text:
    In re the Marriage of Steven Walter PRAHL, Petitioner, Appellant, v. Jana Lise-Ulland PRAHL, Respondent.
    No. C0-00-1315.
    Court of Appeals of Minnesota.
    May 29, 2001.

      Michael S. Husby, Duluth, for appellant.
    Elizabeth A. Storaasli, Lisa D. Wilson, Duluth, for respondent.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, LANSING, and HALBROOKS, Judges.
   OPINION

G. BARRY ANDERSON, Judge

In this dissolution action, appellant contends that the district court abused its discretion by (1) failing to award him spousal maintenance and failing to reserve jurisdiction over the issue of maintenance; (2) valuing and dividing parties’ property, including the parties’ van, homestead, business, unaccounted-for personal property, and stock shares; and by (3) denying his motion for a new trial. We conclude that the district court’s decision that appellant did not currently need spousal maintenance, and its rulings concerning the van, the homestead, the business, the personal property, and the motion for new trial, do not constitute abuses of discretion. We conclude, however, that the district court abused its discretion by awarding all of the Minnesota Power stock shares to respondent as nonmarital property. We also remand for further findings concerning the district court’s reservation of jurisdiction over spousal maintenance.

Accordingly, we affirm in part, reverse in part, and remand.

FACTS

Appellant Steven Walter Prahl and respondent Jana Lise-Ulland Prahl married in 1978. During the marriage, the parties operated an antique shop, Brass Bed Antiques, a business started in 1972 by respondent and her first husband. In addition to working part time at the antique shop, appellant worked full time at a bread company and later as a cook and bartender at a restaurant. In 1983, appellant quit the restaurant job and began working full time at the antique shop, appraising, buying, refinishing, and selling furniture and other antiques. In 1996, doctors diagnosed appellant with Hepatitis C virus and cirrhosis of the liver, but he continued to work at the antique shop on a nearly full-time basis.

Appellant petitioned for dissolution in 1999. Following a dissolution hearing, the district court concluded that neither party was entitled to spousal maintenance and divided the marital property, awarding appellant marital property worth $202,354, including the homestead, and awarding respondent marital property worth $179,741. The district court found some property “missing” and attributed that property to appellant. The district court awarded respondent a premarital interest in the antique business. In addition, the district court awarded respondent, as nonmarital property, shares of Minnesota Power stock. The district court denied appellant’s motion for amended findings, conclusions, and new trial. Appellant challenges the judgment and the denial of his motion.

ISSUES

I. Did the district court abuse its discretion by concluding appellant did not need spousal maintenance and by failing to reserve jurisdiction over the issue of maintenance?

II. Did the district court abuse its discretion in valuing and dividing the marital property?

III. Did the district court abuse its discretion by denying appellant’s motion for a new trial?

ANALYSIS

I.

Appellant claims that the district court abused its discretion by failing to award him spousal maintenance. We will not reverse a district court’s determination of a spousal maintenance award absent an abuse of discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982). For this court to rule the district court abused its discretion, the district court must have resolved the question in a manner “that is against logic and the facts on record * * Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984) (citation omitted).

District courts may grant maintenance to a spouse upon finding the spouse lacks sufficient property to provide for reasonable needs or is unable to provide adequate self-support through employment. Minn.Stat. § 518.552, subd. 1 (2000). Once the district court has determined a party needs maintenance, Minn.Stat. § 518.552, subd. 2 (2000), provides factors for the court to consider in determining the amount and duration of maintenance. Id. The issue is, in essence, a balancing of the recipient’s need against the obligor’s ability to pay. Erlandson, 318 N.W.2d at 39-40.

A. Entitlement to Maintenance

Appellant first argues that the district court erred by finding that he was capable of self-support and by concluding he did not need maintenance. Appellate courts uphold findings of fact unless they are “clearly erroneous.” Minn. R. Civ. P. 52.01. A finding is clearly erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has been made.” Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn.1987). We view evidence in the light most favorable to the district court’s findings and defer to district court credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App.2000). Because the district court, as the factfinder, is charged with reconciling conflicting evidence, the fact “[t]hat the record might support findings other than those made by the [district] court does not show that the court’s findings are defective.” Id. at 474 (citations omitted).

The district court found, despite appellant’s illness, that appellant’s physician had not restricted his work, appellant had not applied for disability benefits, and appellant had not presented evidence showing his inability to obtain gainful employment. The district court found that appellant had the training and skill to operate an antique business and had the earning capacity to maintain the middle-class standard of living he enjoyed during the marriage.

The record supports these findings. Appellant testified that he was diagnosed with Hepatitis C in 1996. Appellant supported his testimony with medical reports. The reports explain that appellant’s medication causes fatigue, and, if his viral infection and liver disease worsens, he may need a liver transplant. Appellant testified that he had “no idea” how he would support himself in the future because he was no longer capable of working a 40-hour per week job due to the side-effects of his medication. The medical reports did not, however, show that appellant’s doctors placed limits on his activity.

Respondent testified that despite having joint pain and general weakness beginning in 1996, appellant was able to perform his regular work activities at the antique shop. According to respondent, there was no real interference with appellant’s daily routine, but, after taking his medication, he would sometimes come to work late. Respondent was not aware of any limitations placed on appellant by his physician.

Viewing the evidence in the light most favorable to the findings and deferring to the district court’s resolution of conflicting evidence, the findings concerning appellant’s earning ability are not clearly erroneous. Because those findings show that appellant did not, at the time of trial, need maintenance, the district court’s determination that neither party was entitled to maintenance is not an abuse of discretion.

B. Lack of Specific Income and Expense Findings

Appellant also claims that the district court erred by failing to make particular findings concerning the parties’ incomes and expenses. The district court apparently accepted appellant’s claimed monthly need of $2,638 and found that he could meet that need through employment using his antique business skalls and through his property award of $202,354.

The findings show that the district court considered appellant’s historical income, expenses, vocational skills, ability to support himself, property received, and the middle-class standard of living established during the marriage. These findings are sufficient to show that appellant did not demonstrate a current need for maintenance. See Currey v. Currey, 393 N.W.2d 683, 686 (Minn.App.1986) (explaining that adequate findings are those that explain that the relevant statutory conditions have been considered). We may treat statutory factors as addressed when they are implicit in the findings and do so here. See Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn.1997) (recognizing statutory maintenance factors as “implieit[ly]” addressed). Having concluded that appellant did not currently need maintenance, the district court was not required to calculate respondent’s ability to pay maintenance. See Minn.Stat. § 518.552, subd. 1 (requiring an initial determination that party seeking maintenance demonstrates need for maintenance).

C. Reservation of Maintenance

Appellant next argues that the district court erred by failing to reserve jurisdiction over the issue of spousal maintenance. Reservation allows the court to later assess and address future changes in one party’s situation as those changes arise, without prematurely burdening the other party. Van De Loo v. Van De Loo, 346 N.W.2d 173, 178 (Minn.App.1984). Whether to reserve jurisdiction over the issue of maintenance is within the district court’s discretion. Minn.Stat. § 518.55, subd. 1 (2000).

Appellant presented evidence of medical conditions, Hepatitis C and cirrhosis of the liver, that may, in the future, interfere with his ability to meet his own needs through self-support. Appellant presented evidence that his condition may 'worsen if it does not respond to medication. Appellant’s current ability to support himself, coupled with his medical condition, suggest that appellant may be the type of person for whom maintenance should be reserved. See Wopata v. Wopata, 498 N.W.2d 478, 485-86 (Minn.App.1993) (upholding reservation of maintenance where husband was, at dissolution, financially self-sufficient but heart problems made future self-sufficiency uncertain); Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn.App.1984) (requiring district court to amend decree to include reservation of jurisdiction on maintenance issue where spouse’s cancer could recur and make maintenance necessary).

The district court did not make findings that explain why it did not reserve jurisdiction over the issue of maintenance. This failure to make findings is not, alone, sufficient to constitute an abuse of discretion. But the lack of findings, together with evidence of a potentially progressive disease, makes it difficult to review, on appeal, the district court’s conclusion that reservation of maintenance was not warranted. Cf. Stick v. Stick, 435 N.W.2d 52, 53 (Minn.1989) (proper appellate review is precluded when district court fails to make sufficiently detailed findings). Moreover, additional evidence may have now developed which could significantly affect the question of whether maintenance ought to have been reserved.

Because of the broad discretion given district courts in deciding whether to reserve maintenance, and given the district court’s apparent rejection of some of appellant’s evidence, we are unwilling to assume the district court abused its discretion here. We remand, however, to allow the district court to address reservation of maintenance in light of the cases addressing reservation in the context of an illness and to make findings explaining its ruling. Whether to reopen the record on remand shall be in the discretion of the district court.

II.

Appellant challenges several aspects of the district court’s property division. The district court is given broad discretion regarding the division of property in marriage dissolutions and will be reversed only for a clear abuse of discretion. Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn.App.1998) (citation omitted), review denied (Minn. Feb. 18, 1999). We will affirm a district court’s division of property if it has an acceptable basis in fact and principle even though this court may have taken a different approach. Servin v. Servin, 345 N.W.2d 754, 758 (Minn.1984).

