author: MEYER, Justice. GILBERT, Justice PAGE, Justice ANDERSON, Paul H., Justice

text:
    HOUSING AND REDEVELOPMENT AUTHORITY of the CITY of ST. PAUL, Petitioner, Appellant, v. Geraldine M. LAMBRECHT, et al., Respondents Below, Shannon Kelly’s, Inc., Respondent.
    No. C7-01-1919.
    Supreme Court of Minnesota.
    June 26, 2003.

      Margaret K. Savage, Marc J Mander-seheid, Lisa M. Agrimonti, Briggs and Morgan, P.A., St. Paul, MN, for appellant.
    Patrick J. Kelly, Sarah J. Sonsalla, Kelly & Fawcett, P.A., St. Paul, MN, for Shannon Kelly’s, Inc., respondent.
   OPINION

MEYER, Justice.

This appeal arises out of the dismissal by summary judgment of a lessee’s claim of loss of going-concern damages in a condemnation proceeding. The district court granted the Housing and Redevelopment Authority of the City of Saint -Paul’s (HRA) motion for partial summary judgment against Shannon Kelly’s, Inc. (Shannon Kelly’s). The court determined that Shannon Kelly’s could not establish a claim for loss of going-concern damages as a matter of law; and in any event, the claim was precluded by certain lease language and the acceptance of relocation benefits by Shannon Kelly’s. The court of appeals reversed on all three grounds, finding that issues of genuine fact remain as to whether a claim for loss of going concern existed and that neither the lease language nor the acceptance of relocation benefits precluded recovery. We granted review only on the limited issue of whether the district court erred in holding that Shannon Kelly’s was not entitled to recover for loss of going-concern value.

We reverse the court of appeals on two grounds. We conclude that the condemnation clause in Shannon Kelly’s lease precluded any recovery for loss of going-concern damages because the lease language effectively ended Shannon Kelly’s interest in the property upon condemnation. In addition, we conclude that Shannon Kelly’s did not establish its claim as a matter of law and the district court properly granted summary judgment to HRA. We decline to address whether Shannon Kelly’s claim is also precluded by the acceptance of relocation benefits.

On July 30,1997, HRA adopted a resolution authorizing the condemnation of Block 39 as part of a redevelopment plan in downtown St. Paul. Block 39 is bounded by St. Peter, Fifth, Wabasha, and Sixth Streets and includes 395 Wabasha, which housed Shannon Kelly’s. Shannon Kelly’s was a restaurant/brewery owned by James H. McGovern and had occupied its downtown location for over seven years. McGovern also owned twenty-five percent of W.O.A.M., Inc., the corporation that owned 395 Wabasha at the time Block 39 was condemned. Upon adopting the resolution, HRA sent letters to all of the businesses affected, including W.O.A.M. and Shannon Kelly’s, notifying them of the pending condemnation and offering relocation assistance.

On October 9, 1997, HRA filed its petition in condemnation in Ramsey County District Court. On October 20, 1997, W.O.A.M., with knowledge of the pending condemnation, sold 395 Wabasha to Hoyt Development Company (Hoyt). That same day, Shannon Kelly’s entered into a five-year lease agreement with Hoyt. The lease contained a “condemnation clause” that allegedly terminated the lease upon condemnation and a clause that allowed the lessee the right to remove personal property and trade fixtures upon termination of the lease.

On December 31, 1997, the district court granted HRA’s petition for condemnation, appointed three commissioners to value the property, authorized payment, and provided for the transfer of title for all properties located on Block 39. As a result of this order, on February 5, 1998, HRA advanced Shannon Kelly’s $100,000 in relocation benefits and deposited with the district court a sum for the value of fixtures and land. McGovern removed from Shannon Kelly’s his brewery equipment, a center island bar, a smoke eater, kitchen equipment, office equipment, grain and hops related to the brewery, and the stained glass from a ceiling-mounted light fixture.

On February 10, 1998, McGovern signed a purchase agreement for the Shore Club Bar & Restaurant, located at 301 Stillwa-ter Road in Willernie, Minnesota. After obtaining a liquor license from the City of Willernie, McGovern began operating the restaurant under a new name, Manitou Island Inn (the Inn). McGovern transferred some of Shannon Kelly’s assets to the Inn, such as a smoke eater, a center island bar, and stained glass. Because the Inn was not a brewery, McGovern was unable to utilize Shannon Kelly’s brewing equipment and it remained in storage. A number of employees from Shannon Kelly’s were hired to work at the Inn.

In July 1999, three court-appointed commissioners determined that the condemnation award for 395 Wabasha should be $700,000 for the value of the real estate, $263,000 for the value of the trade fixtures, and $77,000 for Shannon Kelly’s going-concern value, for a total award of $1,040,000. In their award, the commissioners did not specify how this amount was to be divided between Hoyt (the lessor) and Shannon Kelly’s (the lessee). All parties subsequently appealed to the district court. Shannon Kelly’s appealed on the basis that the damages awarded by the commissioners did not constitute just compensation. Hoyt appealed on the grounds that the damages were inadequate and that the commissioners failed to award the entire compensation award to it. HRA cross-appealed on the basis that the award was contrary to the evidence and that it improperly included a claim for loss of going concern when no such loss was established at the commissioners’ hearing.

In November 2000, HRA moved for partial summary judgment on Shannon Kelly’s loss of going-concern claim. In support of its motion, HRA provided an affidavit from Robert Kessler, the Director of the Office of License, Inspections and Environmental Protection for St. Paul, the office in charge of executing liquor licenses. In his affidavit, Kessler stated there was no reason that McGovern could not have obtained a liquor license to operate a bar in a new location in St. Paul after 395 Wabasha was condemned. HRA also provided excerpts from McGovern’s depositions and multiple other documents to support its motion.

In its response, Shannon Kelly’s provided an affidavit of McGovern, in which he described his attempts to relocate Shannon Kelly’s in downtown St. Paul, and that his clientele came from within a one block to one and one-half block radius from 395 Wabasha. He noted in his affidavit that he was not able to relocate Shannon Kelly’s and that any attempt to relocate Shannon Kelly’s further than one block to one and one-half blocks would cause irreparable harm to his business. McGovern claimed the condemnation resulted in the destruction of the going concern of his business because he was not able to relocate his business in downtown St. Paul. Shannon Kelly’s argued that the going-concern value would be developed by experts at trial. No other documentation to support these contentions was provided at the summary judgment hearing.

The district court granted HRA’s motion for partial summary judgment on three grounds. First, it concluded that Shannon Kelly’s could not assert a valid claim for loss of going concern because it could not establish either prong of the test set forth in City of Minneapolis v. Schutt, 256 N.W.2d 260 (Minn.1977). The district court concluded that Shannon Kelly’s could not meet the first prong because its going-concern value did not come primarily from its location, it did not enjoy a monopoly, its customers were not captive, it was not unique, and there was no indication it was precluded from relocating because of the unavailability of liquor licenses in St. Paul. The district court noted that two other breweries existed in downtown St. Paul and that many other businesses had converted old bars into new establishments with the creation of the Xcel Energy Center. The district court also concluded that Shannon Kelly’s could not meet the second prong of Schutt because it could relocate elsewhere and, in fact, McGovern had opened a new restaurant elsewhere in the state. Second, the district court noted that even if Shannon Kelly’s could have established a valid loss of going-concern claim, the claim was precluded because of the condemnation language in its lease. Finally, the district court also noted that Shannon Kelly’s acceptance of payments for relocation benefits precluded it from asserting a loss of going-concern claim.

Shannon Kelly’s appealed. The court of appeals reversed on all three grounds. Housing & Redevelopment Auth. of the City of St. Paul v. Lambrecht, 645 N.W.2d 157,166-68 (Minn.App.2002). The court of appeals began by noting that genuine questions of material fact remained as to whether Shannon Kelly’s business had satisfied the requirements under Schutt. Id. at 166. The court of appeals concluded that whether the location is unique or transferable (the second Schutt factor) is a question of fact to be resolved by the jury rather than a question of law to be decided by the district court. Id. Therefore, the district court had improperly engaged in fact-finding in denying Shannon Kelly’s claim. The court further determined that neither the lease language nor the acceptance of relocation benefits precluded Shannon Kelly’s claim for loss of going concern. Id. at 167-68. HRA appealed.

