author: MEYER, Justice.

text:
    Darwin COGGER, et al., Relators, v. COUNTY OF BECKER, Respondent.
    No. A04-713.
    Supreme Court of Minnesota.
    Jan. 20, 2005.

      Ronald Bradley, Minneapolis, MN, for Relators.
    Gretchen D. Thilmony, Asst. Becker County Attorney, Detroit Lakes, MN, for Respondent.
    Terrence J. Rheault, Law Office of Charles W. LaDue, Coon Rapids, MN, for amicus curiae White Earth Band of Ojib-we.
   OPINION

MEYER, Justice.

The question presented in this case is whether state law controls in defining whether a manufactured home located within the boundaries of an Indian reservation may be taxed as real property. The tax court found that the county has authority to assess an ad valorem tax on the land in question and it then applied Minnesota statutes to classify the manufactured home as real property. The Coggers appealed the tax court decision by a writ of certiora-ri. We affirm the tax court.

Darwin and Janet Cogger are members of the White Earth Band of Chippewa Indians. The Coggers own fee patented title to a plot of land within the boundaries of the White Earth Indian Reservation, located in Becker County, Minnesota. In 1993, the Coggers moved a manufactured home onto their land and have occupied the home as their primary residence since that time. The manufactured home is a 28' x 40' “double wide” home with vinyl skirting. In 1998, the Coggers attached an 8' x 6' porch to their home and added three storage sheds and two wooden decks to the property.

In 2002, the Becker County Assessor assessed an ad valorem property tax on the Coggers’ property, including the value of the land and the value of the manufactured home, porch, vinyl skirting, three storage sheds, and two wooden decks. The assessor determined that the manufactured home was taxable as real property because it was similarly situated to other manufactured homes that Becker County taxed as real property. The Cog-gers appealed to the tax court.

The tax court held in favor of Becker County based on United States Supreme Court precedent, federal statutes, and state statutes. The most persuasive factor in the tax court’s decision in favor of the County’s authority to tax the Coggers’ property was that the Coggers own the land in fee patented title. The following factors were the basis for the court’s finding that the manufactured home was real property: (1) the manufactured home was similarly situated to other such homes taxed as real property in the county, (2) the home was connected to a well and septic tank system, and (3) the Coggers used the home as their primary residence.

On appeal the Coggers concede, and Becker County agrees, that Congress has authorized states to tax real property held in fee by Indians and located within the boundaries of an Indian reservation. But the Coggers contend that Congress has not granted states the authority to define what property may be taxed as real property. Becker County asserts that Congress has necessarily granted all real property taxing authority to the states, and the tax court acted properly when it applied Minnesota statutes in classifying the Coggers’ property.

In Minnesota, the legislature has plainly defined real and personal property. Minn.Stat. § 272.03, subds. 1, 2 (2004). The legislature has also defined when a manufactured home, and the structures annexed to it, should be classified as real property and when a manufactured home should be classified as personal property. Minn.Stat. § 273.125, subd. 8 (2004). Under these statutes, the Coggers’ manufactured home and adjoining property would properly be classified as real property.

We review tax court decisions to determine “whether the tax court lacked jurisdiction, whether the tax court’s decision is supported by the evidence and is in conformity with the law, [or] whether the tax court committed any other error of law.” Jefferson v. Commissioner of Revenue, 631 N.W.2d 391, 394 (Minn.2001); Minn.Stat. § 271.10, subd. 1 (2004).

Resolution of the issue raised by the Coggers requires a brief history of federal legislation with respect to Indians and reservation land. Congressional federal policy toward Indians and Indian land has gone through several transformations since it was first interpreted by the Supreme Court in Worcester v. Georgia, 31 U.S. (Pet.) 515, 8 L.Ed. 483 (1832). In Worcester, the Court stated that the federal policy with respect to Indians was to treat the Indian nations as “distinct political communities,” with the federal government as the sole body of government authorized to interact with the Indians. Id. at 556-57; see County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 257, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992).

In 1887 the Indian General Allotment Act, commonly known as the Dawes Act, ch. 119, 24 Stat. 388 (repealed 2000), was enacted with the objective of facilitating the government’s policy of Indian assimilation. County of Yakima, 502 U.S. at 254, 112 S.Ct. 683. The Dawes Act gave the President power to apportion almost all tribal land throughout the United States without first obtaining the consent of the affected Indian nation. County of Yakima, 502 U.S. at 254, 112 S.Ct. 683. The Dawes Act also limited alienation and encumbrance of specific tribal land by placing land in trust with the United States for at least 25 years. County of Yakima, 502 U.S. at 254, 112 S.Ct. 683. Once the 25-year period expired, an Indian allottee would receive fee patented title to the land and become subject to the civil and criminal laws of the state where the land was located. Id.

The Supreme Court addressed the Dawes Act’s 25-year trust period in In re Heff, when it held that Indians would not become subject to the civil and criminal law of the state until the 25-year trust period had expired. In re Heff, 197 U.S. 488, 509, 25 S.Ct. 506, 49 L.Ed. 848 (1905). Congress affirmed the Court’s interpretation of the Dawes Act with passage of the Burke Act in 1906, but added that when the President exercised his authority to issue fee patented title prior to expiration of the 25-year trust period, “all restrictions as to sale, incumbrance, or taxation of said land shall be removed.” County of Yakima, 502 U.S. at 255, 112 S.Ct. 683 (citations omitted).

In an effort to return to the policy that dominated United States-Indian relations prior to the Dawes Act era, Congress passed the Indian Reorganization Act in 1934, 25 U.S.C. §§ 461-479 (2002). County of Yakima, 502 U.S. at 255, 112 S.Ct. 683. The objectives of the Indian Reorganization Act were to stop further allotment of Indian land, to indefinitely extend the existing period of trust, and to restore unalloted land to tribal ownership. County of Yakima, 502 U.S. at 255, 112 S.Ct. 683. The Supreme Court has held that the Indian Reorganization Act prevents states from taxing “reservation lands and reservation Indians” unless Congress has made it unmistakably clear that it intends to grant that power to the state. County of Yakima, 502 U.S. at 258, 112 S.Ct. 683. The Court concluded that when Congress rendered Indian lands capable of ownership in fee, “it also rendered them subject to assessment and forced sale for [state] taxes.” Id. at 263-64, 112 S.Ct. 683. With this history in mind, we proceed to decide the instant case.

The Coggers contend that Congress’s grant of authority to the states to tax Indian real property is ambiguous because Congress has not specifically granted to the states the power to define real property. Thus, Congress has reserved for itself the power to define what Indian property may be considered real property. They propose that this court create a kind of “federal” definition of real property pursuant to “other statutes, common law, and common sense.” The Coggers contend that this court-created definition of real and personal property would define their property as personal property and as such it would not be subject to state taxation. Becker County asserts that the authority to tax is statutory and varies from state to state; therefore, Congress must have contemplated that each state would tax Indian land in the same manner it taxed all other property within that state.

In County of Yakima, the Supreme Court addressed precisely whether Congress intended to authorize states to tax real property held in fee by Indians and located within reservation boundaries. Yakima County had attempted to foreclose on land located within the reservation in which the tribe or its members had an interest, where ad valorem taxes were past due. The Yakima Nation contended that federal law prohibited ad valorem taxes on fee patented land held by the tribe or its members. The Court looked to sections 5 and 6 of the Dawes Act to determine whether Congress granted states the authority to tax fee patented land. County of Yakima, 502 U.S. at 264, 112 S.Ct. 683. The Court reasoned that the Burke Act clarified the intent of Congress in sections 5 and 6 of the Dawes Act that “fee ownership would free the land of ‘all restrictions as to sale, incumbrance, or taxation.’ ” County of Yakima, 502 U.S. at 264, 112 S.Ct. 683 (citations omitted). The Court concluded that Congress in the Burke Act proviso “manifested a clear intention to permit the state to tax such Indian lands” and held that the ad valorem property tax levied by Yakima County was valid. County of Yakima, 502 U.S. at 259, 112 S.Ct. 683 (citations omitted).