A. 1992 Ford Van

The district court awarded the parties’ 1992 Ford van to appellant. Appellant first argues that the district court erroneously valued the parties’ 1992 Ford van at $11,248 because evidence proved that the market value was $4,475. An appellate court will not reverse a district court’s valuation of an asset unless it is “clearly erroneous on the record as a whole.” Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (citations omitted). “In valuing an asset for the purposes of marital dissolution, market value of the asset is controlling.” Bateman v. Bateman, 382 N.W.2d 240, 246 (Minn.App.1986), review denied (Minn. Apr. 24, 1986).

The district court found the 1992 Ford van to be worth $11,248, apparently based on an accountant’s business valuation of Brass Bed Antiques. The business valuation recognizes the van’s “book value of $11,248 at December 31, 1998,” which represented an 84% business use, depreciated since its original 1992 purchase. But the accountant’s valuation states that, without knowing mileage and condition, “we cannot accurately estimate the value of the van.”

As evidence of the market value at the time of dissolution, appellant offered the September 1999 Midwest Edition of the N.A.D.A. Official Used Car Guide. That publication shows the parties’ 1992 Ford E-250 Series Cargo van had a trade-in value of, at most, $5,700. The district court received the Guide as an exhibit and, because the market value controls, the district court clearly erred by relying on the accountant’s depreciated business value of the van instead of the market value.

This error, however, does not produce an inequitable property award. Although the overvaluation of the van awarded to appellant may be as great as $6,773, the district court awarded appellant marital property worth $202,354, and awarded respondent property worth $179,741. In the context of the entire property award, the district court’s erroneous valuation of the van does not render the property distribution an abuse of discretion. See Minn.Stat. § 518.58, subd. 1 (2000) (requiring a “just and equitable division of the marital property”).

B. Respondent’s Premarital Interest in Brass Bed Antiques

Appellant next argues that the record does not support the district court’s finding that respondent had a $15,000 premarital interest in the antique business. “Whether property is marital or nonmari-tal is a question of law, but a reviewing court must defer to the [district] court’s underlying findings of fact.” Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn.1997) (citations omitted).

A party seeking to establish that property is nonmarital must do so by a preponderance of the evidence. Swick v. Swick, 467 N.W.2d 328, 330 (Minn.App.1991), revieiv denied (Minn. May 16, 1991). Property acquired before the marriage is nonmarital. Minn.Stat. § 518.54, subd. 5 (2000). “When nonmarital and marital property are commingled, the nonmarital asset may lose that status unless the party can trace it to a nonmarital source.” Swick, 467 N.W.2d at 330 (citation omitted).

The district court found that at the time of respondent’s 1978 dissolution and at the time of her marriage to appellant, Brass Bed Antiques had a value of $15,000, including all inventory, and found that sum to be respondent’s nonmarital interest in the business. The record supports these findings of fact. Respondent’s former husband testified that the value of the business in 1977 was between $13,000 and $15,000, and identified a number of items from current inventory that he knew were part of the shop inventory in 1977. Respondent corroborated that testimony and presented a list of items she knew to be part of the 1978 inventory. The current inventory is now worth $138,519. Accordingly, we conclude that the district court did not err by finding respondent proved, by a preponderance of the evidence, a $15,000 nonmarital interest in Brass Bed Antiques.

C. Respondent’s Nonmarital Interest in the Homestead

Appellant' argues that respondent did not prove her claim to a nonmarital interest in the parties’ homestead. The district court found that respondent sold stock valued at $6,000 on June 20, 1979, which, according to her testimony, she applied as the down payment on the parties’ purchase of their $34,500 home. But the homestead mortgage dated April 24, 1979, shows the parties borrowed $24,000 and purchased the home nearly two months before respondent sold the stock. Appellant testified that the down payment may have come from gifts; respondent disagreed.

Because the documentary evidence does not support respondent’s contention that the $6,000 stock proceeds were applied to the mortgage down payment, respondent failed to prove, by a preponderance of the evidence, that she had a nonmarital interest in the homestead. But the district court, which recognized respondent’s nonmarital interest, nevertheless awarded appellant the entire homestead, and appellant was not required to make an equalization payment. Accordingly, any error concerning respondent’s claimed nonmarital interest is harmless because it did not adversely affect appellant’s share of the property award. See Minn. R. Civ. P. 61 (harmless error ignored).

D. Minnesota Power Stock

The district court awarded respondent shares of Minnesota Power stock acquired before the marriage and held in her name. Through dividend reinvestment and stock splits, the number of the shares grew from 150 to approximately 2,055 shares. Appellant argues that respondent did not meet her burden of proving her nonmarital claim to all of the Minnesota Power stock shares.

The passive appreciation in the value of nonmarital property is nonmarital in nature. White v. White, 521 N.W.2d 874, 878 (Minn.App.1994). A portion of a retirement account, for example, may have a nonmarital component because the investor’s role is passive, that is, no investment decisions are made, and neither party may withdraw the funds or otherwise control the investments. Id. at 879.

But Swick explains that income, as opposed to passive appreciation, “becomes and asset ‘acquired during the marriage’ and, as marital property, is divisible between the parties upon dissolution.” 467 N.W.2d at 331. In addition, “assets acquired with income generated by a nonmarital asset are also marital property divisible upon dissolution.” Id. The supreme court has explained that stock splits are the result of market forces and the corresponding increases in the stock’s value remain nonmarital. Nardini v. Nardini 414 N.W.2d 184, 194 (Minn.1987). But a stock “dividend” is a share of profits received by the stockholder. The American Heritage Dictionary of the English Language 527 (4th ed.2000). “Reinvestment” is the purchase of additional shares with those profits. Id. at 1472. As an asset acquired with income generated from a nonmarital asset, shares purchased with reinvested dividends become marital property. Nardini, 414 N.W.2d at 194.

Respondent testified that stock splits and dividend reinvestment increased the number of Minnesota Power stock shares she owned. Respondent also received, without reinvesting, cash dividends from 75 of the original shares. Respondent explained that she had not added to the stock except “through reinvestment.” The stock, a liquid investment, could be sold at any time. The stock was not held as part of a retirement program and there was no evidence in the record that the parties regarded the Minnesota Power stock as a retirement asset. Respondent testified that she could have chosen to cease participating in the dividend reinvestment program. In short, this was a garden-variety equity investment with no long-term expectations and subject to sale at any time.

We believe that respondent’s decision to continue reinvesting the dividends during the marriage was an active investment decision, even though it was a decision to refrain from acting. Thus, the shares of Minnesota Power stock acquired through stock splits are nonmarital property. But the additional shares acquired by dividend reinvestment are marital property. Accordingly, the district court erred by finding all of the shares to be respondent’s nonmarital property, and consequently, awarding all of the shares to respondent constituted an abuse of discretion.

Respondent relies on Ranik v. Ranik, 383 N.W.2d 431 (Minn.App.1986), review denied (Minn. May 22, 1986), for the proposition that amounts earned on nonmarital funds kept separate throughout the marriage remain nonmarital. Ranik is distinguishable. There, this court affirmed a district court’s ruling that interest earned on inheritance funds kept separately from the marital funds remained nonmarital. Id. at 435. The interest earned on those nonmarital inheritance funds, however, was not the product of investment decisions made by either party during the marriage. As Stvick, White, and Nardini explain, and as the facts of this case illustrate, even assets kept separate from marital funds may have a marital portion when the acts and choices of a party during marriage affect income the asset produces and that income, in turn, is used to purchase additional assets.

Respondent also argues that appellant withheld a Minnesota Power stock certificate during the dissolution proceedings. Respondent argues that appellant withdrew claims relating to that stock and that, because she was denied access to the certifícate, she was unable to offer the court complete evidence of her nonmarital claim. We reject these arguments. Appellant withdrew only his claim that Chro-maline corporation stock was marital. Moreover, respondent, through her account administrators, had access to the transaction records that an expert might have used to calculate the number of shares acquired through stock splits and purchased through dividend reinvestment. Respondent offered two such transaction records — Minnesota Power stock account statements from 1979 and 1999 — that were admitted into evidence at trial.

We conclude that the district court erred by determining all of the Minnesota Power stock shares to be respondent’s nonmarital property and reverse and remand. On remand, the district court shall re-calculate the portion of the increased value of the Minnesota Power stock to determine the number of marital and nonmarital shares, and shall award appellant an equitable share of any marital interest. Whether to reopen the record on remand to take additional evidence shall be discretionary with the district court.

E. Missing Personal Property

Appellant contests, as clearly erroneous, the district court’s finding that some marital property listed by respondent was in appellant’s possession. Upon separation, respondent moved out of the marital home, taking with her only a few boxes of personal items. Respondent testified that she created a list of what she knew to be the parties’ marital property. Appraiser David Monroe used the list when making his estimates and testified that there were some items of furniture and antiques on respondent’s list that were not at the homestead. The district court apparently found the testimony credible, and we will not disturb such determinations. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (appellate courts defer to district court assessments of credibility). We conclude the district court did not err by relying on respondent’s property list and finding the missing items to be in appellant’s possession.

III.