A party seeking compensation in a condemnation action must prove that (a) they had an interest in the condemned property; (b) the interest was taken by the government in the course of the condemnation; and (c) the interest taken is compensable. See State v. Saugen, 283 Minn. 402, 169 N.W.2d 37, 39 (1969). Because the parties do not dispute the government took Block 39 in the course of a condemnation, the two issues to be decided are whether Shannon Kelly’s had an interest in the property at the time of condemnation and whether that interest is com-pensable.

We begin by addressing whether Shannon Kelly’s had an interest in the condemned property at the time of condemnation. Because this issue requires interpretation of contractual provisions, we review this issue de novo. Progressive Specialty Ins. Co. v. Widness ex rel. Widness, 635 N.W.2d 516, 518 (Minn.2001).

Generally, upon condemnation of property by a government body, a tenant is entitled to share in the award of the property to the extent of the valuation of such leasehold. See United States v. Petty Motor Co., 327 U.S. 372, 378-79, 66 S.Ct. 596, 90 L.Ed. 729 (1946); Jay M. Zitter, Validity, Construction, and Effect of Statute or Lease Provision Expressly Governing Rights and Compensation of Lessee upon Condemnation of Leased Property, 22 ALR5& 327, 350 (1994). A lease agreement containing what is commonly referred to as a “condemnation clause” may further determine the rights of the tenant in the event of a condemnation. Zitter, 22 ALR5th at 350 (observing that a condemnation clause may provide that the lease ends automatically upon condemnation, or that the lease could be cancelled at the option of a party, or that some or all of the tenant’s rights are assigned to the landlord). When the lease contains a clause that “automatically terminates [the lease] upon condemnation of the land, the lessee is entitled to no compensation for the loss of his leasehold interest, since he agreed in advance to such a termination.” Naegele Outdoor Adver. Co. of Minnesota, Inc. v. Village of Minnetonka, 281 Minn. 492, 503, 162 N.W.2d 206, 214 (1968).

Shannon Kelly’s lease provided that:

15. Condemnation. The parties hereto agree that if the leased premises, or any part thereof, shall be taken or appropriated for public use by any public or quasi-public authority during the term of this lease, that this lease shall terminate. as of the date of such appropriation and all condemnation proceeds shall be the sole property of Lessor; it is further agreed that if this lease is terminated because of a [sic] such taking of the property, that the monthly rental for the month in which the condemnation taking occurs shall be prorated between the parties hereto.

(Emphasis added.) We examined a similar lease provision in Korengold v. City of Minneapolis, 254 Minn. 358, 95 N.W.2d 112 (1959). Korengold involved a condemnation proceeding by the City of Minneapolis for a public library site in downtown Minneapolis. 254 Minn, at 359, 95 N.W.2d at 113. A dental lab was a tenant in one of the condemned buildings. Id. The owner of the dental lab had signed a lease containing the following provision:

The tenant further agrees that if the demised premises, or any part thereof, or any part of the improvements of which they form a part, shall be taken for any street or other public use, or shall during the continuance of this lease be destroyed by the action of the public authorities, then this lease and the term demised shall thereupon terminate.

Id. at 359-60, 95 N.W.2d at 114. We denied the tenant damages for equipment and fixture removal and relocation because the condemnation clause left the tenant “without a compensable interest in the condemned premises.” Id. at 362, 95 N.W.2d at 115. In denying the claim, we adopted the general rule that if a tenant agrees to a lease clause that automatically terminates a lease at the time of condemnation, “ ‘the tenant has no right which persists beyond the taking and can be entitled to nothing.’ ” Id. at 363, 95 N.W.2d at 115 (quoting Petty Motor Co., 327 U.S. at 376).

The condemnation clause in Shannon Kelly’s lease is substantially the same as the corresponding lease term in Koren-gold. Shannon Kelly’s attempts to distinguish Korengold from the instant case because Korengold involved a lessee’s claim for fixtures and the instant claim is one for loss of going-concern value. Shannon Kelly’s argument is not persuasive. Whether the claim is for fixtures, equipment, or loss of going concern, the condemnation clause unequivocally terminates Shannon Kelly’s rights in the property at the time of condemnation. The condemnation clause in Shannon Kelly’s lease was designed to describe the rights of each party upon the occurrence of certain events. Had Shannon Kelly’s intended to retain some rights in the property after condemnation, it could have retained those rights through the lease agreement. We conclude that Shannon Kelly’s contracted away all its rights in the property, including any claim for loss of going concern. We hold that the condemnation provision in the lease agreement terminated Shannon Kelly’s interest in the property at the time of condemnation and therefore it did not have an interest in the condemned property.

We next address whether the district court properly granted summary judgment to HRA. The court of appeals reversed the district court’s grant of summary judgment, finding that the evidence was sufficient to withstand a motion for summary judgment and concluding that the Schutt factors were questions of fact to be resolved by the jury rather than questions of law to be decided by the district court.

On appeal from an order for summary judgment, we examine whether there are any genuine issues of material fact, whether either party is entitled to judgment as a matter of law, and whether the lower court erred in its application of the law. See Pergament v. Loring Properties, Ltd., 599 N.W.2d 146, 149 (Minn.1999); Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). Summary judgment is appropriate when the record shows a complete lack of proof on any essential element of the plaintiffs claim. Lubbers, 539 N.W.2d at 401 (holding that to establish a genuine issue of material fact the nonmoving party cannot merely make con-clusory unverified statements or explain what evidence might be established at trial).

Under both the Minnesota and federal constitutions, private property cannot be taken without just compensation, but there is no requirement that compensation be paid for every interest taken. See Kimball Laundry Co. v. United States, 338 U.S. 1, 5, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949) (finding that not all takings are compensable under the Fifth Amendment); Schutt, 256 N.W.2d at 265 (holding that the loss of twenty percent of a business through a permanent taking did not result in the loss of a compensable interest). In general, courts have held that a lessee is not entitled to compensation for a claim alleging loss of going concern because such a claim is not a taking under the constitution, the going-concern value is too intangible to constitute property under the constitution, or the amount of damages resulting from the loss of this interest is too speculative. Schutt, 256 N.W.2d at 261-62.

In Minnesota, the business owner must satisfy both prongs of the Schutt test to obtain compensation for loss of going concern. Those two prongs are that (1) “his going-concern value will in fact be destroyed as a direct result of the condemnation” and (2) “his business either cannot be relocated as a practical matter, or that relocation would result in irreparable harm to the interest.” Id. at 265. As long as the business can potentially be relocated, courts have held that the government has not taken any interest compensable under the constitution, even though the owner can show that the goodwill of the business suffered damage or that there are no suitable places to which the business could be relocated. See Kimball Laundry, 338 U.S. at 11-12, 69 S.Ct. 1434; 26 Am.Jur.2d, Eminent Domain § 335 at 749 (1996). Under circumstances where the business can potentially be relocated, the condemnation has only taken the physical property and has not prevented the business owner from actually moving his business. Kimball Laundry, 338 U.S. at 11-12, 69 S.Ct. 1434 (stating that while the business owner may suffer a loss because he has difficulty finding another suitable location, this type of alleged loss is “so speculative that proof of it may justifiably be excluded” by the district court). But see Saugen, 283 Minn, at 410, 169 N.W.2d at 42-43 (awarding loss of going-concern damages because the business owner’s attempts to obtain a new liquor license were refused); City of Detroit v. Michael’s Prescriptions, 143 Mich.App. 808, 373 N.W.2d 219, 225 (1985) (finding loss of going concern where entire segments of a residential and business community eliminated drug store’s customer base); City of Lansing v. Wery, 68 Mich.App. 158, 242 N.W.2d 51, 52-53 (1976) (finding loss of going concern when relocation attempts were prevented by government action).

We consider the proper role of the district court in deciding questions that arise under Schutt. HRA claims the court should apply the Schutt factors to decide as a matter of law whether there has been a taking before submitting any question of damages to the jury. On the other hand, Shannon Kelly’s asserts the court of appeals properly determined that the Schutt questions are decided by the jury.