The Yakima Court made it clear that Congress intended to grant the states authority to assess ad valorem taxes on real property owned by Indians in fee title on Indian land. Congress did not define real or personal property in its grant of authority. We have previously held that “the power of taxation is inherent in sovereignty and * * * under our system of government it reposes in the Legislature * * *." Bemis Bro. Bag Co. v. Wallace, 197 Minn. 216, 222, 266 N.W. 690, 693 (1936). Implicit in the state’s power to tax is the authority to define what property or goods to tax, subject of course to constitutional limitations. Thus, it follows that Congress granted to the states the authority to subject Indian land to its real property taxation scheme, including the authority to determine the definition of real property. The Coggers cite no federal or state authority to the contrary. We conclude that Becker County may apply Minnesota’s definition of real property to the Coggers’ property.

We hold that the tax court did not err when it applied the Minnesota statutes to the classification of the Coggers’ property.

Affirmed.

      . "The essential characteristic of an ad valo-rem tax is that the tax is levied according to the value of property, as determined by an assessment or appraisal. * * * An ad valo-rem property tax is invariably based upon ownership of property * * 71 Am.Jur.2d State and Local Taxation § 18 (2001).

      . The assessment included taxation of the Coggers' garages; however, the Coggers and Becker County agree that the garages are properly classified as real property and subject to the ad valorem property tax.

      . Minn.Stat. § 272.03, subd.l. Real property.

      (a) For the purposes of taxation, "real property” includes the land itself, rails, ties, and other track materials annexed to the land, and all buildings, structures, and improvements or other fixtures on it, bridges of bridge companies, and all rights and privileges belonging or appertaining to the land, and all mines, iron ore and taconite minerals not otherwise exempt, quarries, fossils, and trees on or under it.
      (b) A building or structure shall include the building or structure itself, together with all improvements or fixtures annexed to the building or structure, which are integrated with and of permanent benefit to the building or structure, regardless of the present use of the building, and which cannot be removed without substantial damage to itself or to the building or structure.

      Subd. 2. Personal property. For the purposes of taxation, "personal property” includes:
      * ⅜ * * * *
      (3) All improvements upon land the fee of which is vested in the United States, and all improvements upon land the title to which is vested in any corporation whose property is not subject to the same mode and rule of taxation as other property.

      . Minn.Stat. § 273.125, subd. 8. Manufactured homes; sectional structures.

      (a) In this section, "manufactured home” means a structure transportable in one or more sections, which is built on a permanent chassis, and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and contains the plumbing, heating, air conditioning, and electrical systems in it. Manufactured home includes any accessory structure that is an addition or supplement to the manufactured home and, when installed, becomes a part of the manufactured home.
      (b) A manufactured home that meets each of the following criteria must be valued and assessed as an improvement to real property, the appropriate real property classification applies, and the valuation is subject to review and the taxes payable in the manner provided for real property:
      (1) the owner of the unit holds title to the land on which it is situated;
      (2) the unit is affixed to the land by a permanent foundation or is installed at its location in accordance with the Manufactured Home Building Code in sections 327.31 to 327.34, and rules adopted under those sections, or is affixed to the land like other real property in the taxing district; and
      (3) the unit is connected to public utilities, has a well and septic tank system, or is serviced by water and sewer facilities comparable to other real property in the taxing district.


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Mohammed Gazizamil AL-NASEER, Appellant.
    No. A03-634.
    Supreme Court of Minnesota.
    Jan. 20, 2005.

      John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, Amy V. Kvalseth, Assistant Attorney General, St. Paul, MN, Lisa Borgen, Clay County Attorney, Moorhead, MN, for Respondent.
   OPINION

PAGE, Justice.

On June 16, 2002, the car driven by appellant, Mohammed Al-Naseer, struck and killed Kane Thomson while Thomson was changing a flat tire on the side of Highway 10 near Glyndon, Minnesota. As a result of Thomson’s death, Al-Naseer was charged with and convicted of two counts of criminal vehicular homicide, one for gross negligence under Minn.Stat. § 609.21, subd. 1(1) (2004), and the other for leaving the scene of an accident under Minn.Stat. § 609.21, subd. 1(7) (2004). Al-Naseer was sentenced to 48 months in prison and ordered to pay restitution. The court of appeals reversed Al-Naseer’s conviction for criminal vehicular homicide- — leaving the scene of an accident, but affirmed the gross negligence conviction. In affirming, the court of appeals concluded, among other things, that the erroneous admission at trial of a videotaped interview Al-Naseer had given to the police the night of Thomson’s death was harmless error and that the trial court’s failure to instruct the jury on the lesser-included offense of careless driving was not error. Having granted limited review, we reverse and remand for a new trial.

Al-Naseer is an Iraqi immigrant who arrived in the United States in 1994. He does not read or write in his native language and, although he was taking English classes, he has difficulty understanding English. The events culminating in Thomson’s death began in the early morning hours of June 16, 2002. At about 2:00 that morning, Al-Naseer left his home in Fargo, North Dakota, and drove to Cass Lake, Minnesota, to do some work. Al-Naseer arrived in Cass Lake around 5:00 a.m., worked most of the day, and left Cass Lake at around 9:00 p.m. to drive back to Fargo. He testified that he had taken a 30- to 40-minute nap sometime during the afternoon.

That evening, Thomson and a friend, Dustin Leingang, met other friends at a speedway near Highway 10 not far from Glyndon, Minnesota. Thomson and Lein-gang were at the speedway until it closed at 11:00 p.m. As they left the speedway and drove onto Highway 10, both men realized that their car had a flat tire. Thomson, who was driving, pulled over to the shoulder of the road and stopped with the left side of the car approximately three feet from the fog line. The emergency hazard lights were turned on and the two proceeded to change the left rear tire. Thomson, who was 6'3" tall and weighed between 250 and 280 pounds, changed the tire while Leingang held a flashlight for him. According to Leingang, when they were almost finished, he felt something brush his hand from behind. He spun to his right, heard a thump, and turned to see Thomson rolling on the ground in front of their car. He also saw the taillights of another car moving gradually from the fog line back to the active traffic lane. The car neither stopped nor accelerated. It continued heading west at approximately 55 miles per hour. Thomson was killed. Investigators at the scene concluded that the passing car might have encroached at least a foot over the fog line, but did not hit Thomson’s car.

At some point, Al-Naseer, driving west of the accident site, realized that his headlights were not working properly. He testified that he stopped at a gas station in Glyndon and was surprised to see that the front right side of his car, including the headlight, was damaged. He decided to continue his drive home using his emergency hazard lights. A Dilworth police officer who had heard a report of the accident involving Thomson sought to pull Al-Naseer’s car over when he saw it on Highway 10 moving slowly with its emergency hazard lights flashing and no headlights because he thought that the car might have been involved in the accident. Independent of the officer’s action, Al-Naseer pulled over to the shoulder and stopped. Pulling in behind Al-Naseer’s car, the officer got out of his car and approached Al-Naseer, who had by then gotten out of his car. Noting what appeared to be fresh damage to Al-Naseer’s car, the officer asked Al-Naseer if he had hit something. According to the officer, Al-Naseer initially indicated that he must have hit something, but did not know what. Al-Naseer was arrested and taken to the local law enforcement center where he was interviewed by Trooper Daniel Prisch-mann. The interview, conducted without an interpreter, was videotaped.

At trial, over Al-Naseer’s objection, a redacted version of his videotaped interview was admitted. Al-Naseer sought to have the lesser-included offense of careless driving submitted to the jury. The trial court declined; The jury convicted Al-Naseer as charged.