Appellant argues that the district court abused its discretion by denying his motion for a new trial. In reviewing the denial of a motion for a new trial, we must determine not whether the district court might properly have granted a new trial, but whether it violated clear legal rights or manifestly abused its discretion by refusing to grant a new trial. Hertz, 304 Minn. at 146, 229 N.W.2d at 44. In addition, we defer to the district court’s broad discretion in deciding whether to grant a new trial because the district court has “the feel of the trial.” Vangsness, 607 N.W.2d at 472 (citations and quotations omitted). Because appellant’s motion alleged errors capable of resolution on the existing record or with limited additional evidence, and because appellant does not explain how his “clear legal rights” were violated, we conclude that the district court did not abuse its discretion by denying appellant’s motion for new trial.

DECISION

The district court did not abuse its discretion by (1) concluding appellant was not entitled to spousal maintenance; (2) awarding respondent a nonmarital interest in the antique business; (3) attributing missing property to appellant; or (4) denying appellant’s motion for a new trial. The erroneous findings concerning the value of the parties’ van and respondent’s claimed nonmarital interest in the homestead are harmless in light of the entire property award. But the district court abused its discretion by awarding to respondent, as nonmarital property, all of the Minnesota Power stock shares. Finally, this record compels remand for additional findings on the issue of reservation of jurisdiction over spousal maintenance.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge

license: Public Domain

text:
    Ted GRADJELICK, et al., Appellants, v. Leland HANCE, et al., Connie Jo Klosterman, Respondents.
    No. C4-00-2161.
    Court of Appeals of Minnesota.
    May 29, 2001.

      Andrew S. Birrell, R. Travis Snider, Bir-rell & Dunlap, Ltd., Minneapolis, MN, (for appellants).

      Lisa M. Lamm, Abrams & Smith, P.A., Minneapolis, MN, (for respondents Hance, et al.).
    Timothy J. Leer, Johnson & Condon, P.A., Minneapolis, MN, (for respondent Klosterman).
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, LANSING and HALBROOKS, Judges.
   OPINION

G. BARRY ANDERSON, Judge

Appellants, injured in an apartment building fire, challenge the district court’s grant of summary judgment to the building owner, arguing that the district court (1) erred by applying the wrong legal standard; (2) erred by granting summary judgment when there were genuine issues of material fact in dispute; and (3) abused its discretion by refusing to grant a continuance so appellants could complete discovery. We affirm.

FACTS

On April 25, 1999, a fire broke out in a mixed-use building in Excelsior, Minnesota. The two-story building, constructed more than 100 years ago, houses a hardware store on the first floor and nine apartments on the second floor. The State Fire Marshal concluded that the fire started about 6:00 a.m. in respondent Connie Jo Klosterman’s apartment from a carelessly discarded cigarette.

Appellants Ted and Nicki Gr'adjeliek’s apartment was located across the hall from Klosterman’s. They smelled smoke at approximately 6:00 a.m. and called 911. Appellants then opened their windows and waited for the fire department to arrive.

Upon their arrival, the firefighters helped Nicki Gradjelick out of the apartment window. But before they were able to retrieve Ted Gradjelick, a blast of heat knocked him out the window and onto the sidewalk below. Ted Gradjelick sustained a multiple compound fracture of the right leg, first-degree burns on his back and legs, and injuries to his back and knee.

Appellants brought a negligence action against respondents Leland and Patricia Hance, the owners of the building since 1982, alleging that the building had been maintained in a negligent and careless manner, and that negligence was the proximate cause of appellant Ted Gradjelick’s injuries. Specifically, appellants alleged that the Hances violated National Fire Protection Association (NFPA) standards and the Uniform Building Code and failed to correct at least five “dangerous conditions” in the common areas of the building.

Appellants and respondent Klosterman each retained an expert to investigate the fire scene. Both experts (1) concluded that the fire started in Klosterman’s apartment, (2) noted several dangerous conditions and code violations in the building, and (3) concluded that but for respondent Hances’ negligence and the code violations, the fire could have been contained in Klosterman’s apartment.

The Hances moved for summary judgment, alleging that they had no actual or constructive knowledge that the building was unsafe or that there were any code violations. The Hances relied, in part, on an annual building inspection that was completed three months before the fire. The State Fire Marshal had concluded that the multi-purpose building met all requirements of the Uniform Fire Code. The Hances, who live in Colorado, also asserted that they had no independent knowledge of any possible code violations because they did not receive complaints from any tenants about potential code violations between the date of the fire marshal’s inspection and the fire.

The district court granted summary judgment in favor of the Hances, holding:

It is quite clear that under these circumstances and relevant case law [the Hances] had no actual or constructive knowledge of any fire code violations or hazardous conditions in their apartment building.

Appellants challenge the district court’s grant of summary judgment to the Hances.

ISSUES
I. Did the district court err in granting summary judgment by applying the wrong legal standard?
II. Did the district court err in granting summary judgment by concluding as a matter of law that there were no material facts in dispute?
III. Did the district court abuse its discretion by failing to grant appellants a continuance to allow further discovery?
ANALYSIS

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary judgment, we determine whether there are genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence must be viewed in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Appellants allege that the district court applied the wrong legal standard and that there are genuine issues of material fact in dispute. Appellants also argue that the district court abused its discretion by refusing to grant a continuance to allow appellants to complete discovery.

I.

A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiffs claim.

Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). Thus, to survive summary judgment, appellants must establish a pri-ma facie claim of negligence. Id. The elements of negligence are

(1) duty; (2) breach of that duty; (3) that the breach of duty be the proximate cause of plaintiffs injury; and (4) that plaintiff did in fact suffer injury.

Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn.1982) (citation omitted). The existence of a legal duty is a matter of law that this court reviews de novo. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985).

At common law, a landlord is not liable to a tenant for any damage caused by defective conditions existing at the time of the lease. Drager v. Aluminum Indus. Corp., 495 N.W.2d 879, 885 (Minn.App.1993), review denied (Minn. Apr. 20, 1993); Oakland v. Stenlund, 420 N.W.2d 248, 251 (Minn.App.1988), revieiv denied (Minn. Apr. 20, 1988). Courts have recognized four exceptions to this general rule: (1) hidden dangerous conditions on the premises known to the landlord but unknown to the tenant; (2) land leased for purposes involving admission to the public; (3) premises still in control of the landlord; and (4) the landlord’s negligent repair of the premises. Oakland, 420 N.W.2d at 251; Broughton v. Maes, 378 N.W.2d 134, 135 (Minn.App.1985), review denied (Minn. Feb. 14, 1986).

The supreme court established landlord liability for a hidden dangerous condition in Johnson v. O’Brien, 258 Minn. 502, 105 N.W.2d 244 (1960). The Johnson court held that:

[W]here a landlord has information which would lead a reasonably prudent owner exercising due care to suspect that danger exists on the leased premises at the time the tenant takes possession, and that the tenant exercising due care would not discover it for himself, then he must at least disclose such information to the tenant.

Id. at 506, 105 N.W.2d at 247. Accordingly, the common-law rule in Minnesota is that a landlord has a duty to warn a tenant if the landlord knows or should know of the danger and if the tenant, exercising due care, would not discover it. Broughton, 378 N.W.2d at 136.

Appellants contend that the district court, when relying on Bills v. Willow Run I Apartments, 547 N.W.2d 693 (Minn.1996), erroneously applied the wrong legal standard when reviewing the Hances’ motion forHH summary judgment. Appellants assert that while Bills may relieve the Hances from liability under a negligence per se theory, it does not relieve them from liability for ordinary negligence. Under Minnesota law, negligence per se is a form of ordinary negligence that results from violation of a statute and may exist when the reasonable-person standard is supplanted by a standard of care established by the legislature. Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn.1981).

In Bills, the plaintiff was injured when he fell on a landing outside of his apartment building. Bills, 547 N.W.2d at 693-94. The plaintiff sued the apartment building owner under a negligence per se theory, alleging that the landing handrails and risers violated the Uniform Building Code (UBC). Id. At trial, the building inspector testified that he inspected the building after the accident and found a UBC code violation. The building, however, had been issued a certificate of occupancy. Id. The inspector stated that the issuance of a certificate of occupancy “would lead a reasonable building owner to believe that the building met all of the UBC requirements.” Bills, 547 N.W.2d at 694. The plaintiff did not present evidence showing that the building owner knew of the code violation, but argued that the landowner was negligent per se because the landing where he fell met neither the requirements of city building code nor the UBC. Id. at 694-95. The plaintiff argued that the landowner had an obligation to know of the violations and could not simply rely on one inspector as proof that the landing was safe. Id. at 694.

The supreme court disagreed, stating

[ujnder [plaintiffs] theory, every landlord or owner would be required to reinspect his/her building after the certified building inspector issued an occupancy permit and inspection report. Failure to do so could leave the landlord or owner liable under a negligence per se claim, if an inspector failed to identify a UBC violation and a tenant was injured.

Id. at 694-95. In reaching its conclusion, the Bills court relied on Alderman’s Inc. v. Shanks 536 N.W.2d 4 (Minn.1995). In Alderman’s Inc., the supreme court concluded that a landowner was not liable under a negligence per se theory of recovery for uncited fire-code violations because a fire inspector inspected the building but did not cite as a violation certain nonconforming conditions. Id. at 9-10. Based in part on its earlier analysis in Alderman’s Inc., the Bills court stated that a landlord or owner is not negligent per se for a code violation unless:

(1) the landlord or owner knew or should have known of the Code violation;
(2) the landlord or owner failed to take reasonable steps to remedy the violation; (3) the injury suffered was the kind the Code was meant to prevent; and (4) the violation was the proximate cause of the injury or damage.