We have long held that the power to determine whether there has been a taking is vested in the court and is not within the purview of the jury. State v. Prow’s Motel, Inc., 285 Minn. 1, 4-5, 171 N.W.2d 83, 85-86 (1969) (holding “that the power to determine whether some property right of a landowner has been taken or damaged in a constitutional sense [is] vested in the trial court”); see 27 Am.Jur.2d, Eminent Domain § 617 at 163-64 (1996) (stating that in general the district court “has the duty to determine such issues as the condemnor’s legal authority to take and the limits thereon, the purpose of the taking, the necessity and expediency of the taking, and questions of title”). Once the trial court determines the threshold question of whether an interest has been taken, then the parties present evidence of the loss of that interest to the jury for a determination of the amount of compensation due. See Prow’s Motel, 285 Minn, at 6-7, 171 N.W.2d at 86; 27 Am.Jur.2d, Eminent Domain § 618 at 164. We conclude that the court, not the jury, has the power to apply the Schutt factors to determine whether a compensable interest exists. The court of appeals erred when it concluded that “whether the location is unique or transferable is a question for the trier of fact.” Lambrecht, 645 N.W.2d at 166. We reverse the court of appeals and hold that the district court must apply the Schutt two-prong test to any claim for loss of going concern as a matter of law before submitting damages to the jury.

We now consider whether the district court correctly applied the Schutt two-prong test in denying Shannon Kelly’s claim for loss of going-concern value. At summary judgment, Shannon Kelly’s alleged its business was destroyed as a direct result of the condemnation, that it could not be relocated without causing irreparable harm to its business, and that it did not succeed in relocating as a practical matter. In support of these contentions, McGovern alleged that his business was expressly tied to 395 Wabasha and therefore was taken as a direct result of the condemnation action. McGovern described his many attempts to relocate Shannon Kelly’s throughout St. Paul and his inability to find a suitable relocation site. However, the district court found that the inability to relocate was not due to the fact that the property was unique; that the business was directly tied to the location; that no liquor licenses were available in the city of St. Paul; or because government action had prevented the relocation. Rather, as he stated numerous times in his deposition, McGovern’s efforts to relocate Shannon Kelly’s failed because he was unwilling or unable to pay the price required to secure an alternate downtown location. Other than McGovern’s unsupported affidavit, Shannon Kelly’s has not provided any evidence showing that it was unable to relocate. See Kimball Laundry, 338 U.S. at 11, 69 S.Ct. 1434 (finding that when the ability to relocate is prevented by the owner’s “good fortune or lack of it in finding premises suitable for the transference of going-concern value,” then as a matter of law the government has not taken the going-concern value). We conclude that Shannon Kelly’s failed to establish that its business could not be relocated, and we affirm the district court’s grant of summary judgment for HRA.

Reversed and remanded.

HANSON, J., took no part in the consideration or decision of this case.

Concurring in part, dissenting in part, GILBERT, J.

GILBERT, Justice

(concurring in part and dissenting in part).

While I generally concur with the result reached by the majority based on this record, we should end our discussion with the termination of condemnation rights in the lease. I disagree with the majority’s characterization of the proper role of the district court in always deciding questions that arise under City of Minneapolis v. Schutt, 256 N.W.2d 260 (Minn.1977). The resolution of the first issue renders the remaining issue moot and all that follows is dicta. We should save any discussion on the Schutt test for another day when it is properly presented for decision.

In this case, we are reviewing a summary judgment granted by the district court as a matter of law on undisputed facts. The district court based its decision on the premise there was no genuine issue of material facts presented and then ruled as a matter of law that the Schutt factors had not been met. Furthermore, Schutt also involved undisputed facts on cross motions for summary judgment. 256 N.W.2d at 261. It is unnecessary and' improper to conclude that therefore in all other cases alleging loss of going concern it is for the court and not the jury to apply the Schutt factors in all circumstances. There is no authority cited by the majority supporting this proposition of law. The majority also engages in improper factual finding. We should simply reverse the court of appeals and affirm the district court based on the undisputed facts presented and hold the court did not err as a matter of law under the facts of this case.

PAGE, Justice

(concurring specially).

I concur in the result. I agree with Justice Gilbert, however, that upon concluding that Shannon Kelly’s did not have an interest in the condemned property, nothing more needed to be or should have been said.

ANDERSON, Paul H., Justice

(concurring specially).

I join in the special concurrence of Justice Page.

      . On a separate summary judgment motion, the court granted a dismissal of Shannon Kelly's claim for recovery on the fixtures, concluding that the lease between Hoyt and Shannon Kelly’s clearly and unequivocally terminated Shannon Kelly’s interest in the property, and awarding all condemnation proceeds for fixtures to Hoyt. Shannon Kelly’s did not appeal from the court's dismissal of the claim.

      . Having disposed of Shannon Kelly's claim under the terms of the lease, it is not necessary for us to reach this issue. Nevertheless, we believe the court of appeals incorrectly decided the question and we .write to provide clarification on this important point of law.

      . Shannon Kelly’s asserts that it "was not given the opportunity to defend the summary judgment motion by presenting additional affidavits and testimony demonstrating the importance of Shannon Kelly’s location through statistical studies of its customer base, the financial unfeasibility of relocation, and the fair market value of its business.” The record establishes that discovery was completed when HRA moved for summary judgment and Shannon Kelly's never sought additional time from the district court in which to respond to the summary judgment motion. Having failed to raise this issue before the district court, Shannon Kelly's has waived its opportunity to complain.


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Justice.

license: Public Domain

text:
    Sandra BODAH, et al., on their own behalf and on behalf of all others similarly situated, Respondents, v. LAKEVILLE MOTOR EXPRESS, INC., Petitioner, Appellant.
    No. C5-02-276.
    Supreme Court of Minnesota.
    June 26, 2003.
   OPINION

ANDERSON, RUSSELL A., Justice.

In this case, the court of appeals reversed the district court’s order dismissing, on the pleadings, the complaint of respondents Sandra Bodah, Wayne Senne, John Tonsager, and Mark Urick (respondents). On review, we consider an issue of first impression: whether allegations in the complaint — that appellant Lakeville Motor Express, Inc.’s (LME) dissemination by facsimile of 204 employee names and social security numbers to 16 related or associated terminal managers in six states and “[t]hat upon information and belief the private information has not been redacted or erased and is still being shared or is accessible in general” — constitute the requisite “publicity” under Minnesota law to support a claim for publication of private facts, an invasion of privacy tort. We adopt the definition of “publicity” from the Restatement (Second) of Torts § 652D cmt. a (1977). Further, we hold that the complaint does not allege the requisite “publicity” to support a claim for publication of private facts. We reverse.

The facts recited in the pleadings may be summarized as follows. LME, a trucking company based in Minnesota, transports shipments throughout the upper Midwest, including Minnesota, Illinois, Iowa, North Dakota, South Dakota, and Wisconsin. In distributing freight, LME utihzes trucking terminals that are either owned by LME or its agents or are owned by independent trucking companies.

On January 4, 2001, LME Safety Director William Lowell Frame (Frame) sent a facsimile transmission to the terminal managers of 16 freight terminals. The cover sheet was addressed to “Terminal Managers,” not to named individuals, and stated that the purpose of the fax was to allow LME to “keep computer records for terminal accidents-injuries etc.” The cover sheet requested that the terminal managers “[pjlease review [the] list for your terminals!;] add or delete accordingly.” Attached to the cover sheet was a five-page list of the names and social security numbers of 204 LME employees.

Shortly after LME disseminated the list, head Union Steward John Tonsager confronted Frame and LME President Peter Martin (Martin) about the dissemination of sensitive employee information and expressed his concern about identity theft. On May 1, 2001, Martin sent a letter to LME employees notifying them of the January 4 transmission. In the letter, Martin apologized for LME’s mistake in sending the list to the other terminals and reported that the terminal managers were instructed to destroy or return the list immediately. Martin indicated that his instructions had been followed and that, as far as he knew, the terminal managers had not shared the information with anyone.

On or about September 6, 2001, respondents filed a class action lawsuit on behalf of themselves and all class members alleging that LME’s dissemination of their social security numbers to the 16 terminal managers constituted an invasion of their right to privacy.

LME moved for dismissal of this action under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief may be granted. The district court determined that the dissemination did not constitute “publicity” under a claim for publication of private facts and granted LME’s motion to dismiss. The court of appeals reversed and remanded, holding that “[a]n actionable situation requires a level of publication that unreasonably exposes the appellant to significant risk of loss under all the circumstances,” and concluding that the appropriate consideration includes the nature of the private fact and the harm to which the plaintiff is exposed as a result of the dissemination as well as the breadth of disclosure. Bodah v. Lakeville Motor Express, Inc., 649 N.W.2d 869, 866 (Minn.App.2002).

