See Minn.Stat. § 260C.212, subd. 2(b) (2002); see also, Minn.Stat. § 259.29, subd. 1(b) (2002); Minn.Stat. § 260C.193, subd. 3 (2002).


author: WILLIS, Judge. ROBERT H. SCHUMACHER, Judge

text:
    MON-RAY, INC., Respondent, v. GRANITE RE, INC., an Oklahoma corporation, Respondent, JayLark, Inc., Defendant, Metropolitan Airports Commission, Appellant. and Erickson Plumbing, Heating and Cooling, Inc., Respondent, v. Granite Re, Inc., an Oklahoma corporation, Respondent, JayLark, Inc., Defendant, Metropolitan Airports Commission, Appellant.
    No. A03-660.
    Court of Appeals of Minnesota.
    April 7, 2004.

      Aaron A. Dean, Dean B. Thomson, Fa-byanske, Westra & Hart, P.A., Minneapolis, MN; and Ned E. Ostenso, Hopkins, MN, for respondents Mon-Ray, Inc. and Erickson Plumbing, Heating and Cooling, Inc.
    David H. Gregerson, Joseph A. Nilan, Christine A. Longe, Gregerson, Rosow, Johnson & Nilan, Ltd., Minneapolis, MN, for respondent Granite Re, Inc.
    Jerome A. Miranowski, Faegre & Benson, LLP, Minneapolis, MN, for appellant.
    Robert L. Magrini, Hayes Magrini & Gatewood, Oklahoma City, OK; and William R. Miller, Minneapolis, MN, for amici curiae.
    Considered and decided by SCHUMACHER, Presiding Judge; WILLIS, Judge; and WRIGHT, Judge.
   OPINION

WILLIS, Judge.

Appellant is a public corporation that hires general contractors for work on a sound-insulation program that appellant developed and operates. Appellant challenges the district court’s grant of summary judgment to respondent subcontractors, arguing that the district court erred by determining that a forfeiture provision in appellant’s contracts with a general contractor did not “bind” or “apply to” the subcontractors or the respondent surety because they are not parties to the contracts and that, therefore, appellant is not entitled to $44,000 that was forfeited by the general contractor. Both appellant and the surety challenge the district court’s determination that the subcontractors are entitled to the money, maintaining that the subcontractors are not entitled to equitable relief because they failed to timely pursue their available statutory remedies. And appellant argues that because the $44,000 was forfeited by the general subcontractor, the surety is not entitled to the money under a theory of equitable subrogation. Because we agree with appellant, we reverse.

FACTS

In response to complaints about airport noise in areas near the Minneapolis/St. Paul International Airport, appellant Metropolitan Airport Commission (MAC) developed and operates the MSP Part 150 Sound Insulation Program, which provides sound insulation for homes and schools in affected areas. Under this program, MAC has sound-insulated approximately 7,200 homes at a cost of $206 million. MAC hires general contractors to perform the sound-insulation work; those contractors then may hire subcontractors. MAC enters into a separate contract with a general contractor for each home and school in the program.

JayLark, Inc. was a general contractor that participated in the program, and it subcontracted much of the work to various subcontractors, including respondents Mon-Ray, Inc. and Erickson Plumbing, Heating & Cooling, Inc. The contracts between JayLark and MAC include a provision that specifies that “any and all remaining payments on the affected Contract” would be forfeited by JayLark if it failed to provide final documents or complete work, including warranty work, within six months after substantial completion of the contract. Respondent Granite Re, Inc. was JayLark’s surety and provided performance bonds and payment bonds, as required both by MAC’S contracts with JayLark and by Minn.Stat. § 574.26 (2002), to ensure that the work was completed and that subcontractors and suppliers were paid for their work.

In early 2002, JayLark stopped performing on its contracts, and its owners declared bankruptcy. Mon-Ray and Erickson completed the work on the homes for which they had been hired and subsequently filed claims against the payment bonds provided by Granite. Erickson filed 18 claims against the bonds, totaling approximately $185,345; Granite paid Erickson approximately $29,624 on three of Erickson’s claims and denied the rest as untimely. Mon-Ray filed 12 claims against the bonds, seeking approximately $67,742; in June 2002, Granite paid Mon-Ray $28,337 for its claims against four bonds, determined that three claims were untimely, and continued to evaluate the five remaining claims. In September 2002, Granite entered an agreement with Mon-Ray to settle the five claims for $25,000; in the settlement agreement, both Granite and Mon-Ray purported to reserve their rights to assert claims to the approximately $44,000 that JayLark forfeited to MAC.