Bills, 547 N.W.2d at 695. As a result, the supreme court modified the negligence per se doctrine as it relates to landlord/tenant law by adopting a standard that

links the negligence per se and common law landlord/tenant standards [finding liability when the landlord/landowner knew or should have known of a danger] into one that defines a fair and just result.

Id. at 695. The Bills court concluded that when a landlord or landowner who lacks actual notice of a code violation and reasonably relies on the inspection report of a state building inspector who issued an occupancy permit, the landlord or landowner cannot be held liable under a theory of negligence per se for a code violation that was not cited. Id. Thus, under Bills, a landowner relying on an official inspection lacks constructive notice of a code violation. Although Bills involved a negligence per se claim, the knowledge requirement originated from common law and we are unable to articulate a principled distinction between per se and common law negligence theories for the purposes of this analysis. Therefore, it follows that if the facts alleged failed to fulfill the knowledge requirement under negligence per se theory, identical facts asserted as common law negligence likewise fail.

Because, like Bills, appellants have not alleged that the Hances had actual notice of the code violations, and, like Bills, this action involved reliance on an official inspection, we conclude that the district court did not err by applying the supreme court’s reasoning in Bills to appellants’ common-law negligence claim.

II.

Appellants argue that in addition to the district court’s erroneous application of the legal standard, hidden dangerous conditions existed in the common areas of the apartment building and in respondent Klosterman’s apartment, creating issues of material fact in dispute sufficient to defeat summary judgment. Specifically, appellants allege that the Hances (1) improperly installed a smoke detector in a common hallway, (2) failed to install a smoke detector in respondent Kloster-man’s apartment, and (3) created a fire hazard by failing to remove glass windows and transoms in the common areas and over the doors.

But appellants do not create a fact issue sufficient to defeat summary judgment because appellants failed to show that the Hances knew or should have known that any dangerous conditions existed in the apartment building. In addition, because we conclude that a landowner who lacks actual notice of a code violation and reasonably relies on an official inspection cannot be held liable under either an ordinary common-law negligence standard or a negligence-per-se standard, we conclude that the mere presence of glass transoms and the mere absence of a detector in respondent Klosterman’s apartment, neither cited in the fire marshal’s report, do not create material fact issues sufficient to defeat summary judgment. Nor does appellant cite facts supporting the conclusion that the Hances should have known that the conditions were “dangerous.” Thus, appellants attempt to create a fact issue where none exists, which is insufficient to survive summary judgment. See Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn.1986) (to successfully oppose summary judgment, a party must show the facts which create an issue for trial).

Appellants also contend that the Hances, by them direct actions, had constructive knowledge that smoke detectors in common areas of the apartment building were improperly installed. See Wolvert v. Gustafson, 275 Minn. 239, 241-42, 146 N.W.2d 172, 173-74 (Minn.1966) (explaining a landowner has constructive knowledge of a dangerous condition resulting from the direct actions of the landowner or his or her employees). The record shows that the Hances had hardwired smoke detectors installed in the common hallways in 1997. The detectors were installed 18 inches below the ceiling in violation of the fire code, which requires installation of detectors on the ceiling.

But we conclude that the rule set forth in Wolvert is inapplicable to this case. A smoke detector installed 18 inches below the ceiling, in violation of the fire code, is not, in and of itself, a “dangerous condition” as a matter of law. Cf. Sutherland v. Barton 570 N.W.2d 1, 7-8 (Minn.1997) (electrified, exposed buss bars constituted dangerous condition); Lillemoen v. Gregorich, 256 N.W.2d 628, 630-31 (Minn.1977) (icy exterior stairway a dangerous condition); Messner v. Red Owl Stores Inc., 238 Minn. 411, 415, 57 N.W.2d 659, 662 (1953) (banana peels on floor a dangerous condition); Hansen v. City of St. Paul, 298 Minn. 205, 209, 214 N.W.2d 346, 349 (1974) (vicious dogs prowling public sidewalk constituted dangerous condition); Gutbrod v. County of Hennepin, 529 N.W.2d 720, 724 (Minn.App.1995) (one-inch crack in center of roadway not a dangerous condition); Cobb v. State, Dept. of Natural Resources 441 N.W.2d 839, 841-42 (Minn.App.1989) (dock not a dangerous condition where wave hit dock causing plaintiff to fell off unstable section); Oakland v. Stenlund, 420 N.W.2d 248, 251 (Minn.App.1988) (basement stairs in violation of building code did not constitute dangerous condition), review denied (Minn. Apr. 20, 1988). Accordingly, we conclude that a smoke detector improperly installed by the Hances does not create a material fact in dispute sufficient to defeat summary judgment.

III.

Appellants argue that incomplete discovery precluded the district court from granting summary judgment in favor of the Hances. Appellants filed several affidavits with their motion in opposition to summary judgment, including an affidavit signed by their attorney, which outlined specific depositions he sought. See Minn. R. Civ. P. 56.06 (allowing a court to continue a summary judgment motion to allow additional discovery where the non-moving party is unable to present facts essential to its opposition to the motion). The district court made no findings on this issue, but did not defer its decision or grant a continuance.

This court will not overturn the district court’s refusal to grant a continuance absent an abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn.1977). In determining whether to grant a continuance for further discovery, we should consider whether the party seeking the continuance has been “diligent in obtaining or seeking discovery prior to its Rule 56.06 motion” and whether the party is acting in the good faith belief that material facts will be uncovered, and not just “engaging in a fishing expedition.” Rice v. Perl, 320 N.W.2d 407, 412 (Minn.1982).

Here, appellants argue that summary judgment was premature because their counsel and counsel for the Hances agreed to wait until respondent Klosterman was added to the case as a party before conducting the depositions noted by appellants’ counsel. Klosterman was served with an amended summons and complaint on February 16, 2000, and answered the complaint on March 24, 2000. On June 21, 2000, almost three months later, the Hances served their motion for summary judgment, to be heard July 25, 2000.

By the time the Hances’ summary-judgment motion was heard, more than five months had passed since Klosterman was served. Nothing in the record suggests that appellants attempted to take depositions during this period. Based on these facts, while we might have reached a different result on the issue of a continuance, we cannot say that the district court abused its discretion declining to grant a continuance to permit further discovery.

DECISION

The district court did not err by applying the supreme court’s reasoning in Bills to appellants’ common-law negligence claim. The existence of certain code violations did not constitute material facts in dispute sufficient to defeat summary judgment. Allegations of incomplete discovery were not sufficient to preclude the district court’s grant of summary judgment in favor of the Hances.

Affirmed.


author: TOUSSAINT, Chief Judge

text:
    STATE of Minnesota, Respondent, v. Michael Allen HATFIELD, Appellant.
    No. C9-00-1183.
    Court of Appeals of Minnesota.
    June 5, 2001.

      Mike Hatch, Attorney General, St. Paul; and Terry Viesselman, Martin County Attorney, Fairmont, for respondent.
    Mary R. Vasaly, Office of the State Public Defender, Special Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by TOUSSAINT, C.J., AMUNDSON, and HUSPENI, JJ.

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

   OPINION

TOUSSAINT, Chief Judge

On direct appeal, appellant Michael Allen Hatfield challenges his convictions for conspiracy to manufacture methamphetamine and child endangerment, arguing that there was insufficient evidence in the record to support the convictions. Because there was no evidence establishing an actual agreement between Hatfield and another person to manufacture methamphetamine, we reverse his conviction for conspiracy to manufacture methamphetamine. Because there was evidence establishing that Hatfield had placed his children in danger, we affirm his conviction for child endangerment.

FACTS

On December 3, 1999, the Fairmont Police Department received a phone call from the Thomas County Sheriffs Department in Kansas. The sheriffs department informed the Fairmont police that their department had a felony warrant on appellant Michael Hatfield for the manufacture of methamphetamine in Kansas and that they believed Hatfield was residing with David Stedman at 1211 Albion Avenue, Fairmont, Minnesota. Officers from the Fairmont police department went to the address to execute the warrant.

Upon arriving, the officers observed a male, Anthony Theobald, and a female, Bobbie Nowak, in the driveway, behind a car with the trunk open. At Hatfield’s request, Theobald had brought a red cooler and an altered propane tank containing anhydrous ammonia to the Stedman residence.

While some of the officers approached Theobald and Nowak, others circled the home and approached from the back. As these officers approached the rear door, they saw Hatfield push a red cooler into the garage. While Hatfield was being placed under arrest, one of the officers walked up to the open door of the garage. The officer immediately noted a pungent odor resembling ammonia, a metallic flavor in his mouth, stinging and burning of his eyes, and “his lungs felt as though he was in a room full of cigarette smoke.” Believing that there was a methamphetamine lab in operation, the officer radioed another officer with specialized training in methamphetamine labs.