In reviewing cases involving dismissal for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(e), the question before the appellate court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). The standard of review is therefore de novo. See Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 858 N.W.2d 639, 642 (Minn.1984) (“[A]n appellate court need not give deference to a trial court’s decision on a legal issue.”). The reviewing court must consider only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the nonmoving party. Marquette Nat’l Bank v. Norris, 270 N.W.2d 290, 292 (Minn.1978).

In Lake v. Wal-Mart Stores, Inc., this court adopted three separate causes of action which are generally referred to as the tort of invasion of privacy: intrusion of seclusion, appropriation of a name or likeness of another, and publication of private facts. 582 N.W.2d 231, 236 (Minn.1998). The rationale behind recognizing the tort of invasion of privacy is that “[t]he right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close.” Id. at 235. According to Lake, to state a claim for publication of private facts, a plaintiff must demonstrate that one “ ‘gives publicity to a matter concerning the private life of another * * * if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.’ ” Id. at 233 (quoting Restatement (Second) of Torts, § 652D). The Lake court did not define “publicity.” See C.L.D. v. Wal-Mart Stores, Inc., 79 F.Supp.2d 1080, 1083 (D.Minn.1999) (“[R]elevant Minnesota eases offer no guidance regarding what facts an invasion of privacy tort claimant must allege in order to satisfy the burden of showing that ‘publicity’ or ‘publication’ of private information has occurred. * * * Lake thus conferred upon other courts the task of defining the contours of these newly recognized causes of action.”).

Under the Restatement, “ ‘[publicity’ * * * means that the matter is made pub-lie, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Restatement (Second) of Torts § 652D cmt. a. The Restatement distinguishes “publicity” for purposes of invasion of privacy from “publication” for defamation:

“Publicity,” as it is used in this Section, differs from “publication,” as that term is used in § 577 in connection with liability for defamation. “Publication,” in that sense, is a word of art, which includes any communication by the defendant to a third person. * * * The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.
Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiffs private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.

Id. For example, as the Restatement illustrates, the posting of a statement in a shop window, where it is read by passers-by, that a customer owes a debt, constitutes “publicity” under the Restatement. Id. at cmt. a, illus. 2.; see also Purdy v. Burlington N. & Santa Fe Ry. Co., No. 98-833, slip op. at 6 (D.Minn. Mar. 28, 2000) (concluding that if Purdy were to publish 800 employees’ salaries and social security numbers on the Internet, the employees would likely succeed on an invasion of privacy claim); Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 968, 971 (1927) (exemplifying “publicity” under the Restatement— posting a 5-by 8-foot notice calling attention to a customer’s overdue account in a show window of an automobile garage constitutes publicity); Biederman’s of Springfield, Inc. v. Wright, 322 S.W.2d 892, 898 (Mo.1959) (holding that loud declarations of indebtedness in a public restaurant constituted “publicity”). By contrast, where defendants threatened to disseminate a “Dead-Beat Parent” poster to the public at large but in fact only delivered the poster to the plaintiffs employer and a few close relatives, distribution to this “handful of people” was insufficient to constitute “publicity.” Jones v. United States Child Support Recovery, 961 F.Supp. 1518, 1520-21 (D.Utah 1997); see also Hendry v. Conner, 303 Minn. 317, 319, 226 N.W.2d 921, 922-23 (1975) (concluding, pre-Lafce, that statement made by hospital credit department employee in loud voice in the presence of people in waiting room that plaintiffs child could not be admitted to the hospital unless an outstanding bill was paid would not constitute “publicity”).

LME maintains that the dissemination by fax of a list of 204 employee names and social security numbers to 16 associated or related terminal managers in six states and the allegation that the private information is being shared or is accessible in general does not constitute “publicity” to support an invasion of privacy claim. Specifically, because the complaint does not allege that the dissemination of the numbers was to the public at large or that the disclosure involved so many people that the numbers were substantially certain to become public knowledge, as required by the Restatement, it fails to allege the requisite “publicity.” LME also argues that the court of appeals should be reversed because it “further modified the law” by inappropriately “shifting the burden of proof’ of the prima facie case to LME to show “that LME took reasonable steps to contain the dissemination of the social security numbers and that such steps were effective.” LME refers to the court’s closing paragraphs:

At this stage in the litigation, it is impossible to determine what happened. * * * Through affidavits, depositions, or, if necessary, witnesses at a trial, respondent can easily define the practices in the terminals and what occurred with the information. That would shift the burden back to the appellants to show either widespread dissemination or improper use.
The district court is in the best position to determine whether actionable publication occurred. The publicity requirement in this case, where the dissemination was not for profit or with malicious intent, ought to be whether it unreasonably exposed appellants to a significant risk that their social security numbers would be misused.

Bodah, 649 N.W.2d at 866-67.

Respondents contend that their complaint alleges sufficient “publicity” to defeat LME’s Rule 12.02(e) motion. Respondents point to various facts: that LME disseminated the names and social security numbers to 16 trucking terminals across six states, that it is unknown whether the numbers were treated as confidential information after they were received because there was no warning to that effect on the fax cover sheet, that LME did not take action for as long as four months after the dissemination, and that the numbers may not have yet been redacted or destroyed. Furthermore, respondents embrace the court of appeals’ unique approach to defining “publicity” which looks not only at the breadth of disclosure but also at “the nature of the private data and the damage [implicated by its disclosure].” Bodah, 649 N.W.2d at 866.

We first address LME’s argument that the court of appeals should be reversed because it inappropriately shifted the burden of proof to LME. We agree with LME that the plaintiff carries the burden to prove that “publicity” of private facts has occurred. See C.L.D., 79 F.Supp.2d at 1084, 1085-86. However, we do not interpret the court of appeals’ language, quoted above, to indicate that the burden for the prima facie case shifts to the defendant, here LME. Rather, it appears to us that the court was suggesting that LME could have converted the respondents’ Rule 12.02(e) motion into a motion for summary judgment by producing matters outside the pleadings or that, if the case were to move forward and respondents were to move for summary judgment, they would be entitled to summary judgment if LME failed to present specific facts disproving the “publicity.” See Minn. R. Civ. P. 12.02; 56.03; 56.05.

We now turn to the “publicity” element of the tort of publication of private facts. At the outset, we choose not to embrace the court of appeals’ approach to defining “publicity.” The court of appeals’ hybrid approach uses the Restatement’s breadth of disclosure analysis but adds as an additional factor “the nature of private data and the damage.” Bodah, 649 N.W.2d at 866. Using both factors, the court of appeals fashioned a narrow publicity requirement under the facts of this case: “where the dissemination was not for profit or with malicious intent, [the publicity requirement] ought to be whether [the dissemination] unreasonably exposed appellants to a significant risk that their social security numbers would be misused.” Id. at 867. We think this definition emasculates the distinction between public and private by suggesting that “publicity” can be established by “either widespread dissemination or improper use.” Id. (emphasis added). Furthermore, by looking to the nature of the private data as part of the “publicity” element, the court blurs the distinction between the “publicity” element and the other elements of the tort of publi- • cation of private facts which require that the private data “not [be] of legitimate concern to the public” and that the publicity be “highly offensive.” Restatement (Second) of Torts § 652D; see also Bodah, 649 N.W.2d at 866. Finally, a lack of reasonableness is neither an element of the invasion of privacy tort of publication of private facts nor part of the publicity analysis. As such, the court of appeals’ determination that “[a]n actionable situation requires a level of publication that unreasonably exposes the appellant to significant risk of loss under all the circumstances” inappropriately emphasizes the reasonableness of the defendant’s actions. Bodah, 649 N.W.2d at 866.