Al-Naseer raised a number of issues on appeal to the court of appeals. • The court of appeals reversed the criminal vehicular homicide — leaving the scene of an accident conviction, but affirmed the gross negligence conviction. State v. Al-Naseer, 678 N.W.2d 679, 689, 697 (Minn.App.2004). In affirming the gross negligence conviction, the court of appeals concluded that the admission of the videotaped interview was error because Al-Naseer had not knowingly, voluntarily, and intelligently waived his right to counsel or his right to remain silent. Id. at 691. The court went on to conclude, however, that the error was harmless based on Al-Naseer’s stipulation that his car was involved in the accident, his testimony that he was tired on the night of the accident, the testimony of the police officers who arrived at the scene, the testimony of Leingang, and the testimony of the accident reconstructionist. Id. at 692. The court of appeals concluded that the contents of the videotaped interview did not contain any additional information except to show Al-Naseer’s confusion about what had happened, and thus did not significantly add to the testimony at trial. Id.

Relying on State v. Pelawa, 590 N.W.2d 142, 148-49 (Minn.App.1999), rev. denied (Minn. Apr. 28, 1999), the court of appeals further held that the trial court was not required to give an instruction on careless driving “because Thomson was not just endangered but died' as a result of the accident.” Al-Naseer, 678 N.W.2d at 696.

As he did in his appeal to the court of appeals, Al-Naseer raised a number of issues in his petition for review to this court. In granting review, we limited the issues to (1) whether the error in admitting the videotaped interview was harmless and (2) whether the trial court erred in refusing to instruct the jury on the lesser-included offense of careless driving.

I.

A conviction may stand when the trial court erroneously admits at trial a criminal defendant’s statement to the police in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), if the error was harmless beyond a reasonable doubt. State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). An error is harmless beyond a reasonable doubt if the guilty verdict actually rendered in the trial was surely unattributable to the error. Id. at 292.

When determining whether a jury verdict was surely unattributable to an erroneous admission of evidence, the reviewing court considers the manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defendant. Townsend v. State, 646 N.W.2d 218, 223 (Minn.2002) (citing State v. Ferguson, 581 N.W.2d 824, 833 (Minn.1998)). “[Overwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.” Townsend, 646 N.W.2d at 224 (citing Juarez, 572 N.W.2d at 291). But the court cannot focus on the evidence of guilt alone. Townsend, 646 N.W.2d at 224; see also Juarez, 572 N.W.2d at 291 n. 6 (acknowledging that the court had inadvertently misstated the significance of the strength of the evidence of guilt in harmless error analysis in State v. Townsend, 546 N.W.2d 292, 297 (Minn.1996)).

Was the error in admitting Al-Na-seer’s videotaped interview at trial harmless beyond a reasonable doubt? Al-Na-seer argues that the error was not harmless because the state relied heavily on it to obtain the guilty verdicts. He notes that the state’s references to the interview in its opening statement, closing argument, and direct and cross-examination of witnesses were used to point out inconsistencies between his statements during the interview and his trial testimony and to attack his credibility. He further notes that the jury heard him ask for an attorney and state that he should not say anything on the videotape. Al-Naseer contends that the jury may have viewed his request for counsel and the invocation of his right to remain silent as a “badge of guilt.”

In response, the state argues that independent, overwhelming evidence supported each element of gross negligence and that the showing of the videotaped interview provided no basis for acquittal. Specifically, the state points to evidence indicating that Al-Naseer intended to drive from Cass Lake to Fargo after having been up since 2:00 a.m. on the morning of the accident, that Al-Naseer was tired but decided to drive home anyway, and that the circumstances of the accident were such that, in order for Al-Naseer to have hit Thomson without knowing it, he had to have fallen asleep at the wheel. The state further argues that any attack on Al-Na-seer’s credibility using the videotaped interview was intended to show that Al-Naseer knew that he had hit something, an element that went to criminal vehicular homicide — leaving the scene of an accident, not gross negligence, and that the interview did not effectively discredit the defense’s theory of the case. Finally, the state responds to Al-Naseer’s badge-of-guilt argument by simply noting that the admissibility of the statement is not before the court. Based on these arguments, the state contends that the guilty verdict was surely unattributable to the error in admitting the videotaped interview. We disagree.

Review of the record indicates that Al-Naseer is correct in his characterization of how the state used the videotaped interview at trial. For example, to discredit Al-Naseer, the state used the videotaped interview in its opening statement to challenge Al-Naseer’s veracity:

In fact, the stipulation before the Court is Mr. Al-Naseer’s vehicle did indeed strike and kill Kane Thomson. But the defendant, Mr. Al-Naseer, does not say that. He says, “I hit something.”
He’s brought in for questioning to the Law Enforcement Center. He is sat down by ⅜ * * Dan Prischmann [who was] in charge of the accident. Mr. Prischmann * * * will talk to Mr. Al-Naseer. You’ll see portions of that statement.
Mr. Al-Naseer is asked again what happened. Mr. Al-Naseer will say, “I don’t know.”
He will then be asked, “Did you hit something?”
Mr. Al-Naseer will then give an inconsistent statement. He will now tell Officer — or Trooper Prischmann, “I didn’t hit anything.”
When Trooper Prischmann will come back to him and say, ‘Well, did you tell Officer Froemke and Officer Fleury that you hit something ten miles before you were stopped?” Mr. Al-Naseer denies that. “I didn’t say that.”
Well, did you hit anything?”
“No. I hit nothing.”

The state went on to quote more exchanges between Trooper Prischmann and Al-Naseer to show that the statements by Al-Naseer were not consistent.

Defense counsel responded in his opening statement: “[Al-Naseer] gave a videotaped interview to Trooper Prischmann. He also was completely candid with everybody he talked to, but the only statements he really made were, T don’t know. I don’t know.’ ”

The content of the videotaped interview was also discussed during the examination of witnesses. For example, when Trooper Prischmann was called to the stand, the state asked only a few background questions before a redacted version of the videotaped interview was shown. Defense counsel had little to ask about the statements made on the tape, but focused his effort on confirming that Al-Naseer was not under the influence of any alcohol or drugs. On redirect, the state asked whether the witness believed Al-Naseer understood the questions during the interview and the answer was in the affirmative.

In cross-examining Al-Naseer, the state repeatedly questioned whether Al-Na-seer’s memory was better at trial than when he talked to Trooper Prischmann immediately after the accident. The state also repeatedly questioned the consistency of the statements that Al-Naseer gave at trial as opposed to his interview.

Before closing arguments, the court instructed the jury, “ ‘Gross negligent’ [sic.] requires no conscious or intentional action that the defendant knew or should have known created an unreasonable risk of harm to others.” But in closing argument, the state reiterated the-jury instruction on gross negligence and went on to say:

You’ll remember the comments about questioning, when the defendant, up here, when they asked him, “If you had known you hit him would you have stopped? Would you have talked to those people?” Whether he knows it happened or not is irrelevant. His intent is irrelevant. “Gross negligence” requires no intentional act.
* * ⅜ [H]is sole fault was falling asleep, that is sufficient gross negligence with which to support [the charge of criminal vehicular homicide — gross negligence.]
* * * *
We’re talking about the degree of inattention that he has, folks. We’re talking about someone who is so asleep by his own admission that he can go through an accident with that much devastation and not come to, and have absolutely no remembrance of going through the accident in any fashion. Is that by itself gross negligence in the operation of his vehicle? The State would argue the evidence shows that it is.

In rebuttal closing argument, the state again argued that Al-Naseer “testified repeatedly today completely differently than what he did when he talked to Priseh-mann” in the videotaped interview.

Therefore, even though the trial court instructed the jury that Al-Naseer’s intent was not an element of gross negligence, the state appears to have argued to the jury that Al-Naseer’s lack of memory of the accident, as evidenced by his inconsistent statements, was in itself evidence of gross negligence.

It is clear from the record that the state repeatedly raised the issue of Al-Naseer’s inconsistent statements, examined state witnesses about the interview, and cross-examined Al-Naseer about what he had said in the videotaped interview as opposed to his testimony at trial in such a manner that appears to have been intended to and likely did persuade the jury that Al-Naseer was not telling the truth. While these challenges to Al-Naseer’s credibility and veracity went to the criminal vehicular homicide — leaving the scene of the accident charge, they also called into question his credibility and veracity with respect to the gross negligence charge. As a result, we cannot say that the jury’s verdict was surely unattributable to the erroneously admitted interview. We are also troubled by the fact that the interview contained statements by Al-Naseer in which he asks to speak with a lawyer and indicates that he should not talk further without one. It is not unusual for juries to view such statements as a “badge of guilt.” See State v. Roberts, 296 Minn. 347, 353, 208 N.W.2d 744, 747 (1973) (quoting Walker v. United States, 404 F.2d 900, 903 (5th Cir.1968)). That problem is compounded when the erroneously admitted evidence is used to depict the defendant, as was done here, to be untruthful.