When the officers asked if anyone was inside the home, they were informed that there were five children ranging from six months to twelve years of age in the home unsupervised. Four of the children belong to Hatfield, the fifth to Stedman. The officers approached the house and entered. Upon entering, the officers noted the same pungent odor as in the garage, burning eyes, and metallic flavor in their mouths. The officers removed the children from the home, believing that a methamphetamine lab was set up in the home and that the chemicals used in such labs are extremely toxic and dangerous. The children were picked up by Human Services.

While the officers were waiting for Human Services, Stedman, the owner of the residence, arrived. He informed officers that he is an over-the-road truck driver and had just returned home after leaving on November 28, 1999. He stated that he was related to Hatfield and that Hatfield and his family had arrived at his home on November 28, 1999. Stedman had permitted the Hatfield family to stay at his residence while he was gone. Stedman stated that he did not know that Hatfield was manufacturing drugs in his residence and directed the police to search his home and remove all drugs that they discovered.

The police conducted a search of the residence. In the garage, the officers located a propane tank that had been altered, presumably, although not confirmed, to contain anhydrous ammonia and the cooler, which held five jars smelling of ammonia. In addition, there was a lock box for which Hatfield had a key. After obtaining a search warrant for the lock box, the officers discovered coffee filters, plastic tubing, plastic bags, and Heet starting fluid. In the basement of the home, the officers discovered lithium batteries, snippers, pliers, empty Pseudoephedrine boxes and blister packs, coffee filters, Heet starting fluid, a coffee grinder, rock salt, isopropyl alcohol, and metal bowls with a white residue. In the bed of Stedman’s truck that had been stored near the garage there were 500 ephedrine and Pseu-doephedrine pills. All of the foregoing items are used in the production of methamphetamine.

Stedman indicated that none of the items belonged to him. His ex-wife had lived in the home up until the month previous to this incident. However, Stedman stated that they had cleaned the home and the garage after she had left.

Incident to Hatfield’s arrest, the officers searched his person. The officers discovered $447 in cash, two glass pipes with a white residue, a small white pill box which contained a rock of methamphetamine, a metal rod with a red handle and burn marks on the end, a green lighter, and five razor blades, two with white residue on them.

Hatfield was charged with and convicted of conspiracy to manufacture methamphetamine in violation of Minn.Stat. §§ 152.096, subd. 1, 152.021, subd. 2(a) (2000); possession of controlled substance in violation of Minn.Stat. § 152.025, subd. 2(1) (2000); and child endangerment in violation of Minn.Stat. § 609.378, subd. 1(b)(1) (2000). This direct appeal followed.

ISSUES

I. Was there sufficient evidence to support the jury’s verdict that appellant conspired to manufacture methamphetamine in violation of Minn.Stat. §§ 152.096, subd. 1,152.021, subd. 2(a) (2000)?

II. Was there sufficient evidence to support the jury’s verdict that appellant endangered his children in violation of Minn.Stat. § 609.378 (2000)?

ANALYSIS

This court’s review of the sufficiency of the evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). Circumstantial evidence is entitled to as much weight as other evidence. Id. A conviction based on circumstantial evidence merits stricter scrutiny, but is proper if the circumstances proved are consistent with guilt and inconsistent with any other rational hypothesis. State v. Walen, 563 N.W.2d 742, 750 (Minn.1997).

I.

Hatfield argues that the evidence was insufficient for the jury to find him guilty of conspiracy to manufacture methamphetamine. By statute, a person is guilty of a first-degree controlled substance crime if the person conspires to manufacture any amount of methamphetamine. Minn.Stat. §§ 152.096, subd. 1, 152.021, subd. 2a (2000).

It is important in considering the case to bear in mind that (1) a conspiracy to commit a crime is a separate, substantive offense from the crime which is the object of the conspiracy; and (2) persons may combine to commit lawful acts

State v. Burns, 215 Minn. 182, 186, 9 N.W.2d 518, 520 (1943) (citations omitted). To constitute a conspiracy to manufacture methamphetamine it must be demonstrated that: (1) a person entered into an agreement with another to manufacture methamphetamine; and (2) there was an overt act in furtherance of the conspiracy. Minn.Stat. §§ 152.096, subd. 1, 152.021, subd. 2a, 609.175, subd. 2 (2000); State v. Olkon, 299 N.W.2d 89, 104 (Minn.1980). “Conspiracy need not be established by direct evidence, but may be inferred from the circumstances.” State v. Watson, 433 N.W.2d 110, 114-15 (Minn.App.1988), review denied (Minn. Feb. 10,1989).

Here, there is insufficient evidence in the record from which the jury could reasonably infer that Hatfield entered into an actual agreement with anyone for the purpose of manufacturing methamphetamine. At trial, the state’s theory was that Hatfield had conspired with Theobald for the purpose of manufacturing methamphetamine.

The only agreement or concerted action between Hatfield and Theobald was the transportation of the red cooler and propane tank from Nowak’s neighbor’s residence to Hatfield’s temporary residence. Theobald testified that he brought the cooler and the altered tank to Hatfield’s temporary residence at Hatfield’s direction. However, Theobald testified that he did not know the contents of the cooler or the altered propane tank. No contrary evidence was presented by the state.

Even if the cooler and the propane tank contained items that could be used in the manufacture of methamphetamine, an innocent courier cannot be considered a co-conspirator. See Sisson v. Triplett, 428 N.W.2d 565, 572 n. 6 (Minn.1988) (opining that a person who delivers items without knowledge of their intended use could not be criminally implicated as a conspirator). There was no evidence submitted that Theobald knew that Hatfield intended to use the items provided to him by Theobald for the manufacture of methamphetamine.

Further, no evidence was presented to the jury that Theobald and Hatfield had discussed manufacturing methamphetamine. Where there is no evidence that an alleged co-conspirator had actual knowledge of any of the facts known to the person charged with conspiracy, a common purpose or conspiracy to commit an illegal act cannot be established. Burns, 215 Minn. at 188-89, 9 N.W.2d at 521. Because there was no evidence presented to the jury establishing that Hatfield had entered into an agreement with Theobald for the purpose of manufacturing methamphetamine, we reverse his conviction for conspiracy to manufacture methamphetamine in violation of Minn.Stat. §§ 152.096, subd. 1, 152.021, subd. 2(a).

II.

Hatfield challenges his charge and conviction for child endangerment under Minn.Stat. § 609.378, subd. 1(b)(1) (2000). A parent is guilty of child endangerment if the parent intentionally or recklessly causes or permits their child “to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health or cause the child’s death.” Minn. Stat. § 609.378, subd. 1(b)(1).

Hatfield asserts that under this section, in order for him to be convicted, there must be some showing that the children suffered actual and grievous harm. For this proposition, he cites State v. Schreiber, 558 N.W.2d 474 (Minn.1997) (children shot by parent) and State v. Auchampach, 540 N.W.2d 808 (Minn.1995) (children witnessed father murder mother). While the defendants in both Schreiber and Aucham-pach were convicted of child endangerment under Minn.Stat. § 609.378, neither Schreiber, nor Auchampach, addresses the issue of child endangerment or applies Minn.Stat. § 609.378. Schreiber, 558 N.W.2d at 475 (analyzing the propriety of trial court decisions regarding mental illness and trial bifurcation); Auchampach, 540 N.W.2d at 810-11 (analyzing the propriety of trial court decisions regarding jury instructions and definitions within the domestic homicide statute). Therefore, neither Schreiber nor Auchampach are dispositive in this case. Harvey v. Dots, Inc., 561 N.W.2d 192, 194 (Minn.App.1997) (prior cases are not authority on the issue if that issue was not presented to the court).

Contrary to Hatfield’s assertions, the mere potential for substantial harm to children is sufficient to constitute child endangerment. Section 609.378 subdivision 1(b)(1) provides that a child is endangered when the child is “placed in a situation likely to substantially harm the child’s physical, mental, or emotional health or cause the child’s death.” Id. (emphasis added).

Hatfield stored anhydrous ammonia in an altered propane tank in the proximity of his children. At trial, there was testimony that (1) a propane tank altered to contain anhydrous ammonia poses a particular danger because the ammonia will begin to leak from the tank after a period of time, usually ten days; (2) an altered tank, if tipped over, could fly around a room, release a toxic cloud of ammonia, and possibly combust; (3) anhydrous ammonia can cause physical reactions such as burning sensation in the eyes, shortness of breath, and even upper respiratory damage and pulmonary edema; and (4) anhydrous ammonia is extremely combustible.

While we recognize that there may be legitimate reasons for storing a hazardous chemical, the situation presented here posed a particular danger to the children as established by the fact that the officers suffered from a burning sensation in the eyes and difficulty in breathing upon entering the home. Furthermore, storing this chemical, in addition to the other chemicals and equipment necessary for the manufacture of methamphetamine was conduct likely to substantially harm his children’s physical health. See, e.g., Larson v. Larson, 400 N.W.2d 379, 381 (Minn.App.1987) (finding for purposes of child custody modification that mother’s escalating drug use in front of the children resulted in increasingly harmful effects on the children); Gustafson v. Gustafson, 376 N.W.2d 290, 293 (Minn.App.1985) (finding of child endangerment for purposes of custody modification was supported where father admitted problems with drugs and alcohol). Viewed in the light most favorable to the conviction, we conclude that the evidence was sufficient to permit the jury to find Hatfield guilty of child endangerment.