We also reject the “special relationship” or “particular public” approach taken by some jurisdictions. These jurisdictions have concluded that certain situations— where there is a special relationship between the plaintiff and the public — warrant departure from the Restatement’s stringent publicity requirement. See, e.g., McSurely v. McClellan, 753 F.2d 88, 112, 113 (D.C.Cir.1985) (holding that publication of private facts “may be satisfied by proof of disclosure to a very limited number of people when a special relationship exists between the plaintiff and the ‘public’ to whom the information has been disclosed,” and concluding that the publicity element was satisfied where the wife’s private papers discussing her premarital behavior were disclosed to her spouse); Miller v. Motorola, Inc., 202 Ill.App.3d 976, 148 Ill.Dec. 303, 560 N.E.2d 900, 903 (1990) (“Where a special relationship exists between the plaintiff and the ‘public’ to whom the information has been disclosed, the disclosure may be just as devastating to the person even though the disclosure was made to a limited number of people. * * * Plaintiffs allegation that her medical condition was disclosed to her fellow employees sufficiently satisfies the requirement that publicity be given to the private fact.”); Beaumont v. Brown, 401 Mich. 80, 257 N.W.2d 522, 531 (1977) (holding a disclosure made to a “particular public” with a special relationship to the plaintiff, such as co-workers, family, or neighbors, could be actionable), overruled in part on other grounds by Bradley v. Saranac Cmt. Sch. Bd. of Educ., 455 Mich. 285, 565 N.W.2d 650, 658 (1997).

We decide, instead, to adopt the Restatement definition of “publicity.” We conclude, therefore, that “publicity” means that “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Restatement (Second) of Torts § 652D cmt. a. In doing so, we have considered whether there are legitimate or compelling reasons of public policy that justify imposing liability for egregious but limited disclosures of private information. We conclude, nevertheless, that the Restatement’s publicity requirement best addresses the invasion of privacy cause of action — absent dissemination to the public at large, the claimant’s “private persona” has not been violated. See Lake, 582 N.W.2d at 235.

Furthermore, we think the Restatement definition appropriately limits the publication of private facts cause of action. Though much has been written on the subject, we reflect on the concerns of Samuel Warren and Justice Louis Bran-déis — “the evil of the invasion of privacy by the newspapers” and “whether our law will recognize and protect the right to privacy in this and in other respects” — and Warren’s and Brandéis’ recognition of limitations to this right. Samuel D. Warren & Louis D. Brandéis, The Right to Privacy, 4 Harv. L.Rev. 193, 195, 196, 214-19 (1890). These concerns provided the foundation for all four invasion of privacy torts but resonate particularly with the tort of publication of private facts. William L. Prosser, Privacy, 48 Cal. L.Rev. 383, 383-89 (1960) (tracing the evolution of the four invasion of privacy torts). As Warren and Brandéis noted more than 100 years ago:

The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will.

Warren & Brandeis, supra, at 214-15. We understand the tort of publication of private facts to focus on a very narrow gap in tort law — to provide a remedy for the truthful but damaging dissemination of private facts, which is nonactionable under defamation rules. See Britton v. Koep, 470 N.W.2d 518, 520 (Minn.1991) (“The elements of a cause of action for defamation include a false and defamatory statement about the plaintiff * * *.”); Doe v. Methodist Hosp., 690 N.E.2d 681, 687 (Ind. 1997) (“Defamation rules apply * * * only to statements that are false as well as defamatory.”). The Restatement’s definition of “publicity,” which requires a broad reach, constrains the tort of publication of private facts.

We turn now to the application of the Restatement’s publicity requirement to the instant facts. We conclude that respondents’ claim that LME disseminated 204 employees’ social security numbers to 16 terminal managers in six states does not constitute publication to the public or to so large a number of persons that the matter must be regarded as substantially certain to become public. See, e.g., C.L.D., 79 F.Supp.2d at 1084 (concluding that disclosure of private facts to only a few employees did not constitute publication); Dancy v. Fina Oil & Chem. Co., 3 F.Supp.2d 737, 740 (E.D.Tex.1997) (finding insufficient publication where “the allegedly publicized facts, at worst, were made known to some workers in the refinery”); Kuhn v. Account Control Tech., Inc., 865 F.Supp. 1443, 1448 (D.Nev.1994) (concluding that no “publicity” existed where dissemination of information regarding Kuhn’s indebtedness was to a small group of co-workers); Lewis v. Snap-On Tools Corp., 708 F.Supp. 1260, 1262 (M.D.Fla. 1989) (“The mere conclusory allegation that the alleged disclosure was to ‘large numbers of persons’ does not meet the requirement that the publication be to the general public * * *.”); Wells v. Thomas, 569 F.Supp. 426, 437 (E.D.Pa.1983) (determining that publication to community of employees at staff meetings “and discussions between defendants and other employees” does not constitute “publicity”); Doe, 690 N.E.2d at 692 (concluding that the disclosures to co-workers that plaintiff was HIV-positive did not satisfy the publicity element); Eddy v. Brown, 715 P.2d 74, 78 (Okla.1986) (holding that disclosure that plaintiff was undergoing psychiatric treatment to a limited number of co-workers was not “publicity”); Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133, 137 (1974) (concluding there was no “publicity” where four persons — three relatives and one employer — were notified of plaintiffs indebtedness).

We likewise conclude that respondents’ allegation that the information “is still being shared or is accessible in general” fails to aver “publicity.” A similar case, Beverly v. Reinert, 239 Ill.App.3d 91, 179 Ill.Dec. 789, 606 N.E.2d 621 (1992), supports our conclusion. In Beverly, the defendant, who filed a third-party complaint for invasion of privacy, alleged that private matters were disseminated by fax and reached members of the public, including: secretaries in two lawyers’ offices, the plaintiffs brother, unknown individuals in the school district office or in the plaintiffs brother’s insurance office and in the office of one of the lawyers. Id. at 624. He also alleged that the faxes had been “intercepted by persons whose personal computers were equipped to enable them to receive such transmissions.” Id. The court affirmed dismissal of the claim:

The defendant did not sufficiently allege the public disclosure of private facts. We need not plunge into a discussion of the comparative reliability of mail and fax communications. In this regard, the defendant has alleged no more than the possibility that unknown individuals might have accidentally received or perhaps eavesdropped upon the otherwise private and confidential communications between the plaintiffs attorney and the defendant’s attorney. Such possible interception by nobody in particular [does not constitute] disclosure to the public (as the Restatement requires) * * *.

Id. at 626.

In this case, respondents make a general allegation that the social security numbers have “not been redacted or erased and [are] still being shared or [are] accessible in general.” Yet attached to the complaint is the May 1, 2001 letter, written by LME’s president, indicating that the faxed list of social security numbers has been returned or destroyed and not shared with anyone. Thus, the allegation that the social security numbers are still being shared or are generally accessible is mere speculation. We hold that the court of appeals erred in reversing the dismissal of the complaint because the facts, as alleged, do not support the conclusion that there is “publicity” to withstand a Rule 12.02(e) motion.

Reversed.

      . Specifically, the complaint alleged, in relevant part:
      7. That on January 4, 2001, the Safety Director of LME, William Lowell Frame, sent via facsimile a memo listing the names of 204 LME employees along with their social security numbers to the terminal managers of 16 different trucking terminals throughout the upper Midwest.
      ⅜ ⅜ ⅜ ⅜
      10. That upon information and belief the private information has not been redacted or erased and is still being shared or is accessible in general.
      18. That LME violated the privacy rights of each of the Class members by disseminating their social security numbers to 16 different trucking terminals throughout the upper Midwest. That these Class members have an inherent privacy interest in their social security numbers, and the harm that can be inflicted on the Class members from the disclosure of their social security numbers to an unscrupulous individual is alarming and potentially financially ruinous.

      . The list of social security numbers is not part of the record. Respondents intended to file it under seal, but before they could bring a motion to have the list filed under seal, the district court dismissed the action. However, the fact that the list existed and was faxed as alleged is to be accepted as true in reviewing the Rule 12 dismissal. See Marquette Nat'l Bank v. Norris, 270 N.W.2d 290, 292 (Minn.1978).

      . The "publicity” required for the invasion of privacy tort of false light publicity is identical to that required for publication of private facts. See Restatement (Second) of Torts § 652E cmls. a, b, illus. 1-5 (1977) [the Restatement refers the reader to comment a of § 652C which we believe should read § 652D],

      . Respondents allege that the information was disseminated to 16 “terminals,” but the fax was sent to the attention of "terminal managers.” Furthermore, paragraph 7 of their complaint alleges that the social security numbers were sent "to the terminal managers.”