Mon-Ray and Erickson filed separate complaints, asserting the same causes of action against the same parties; the two cases were consolidated. Mon-Ray and Erickson asserted (1) breach of contract claims against JayLark; (2) payment-bond claims under Minn.Stat. § 574 against Granite for amounts that had not yet been paid under the bonds; and (3) equitable claims of unjust enrichment and constructive trust against MAC to recover the $44,000 forfeited by JayLark because of its default on its contracts with MAC. Granite also asserted a cross-claim against MAC for the $44,000, maintaining that Granite was entitled to the money under a theory of equitable subrogation. Mon-Ray obtained a default judgment against JayLark for $51,623; Erickson moved for a default judgment for $186,033 against JayLark, but the district court has not acted on that motion.

All parties brought cross-motions for summary judgment to determine the claims to the approximately $44,000 forfeited by JayLark. On May 9, 2003, the district court granted Mon-Ray’s and Erickson’s motions for summary judgment and awarded $10,307 to Mon-Ray and the remaining $33,699 to Erickson. MAC’s and Granite’s motions for summary judgment were denied. MAC appealed the order, arguing that it is entitled to keep the $44,000 because of the forfeiture provision in its contracts with JayLark, and Granite filed a notice of review that contests the rights of Mon-Ray and Erickson to the $44,000.

ISSUES

I. Are the subcontractors entitled to equitable relief in the form of payment to them of the funds that JayLark forfeited?

II. Is the surety entitled, under a theory of equitable subrogation, to the funds that JayLark forfeited?

ANALYSIS

Summary judgment is appropriate when the pleadings, affidavits, and other documents before the court show that “there is no genuine issue as to any material fact” and that either party “is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

I.

The district court decided that Mon-Ray and Erickson were entitled to the $44,000, finding that (1) MAC was not entitled to the money because Mon-Ray and Erickson were not parties to the contracts between JayLark and MAC and, thus, the forfeiture provision did not “bind” them and (2) the subcontractors were entitled to the $44,000 “under the doctrine of equitable lien or under their alternative theory of unjust enrichment.”

MAC argues first that the district court erred by determining that MAC was not entitled to the $44,000 because the forfeiture provision did not “bind” the subcontractors. When a contract contains a forfeiture provision, the provision, while strictly construed, is enforceable if it is a clear expression or manifestation of the parties’ intent. Naftalin v. John Wood Co., 263 Minn. 135, 147-48, 116 N.W.2d 91, 100 (1962). Although courts may construe an ambiguous contract to avoid a forfeiture, such an interpretation may not be given if “such an intent is manifest in clear and unambiguous language.” Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 883 (Minn.2002). The subcontractors do not argue that the forfeiture provision is unenforceable as it applies to JayLark; rather, they argue that MAC is not entitled to the $44,000 because the forfeiture provision does not “affect” the subcontractors.

MAC’s contracts with JayLark, like its contracts with other general contractors, require JayLark to close out each contract by providing MAC with final documents and to complete work, including warranty work, within six months of substantial completion of the contract. Section 00700-1.27(D) of the contracts provides:

If the Contractor should fail to provide final documents as outlined in Section 01700 — “Contract Closeout” within six (6) months following Substantial Completion of any SIP Contract, MAC shall terminate the Contract due to non-response and the Contractor shall forfeit any and all remaining payments on the affected Contract.

Also, Section 01700-1.02(E) provides:

If the Contractor fails to provide final documents, as outlined in this Section, or complete work including warranty work, within six months following Substantial Completion of any MSP Part 150 Sound Insulation Program Contract, MAC shall terminate the Contract due to non-response and the Contractor shall forfeit any and all remaining payments on the affected Contract.

MAC contends that, as a public corporation, it is obligated to ensure that its contractors comply with the law and that by requiring contractors to provide, as part of the final documents, a “Withholding Affidavit for Contractors,” which is required by law to ensure that contractors have complied with state and federal wage and tax withholding laws, the forfeiture provision is designed to ensure contractor compliance with the law. MAC further maintains that the forfeiture provision is an essential part of its program because it allows MAC to remain current in closing out completed contracts, results in cost savings, and reduces demand on staff time. And because it is undisputed that JayLark failed to provide the documents required by the contracts, MAC contends that Jay-Lark forfeited “any and all remaining payments” and that MAC is entitled to keep them.