DECISION

Absent a showing of an actual agreement between Hatfield and Theobald to manufacture methamphetamine, Hatfield cannot be convicted for conspiracy to manufacture methamphetamine in violation of Minn.Stat. §§ 152.096, subd. 1, 152.021, subd. 2a (2000). Therefore, we reverse Hatfield’s conspiracy conviction. However, Hatfield’s conviction for child endangerment in violation of Minn.Stat. § 609.378, subd. 1(b)(1) (2000) is supported by the evidence because Hatfield permitted his children to be in the proximity of an extremely hazardous chemical that caused persons to suffer physical harm and was likely to cause substantial harm to the children. Accordingly, we affirm Hatfield’s child endangerment conviction.

Affirmed in part and reversed in part.


author: SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Mark Charles OBERG, Appellant.
    No. C2-00-1476.
    Court of Appeals of Minnesota.
    June 5, 2001.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Richard R. Maes, Lyon County Attorney, Marshall, MN, (for respondent).
    John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, Minneapolis, MN, (for appellant).
    Considered and decided by SCHUMACHER, Presiding Judge, ANDERSON and FOLEY , Judges.

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

   OPINION

SCHUMACHER, Judge.

Appellant Mark Charles Oberg was convicted of controlled substance crime in the third degree. He challenges the district court’s sentencing determinations. Oberg claims that the district court erred in calculating his criminal history score, in declining to grant a downward dispositional departure, and by imposing a fine that violated the Excessive Fines Clauses of the state and federal constitutions. We affirm in part, reverse in part, and remand for resentencing.

FACTS

Following a sting operation organized by the Marshall police department, Oberg was arrested and charged with controlled substance crime in the third degree. At trial, a police informant testified that Oberg had sold several grams of cocaine to the informant in exchange for money. The jury found Oberg guilty of controlled substance crime in the third degree.

Corrections Agent Swantje Willers prepared a court-ordered pre-sentence investigation report and sentencing worksheet, which indicated that on May 11, 1987, Oberg had pleaded guilty to 17 counts of aggravated forgery. Each of these incidents occurred during the period between February 15,1987 and March 24, 1987. At the time of Oberg’s guilty plea for the forgery charges, the district court stayed imposition of the sentence for the 17 counts. Later, however, the court revoked the stays and imposed the following sentences: 15 months for the first count, 17 months for the second count, 19 months for the third count, and 22 months for the remaining 14 counts. On the sentencing worksheet Oberg was assigned one-half criminal history point for each of 17 counts of aggravated forgery.

At sentencing, Oberg’s attorney objected to Willers’s calculation of Oberg’s criminal history score, arguing that the 1987 forgery convictions constituted a “spree,” which should not generate 8.5 criminal history points. In support of this argument, Oberg testified that he pleaded guilty only once for all 17 counts of forgery. The 1987 sentencing transcript reveals, however, that Oberg pleaded guilty to counts 1 through 6 separately, and then pleaded guilty to counts 7 through 17 as a group.

The district court determined that one-half point per conviction was appropriate and imposed the presumptive 60-month sentence commensurate with Oberg’s criminal history score.

Oberg’s attorney also moved the court to grant a downward dispositional departure on the ground that Oberg played a minor, passive role in the crime for which he was convicted. The motion was denied.

Oberg’s attorney also argued that, in regard to a fine, the sentencing court should impose only a minimum surcharge. Instead, the sentencing court imposed a $75,000 fine, stating that the state legislature had mandated that amount as the minimum fine that may be imposed for a conviction of controlled substance crime in the third degree.

ISSUES

1. Did the district court err in calculating Oberg’s criminal history score?

2. Did the district court err in declining to grant Oberg’s motion for a downward dispositional departure?

3. Did the fine levied upon Oberg violate the Excessive Fines Clauses of the state and federal constitutions?

ANALYSIS

1. The sentencing court’s determination concerning a defendant’s criminal history score will not be reversed absent an abuse of discretion. See Bolstad v. State, 439 N.W.2d 50, 53 (Minn.App.1989). Although the state has the burden of establishing a defendant’s criminal history score under the sentencing guidelines, State v. Marquetti, 322 N.W.2d 316, 319 (Minn.1982), it is the trial court’s role to resolve any factual dispute bearing on the defendant’s criminal history score. See State v. McAdoo, 330 N.W.2d 104, 109 (Minn.1983).

Under Minn. Sent. Guidelines Y, aggravated forgery constitutes a severity level II offense. Such offenses generate one-half criminal history point per felony conviction. Minn. Sent. Guidelines II.B.l.a.

In calculating a defendant’s criminal history score, a court may assign criminal history points for each separate offense of forgery committed against a single victim on separate dates. State v. Nace, 354 N.W.2d 87, 91 (Minn.App.1984) (citing State v. Moore, 340 N.W.2d 671, 673 (Minn.1983)), review denied (Minn. Nov. 7, 1984). Nevertheless, “a defendant may be given a point for each offense only if he was sentenced for each offense.” Langdon v. State, 375 N.W.2d 474, 477 (Minn.1985); see also Minn. Sent. Guidelines II.B.l (noting that points may be assigned only to those felony convictions “for which a felony sentence was stayed or imposed before the current sentencing or for which a stay of imposition of sentence was given before the current sentencing”).

Here, because Oberg had received a total of four felony sentences for the 17 counts of forgery, it was improper for the district court to assign one-half criminal history point for each of the 17 counts. Rather, points may be assigned only to convictions for which Oberg was sentenced. See Langdon, 375 N.W.2d at 477. Thus, the district court properly assigned one-half point for each of the first three forgery counts because Oberg received felony sentences for each of those counts. Oberg received only one sentence for the final 14 counts of forgery, however, and therefore the district court must treat that disposition as a single conviction in assigning criminal history points. See id. Thus, the district court should have assigned one-half criminal history point to the final 14 counts of forgery.

2. The decision whether to depart from sentencing guidelines rests within the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). A trial court may order a downward departure from the presumptive sentence only if “substantial and compelling” circumstances warrant such a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). Only in a “rare case” would a sentencing court’s refusal to depart warrant reversal. Id. Furthermore, the mere fact that a mitigating factor is present in a particular case does “not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn.1984).

Oberg correctly points out that, in the appropriate case, the fact that the “offender played a minor or passive role in the crime” could be considered a mitigating factor justifying a departure from the presumptive sentence. Minn. Sent. Guidelines II.D.2.a(2). Here, however, it is debatable as to whether Oberg played a passive role in the crime. Moreover, even if it could be said that some mitigating factors apply to Oberg, the mere existence of such factors did not obligate the sentencing court to depart from the presumptive sentence. See Wall, 343 N.W.2d at 25. Thus, the district court did not abuse its discretion in declining to depart from the presumptive sentence.

3. Oberg argues, and the state agrees, that the $75,000 fine imposed by the sentencing court constitutes an excessive fine in violation of the federal and state constitutions.

Both the United States and Minnesota Constitutions prohibit the imposition of excessive fines. U.S. Const, amend. VIII; Minn. Const, art. I, § 5. Whether the imposition of a fine violates these constitutional provisions presents a question of law that a reviewing court examines de novo. State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000).

Here, the sentencing court imposed a fine in the amount of $75,000, apparently believing that amount to constitute a mandatory minimum fine under Minn.Stat. § 609.101, subd. 3 (2000). As noted in Rewitzer, 617 N.W.2d at 412, however, it is inappropriate to use the term “mandatory minimum” in connection with this provision, as Minn.Stat. § 609.101, subd. 5(b) (2000) permits a sentencing court to reduce the fine considerably if, for instance, the court finds that the fine will create “undue hardship” for the convicted person.

In Reivitzer, the supreme court examined fines imposed on a person convicted of several controlled substance crimes, one being a $75,000 fine for controlled substance crime in the third degree. The court concluded that the fines imposed were disproportionately harsh when compared with (1) the gravity of the offense, (2) the fines that may be imposed for other same-level offenses in Minnesota, and (3) the fines imposed for the same offenses in other jurisdictions. Id. at 415. Thus, the court determined that the sentencing court’s imposition of fines such as the $75,000 fine violated the Excessive Fines Clauses of the United States and Minnesota Constitutions. Id. Here, as in Reivitzer, the district court imposed an unconstitutionally excessive fine upon Oberg.

DECISION

The district court did not abuse its discretion in declining to grant a downward dispositional departure. The court miscalculated Oberg’s criminal history score and imposed an unconstitutionally excessive fine. Accordingly, we remand for recalculation of Oberg’s criminal history, resen-tencing, and imposition of a lesser fine.

Affirmed in part, reversed in part, and remanded.


author: HANSON, Judge

text:
    Daniel Lee SCHUMACHER, Appellant, v. Lee Krone SCHUMACHER, et al., Respondents.
    No. C7-00-2039.
    Court of Appeals of Minnesota.
    June 5, 2001.