      . Indeed, if an unauthorized transmission of private data actually resulted in pecuniary loss due to identity theft, a plaintiff may be able to bring a negligence action. See Fun-chess ex rel. Haynes v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn.2001) (listing the four elements of a negligence claim: “(1) the existence of a duty of care, (2) breach of that duty, (3) an injury, and (4) the breach of the duty being the proximate cause of the injury”). Likewise, a plaintiff may have a cause of action for negligent infliction of emotional distress if, because private information was shared, the plaintiff suffered severe emotional distress with accompanying physical manifestations. See Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 408 (Minn.1998) ("To establish a claim for negligent infliction of emotional distress, a plaintiff must show that she was within a zone of danger of physical impact, reasonably feared for her safety, and suffered severe emotional distress with accompanying physical manifestations.”); see, e.g., Navarre v. S. Washington County Sch., 633 N.W.2d 40 (Minn.App.2001), aff'd in part, rev'd in part, and remanded, 652 N.W.2d 9 (Minn.2002).


author: TOUSSAINT, Chief Judge.

text:
    CHANHASSEN CHIROPRACTIC CENTER, P.A., Petitioner, Appellant, v. The CITY OF CHANHASSEN, Respondent.
    No. C0-02-1724.
    Court of Appeals of Minnesota.
    June 10, 2003.

      Kirk Anthony Schnitker, Jon William Morphew, Schnitker <& Associates, P.A., Minneapolis, MN, for appellant.
    Thomas M. Scott, Eagan, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, MINGE, Judge, and HUDSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Respondent’s city manager denied appellant’s claim for relocation benefits and advised it of the right to an appeal to the Chanhassen City Council. Appellant sought mandamus relief from the district court, arguing that the city failed to appoint an impartial hearing officer to hear the appeal. Because the district court properly concluded that the city had not violated a clear duty in the relocation assistance hearing process, we affirm the court’s denial of the writ of mandamus.

FACTS

Petitioner Chanhassen Chiropractic Center (center) entered into a lease for office space in a budding acquired by respondent City of Chanhassen for future development of a park and library. Upon expiration of the lease term, the center continued to lease the space on a month-to-month basis.

The lease, which was signed by center president Donald Kristenson and Chanhas-sen’s mayor and city manager, allowed the center to assign the lease only with the city’s prior written consent. The city also reserved the discretion to withhold consent. The lease specifically stated that any change in the ownership of the lessees’ shares of voting stock constituted a transfer and assignment of the lease requiring the city’s prior written consent. If certain specified conditions were met, the city agreed not to unreasonably withhold consent to assign the lease if it was notified at least 30 days prior to the effective date of assignment. The lease also required that the center complete estoppel certificates within ten days of each request by the city.

On or about January 11, 2002, less than three months before the anticipated termination of the lease, the center’s sole shareholder, Dr. Kristenson, sold his shares to Dr. Susan Lecy. The agreement for purchase and sale of the center did not expressly refer to relocation benefits, but the parties contemplated a relocation of the business, as evidenced by a contingency in the agreement that Dr. Lecy “shall have procured a satisfactory lease agreement for relocation” of the center effective April 1, 2002. Dr. Kristenson was to deliver an estoppel certificate confirming that the center was not in default under its lease with the city. When Dr. Lecy requested a “landlord’s estoppel certificate and consent to assignment of lease” from the city, City Manager Todd Gerhardt, responding for the city provided a notarized estoppel certificate indicating that the tenant was not in default and that the lease would expire March 31, 2002. With regard to consent to assignment of the lease, however, Ger-hardt stated that the transfer of stock ownership was an assignment of the lease and that the city would consent to the assignment only if Dr. Lecy would waive and release the city from any claim for relocation benefits. The city asked that Drs. Kristenson and Lecy sign the agreement.

On February 22, 2002, Dr. Lecy responded to Gerhardt that she considered the city liable for her relocation expenses and that she did not intend to sign the waiver of relocation benefits. She also did not pay rent in January or February. Later in February, Gerhardt wrote Drs. Lecy and Kristenson, notifying them that the center was in default for nonpayment of rent and warning them that if they failed to pay by March 6, 2002, eviction proceedings would commence and the lease would terminate on April 1, 2002. On March 8, the city commenced an eviction proceeding, claiming that the center owed three months’ rent and was in breach of the lease regarding assignment.

The center notified the city that it would vacate the premises before March 21, 2002, so the eviction hearing was cancelled. The center attempted settlement of its relocation benefits claim but on May 7, it made a request for an administrative hearing. On May 14, Gerhardt denied the center’s relocation benefits claim and offered to forgive two months’ past rent to settle the matter. In the denial of benefits, Gerhardt gave the center notice that it could request an appeal to the Chanhassen City Council. In a letter from the city attorney, the center was given various dates for an appeal hearing before the Chanhassen City Council. The center replied that the city council was not an appropriate tribunal. It then sought relief in the district court by petition for a preemptive writ of mandamus compelling the city to select a fair and impartial hearing officer to hear the relocation benefits appeal. After a hearing, the district court denied the petition for a writ of mandamus. The center appeals from the order denying its petition.

ISSUE

Did the district court erroneously conclude that the city had not violated a clear duty by its selection of the city council as the “hearing officer” to decide appellant’s relocation benefits appeal?

ANALYSIS

A writ of mandamus is a remedy to compel any person, corporation, public functionary, or tribunal, to perform some duty required by law, where the party seeking relief has no other legal remedy, and the duty sought to be enforced is clear and indisputable.

Bd. of Comm’rs of Knox County v. Aspinwall, 65 U.S. 376, 383, 24 How. 376, 16 L.Ed. 735 (1860). A writ of mandamus “shall not issue in any case where there is a plain, speedy, and adequate remedy in the ordinary course of law.” Minn.Stat. § 586.02 (2002). Mandamus is an extraordinary remedy based on equitable principles and is awarded at the discretion of the district court. Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn.App.1995). A reviewing court will overturn the district court’s order on a petition for issuance of a writ of mandamus only when there is no evidence on which the district court could have reasonably based its decision. Id.

Before a writ of mandamus may issue, the petitioner must meet the standing requirements of Minn.Stat. §§ 586.01-.02 (2002). Coyle, 526 N.W.2d at 207. To do so, the petitioner must demonstrate that (1) the official has failed to exercise a duty imposed by law; (2) due to this failure, the petitioner is specifically injured by a public wrong; and (3) there is no adequate alternative legal remedy. Id.

The Code of Federal Regulations sets up a three-step process for relocation-benefit decision-making. 49 C.F.R. § 24.10 (2002). This court has recently addressed whether Minnesota should follow the federal appeal process for relocation benefits and decided that Minnesota’s process must be dictated by common law and constitutional procedural-due-process principles. In re Relocation Benefits of James Bros. Furniture, 642 N.W.2d 91, 96-97, 103-04 (Minn.App.2002), review denied (Minn. June 18, 2002).

The center concedes that the federal process complies with minimum standards of due process. It provides for three basic steps. First, there is the initial agency decision on the request for benefits. Second, an aggrieved person may file a written appeal of the initial agency decision. 49 C.F.R. § 24.10(b). Upon receipt of the written appeal, the agency or other appointing authority then selects an official to consider the appeal:

The Agency official conducting the review of the appeal shall be either the head of the Agency or his or her authorized designee. However, the official shall not have been directly involved in the action appealed.

Id. § 24.10(h) (2002). Third, if the official conducting the appeal does not grant the full relief requested, the official must explain the decision and “advise the person of his or her right to seek judicial review.” Id. § 24.10(g).

The center contends that the city council has an inherent conflict of interest that prevents it from serving as the official conducting the appeal. Specifically, it claims that the council has a pecuniary interest in the matter, a conflict of interest with the displaced person, or is a party to the action being appealed.

The center correctly states that its constitutional due process protections include the right to an “impartial” decisionmaker. Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn.App.1994), review denied (Minn. Feb. 14, 1995). While an impartial decision-maker is essential to due process, prior involvement “in some aspects of a case” will not necessarily bar an official from acting as a decision-maker. Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970). Furthermore, the “rule of necessity” may allow an officer to serve in a decision-making capacity despite bias. Ginsberg v. Minn. Dept. of Jobs & Training, 481 N.W.2d 138, 141 (Minn.App. 1992) (stating that officials involved “in the particular aspect of a case under review” should not also participate in the decision-making process but that “rule of necessity” may allow even biased officers to hear case), review denied (Minn. Apr. 9, 1992). In short, whether a hearing officer is impartial is a fact-specific inquiry that depends on the context in which the appeal is heard.