In summary, we conclude that the guilty verdict was not “surely unattributable” to the erroneous admission of the videotaped interview and hold that the error was not harmless beyond a reasonable doubt.

II.

Next, we turn to the issue concerning the trial court’s failure to give the lesser-included offense instruction. A trial court must submit an instruction on a lesser offense when: (1) the offense in question is an “included” offense; and (2) a rational basis exists for the jury to convict the defendant of the lesser offense and acquit him of the greater crime. State v. Nystrom, 596 N.W.2d 256, 261 (Minn.1999). Unless waived by the defendant, it is error not to submit a lesser-included offense except in those extraordinary cases in which the failure to do so is otherwise supported by a proper exercise of the trial court’s discretion and no prejudice to defendant results. State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 126 (1975).

Both Al-Naseer and the state agree, as do we, that careless driving is a lesser-included offense with respect to criminal vehicular homicide — gross negligence. The issue we must decide is whether the evidence provided a rational basis for the jury to convict Al-Naseer of careless driving and acquit him of criminal vehicular homicide — gross negligence. Al-Naseer argues that it did. Factually, Al-Naseer argues that a careless-driving instruction was warranted because Thomson was “changing his tire on the side of the highway, at night, crouched inches from the fog line” and that his car “did not stray so far over the fog line” so as to hit Thomson’s car. He also notes that he did not have alcohol or drugs in his system. Legally, Al-Naseer argues that in this case and in State v. Pelawa, the court of appeals appears to assume that any motor vehicle accident resulting in death is the result of gross negligence. In support of that argument, he points out that in Pela-wa the court of appeals held that “there is no rational basis for a jury to have found that appellant drove in disregard of his victims’ rights or in a manner that endangered them, but did not drive in a grossly negligent manner that killed them because the victims were not only endangered but killed by appellant’s driving.” Pelawa, 590 N.W.2d at 147-48. Al-Naseer notes that in this case the court of appeals indicated, as it did in Pelaioa, that because the victim was not just endangered but died as a result of the accident, the trial court was not required to give an instruction on the lesser-included offense of careless driving. See Al-Naseer, 678 N.W.2d at 696. Thus, he argues that the court of appeals has improperly focused its attention on the result of his conduct rather than on the conduct itself. Finally, he argues that this case is not the extraordinary case that would justify a refusal to give the lesser-ineluded-offense instruction.

The state responds that gross negligence does not require any conscious or intentional action and that the evidence of gross negligence here was so overwhelming that an acquittal on that charge would not have been justified. The state also argues that submitting a lesser-included instruction of careless driving in a case such as this runs the risk of the jury returning a verdict based on sympathy.

Whether conduct constitutes gross negligence is a question for the trier of fact, here, the jury. See State v. Ewing, 250 Minn. 436, 445-46, 84 N.W.2d 904, 911-12 (1957). Examples of extraordinary cases can be found in three of our recent cases involving defendants being tried for first-degree murder who sought a jury instruction on the lesser-included offense of first-degree manslaughter (heat of passion). See State v. Carney, 649 N.W.2d 455, 462 (Minn.2002) (holding that as a matter of law there was no rational basis for jury to find that the killing was in the heat of passion); State v. Stewart, 624 N.W.2d 585, 591 (Minn.2001) (holding that as a matter of law there was “no rational basis for a jury to find that [the defendant] killed [the victim] in the heat of passion”); and Nystrom, 596 N.W.2d at 262 (holding that the defendant failed to establish words or acts sufficient to provoke a person of ordinary self-control). In each case, the trial court declined to give the lesser-included instruction. In each case, we held that there was no error because, on the record presented, the defendant failed to establish a necessary element of first-degree manslaughter (heat of passion). Therefore, in each of these cases, there was no basis as a matter of law for giving the instruction.

We have never held that falling asleep at the wheel is, as a matter of law, gross negligence and we decline to do so on the facts presented here. Notwithstanding the state’s argument to the contrary, and unlike the circumstances in Carney, Stewart, and Nystrom, the facts present in the record here would permit a jury, acting rationally, to convict Al-Na-seer of careless driving and to acquit him of criminal vehicular homicide — gross negligence.

A person is guilty of criminal vehicular homicide resulting in death if the person causes the death of a human being as a result of operating a motor vehicle “in a grossly negligent manner.” Minn.Stat. § 609.21, subd. 1(1) (2004). Comparatively, a person who operates a vehicle “carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person,” is guilty of careless driving. Minn.Stat. § 169.13, subd. 2 (2004).

In the context of careless driving, carelessness is synonymous with ordinary negligence. State v. Meany, 262 Minn. 491, 505, 115 N.W.2d 247, 257 (1962). Ordinary and gross negligence differ in degree. State v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480, 485 (1946). In Bolsinger, we adopted the definition of “gross negligence” found in Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (1919):

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. * * * Ordinary and gross negligence differ in degree of inattention * * *.

Id. at 159-60, 21 N.W.2d at 485. Although Bolsinger was decided in 1946, the principles set out there are still valid today.

To determine whether a defendant engaged in gross negligence or ordinary negligence, the defendant’s conduct must be examined. Specifically, it is the conduct that led to the defendant’s falling asleep at the wheel, not the conduct that takes place while the defendant is asleep. See Annotation, Criminal Liability of Motor Vehicle Operator for Accident Arising from Physical Defect, Illness, Drowsiness or Falling Asleep, § 3, 63 A.L.R.2d 983, 988-92 (1959, Later Case Serv.1994 & Supp.2001); see also, e.g., Conrad v. Commonwealth, 31 Va.App. 113, 521 S.E.2d 321 (1999) (affirming the conviction of involuntary manslaughter based on criminal negligence because the defendant motorist fell asleep while driving after he had been up for 22 hours without sleep and had dozed off a few times while driving, but chose to continue driving a long distance home early in the morning); McDaniel v. State, 506 So.2d 360 (Ala.Crim.App.1986) (holding that a driver’s knowledge of tiredness and sleepiness was more than sufficient to support his conviction of criminally negligent homicide). In assessing that conduct, the fact finder should take into account factors such as lack of sleep, length of time at the wheel, presence of sure- warning signs, influence of drugs or alcohol, and strenuous activities before driving when determining whether there was gross negligence or ordinary negligence. See Annotation, Physical Defect, Illness, Drowsiness, or Falling Asleep of Motor Vehicle Operator as Affecting Liability for Injury, §§ 25-30, 28 A.L.R.2d 12, 51-57. (1953 & Later Case Serv.1995).

In this case, the jury, as fact finder, was not given a jury instruction on the lesser-included offense of careless driving and therefore was not in a position to weigh whether Al-Naseer’s conduct constituted gross negligence or ordinary negligence. This was error. Therefore, Al-Naseer is entitled to a new trial.

Reversed and remanded for a new trial.

      . On December 8, 2004, we issued an order, with written opinion to follow, reversing and remanding this case to the district court for a new trial.

      . The question of whether the court of appeals erred in concluding that the admission of the videotaped interview was improper is not before us in this appeal.

      . An intentional killing may be mitigated to first-degree manslaughter (heat of passion) when: (1) the killing was committed in the heat of passion; and (2) the passion was provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances. See State v. Brocks, 587 N.W.2d 37, 41 (Minn.1998); see also Minn.Stat. § 609.20(1) (2004).