The contracts clearly and unambiguously provide that if JayLark fails to provide final documents or to complete work, including warranty work, within six months after substantial completion of the contract, JayLark forfeits “any and all remaining payments” on the affected contract. Because it is undisputed that JayLark did not comply with its obligations under this provision, JayLark clearly forfeited its right to “any and all remaining payments” under the contracts. See Naftalin, 263 Minn. at 147-48, 116 N.W.2d at 100 (holding that when a contract contains a forfeiture provision, the forfeiture, while strictly construed, is enforceable if it is a clear expression or manifestation of the parties’ intent). The district court determined that it “cannot even consider awarding the $44,000 to the MAC in compensation for the time the MAC allegedly spent on [completing the close-out] paperwork.” But MAC’S argument is that it is entitled to the money, not as compensation for completing JayLark’s paperwork, but rather because JayLark forfeited its right to the money by failing to comply with its contracts with MAC.

We conclude that the district court erred by determining that MAC was not entitled to the $44,000 under the forfeiture provision in its contracts with JayLark on the ground that the forfeiture provision did not “bind” the subcontractors. Because, as a general rule, nonparties to a contract acquire no rights or obligations under it, the fact that the forfeiture provision does not “bind” the subcontractors does not give them a right to the $44,000. See N. Nat'l Bank of Bemidji v. N. Minn. Nat’l Bank of Duluth, 244 Minn. 202, 208, 70 N.W.2d 118, 123 (1955) (holding that the general rule that nonparties to a contract acquire no rights under it is subject to exception of third-party beneficiary contracts).

MAC next argues that the subcontractors are not entitled to the $44,000 under the theories of either unjust enrichment or equitable lien. We agree. The district court determined that

[wjhether under the doctrine of equitable lien or under their alternative theory of unjust enrichment, the subcontractors have a prior claim to what retainages are available. As Mon-Ray has settled with Granite as to those bond claims which Granite denied, Mon-Ray has no remedies at law available. Therefore, a remedy in equity is appropriate.

To establish a claim for unjust enrichment, the claimant must show that another party knowingly received something of value to which he was not entitled and that the circumstances are such that it would be unjust for that person to retain the benefit. ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 306 (Minn.1996). “[Ujnjust enrichment claims do not lie simply because one party benefits from the efforts or obligations of others, but instead it must be shown that a party was unjustly enriched in the sense that the term unjustly could mean illegally or unlawfully.” First Nat’l Bank of St. Paul v. Ramier, 311 N.W.2d 502, 504 (Minn.1981). Unjust enrichment may be founded on failure of consideration, fraud, or mistake, or “situations where it would be morally wrong for one party to enrich himself at the expense of another.” Holman v. CPT Corp., 457 N.W.2d 740, 745 (Minn.App.1990) (quoting Anderson v. DeLisle, 352 N.W.2d 794, 796 (Minn.App.1984)). An equitable lien is essentially a constructive trust and may be imposed where “there is clear and convincing evidence that such imposition is justified to prevent unjust enrichment.” Fredin v. Farmers State Bank of Mountain Lake, 384 N.W.2d 532, 535 (Minn.App.1986).

Although the district court stated that Mon-Ray did not have an available remedy at law because it reached a settlement with Granite on the bond claims that were denied, it is clear that both Mon-Ray and Erickson did have a legal remedy under the payment-bond statute and that if they had timely submitted all of their payment-bond claims, they would have been paid in full. And because the subcontractors failed to pursue their available legal remedy, we conclude that they cannot now claim that they are entitled to equitable relief in the form of payment by MAC for the work that they have not been paid for under the payment bonds. See Southtown Plumbing, Inc. v. Har-Ned Lumber Co., Inc., 493 N.W.2d 137, 140 (Minn.App.1992) (holding that subcontractors do not have a claim for unjust enrichment when they fail to pursue their available statutory remedy).