      Glen A. Norton, Ross & Norton, PLLP, Chaska, MN, (for appellant).
    Gerald J. Morris, Johnson & Morris, LLP, Silver Bay, MN, (for respondents).
    Considered and decided by WILLIS, Presiding Judge, HALBROOKS, and HANSON, Judges.
   OPINION

HANSON, Judge

Appellant managed a bar and restaurant owned by respondents, who were his parents. When respondents began the process to sell the business, he sued, contending that they had orally agreed to give him lifetime employment and to convey the business and related real estate to him upon the first parent’s death. The district court granted summary judgment for respondents, dismissing the breach-of-contract claims under the statute of frauds; dismissing the claim for unjust enrichment as being inadequately pleaded; and dismissing the promissory estoppel claim without specific explanation. The district court also denied appellant’s motion to amend his complaint to add a claim for fraud. We affirm in part, reverse in part, and remand.

FACTS

In 1994, appellant Daniel Schumacher, his wife and them two daughters, moved to Finland, Minnesota, to operate a restaurant and bar business called the Trestle Inn. The Inn was owned by his parents, respondents Lee and Juanita Schumacher. Appellant claims that respondents induced him to leave his previous job and to make the move by agreeing to provide him a job managing the Inn for life and to leave the business and a large parcel of land to him when the first respondent dies. Appellant asked for that agreement in writing, but respondents refused.

Appellant was given free rein to manage the Inn, hire and fire staff and pay all expenses. He was not paid a salary or wage, but was allowed to retain all profits of the business as his compensation. While operating the Inn, appellant used his own funds to build a home for his family on respondents’ land, install a well, purchase equipment for the business and develop various marketing tools to expand the business.

In the fall of 1998, appellant suspected that respondents were planning to sell the Inn and the adjoining property. Appellant sued for a restraining order to prevent the sale of the Inn and the termination of his employment, or in the alternative, an award of damages for the value of the services he rendered to the Inn during the course of his employment. Appellant’s complaint set forth the general facts without specifically identifying the legal theories for relief. He now suggests that he intended to assert claims for (1) breach of an agreement to provide lifetime employment; (2) breach of an agreement to make a will; (3) promissory estoppel; and (4) unjust enrichment.

On October 28, 1998, respondents notified appellant in writing that his employment at the Inn and his tenancy at will for the related property were terminated. Respondents then moved for summary judgment. The district court granted summary judgment, determining that the statute of frauds barred both breach-of-contract claims, the unjust-enrichment claim had “not been specifically pled” and all “other issues” raised in the complaint should likewise be dismissed. Appellant moved to amend the complaint to include claims of fraud, intentional infliction of emotional distress and unilateral contract. The district court denied appellant’s motion to amend. This appeal followed.

ISSUES

1. Did the district court err in granting summary judgment on appellant’s claims for promissory estoppel and unjust enrichment?

2. Did the district court abuse its discretion in denying appellant’s motion to amend his complaint to include a claim of fraud?

ANALYSIS

I.

On appeal from summary judgment, this court determines (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); see also Minn. R. Civ. P. 56.03.

At oral argument, appellant urged that his contract claims should survive summary judgment. However, he did not argue these claims in his brief. Thus, appellant has waived any challenge to the district court order insofar as it determined that the contract claims were barred by the statute of frauds. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982) (stating that issues not briefed on appeal are waived).

Promissory Estoppel

Appellant contends that the district court did not address his claim for promissory estoppel. The court, in its sparsely worded order, did include the following conclusion:

To the extent that the parties raised other issues at the proceedings and in their pleadings, the Order granting summary judgment and denying leave to amend is and ought to be construed to deny any other relief sought by either party.

Thus, though no legal reasoning is given, it appears that the district court intended to dismiss all claims raised by appellant, including promissory estoppel.

Appellant alleges that respondents made two promises: (1) that respondents would employ appellant for life and (2) that respondents would convey the property to appellant when the first respondent dies. Whether these allegations support a claim for promissory estoppel requires a three-step analysis: (1) was a clear and definite promise made to the promisee; (2) did the promisor intend to induce reliance and did the promisee in fact rely on that promise to his or her detriment, and (3) must the promise be enforced to prevent injustice? Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992); See also Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 746 (Minn.2000) (noting that Supreme Court has also described the first element of promissory estoppel as requiring the promisor to reasonably expect to induce action of forbearance, but that the variations in the descriptions of the elements of promissory estoppel “do not differ in meaning”).

In this connection, we note an apparent inconsistency in Minnesota decisions on whether promissory estoppel can apply where there is an actual agreement, albeit an unenforceable one by reason of the statute of frauds. Thus, in Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 285, 230 N.W.2d 588, 594 (1975), the court held that promissory estoppel was not available because an actual contract was shown, but was unenforceable under the statute of frauds. Conversely, the court has sometimes stated that “[a]n agreement may be taken outside the statute of frauds by equitable or promissory estoppel.” Norwest Bank v. Midwestern Mach. Co., 481 N.W.2d 875, 880 (Minn.App.1992) (citing Berg v. Carlstrom, 347 N.W.2d 809, 812 (Minn.1984)).

We need not resolve that apparent inconsistency, however, because there are no decisions in Minnesota that have allowed a claim of promissory estoppel to over-ride the statute of frauds in the context of either a promise of lifetime employment or a promise to make a will. See, e.g., Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769, 771 (Minn.App.1987) (absent an additional express or implied stipulation of the duration of employment, the terms “permanent employment,” “life employment,” or “as long as the employee chooses” create only an at-will employment.); Olesen v. Monty, 438 N.W.2d 404 (Minn.App.1989) (proof of an oral promise to make a will, even when supported by part performance, cannot be used to avoid the statute of frauds, which provides that a “contract to make a will * * * can be established only by [specified writings].” (emphasis added)). Accordingly, we affirm the district court’s summary judgment dismissing appellant’s promissory-estoppel claim.

Unjust Enrichment

Appellant argues that the district court erred in granting summary judgment on his claim of unjust enrichment. In its order, the district court addressed this theory of relief as follows:

While there is some suggestion, at least impliedly, that [appellant] may in addition or alternatively be seeking damages on the basis of an unjust enrichment theory, such has not been specifically pled and such is not specifically before the Court.

The district court erred in requiring appellant to plead unjust enrichment with greater specificity. There is no such requirement in the rules. See Minn. R. Civ. P. 8.05 (“Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.”). Appellant’s complaint alleged that he detrimentally relied on respondents’ promises and requested that he be awarded the “reasonable value for his goods and services rendered * * *.” While the complaint does not use the words “unjust enrichment,” it is clear that appellant was seeking equitable relief. As a result, we will review the merits of appellant’s unjust-enrichment claim to determine whether there is sufficient evidence to create a genuine issue of material fact.

In order 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); see also, Acton Constr. Co. v. State, 383 N.W.2d 416, 417 (Minn.App.1986) (The elements of a quasi contract are: (1) a benefit is conferred; (2) the defendant appreciates and knowingly accepts the benefit; (3) the defendant’s retention of the benefit under the circumstances would be inequitable.).

Appellant alleges that respondents induced him to invest more than $350,000 in respondents’ business and land, by building a home on the property, installing a well and other improvements on the property and investing in marketing tools to expand and improve the business of the Inn. Respondents do not dispute that some benefit was conferred on them through appellant’s actions. However, respondents argue that they were not unjustly enriched.

An action for unjust enrichment does not lie simply because one party benefits from the efforts of others; 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) (citation omitted). While respondents argue that their conduct has not been shown to be illegal, the cause of action for unjust enrichment has been extended to also apply where, as here, the defendants’ conduct in retaining the benefit is morally wrong. See Klass v. Twin City Fed. Sav. and Loan Ass’n, 291 Minn. 68, 71, 190 N.W.2d 493, 495 (1971); Anderson v. DeLisle, 352 N.W.2d 794, 796 (Minn.App.1984) (unjust enrichment shown where conduct was similar in nature to fraud); Southtown Plumbing, Inc. v. Har-Ned Lumber Co., Inc., 493 N.W.2d 137, 140 (Minn.App.1992) (unjust enrichment may be shown by circumstances that would make it unjust to permit retention); Park-Lake Car Wash, Inc. v. Springer, 394 N.W.2d 505, 514 (Minn.App.1986) (unjust enrichment may be found absent fraud where a party’s conduct has been “unconscionable by reason of a bad motive, or where the result induced by [that] conduct will be unconscionable either in the benefit to himself or the injury to others.”) (quotation omitted).

Appellant has provided evidence that he made substantial improvements on respondents’ land, that respondents knew of those improvements and either encouraged them or did nothing to discourage them and that respondents have benefited from them. This evidence is sufficient to create genuine issues of material fact for the jury. We reverse the summary judgment on this issue and remand for further proceedings consistent with this opinion. We express no opinion on the elements or amounts of appellant’s claim for damages because these have not been addressed by the parties or the district court.

II.

Appellant claims that the district court abused its discretion in denying his motion to amend his complaint to include a claim for fraud. The district court has discretion to decide whether to allow an amendment to the complaint, and its decision will not be reversed absent an abuse of discretion. Utecht v. Shopko Dep’t Store, 324 N.W.2d 652, 654 (Minn.1982). A party may amend a pleading by leave of court, “and leave shall be freely given when justice so requires .” Minn. R. Civ. P. 15.01. “Nonetheless, an amendment to a complaint may properly be denied when the additional alleged claim cannot be maintained.” Hunt v. Univ. of Minn., 465 N.W.2d 88, 95 (Minn.App.1991).