      . We note that this definition of "gross negligence" does not include any suggestion that the result of the conduct plays a role in determining whether the conduct constitutes gross negligence. Nor do we believe that the result of the conduct plays any role in that determination. Therefore, we conclude that, while the accident victim’s death is a necessary element to be proved in order to establish criminal vehicular homicide, it is not an element that must be proved to establish gross negligence. Any holding to the contrary in the court of appeals’ decision in Pelawa is expressly overruled.


author: BLATZ, Chief Justice.

text:
    D. Scott VANDENHEUVEL, et al., Appellants, v. Virgil A. WAGNER, Respondent.
    No. A03-324.
    Supreme Court of Minnesota.
    Jan. 20, 2005.

      Robert Joseph Leighton, Jr, Nolan, MacGregor, Thompson & Leighton, St Paul, MN, for Appellant’s.
    Steven R Schwegman, Mary Beth Mahler, Quinlivan & Hughes, PA, St. Cloud, MN, for Respondent’s.
   OPINION

BLATZ, Chief Justice.

Appellants D. Scott and Dawn Vanden-heuvel challenge the district court’s decision allowing respondent Virgil A. Wagner to recover, under Minn. R. Civ. P. 68 (“Rule 68”), his total costs and disbursements incurred from the beginning of the lawsuit. Appellants contend that when the net verdict is less favorable to the offeree than the pretrial offer of judgment, Rule 68 allows the offeror to recover only those costs and disbursements incurred after the offer of judgment was made. A divided panel of the court of appeals affirmed the district court’s award of respondent’s total costs and disbursements incurred from the beginning of the lawsuit. Vandenheuvel v. Wagner, 673 N.W.2d 524, 525 (Minn.App.2004). We affirm.

The facts of this case are undisputed. On May 11, 2000, appellant Dawn Vanden-heuvel and respondent Virgil A. Wagner were involved in a two vehicle automobile accident. As a result of the accident, Dawn Vandenheuvel sustained injuries to her back and left shoulder and incurred medical bills in excess of $40,000. Appellants Dawn Vandenheuvel and her husband D. Scott Vandenheuvel brought suit against Wagner for personal injuries and loss of consortium.

On May 16, 2002, one month prior to trial, respondent made a written offer of judgment for $25,000 pursuant to Rule 68. Appellants rejected the offer. After a two-day trial, the jury awarded appellant Dawn Vandenheuvel $30,000 in past medical expenses, $1000 for past pain and suffering, and $90 for past loss of earnings. The jury also awarded appellant D. Scott Vandenheuvel $1000 for his loss of consortium claim. Appellants’ no-fault carrier paid $20,000 in medical benefits and $90 in past lost earnings. Because neither party requested the jury to make specific findings of fact as to how much of the $30,000 in medical bills were attributable to those paid by the no-fault carrier, the full $20,000 in medical benefits paid by the insurance carrier as well as the $90 for past lost earnings were deducted from the award. Thus, appellants’ net judgment was $12,000. The district court concluded that, because the net judgment did not exceed respondent’s $25,000 offer of judgment, respondent was entitled, pursuant to Rule 68, to recover all his costs and disbursements, which amounted to $8,022.71.

We review a lower court’s legal determinations regarding Rule 68 offers of judgment de novo. Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn.1996). While very few of our cases address the principles of rule construction, we said in House v. Hanson that: “the words of a court rule, like those of a statute, must be taken and construed in the sense in which they were understood and intended at the time the rule was promulgated.” 245 Minn. 466, 473, 72 N.W.2d 874, 878 (1955).

The issue in this case involves the calculation of costs and disbursements under Rule 68 and arises out of amendments made to the rule in 1985. The language of Rule 68 at issue here presently states:

At any time prior to 10 days before the trial begins, any party may serve upon an adverse party an offer to allow judgment to be entered to the effect specified in the offer or to pay or accept a specified sum of money, with costs and disbursements then accrued, either as to the claim of the offering party against the adverse party or as to the claim of the adverse party against the offering party. * * * If the judgment finally entered is not more favorable to the offeree than the offer, the offeree must pay the offeror’s costs and disbursements.

Minn. R. Civ. P. 68 (emphasis added).

Before the 1985 amendments, Rule 68 provided, in relevant part:

If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs and disbursements incurred after the making of the offer.

Minn. R. Civ. P. 68.01 (1984) (emphasis added). Specifically relevant to appellants’ arguments in this case is the 1985 amendment to the rule deleting the language of the rule which limited the recovery of costs and disbursements under Rule 68 to those incurred “after the making of the offer.” Appellants contend that the deletion of this phrase was not intended to change the practice under Rule 68 and thus, even after the 1985 amendment, respondent is entitled to only those costs and disbursements incurred after the offer of judgment.

Appellants’ argument that the costs and disbursements must be limited to those incurred post-offer relies in part on our statement in Bucko v. First Minnesota Savings Bank, F.S.B. that 'the plaintiff must “pay the [defendant’s] costs and disbursements incurred from the date of its offer of judgment.” 471 N.W.2d 95, 98 (Minn.1991) (emphasis added). However, the language in Bucko merely reflects the relief requested by the parties in that case. Further, our focus in Bucko was on whether the parties- were entitled to costs and disbursements and not on what costs and disbursements were to be awarded. See id. Because the issue presented in the instant case was not before the court in Bucko, the language stating that the plaintiff must pay the defendant’s costs and disbursements “incurred from the date of its offer of judgment” was dicta and is not binding precedent.

Appellants also assert that, given the similarity between the Minnesota and federal rules, the Minnesota rule should be interpreted consistently with the federal rule which limits the costs and disbursements awarded under Rule 68 to post-offer costs and disbursements. Appellants argue that the commentary to Minnesota Rule 68 supports this assertion.

As an initial matter, we note that while the two rules are similar, they are not identical. For example, unlike the plain language of Federal Rule 68, Minnesota Rule 68 allows either party to make an offer of judgment. Compare Minn. R. Civ. P. 68 with Fed.R.Civ.P. 68. See also Borchert v. Maloney, 581 N.W.2d 838 (Minn.1998) (recognizing that Minnesota allows the offeree to recover costs as a prevailing party under Minn.Stat. § 549.01-.04 (2004), despite having rejected a more favorable Rule 68 offer because, unlike the federal rule, Minnesota Rule 68 does not specifically state that the offeree is responsible for her own costs and disbursements).

Without directly addressing any remaining difference between the federal and Minnesota rules, the committee comments accompanying the 1985 amendments to Minnesota Rule 68 state, in relevant part:

The changes to Rule 68 are intended to accomplish two things. First, the former offer of judgment procedure will be available to both plaintiffs and defendants in order to encourage settlement by all parties. Second, an offer of settlement is irrevocable during a ten-day period, but has no continued vitality if not accepted within that ten-day period. This change is made to answer the question raised by the Minnesota Supreme Court in Everson v. Kapperman, 343 N.W.2d 19 (Minn.1984). The Minnesota practice will now conform to practice under Federal Rule 68, although the language of the rules is not identical.

Minn. R. Civ. P. 68 (Advisory Committee Notes—1985).

We note that committee comments are included for convenience and are not binding on the court. Borchert, 581 N.W.2d at 840; Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 489 n. 4 (Minn.1997). Further, given the substantive difference between the Minnesota and federal rules noted above, we conclude the statement — “Minnesota practice will now conform to practice under Federal Rule 68” — refers to the previous two sentences addressing the addition of a 10-day irrevocable period, not to Rule 68 in general. Prior to the 1985 amendment, Minnesota Rule 68 did not provide for a time frame for the acceptance of offers, and the federal rule did. Accordingly, appellants’ argument that the commentary to Minnesota Rule 68 is evidence that Minnesota’s rule conforms to the federal practice of awarding only post-offer costs and disbursements is not persuasive.

Finally, appellants argue that the lack of explicit commentary on the deletion of the phrase “after the making of the offer” indicates that the deletion of this phrase in amended Rule 68 was not meant to change the practice under the rule and may have been “a mistake.” While we acknowledge that specific commentary on this rule change would have been helpful to practitioners, given the plain and unambiguous language of Rule 68, we will not rely on the lack of discussion in the committee comments to read a limitation into the rule. Further, as stated above, advisory committee comments are not binding on the court.