Here, Mon-Ray and Erickson did not protect their rights because, for reasons not apparent from the record, they did not timely submit all of their payment-bond claims under Minn.Stat. § 574.31, subd. 2(a) (2002). See ServiceMaster, 544 N.W.2d at 306 (holding that the mechanic’s lien statute, which is akin to the public-works payment-bond statute, provides contractors with a “sure remedy for getting paid but it requires compliance with strict time restrictions on the part of the contractor to protect its rights”). And if a contractor elects not to pursue the legal remedy available under the statute, the contractor is not entitled to equitable relief, absent compelling circumstances. Id. Although Mon-Ray and Erickson argue that they should be entitled to the $44,000 because MAC has received the benefit of fully completed projects, they cite no compelling circumstances warranting relief.

Mon-Ray and Erickson argue that a 1995 amendment to Minn.Stat. § 514.13 (2002), the mechanic’s-lien statute, which provides that “the rights granted by this chapter are nonexclusive,” “eviscerate[s]” the relevant caselaw. But in ServiceMas-ter, which was decided in 1996, the supreme court held that a party cannot recover under an equitable theory if it fails to pursue its available and adequate legal remedy. Id. And we note that, in any event, the payment-bond statute contains no language paralleling the 1995 amendment to the mechanic’s-lien statute.

Further, Twin City Construction Co. of Fargo, N.D. v. ITT Industrial Credit Co., which Mon-Ray and Erickson cite for the proposition that they are entitled to damages for unjust enrichment, is distinguishable. 358 N.W.2d 716, 719 (Minn.App.1984). Twin City Construction held that a lender was unjustly enriched by its refusal to make final payment under a construction contract after completion of work by a contractor and that, therefore, the contractor was entitled to recover on its claim of unjust enrichment as a matter of law. Id. at 717-19. But unlike the contractor in Twin City Construction, which entered into an agreement by which it gave up its mechanic’s lien and “was to complete the construction project without any recourse,” nothing precluded Mon-Ray and Erickson from filing claims under the payment-bond statute. Id. at 717. Thus, we conclude that because Mon-Ray and Erickson had an available and adequate remedy at law that they failed to timely pursue, the district court erred by determining that they were entitled to the $44,000 “[wjhether under the doctrine of equitable lien or under their alternative theory of unjust enrichment.”

II.

Granite also asserts that the forfeiture provision in the contracts between MAC and JayLark cannot be enforced against Granite because it was not a party to the contracts between JayLark and MAC. We agree. But, as previously stated, we conclude that because, as a general rule, nonparties to a contract acquire no rights under it, the fact that the forfeiture provision does not “bind” or “apply to” the surety does not affect MAC’s entitlement to the $44,000; as a nonparty, no money was due to Granite under the contracts between MAC and JayLark. See N. Nat’l Bank of Bemidji, 244 Minn. at 208, 70 N.W.2d at 123 (holding that, as a general rule, nonparties to a contract acquire no rights under it).

Because JayLark failed to complete performance of its contracts, Granite paid, under its payment bonds, the claims submitted by Mon-Ray and Erickson that were timely and also hired, under its performance bonds, a substitute general contractor to complete the work. Granite maintains that because it paid under its payment bonds, by application of the doctrine of equitable subrogation, it is entitled to the $44,000.

Under the doctrine of equitable subrogation, “one who has been compelled to pay a debt which ought to have been paid by another is entitled to exercise all the remedies which the creditor possessed against that other.” Am. Sur. Co. of New York v. Bethlehem Nat. Bank of Bethlehem, Pa., 314 U.S. 314, 317, 62 S.Ct. 226, 228, 86 L.Ed. 241 (1941) (citations omitted). A surety has an equitable right of subrogation to contractor funds retained by a project owner when the surety pays the debts of the contractor to subcontractors under a payment bond. Pearlman v. Reliance Ins. Co., 371 U.S. 132, 141-42, 83 S.Ct. 232, 237, 9 L.Ed.2d 190 (1962). Thus, Granite asserts, because it paid Mon-Ray and Erickson under its payment-bond obligation, Granite is entitled to $44,000 from MAC. In Pearlman, the contract between the project owner and the contractor provided that, until the project was completed, the project owner could retain and hold a percentage of the monthly payments due the contractor. 371 U.S. at 133-34, 83 S.Ct. at 233. And the Supreme Court determined that, upon final completion of the project, the funds held by the project owner “plainly belonged to someone else.” Id. at 134, 83 S.Ct. at 233. We conclude that Pearlman is distinguishable, however. Here, JayLark forfeited the $44,000 by not complying with MAC’S contracts. And because JayLark is not due any money under its contracts with MAC, there are no contract retainages owed to JayLark to which Granite can assert a right. Thus, we conclude that the money does not “belong” to a party other than MAC and that Granite does not have a right to the money under the doctrine of equitable subrogation.