Here, the record contains no evidence that the current city council was involved in the center’s application for relocation benefits or the city manager’s denial of those benefits. Counsel for the parties made assertions and arguments in district court, but the facts relevant to the issue of partiality are not in the form of affidavits or testimony and are definitely disputed. The center argued to the district court that the city council has been “involved in this since day one.” The city argued to the district court that the city manager who denied the relocation benefits does not' sit on the city council and that the city council had “absolutely no involvement in the determination of the eligibility for relocation benefits.” Absent a factual basis establishing the city council’s partiality as to the specific issues appealed, this court cannot conclude that the city breached its clear duty to select a fair and impartial decision-maker to hear the appeal. Cf. James Bros., 642 N.W.2d at 104 (considering facts adduced at hearing and decision made by hearing officer, there was no due process violation).

Mandamus also will not lie where an adequate legal remedy is available. Here, the center’s legal remedy was, in the first place, an appeal to the city council. Had the center availed itself of that remedy, the hearing before the city council would have produced the record required for review of all issues by this court. Although the city council could not address the constitutional issues raised in this appeal, it could address the propriety of the initial denial of benefits by the city manager. Naegele Outdoor Adver., Inc. v. Minneapolis Cmty. Dev. Agency, 551 N.W.2d 235, 237 (Minn.App.1996) (final administrative decisions under MURA may only be reviewed by certiorari to this court as provided by Minn.Stat. § 606.01 (2000)).

DECISION

The district court properly denied the writ of mandamus because the appellant did not make a showing of partiality or a breach of respondent’s clear legal duty.

Affirmed.


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent, v. Aldo Acosta DOMINGUEZ, Appellant.
    No. C6-02-1159.
    Court of Appeals of Minnesota.
    June 24, 2003.

      Mike Hatch, Attorney General, St. Paul, MN and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.
    Bradford Colbert, St. Paul, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge, TOUSSAINT, Chief Judge, and MINGE, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Aldo Acosta Dominguez was found guilty of kidnapping after submitting to a trial on stipulated facts under Minn. R.Crim. P. 26.01, subd. 3. Dominguez appeals his conviction, arguing that because the district court did not make any findings with regard to his intent to commit a felony after having confined or restrained the victims, the evidence was insufficient to support his conviction. Dominguez also alleges that the district court abused its discretion by imposing an upward sentencing departure.

FACTS

E.P. and L.H. were taken from their car at gunpoint in the early morning hours as they returned home from a party. They were forced into a car with three Spanish-speaking men and were eventually driven to a park where two additional Spanish-speaking men, who presumably drove E.P.’s car to the location, joined the group. E.P. and L.H. were forced at gunpoint to kneel on the ground and the men demanded the women’s cash and credit cards. Two of the men then led L.H. away. The three remaining men forced E.P into her own car. In the car, one of the men kissed E.P. and put his arm around her. At a location near Hidden Beach, E.P. was forced out of the car and two of the men attempted to take her into the woods. E.P. was able to escape and call the police. The police found appellant Aldo Acosta Dominguez and Jesus.Flores-Acosta at the location near Hidden Beach, sitting in E.P.’s car with a sawed-off shotgun. E.P. identified Dominguez and Flores-Acosta as the two men who attempted to take her into the woods. The other men involved in the crime were never identified.

Dominguez and Flores-Acosta were charged with (1) aiding and abetting the kidnapping of L.H.; (2) kidnapping E.P.; (3) first-degree aggravated robbery of L.H.; (4) first-degree aggravated robbery of E.P.; (5) attempted first-degree criminal sexual conduct; and (6) theft of a motor vehicle. Under an agreement, the charges were amended to one count of aiding and abetting the kidnapping of both victims. Dominguez and Flores-Acosta waived their rights to a jury trial and agreed to a court trial on stipulated facts under Minn. R.Crim. P. 26.01, subd. 3. The state agreed to a sentencing cap of 60 months. The district court found Dominguez and Flores-Acosta guilty of the amended kidnapping charge and imposed a 60-month sentence, which represents a 24 month upward departure from the sentencing guidelines. Dominguez filed this appeal.

ISSUES

1. Is an appellate court limited to an examination of the district court’s explicit findings when reviewing the sufficiency of the evidence for a conviction after a trial on stipulated facts?

2. Did the district court abuse its discretion by imposing an upward sentencing departure?

ANALYSIS

1. Sufficiency of the findings

Dominguez argues that because this case was tried on stipulated facts, and the application of law to stipulated facts is a question of law, review is de novo. State v. Bunde, 556 N.W.2d 917, 918 (Minn.App. 1996) (stating that district court’s application of statutory criteria to facts as found is a question of law subject to de novo review). Dominguez then asserts that we are limited to a

review de novo [of] the trial court’s findings of fact to determine if, as a matter of law, they are sufficient to establish the crime of kidnapping.

We disagree. In reviewing a sufficiency of the evidence claim, we review the record in the light most favorable to the conviction, whether the case is tried to a jury or a judge. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989); State v. Cox, 278 N.W.2d 62, 65 (Minn.1979).

At oral argument, counsel for Dominguez conceded that there may be evidence in the record to support the conviction, but he continued to focus narrowly on the sufficiency of the district court’s findings to support his conviction. Dominguez has ignored Minn. R.Crim. P. 26.01, subd. 2, which provides that in the case of a trial without a jury

[i]f the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.

We therefore reject Dominguez’s narrow focus on the adequacy of the district court’s findings because it is without merit and, instead, examine the entire record to determine whether there is sufficient evidence to support the conviction. See Webb, 440 N.W.2d at 430 (stating that review of claim of insufficient evidence is limited to careful analysis of record to determine whether evidence, when viewed in light most favorable to conviction, is sufficient to allow the fact-finder to reach the verdict that it did).

Dominguez argues that there is insufficient evidence in the record to sustain a conviction for aiding and abetting the kidnapping of L.H. To convict an individual of aiding and abetting, the state need only prove passive acquiescence or inaction and not active participation in the primary offence. State v. Dominguez-Ramirez I, 563 N.W.2d 245, 257 (Minn.1997). Convictions based on circumstantial evidence “must point unerringly to the accused’s guilt.” State v. Scharmer, 501 N.W.2d 620, 622 (Minn.1993) (citation omitted).

The district court found that Dominguez is one of the three men who led E.P. away from the location where the women were forced to kneel on the ground while they were robbed. Five men were at the scene of the robbery. The record establishes that three men were in the car that abducted E.P. and L.H. from the apartment building parking lot and that others involved drove E.P.’s car to the scene of the robbery. The record therefore supports a finding that Dominguez was involved in the original abduction of the women from E.P.’s car. And Dominguez did nothing to prevent two of the men from taking L.H. away from the scene of the robbery. If a person has a knowing role in the commission of a crime and takes no steps to prevent it, the finder of fact may properly infer the necessary intent for aiding and abetting. State v. Ostrem, 535 N.W.2d 916, 924 (Minn.1995). The evidence in the record supports a finding that Dominguez aided and abetted the kidnapping of L.H.

Dominguez next argues that the district court did not make a finding that any of the men who took E.P. from the scene of the robbery intended to commit criminal sexual conduct. But evidence in the record shows that either Dominguez or Flores-Acosta was kissing and hugging E.P. in the car; the unidentified third abductor told E.P. that Dominguez and Flores-Acosta wanted to have sex with her, and Dominguez and Flores-Acosta were attempting to force E.P. into a secluded, wooded area just before she was able to escape. A kidnapping conviction only requires that the kidnapper confine or transport a victim to facilitate the commission of the desired felony; completion of the felony is not required. Minn.Stat. § 609. 25, subd. 1(2) (2002). Intent can be logically inferred from the totality of the circumstances. State v. Raymond, 440 N.W.2d 425, 426 (Minn.1989). We conclude that evidence in the record supports a finding that Dominguez transported E.P. for the purpose of criminal sexual conduct.

2. Sentencing

A sentencing court has discretion to depart from the sentencing guidelines only when aggravating or mitigating factors are present. State v. Spain, 590 N.W.2d 85, 88 (Minn.1999). The district court must order the presumptive sentence unless there are “substantial and compelling circumstances” that warrant departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). Generally, when considering an upward departure, the district court must “decide whether the defendant’s conduct was significantly more or less serious than that typically involved in commission of the crime in question.” State v. Sanchez-Sanchez, 654 N.W.2d 690, 693-94 (Minn.App.2002) (citation and quotation omitted). Absent an abuse of discretion, departure from a presumptive sentence will not be overturned. Spain, 590 N.W.2d at 88.