We conclude that the plain language of Rule 68 that “the offeree must pay the offeror’s costs and disbursements” does not limit recoverable costs and disbursements under the rule to those incurred after the making of the offer. Accordingly, we hold that appellants must pay respondent’s total costs and disbursements incurred from the beginning of the lawsuit.

Affirmed.

ANDERSON, G. Barry, J., not having been a member of this court at the time of the submission, took no part in the consideration or decision of this case.

      . We have not explicitly set out a framework for interpreting the rules of court. We note that while certain principles of statutory construction, e.g., plain language, may be helpful when interpreting court rules, other principles have no application. Because our analysis of Rule 68 in this case relies on the plain language of the rule, it is not presently necessary to set out a detailed method of analysis to be used in the interpretation of court rules.

      . In Bucko, the defendant bank made an offer of judgment to three plaintiffs prior to trial. 471 N.W.2d at 97. All three plaintiffs rejected the offer. Id. At trial, two plaintiffs were awarded compensatory damages and all three were awarded punitive damages. Id. The bank appealed the award of punitive damages. Id. Because we concluded that the one plaintiff who was not awarded compensatory damages at trial was not entitled to punitive damages, that plaintiff’s net judgment ultimately was less favorable than the offer of judgment. Id. at 98. Applying the current version of Rule 68, we thus concluded that this plaintiff must pay the defendant bank’s costs and disbursements "incurred from the date of its offer of judgment until judgment was entered by the trial court." Id. (emphasis added).

      . Fed.R.Civ.P. 68 states, in relevant part:
      At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. * * * If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.


author: STONEBURNER, Judge.

text:
    William GREULING, Jr., Appellant, v. WELLS FARGO HOME MORTGAGE, INC., Respondent.
    No. A04-506.
    Court of Appeals of Minnesota.
    Jan. 4, 2005.

      David W. VanDerHeyden, VanDerHey-den and Ruffalo, P.A., Rochester, MN, for appellant.
    Virginia A. Bell, Mary R. Vasaly, Elizabeth J. Anderson, Maslon, Edelman, Bor-man & Brand, L.L.P., Minneapolis, MN, for respondent.
    Considered and decided by HARTEN, Presiding Judge; STONEBURNER, Judge; and PARKER, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellant William Greuling challenges summary judgment granted to respondent Wells Fargo Home Mortgage, Inc. on his claims of negligent misrepresentation, promissory estoppel, and equitable estop-pel. We affirm.

FACTS

Greuling asserts that he was induced to purchase a home on unfavorable terms by a promise made by Wells Fargo agent Scott Malo that Wells Fargo would “refinance the entire transaction” immediately after closing. Greuling had been working with Malo to finance the purchase. After closing, Greuling contacted Wells Fargo about refinancing and was told that he had to wait six months before the mortgage could be refinanced due to federal regulaT tions. Greuling made only one payment on the mortgage to Wells Fargo, and Wells Fargo eventually foreclosed. Greuling lived in the house for approximately 16 months. About seven months after Greul-ing was required to leave the home he sued Wells Fargo alleging, among other things, breach of a contract to refinance, promissory estoppel, negligent misrepresentation, and equitable estoppel. The district court granted summary judgment to Wells Fargo dismissing all of Greuling’s claims. This appeal followed.

ISSUES

I. Did the district court err by granting summary judgment on Greuling’s claim of negligent misrepresentation?

II. Does Minn.Stat. § 513.33, subd. 3(a) (2002), prevent a claim of promissory estoppel to enforce an oral promise to refinance a mortgage loan?

III.Did the district court err by granting summary judgment on Greuling’s equitable estoppel claim?

ANALYSIS

I. Summary Judgment Standard of Review

“On an appeal from summary judgment we ask 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).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). There is no genuine issue of material fact when the record on the whole “could not lead a rational trier of fact to find for the non-moving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). To.resist summary judgment, a party must produce more than mere averments; the party must establish the genuine issue for trial through substantial evidence. Id. at 69-71. When summary judgment is granted based on the application of a statute to undisputed facts, the result is a legal con-elusion, reviewed de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

II. Negligent Misrepresentation

Greuling contends that there are issues of fact regarding whether Malo’s representation that refinancing would be available immediately after closing induced Greuling to close under unfavorable terms, causing significant damages.

In Bonhiver v. Graff, the supreme court adopted The Restatement (Second) of Torts § 552 (1976), which states:

[O]ne who, in the course of his business, profession, or employment, or in [any other] transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

311 Minn. 111, 122, 248 N.W.2d 291, 298 (Minn.1976). An objective standard of reasonable care is applied to those who make misrepresentations in the course of their employment. Safeco Ins. Co. of Am. v. Dain Bosworth Inc., 531 N.W.2d 867, 870 (Minn.App.1995), review denied (Minn. July 20,1995).

For purposes of summary judgment, there is no dispute that Malo owed a duty of care to Greuling, and misrepresented the availability of refinancing in the course of Malo’s employment. But Wells Fargo asserts that Greuling has failed to raise a genuine issue of material fact that he justifiably relied on the misrepresentation and that the facts conclusively demonstrate that the damages he claims result only from his failure to make payments on the mortgage. The district court agreed, noting that Greuling was under a contractual obligation to close before the misrepresentation was made, and the evidence conclusively shows that Greuling’s damages were not caused by Malo’s misrepresentation but rather were caused by Greuling’s decision not to make payments on the mortgage, resulting in the deficiency judgment foreclosure.

Greuling contends that it is “evident” that he relied on the misrepresentation in deciding to close and asserts that whether his reliance was justifiable is a fact question for the jury. See, e.g., Berg v. Xerxes-Southdale Office Bldg. Co., 290 N.W.2d 612, 616 (Minn.1980) (finding reasonable reliance to be a question of fact). Whether reliance is justifiable becomes a question of law if there is no evidence supporting a contrary conclusion. Frerichs Constr. Co. v. Minnesota Counties Ins. Trust, 666 N.W.2d 398, 402 (Minn.App.2003), review dismissed (Minn. Oct. 2, 2003).

At oral argument on appeal, Greuling asserted that there is a genuine issue of material fact about whether Greuling’s failure to make mortgage payments was part of his justifiable reliance on the promise of refinancing. But the record does not support this contention. Greuling testified that he “wasn’t all that concerned” about making payments on the Wells Fargo mortgage “operating under the idea that this thing was going to be taken out ... But secondly, once [I learned that I could not refinance] I was like, you know, I was so angry. It wasn’t that I didn’t admit that I owed the mortgage, but I’ll be damned if I’m going to try to find somebody to take all of you out.” Greuling acknowledged receiving a warning letter from Wells Fargo seven months before the foreclosure. He admitted that he could have made payments, but did not think that making payments made sense because he still wanted to refinance and would then owe pre-payment penalties. Under the facts of this case, we conclude that the district court did not err by concluding that Greuling failed to establish a genuine issue of material fact regarding damages and, as a matter of law, Greuling’s damages were caused by his failure to make mortgage payments.

The district court also concluded that Greuling failed to establish a genuine fact question that he closed in reliance on the promise of immediate refinancing and that even if he had raised such a fact question, reliance was not justifiable as a matter of law because of the vagueness of the promise. The parties agree that no terms of refinancing were discussed. Because we affirm summary judgment on the element of damages, we do not address these additional grounds for summary judgment.

III. Promissory Estoppel

The district court concluded that Greulings claims of breach of contract, promissory estoppel, and equitable estop-pel are barred by Minn.Stat. 513.33 (2002). The statute pi’ovides, in relevant part:

Subd. 2. Credit agreements to be in writing. A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.
Subd. 3. Actions not considered agreements, (a) The following actions do not give rise to a claim that a new credit agreement is created, unless the agreement satisfies the requirements of subdivision 2:
(3)the agreement by a creditor to take certain actions, such as entering into a new credit agreement, forbearing from exercising remedies under prior credit agreements, or extending installments due under prior credit agreement.

Minn.Stat. 513.33, subds. 2 and 3(a)(3).