Granite and the amici further argue that by fulfilling its performance-bond obligation, Granite is entitled to $44,000 from MAC. They maintain that when a contractor defaults on a contract, a performance-bond surety has the right either (1) to direct the owner to use the remaining contract proceeds to complete the work or (2) to perform by completing the project. Granite cites District of Columbia v. Aetna Insurance Co. for the proposition that it is entitled to $44,000 from MAC because (1) by performing under its performance bond and completing the work, Granite is subrogated to all of MAC’S rights and remedies against JayLark, (2) one of MAC’S rights is the right of set-off, which gives MAC the right to set off excess completion costs on any one contract against “sums otherwise owed JayLark” on any other contract, and (3) Granite, by completing JayLark’s projects, is thus entitled any contract proceeds that MAC owes JayLark. 462 A.2d 428, 432 (D.C. 1983) (holding that performance-bond surety on a public-works project, upon default of the contractor and full performance by the surety, is subrogated to the rights and remedies, including set off, against the contractor that the project owner would have had if it had completed the project itself).

But the $44,000 is money forfeited by JayLark under a forfeiture provision and is not “remaining” contract proceeds. Thus, because MAC owes JayLark no money under the contracts, we conclude that Granite is not entitled to the $44,000 under the doctrine of equitable subrogation.

DECISION

Because JayLark forfeited approximately $44,000 under a provision in its contracts with MAC, the district court erred by determining that MAC was not entitled to the money on the ground that the forfeiture provision did not “bind” or “apply to” Mon-Ray, Erickson, and Granite. Mon-Ray and Erickson are not entitled to equitable relief in the form of recovery from MAC because they failed to timely avail themselves of an available legal remedy. And because the money was forfeited by JayLark and was not remaining contract proceeds owed to JayLark, Granite is not entitled to the money under the theory of equitable subrogation.

Reversed.

ROBERT H. SCHUMACHER, Judge

(concurring in part, dissenting in part).

While I concur with the majority’s analysis regarding the subcontractors’ equitable claims, I respectfully dissent with regard to the analysis of the forfeiture clause. I believe that MAC is not entitled to the $44,000 because the forfeiture provision in its contract with JayLark does not apply to the surety and the subcontractors. Where a contract clearly and expressly provides for forfeiture, the provision will be strictly construed. Naftalin v. John Wood Co., 263 Minn. 135, 147-48, 116 N.W.2d 91, 100 (1962).

Here, the forfeiture provision clearly provides that “the Contractor” is the only party subject to its terms. Because it is undisputed that JayLark is “the Contractor,” I conclude that this court should not allow MAC to extend the reach of its forfeiture provision to include the subcontractors and the surety, which are nonparties to the contract between MAC and JayLark. As nonparties to the contract, the forfeiture provision is not a clear expression or manifestation of their intent and, thus, is unenforceable as applied to them. See id. (holding that forfeiture is enforceable if it is clear expression of parties’ intent).

Further, forfeitures are not favored and will not be enforced when great injustice would be done. Hideaway, Inc. v. Gambit Invs., Inc., 386 N.W.2d 822, 824 (Minn.App.1986). Here, I believe that it is unjust that MAC, which has the benefit of a fully completed project, retains a windfall profit of $44,000. While I agree that Mon-Ray and Erickson are not entitled to the $44,000 because both failed to timely pursue their statutory remedy, I conclude that Granite should be entitled to the money in mitigation of the great economic loss that it has suffered in discharge of its payment and performance bond obligations.

      . The "final documents” consist of inspection reports, a certificate of final acceptance, a withholding affidavit for contractors, the consent of the surety to final payment, the contractor’s affidavit of payment of debts and claims form, remaining change orders, certified payroll for any work completed after substantial completion of the contract work, and mechanical/insulation correction forms signed by the contractor and project manager, if applicable.

      . On June 30, 2003, this court granted National American Insurance Company, Mid-Continent Casualty Company, and Victore Insurance Company leave to file a brief as amici curiae.