The factors that the district court deemed substantial and compelling enough to warrant departure in this case were (1) the multiple victims; (2) the trauma the victims suffered; and (3) the length of the ordeal. Dominguez argues that the district court’s reliance on the length of the ordeal and the trauma to the victims does not constitute an aggravating factor in this case because there is no evidence that either factor is greater than that suffered in other kidnappings. But Dominguez admits that multiple victims is a legitimate aggravating factor sufficient to support an upward departure. See State v. Murphy, 545 N.W.2d 909, 917 (Minn.1996). And the district court only needs one valid basis to support an upward departure. See State v. Jeno, 352 N.W.2d 82, 85 (Minn.App.1984). We have rejected Dominguez’s claim that he cannot be linked to the kidnapping of L.H., therefore the district court did not abuse its discretion by imposing a limited upward departure based on multiple victims.

DECISION

There is sufficient evidence in the record to support Dominguez’s conviction for kidnapping both victims and the district court is deemed to have made findings on issues of fact essential to sustain its general verdict of guilty. The district court did not abuse its discretion by imposing a limited upward departure from the sentencing guidelines.

Affirmed.

      . Flores-Acosta has appealed separately. See State v. Flores-Acosta No. C4-02-1161, 2003 WL 21263977 (Minn.App.Jun.3, 2003).

      . We note that a factor not cited by the district court that would support the departure is the fact that Dominguez committed the crime as part of a group of three or more persons who all actively participated in the crime. Sentencing Guidelines II.D.(IO). See Williams v. State, 361 N.W.2d 840, 844 (Minn.1985) (stating that even if reasons cited for departure are inadequate or improper, if there is sufficient evidence in record to justify departure, departure should be affirmed).


author: HARTEN, Judge.

text:
    Randall Todd HOMAN, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C5-02-2125.
    Court of Appeals of Minnesota.
    June 24, 2003.
    Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, MN, for appellant.
    Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, HARTEN, Judge, and MINGE, Judge.
   OPINION

HARTEN, Judge.

Appellant challenges the district court’s dismissal of his petition for reinstatement of his driver’s license because he failed to appear for cross-examination at the hearing on his petition. Because we conclude that Minn.Stat. § 171.19 (2002) compels petitioners to appear for cross-examination at reinstatement hearings, we affirm.

FACTS

In 1993, appellant Randall Homan’s driving privileges were reinstated on the condition of his total abstinence from alcohol and controlled substances. In March 2002, a trooper investigating the crash of appellant’s car asked appellant if he had been drinking. Appellant admitted that he had had “a couple.” The officer then administered a portable breath test and an Intoxylizer test, both of which indicated that appellant had consumed alcohol. When appellant’s consumption of alcohol was reported to the department of public safety (the department), his driving privileges were cancelled.

Appellant then petitioned the department to have his privileges reinstated. At the beginning of the hearing on the petition, appellant’s attorney told the district court that appellant was “accessible but not here.” The attorney then called one witness: the trooper who had stopped appellant, administered the tests, and reported the results. After examining the trooper, the attorney informed the district court, “Petitioner rests.”

The attorney for respondent department then called appellant “for cross-examination under the rules ⅝ * * and under the statute.” Appellant’s attorney responded:

[T]he statute does allow for cross-examination; however, cross-examination follows direct examination. I did not call [appellant]; therefore, [the state’s attorney] should not be allowed to call him. Furthermore, * * * a plain reading of the statute, 171.19, simply says that the Petitioner may submit affidavits, comma, however the Petitioner must be present for cross-examination * * * [and] indicates if we had submitted a[n] affidavit, yes, [appellant] would have to be here.
⅜ ⅜ * *
⅜ * * A plain reading with the comma is clear, your Honor, and * * * I would ask the Court to make a decision based upon the — the evidence heard.

The district court disagreed with the attorney’s analysis of the law:

[The statute] does not say that the Petitioner must be here only if he presents evidence by affidavit. It says that the Petitioner must be present in person at the hearing for cross-examination. Petitioner not being here, the petition is denied.

Following the hearing, the district court made findings of fact:

7. Based upon the trooper’s report of alcohol use, the Commissioner of Public Safety cancelled and denied all driving privileges effective April 19, 2002.
8. [Appellant] did not offer any evidence to contradict the trooper’s report and testimony.
9. [Appellant] did not appear to face cross-examination regarding his qualifications for licensure, contrary to the requirements of Minn. Stat. § 171.19.
10.The only evidence before the Court establishes that [appellant] has consumed alcohol in violation of the total abstinence restriction.

The district court then concluded that:

[Appellant’s] failure to appear and face cross-examination violates the requirements of Minn.Stat. § 171.1[9] and entitles the [department] to an order dismissing the petition.

Based on this conclusion of law, the district court ordered the dismissal of appellant’s petition.

ISSUE

Does Minn.Stat. § 171.19 (2002) compel a petitioner to appear for cross-examination?

ANALYSIS

Appellant argues that the district court misconstrued the statute. Statutory-construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Minn.Stat. § 171.19 (2002) provides:

Any person whose driver’s license has been refused, revoked, suspended, canceled, or disqualified by the commissioner * * * may file a petition for a hearing in the matter in the district court in the county wherein such person shall reside * * ⅞, and such court is hereby vested with jurisdiction, and it shall be its duty, to set the matter for hearing upon 15 days’ written notice to the commissioner, and thereupon to take testimony and examine into the facts of the case to determine whether the petitioner is entitled to a license or is subject to revocation, suspension, cancellation, disqualification, or refusal of license, and shall render judgment accordingly. * * * The petition shall be heard by the court without a jury * * *. The commissioner may appear in person, or by agents or representatives, and may present evidence upon the hearing by affidavit personally, by agents, or by representatives. The petitioner may present evidence by affidavit, except that the petitioner must be present in person at such hearing for the purpose of cross-examination.

(Emphasis added). The supreme court has construed the last sentence.

“Where a petitioner for reinstatement of a driver’s license under § 171.19 does not appear at the hearing as required by the statute, but files affidavits, the district court may deny the petition for reinstatement.
* ⅜ ⅜ ⅜
* * * Petitioner was * * * entitled to request a hearing under Minn. St. 171.19, which he did. Any defenses that he might have * * * could be brought forth in the hearing in district court. That statute makes it clear, however, that the driver must be present and make himself available for cross-examination. Petitioner chose to present his evidence solely by affidavit. * * * The failure of petitioner to appear at the hearing prevented the district court from resolving the ambiguities in the record. The petition for reinstatement of the license was thus correctly denied.

Goldsworthy v. State, Dep’t of Pub. Safety, 268 N.W.2d 46, 47, 49-50 (Minn.1978).

Appellant attempts to distinguish Gold-sworthy on the ground that there, the petitioner in that case presented evidence by affidavit but not in person, while here, appellant presented evidence neither by affidavit nor in person. But this is a distinction without a difference: appellant’s failure to testify, to provide an affidavit, and to submit to cross-examination also “prevented the district court from resolving ambiguities in the record.” Id. at 50. The district court’s reading comports with the plain meaning of the statute and with Goldsworthy.

Finally, appellant argues that the district court should have “overruled” his counsel’s objection and directed that appellant, who was “accessible,” be called to the stand. But a review of appellant’s counsel’s statements to the court indicates that he was not merely making an “objection” to calling appellant: he said that the state was not allowed to call appellant pursuant to Minn.Stat. § 171.19. Appellant’s counsel did not seek appellant’s testimony; nor did he request time to confer with appellant about testifying. The district court had no reason to order appellant’s cross-examination sua sponte.

There was no error of law in the district court’s decision to dismiss the petition because appellant did not appear for cross-examination.

DECISION

Minn.Stat. § 171.19 requires petitioners for reinstatement to appear for cross-examination. Because appellant failed to appear, the district court properly dismissed his petition.

Affirmed.

      . The statute actually referred to in the conclusion is Minn.Stat. § 171.10; we correct this obvious clerical error.

      . Appellant also challenges the constitutionality of Minn.Stat. § 171.19, but, because he confined his district court presentation to the statute’s construction, not its constitutionality, constitutionality is not properly before the court. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (a party may not obtain review by raising the same general issue litigated below under a different theory).