“Promissory estoppel is an equitable doctrine that implies a contract in law where none exists in fact.” Martens v. Minnesota Mining & Mfg. Co., 616 N.W.2d 732, 746 (Minn.2000) (quotation and citations omitted). Promissory estop-pel has three elements: (1) a clear and definite promise; (2) the promisor intended to induce reliance and such reliance occurred; and (3) the promise must be enforced to prevent injustice. Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 152 (Minn.2001). The court considers the injustice factor as a matter of law, looking to the reasonableness of the promisee’s reliance and weighing public policies (in favor of both enforcing bargains and preventing unjust enrichment). Faimon v. Winona State Univ., 540 N.W.2d 879, 883 (Minn.App.1995), review denied (Minn. Feb. 9, 1996). When the facts are taken as true, it is a question of law as to whether they rise to the level of promissory estoppel. Martens, 616 N.W.2d at 746. Finally, an express contract covering the same subject matter will preclude the application of promissory es-toppel. Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 283, 230 N.W.2d 588, 593 (1975).

This court has found that claims on agreements falling under section 513.33 fail as a matter of law if the agreement is not in writing. See Becker v. First Am. State Bank of Redwood Falls, 420 N.W.2d 239, 241 (Minn.App.1988). Greuling relies on Norwest Bank Minnesota, N.A. v. Midwestern Mach. Co., 481 N.W.2d 875, 880 (Minn.App.1992), review denied (Minn. May 15, 1992) for the proposition that “an agreement may be taken outside of [§ 513.33] by equitable or promissory es-toppel.” But Norwest is distinguishable because the alleged promise in that case did not fall under any of the specifically enumerated agreements in the statute. There the promise concerned additional terms alleged to be part of an existing written transaction. Id. at 880. Norwest cites Berg v. Carlstrom, 347 N.W.2d 809, 812 (Minn.1984), but Berg predates the 1985 enactment of section 513.33. In this case, Greuling is asserting an agreement to enter into a new credit agreement. The plain and unambiguous language of the statute clearly prohibits a claim that a new credit agreement is created unless the agreement is in writing, expresses consideration, sets forth all relevant terms and conditions, and is signed by the creditor and debtor. None of those requirements is met in this case. The district court correctly determined that section 513.33 precludes Greuling’s claim of promissory es-toppel to establish a new credit agreement.

IV. Equitable Estoppel

Greuling asserts on appeal that section 513.33 does not bar his equitable estoppel claim. But Greuling’s complaint stated only that “[Wells Fargo] is equitably es-topped from relying on Minn.Stat. § 47.206, Interest Rate or Discount Point Agreements.” Wells Fargo did not rely on that statute and Greuling did not brief or argue any other theory of equitable estop-pel in the district court. This court generally will not consider matters not raised or considered in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). We decline to address Greuling’s theory of equitable estoppel raised for the first time on appeal.

DECISION

The district court did not err in granting summary judgment on Greuling’s negligent misrepresentation claim because Greuling failed to raise a genuine issue of material fact that the damages he claims were caused by the misrepresentation alleged. Minn.Stat. § 513.33, subd. 3(a)(3), precludes Greuling’s claim of promissory estoppel. Appeal from the summary judgment on breach of contract was waived by failure to brief the issue on appeal. We decline to reach the issue of equitable es-toppel raised for the first time on appeal.

Affirmed.

      . Although Greuling’s statement of the case filed on appeal noted that he is appealing summary judgment granted on his claim of breach of contract, this issue was not briefed on appeal and is therefore waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982).

      . The Bonhiver court cited to the draft of the Restatement, but the cite to the draft has been held to mean that the Restatement itself has been adopted. Florenzano v. Olson, 387 N.W.2d 168, 174 n. 3 (Minn.1986).


author: TOUSSAINT, Chief Judge.

text:
    MINNESOTA VOYAGEUR HOUSEBOATS, INC., Respondent, v. LAS VEGAS MARINE SUPPLY, INC., a Nevada corporation, et al., Respondents, Northern National Bank, n/k/a Wells Fargo Bank, Appellant.
    No. A04-866.
    Court of Appeals of Minnesota.
    Jan. 11, 2005.

      Joseph V. Ferguson, Paul William Wojc-iak, Johnson, Killen & Seiler, P.A., Duluth, MN, for appellant.
    Shannon M. O’Toole, St. Paul, MN, for respondents Las Vegas Marine Supply, Inc., et al.
    Minnesota Voyageur Houseboats, Inc., Orr, MN, respondent.
    Considered and decided by TOUSSAINT, Chief Judge; SHUMAKER, Judge; and HALBROOKS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant-garnishee bank challenges the summary judgment entered in favor of respondents-creditors. Because the bank properly exercised its right of setoff against the accounts of the debtor upon its default, we reverse.

FACTS

On cross-motions for summary judgment, appellant-garnishee Wells Fargo Bank (the bank) and respondents-creditors Las Vegas Marine Supply, Inc. and others (the creditors) did not dispute the material facts and filed a stipulation of fact with the district court.

On August 24, 1994, respondent-debtor Minnesota Voyageur Houseboats, Inc. (the debtor) executed a promissory note in favor of the bank in the amount of $530,160. The debtor agreed to make three payments of principal and interest each year on the first of July, August, and Septem: ber and gave the bank a security interest in its collateral. The note contained paragraphs setting out what constitutes “default” and what constitutes the “rights of [the] lender on default.” Those paragraphs state, in relevant part, that the debtor

will be in default ... in the event that [the debtor] ... (e) permits the entry or service of any garnishment, judgment, tax levy, attachment or lien against [the debtor], any guarantor, or any of their property or the Collateral!.] ...
If there is a default under this Note, [the bank] will be entitled to exercise one or more of the following remedies without notice or demand (except as required by law)[, including]:
(a) to declare the principal amount plus accrued interest under this Note and all other present and future obligations of [the debtor] immediately due and payable in full [and] ...
(f) to set-off [debtor’s] obligations against any amounts due to [the debtor].

The note also states that the bank’s “rights are cumulative and may be exercised together, separately, and in any order” and that its contractual remedies “are in addition to those available at common law, including, but not limited to, the right of set-off.”

The debtor made its payments on the loan, and there is no allegation that it was in arrears. On January 7, 1997, however, the creditors obtained a judgment for attorney fees, costs, and interest against the debtor in Nevada. The creditors caused the $94,636.29 Nevada judgment to be entered in Minnesota on February 13, 1997.

On August 20, 1997, the creditors served the bank with a garnishment summons. The next day, the bank withdrew $40,700 from the debtor’s checking account and, the following day, applied it to the loan. In the bank’s garnishment disclosure to the creditors, the bank stated that due to the default, i.e., “entry or service of any garnishment,” it had claimed an “offset in the amount of $40,700 which basically represents the amount in the checking account as of the day of receiving the garnishment.”

The creditors brought this action alleging that there was no indebtedness due and owing when the bank set off the debt- or’s accounts. They sought an order declaring the setoff void and awarding them the amount of the setoff. The court heard cross-motions for summary judgment and granted summary judgment for the creditors. Two months later, the court issued a nunc pro tunc order setting the amount of the judgment at $40,700. The bank appeals.

ISSUES

I. Did the debtor default under the promissory note?

II. Is acceleration of the debt a prerequisite to exercising an equitable or contractual right of setoff?

ANALYSIS

The application of law to stipulated facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

It is “all but universal” that “[w]hen a creditor serves a bank with notice of garnishment of a debtor’s bank account, ... the bank may set off the account against the debtor’s matured debts owed to the bank.” John TeSelle, Banker’s Right of Setoff—Banker Beware, 34 Okla. L.Rev. 40, 61 & n. 154 (1981). The prerequisites of setoff are: (1) mutuality of obligation; (2) funds are the property of the debtor; (3) funds must be a general, as opposed to a special, deposit; and (4) the existing indebtedness must be due and owing at the time of the setoff. Firstar Eagan Bank, N.A. v. Marquette Bank Minneapolis, N.A., 466 N.W.2d 8, 12 (Minn.App.1991), review denied (Minn. Apr. 29,1991).