The district court provided two reasons in support of its denial of appellant’s motion to amend his complaint. First, the district court noted that appellant’s fraud theory “is also based on a claimed breach of the agreements or contracts that the Court has determined to be unenforceable contracts.” The court found that to allow a cause of action based on a breach of an unenforceable contract “would allow indirectly what is prohibited directly.” Second, the district court denied appellant’s motion to amend because he “failed to identify any actionable underlying circumstance which would give rise to a fraud claim.”

Fraud claims must be stated with particularity. Minn. R. Civ. P. 9.02; see also, Westgor v. Grimm, 318 N.W.2d 56, 58 (Minn.1982); Stubblefield v. Gruenberg, 426 N.W.2d 912, 914-15 (Minn.App.1988). Appellant’s proposed amended complaint merely recites the generic elements of fraud, without alleging particular misrepresentations or omissions. See, e.g., Juster Steel v. Carlson Cos., 366 N.W.2d 616, 619 (Minn.App.1985) (affirming summary judgment for defendant where complaint alleging fraudulent misrepresentation “only vaguely [referred] to the content of the misrepresentations”). The district court’s denial of appellant’s motion to amend was not an abuse of discretion.

DECISION

Because the claim of promissory estop-pel does not avoid the statute of frauds to enforce an oral agreement to provide lifetime employment or an oral agreement to make a will, we affirm the district court’s dismissal of appellant’s promissory-estop-pel claim. Because appellant’s proposed amended complaint does not allege fraud with the required particularity, we affirm the district court’s denial of appellant’s motion to amend. However, because appellant has presented sufficient evidence to establish genuine issues of material fact on his unjust-enrichment claim, we reverse the district court’s dismissal of that claim and remand it for further proceedings.

Affirmed in part, reversed in part, and remanded.


author: FOLEY, Judge.

text:
    Lauriel JOHNSON, Appellant, v. ST. PAUL GUARDIAN INSURANCE COMPANY, Respondent.
    No. C5-00-2086.
    Court of Appeals of Minnesota.
    June 12, 2001.
    Logan N. Foreman, III; and Keith D. Johnson, Wold, Jacobs & Johnson, P.A., Minneapolis, for Johnson.
    William L. Davidson, Timothy J. O’Con-nor, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, for St. Paul Guardian.
    Considered and decided by RANDALL, Presiding Judge, PETERSON, Judge, and FOLEY, Judge.
   OPINION

FOLEY, Judge.

This is an appeal from a summary judgment in which the district court ruled that respondent’s policy, under which appellant and her husband were named insureds, excluded UIM coverage for appellant’s damages because appellant was injured while a passenger on her husband’s motorcycle, which he owned and insured separately. We affirm.

FACTS

Appellant Lauriel Johnson’s husband owned a motorcycle and insured it under a policy from Guidant Specialty Mutual Insurance Company, with liability limits of $30,000. Appellant and her husband jointly owned another vehicle, and were both named insureds under a policy from respondent St. Paul Guardian Insurance Company. In 1995, while a passenger on her husband’s motorcycle, appellant was injured in an accident and sued both her husband and the owner and operator of the other vehicle involved. She then settled with her husband in the amount of $27,500 under the Guidant policy on his motorcycle, and went to trial on her claim against the owner and operator of the other vehicle. A jury found Johnson’s husband 80% at fault and the driver of the other vehicle 20% at fault. The owner and operator of the other vehicle satisfied its portion of the judgment, leaving appellant with uncompensated damages.

Appellant then filed a claim for UIM benefits from the policy issued by respondent. Respondent determined appellant’s claim was excluded from coverage, and she sued. The district court granted summary judgment in favor of the insurer, and this appeal followed.

ISSUE

When a husband and wife are named insureds on a policy insuring their motor vehicle, may that policy exclude the wife from UIM benefits for uncompensated damages that resulted from an accident while she was a passenger on her husband’s motorcycle, which he owned and insured separately?

ANALYSIS

Summary judgment shall be awarded when “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. Where, as here, the facts are not in dispute, the district court may consider the issue of the policy exclusion as a matter of law. Perfetti v. Fidelity & Cas. Co., 486 N.W.2d 440, 441-42 (Minn.App.1992). This court need not defer to the district court’s determinations of law. Id.

Every owner of a motor vehicle in Minnesota must obtain UIM coverage. Minn.Stat. § 65B.49, subd. 3a(2) (1994). It is excess coverage that is available when the tortfeasor carries inadequate liability insurance. Johnson v. American Family Mut. Ins. Co., 426 N.W.2d 419, 422 (Minn.1988). Generally, “[ujnderinsured motorist coverage is first-party coverage,” following the person, not the vehicle. Myers v. State Farm Mut. Auto. Ins. Co., 336 N.W.2d 288, 291 (Minn.1983). A common exclusion to UIM coverage applies to a vehicle owned or made available for the regular use of the insured. Id. at 292. Otherwise, the insured’s UIM coverage would in effect be converted to third-party liability coverage, and UIM coverage is not designed to compensate for an insured’s “failure to purchase sufficient liability insurance.” Id. at 291.

This exclusion applies to the situation in which a family member, who was injured by a family-owned motor vehicle, collected under that vehicle’s liability coverage, and then sought UIM coverage under a separate policy covering non-involved vehicles also owned by the family member. Linder by Linder v. State Farm Mut. Auto. Ins. Co., 364 N.W.2d 481, 482-83 (Minn.App.1985), review denied (Minn. May 1, 1985). This court held that the exclusion was valid because in both Myers and Linder,

it was within that insured’s power to purchase sufficient liability coverage to adequately protect himself and his other insureds. Each sought, instead, to look to his underinsured motorist coverages when liability coverage was exhausted. However, in each case, an exclusionary clause prevented him from doing so.

Id. at 483; see Wintz v. Colonial Ins. Co., 542 N.W.2d 625, 626-27 (Minn.1996) (holding that wife who was injured while passenger on husband’s motorcycle may not recover uninsured motorist benefits under husband’s automobile insurance coverage based on family automobile exclusion).

In contrast, the exclusion has been deemed invalid when the injured party sought UIM coverage on a separate policy as to which the tortfeasor was not a named or additional insured. DeVille v. State Farm Mut. Auto. Ins. Co., 367 N.W.2d 574, 577 (Minn.App.1985), review denied (Minn. July 26, 1985). There, a wife who was a passenger on her husband’s motorcycle was injured due to his negligence, and she recovered the maximum available from his liability carrier. Id. at 575. She then sought UIM benefits under her own policy that she purchased for her own automobile, but her insurer denied the claim based on the family exclusion. Id. This court distinguished Myers because there, the injured party attempted to collect UIM coverage on the same or additional policies carried by the tortfeasor. Id. at 577. In DeVille, the injured wife’s own insurance policy provided the UIM coverage, and, as first-party coverage, followed her to provide coverage wherever she was injured. Id.; see Northrup v. State Farm Mut. Auto. Ins. Co., 601 N.W.2d 900, 903 (Minn.App.1999) (same), review denied (Minn. Jan. 25, 2000).

This court is again presented with the issue of the family automobile exclusion. Here, the injured wife seeks to recover UIM benefits from a separate policy covering both the wife and the tortfea-sor husband on another vehicle. Appellant wife contends that under DeVille, her UIM coverage on the separate policy issued by respondent is first-party coverage that follows her wherever the injury occurs. This would fulfill the purpose of the no-fault act, namely, to insure that accident victims are properly compensated. DeVille, 367 N.W.2d at 576. She contends that here, as in Northrup, there was no evidence she had an ownership interest in her husband’s motorcycle or was involved in the decision as to the amount of liability insurance to obtain. Instead, she was the named insured on a separate policy, issued by a different insurer, insuring her motor vehicle. Consequently, she contends that she was entitled to receive the benefit of the bargain, namely UIM coverage she paid for.

Respondent argues, however, that to ignore the family automobile exclusion in this case would convert the UIM coverage to third-party coverage. We agree. The purpose of UIM benefits is to protect the insured from those who carry inadequate liability coverage. Johnson, 426 N.W.2d at 422. Here, the tortfeasor, appellant’s husband, had liability insurance on his motorcycle that was inadequate to cover appellant’s injuries. This cannot be rectified by allowing the separate policy providing UIM coverage for appellant and the tort-feasor on their other motor vehicle to be converted to third-party coverage to cover his inadequate liability coverage.

DECISION

The district court decision upholding the applicability of the family automobile exclusion is affirmed.

Affirmed; motion granted.

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

      . Respondent, who mistakenly submitted the incorrect policy to the district court, made a motion to this court to substitute the correct policy pursuant to Minn. R. Civ.App. P. 110.05, although respondent asserts that the specific language of the policy does not control the outcome. Appellant did not file a response to the motion. Because the documentary evidence is uncontroverted and supports the district court's decision, the motion is granted. See In re Objections & Defenses to Real Property Taxes for 1980 Assessment; Village Apartments v. State, 335 N.W.2d 717, 718 n. 3 (Minn.1983) (citations omitted).