The sole issue before this court is whether the fourth prerequisite was satisfied. The bank argues that the debt was due and owing because the debtor had defaulted on the promissory note. The debtor argues that the debt was not due and owing because the debtor was not in default on payments and, even if it was, the bank never declared the loan accelerated upon the default.

I.

The district court did not determine whether there was a default and, if so, when it occurred. The absence of such a determination is consistent with the creditors’ position before the district court that there were at least three dates of default: when judgment was entered in Nevada in January 1997, when judgment was entered in Minnesota in February 1997, and when the debtor was served with the garnishment summons on August 21, 1997. Nevertheless, the creditors now argue on appeal that (1) default did not occur until the debtor was served with the garnishment summons on August 21; and (2) the bank’s remedy for the earlier defaults upon the judgments was waived because it did not take timely action to exercise its remedies.

The record clearly reflects that defaults under the terms of the note occurred when judgments were entered first in Nevada and then in Minnesota. The creditors’ argument that the bank waived its remedies for these defaults is raised for the first time on appeal. This court will generally not consider matters not argued and considered in the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Here, the parties stipulated to facts and brought cross-motions for summary judgment. They agreed that the court had only one issue of law to decide— whether the debt was due and owing under the stipulated facts. All of the parties and the district court proceeded under the assumption that a default existed. Under these circumstances and in light of the anti-waiver provision in the note, this court declines to consider the issue of waiver for the first time on appeal.

II.

The district court concluded, and the creditors continue to take the position, that the bank was required to “accelerate” the loan before it could consider the indebtedness “due and owing” under the fourth prerequisite for setoff. The creditors argue that “acceleration” means that the bank was required to notify the debtor that its entire indebtedness was due and must be paid in full. It is undisputed that the bank never gave the debtor such notification. The bank argues that the debt is due and owing when the bank has the power to deem the debt due, i.e., upon default, and does not require that the bank exercise its power, to accelerate the debt.

Looking first at the contract between the bank and its customer, the debtor, the promissory note does not require that the lender accelerate the indebtedness before exercising its right to setoff. The provision regarding rights of the bank on default states that upon default the lender is “entitled to exercise one or more of the ... remedies without notice or demand (except as required by law).” The two remedies are then set out separately and distinctly:

(a) to declare the principal amount plus accrued interest under this Note and all other present and future obligations of the debtor immediately due and payable in full [and] ...
(f) to set-off the debtor’s obligations against any amounts due to the debtor including, but not limited to monies, instruments, and deposit accounts maintained with[the bank.].

The note clearly states that the bank’s rights are “cumulative and may be exercised together, separately, and in any order” and that its remedies are “in addition to those available at common law, including, but not limited to, the right of set-off.”

In light of the clear contractual language allowing setoff without acceleration, the issue is whether Minnesota law prohibits the parties from allowing the use of setoff without first accelerating the debt. This is an issue of first impression in Minnesota.

Minnesota recognizes both a contractual and equitable right of setoff. Nietzel v. Farmers & Merchants State Bank of Breckenridge, 307 Minn. 147, 152-53, 238 N.W.2d 437, 440 (1976). The right can also be statutory, but no statute is alleged to apply here. “A bank’s right to set off a debt owed it by a depositor against the depositor’s account is a balancing of accounts between debtor and creditor.” Id. at 149, 238 N.W.2d at 438. The first three prerequisites of setoff — mutuality, debtor’s funds, and general deposit— entitle the bank to set off the customer’s deposits against the customer’s debts with the bank and ensure that the setoff accomplishes an “extinction of mutual debts.” Firstar, 466 N.W.2d at 12. See generally 9 C.J.S. Banks & Banking § 302 (1996). “The general rule is that a bank may not set off a deposit against an unmatured debt of a depositor absent an agreement to that effect between the bank and the depositor.” TeSelle, supra, at 48 (emphasis added). The fourth prerequisite, that the debt be due and owing or “matured,” limits the circumstances in which the bank can exercise its right even though the other three prerequisites indicate that the bank-customer relationship exists.

Debt would certainly be due and owing if a lender rightfully accelerated a debt pursuant to an acceleration clause making the entire unpaid balance due and payable upon the debtor’s default. Barkley Clark, The Law of Bank Deposits, Collections and Credit Cards 14-10 (3d ed.1990). Here, although the note allowed the bank “to declare the principal amount plus accrued interest ... and all other present and future obligations of [the debtor] immediately due and payable in full,” the bank president testified the bank did not do so. Despite its option to accelerate, the bank proceeded with an alternative remedy under the note. Using the setoff remedy, the debtor could continue in business without suddenly having to pay the entire indebtedness. The parties’ agreement allowed the bank, upon default, to exercise a remedy without terminating the bank-customer relationship.

No Minnesota cases require acceleration as a prerequisite to setoff and the creditors cite only to Clark for the proposition that acceleration is required. While Clark does emphasize that an acceleration-upon-default provision is a certain method of making a debt mature or due and owing, he generally states that “[t]he debt of the depositor must be ‘mature,’ i.e., setoff cannot be exercised against the account of a customer who is not legally in default on his own obligation to the bank.” Id. at 14-2 (emphasis added). Clark does not address the specific situation where there is a default under a contract and the alternative remedies of acceleration and setoff are available upon default.

The bank relies on an Eighth Circuit case applying Missouri law for the proposition that acceleration is not mandatory as long as there is a default. The court concluded that “a bank need not take steps to effect a setoff prior to garnishment, but only must show that a default existed.” Frierson v. United Farm Agency, Inc., 868 F.2d 302, 304 (8th Cir.1989). See generally 9 C.J.S. Banks & Banking § 305 (1996) (indicating that some authorities recognize automatic right of setoff and others require that bank take some affirmative step to accomplish setoff). The Frierson court considered a loan agreement that provided for default if the debtor failed to discharge any judgment within thirty days. Id. The court held that on the day of the default, i.e., the day after the thirty-day period had run, the bank acquired the right to exercise setoff. Id. Consequently, the court concluded that the bank properly denied in its answers to interrogatories that it owed any money to the debtor because it had the right of setoff. Id.

In light of the parties’ agreement that the bank would have the alternative and cumulative remedies of acceleration and setoff, the reasoning of Frierson and its Missouri precedent is compelling. The remedies in the note were triggered by default; the bank, upon default, was entitled simultaneously to acceleration, setoff, or both, at the bank’s discretion. The bank had the power to choose its remedy, and there is no apparent reason to limit the bank’s options or discretion in choosing a remedy when the parties agreed to them. That this discretion existed in the parties’ agreement should suffice to entitle the bank to opt for the less drastic remedy of setoff without forcing acceleration. By contractually allowing alternative remedies, like setoff, the parties provided for remedies to fit the circumstances.

The creditors suggest that the bank’s actions were wrongful as to judgment creditors’ rights. They argue that the bank had unclean hands because the “irregularities in the actions of the Bank ... appear as if the Bank colluded with the customer.” This argument, however, is not supported by specific facts showing irregularities or collusion, much less facts indicating the note was voidable, and was not pursued at the hearing on cross-motions for summary judgment based on stipulated facts. The bank-customer relationship and their promissory note were extant before the creditors acquired their rights. It cannot be said from the record that the equities would be served by requiring the bank to call the entire indebtedness due, and possibly put the customer out of business, simply to pay the creditors’ judgment.

DECISION

Because the debt was “due and owing” upon default and the note provided for the alternative remedies of acceleration and setoff, the bank could exercise its right of setoff without first declaring the entire indebtedness immediately due and owing.

Reversed.

      . The creditors argue that reliance on Frierson v. United Farm Agency, Inc., 868 F.2d 302 (8th Cir.1989), raises a new theory for the first time on appeal. The issue in Frierson, however, is identical to the one litigated below — when is a debt due for purposes of quashing a garnishment? The creditors themselves framed the issue as such at the summary-judgment hearing. Citing to additional apposite cases on appeal does not prevent this court from considering the issue raised below.