author: PAUL H. ANDERSON, Justice.

text:
    Mark P. WIEGEL, et al., Petitioners, Appellants, v. The CITY OF ST. PAUL, et al., Respondents.
    No. C6-00-2050.
    Supreme Court of Minnesota.
    Feb. 21, 2002.

      Mark W. Gehan, Collins, Buckley, Saun-try & Haugh, P.L.L.P., St. Paul, for Appellant.
    Clayton M. Robinson, Jr., City Attorney, Gerald T. Hendrickson, Assistant City Attorney, St. Paul, for Respondent.
    Susan L. Naughton, League of Minnesota Cities, St. Paul, for amicus curiae League of MN Cities.
   OPINION

PAUL H. ANDERSON, Justice.

Appellants brought an action to compel respondents to disclose certain data in compliance with the Minnesota Government Data Practices Act (Data Practices Act). The district court ordered that the city disclose the requested data and awarded attorney fees to appellants. However, the district court subsequently vacated the award of attorney fees when it became aware of a recently issued court of appeals opinion. Appellants then appealed the district court’s decision to vacate the award of attorney fees. The court of appeals affirmed the district court, concluding that the district court was not authorized to make an award of attorney fees. We reverse and remand.

Appellants, Mark P. Wiegel, Gerald A. Simon, Allen J. Leopold, Saint Paul Police Federation, and Saint Paul Fire Fighters Local 21 (collectively appellants), brought this action to compel disclosure of certain data in compliance with the Data Practices Act. Respondents, City of Saint Paul and John C. Hamilton, Saint Paul’s Director of the Office of Human Resources, were named as defendants in the action. The underlying facts of the case are as follows.

Wiegel, Simon, and Leopold took civil service promotional examinations given by the city: These examinations were administered under Hamilton’s oversight. Wie-gel, a police officer employed by the city, took the civil service promotional examination for police sergeant. This examination consisted of a written test, a videotape test, and an oral interview. During the interview, a panel of examiners asked several questions. Each panel member uses a document entitled “Notes” to record the examinee’s rating and any additional information. Wiegel passed each part of the examination by a narrow margin and ended up as number 40 in line for a promotion to sergeant.

Simon and Leopold are also employed by the city — Simon as a fire fighter, Leopold as a fire equipment operator. Both took the civil service promotional examination for fire captain. This examination consisted of four tests: a written test, an “in-basket” test, a “simulator” test, and an oral interview. During the simulator test, an examinee’s performance is recorded on audiotape for later evaluation. During the examiner’s evaluation of the simulator audio tape and during the oral interview, a document similar to the “Notes” used in the police sergeant examination is used to score and rate each examinee’s performance. Candidates must pass each test to be eligible for promotion. Simon failed the oral interview test and Leopold failed the simulator test.

After being notified of the results of his examination, Wiegel requested that the city provide him with the names and “Notes” of the two panel members who interviewed him as part of the oral interview. He suspected that one of the panel members was biased against him. The city refused Wiegel access to this data, although the names of the panel members were later voluntarily disclosed to him. Simon requested access to his panel members’ “Notes.” Leopold asked to review the audiotape of the simulator part of his examination and a document from the simulator test called “FIRE CAPTAIN SIMULATOR EXERCISE, Scoring Criteria.” The latter is apparently the official title of the “Notes” used in the rating process. The city refused to grant Simon and Leopold access to the requested data. In each instance, the city refused access to the requested data on the grounds that the data were confidential under policies established by the city and the Data Practices Act section governing examination data, Minn.Stat. § 13.34 (2000).

The Saint Paul Police Federation, on behalf of its member Wiegel, requested an advisory opinion from the Minnesota Commissioner of Administration regarding whether the city was required to disclose the data requested by Wiegel. The commissioner’s opinion noted that the data described by the city consisted of subjective evaluations of responses and additional comments, which were not the “tests, examination materials, or scoring keys” referred to under the examination data section of the Data Practices Act. The commissioner concluded that the data were private personnel data under Minn.Stat. § 13.43 (2000), not “examination data,” and therefore available to the subject of those data.

After the commissioner’s opinion was issued, Wiegel, acting through the Federation, and Simon and Leopold, acting through Saint Paul Fire Fighters Local 21, again requested the data in question from the city, citing the commissioner’s opinion. The city again refused to grant access to the data.

After having been denied access to the data for a second time, Wiegel and the Federation commenced a civil action in Ramsey County District Court against the city and Hamilton as its Director of Human Resources to compel it to grant access to the requested data. Similarly, Simon and Leopold, together with Local 21, brought a separate action against the city to compel it to grant access to the requested data. Because of the similarity of the two cases, the court consolidated the eases in the interests of judicial efficiency.

The facts were undisputed and the city and appellants both moved for summary judgment. The district court conducted an in camera examination of the requested data. After this examination, the court granted appellants’ motion for summary judgment and ordered the city to provide to appellants all of the requested data except for the audiotape requested by Leopold. The court gave deference to the commissioner’s opinion and concluded that “[t]he [cjity is without authority to render unavailable to the examinee that which the Data Practices Act requires to be available to the examinee.” It is not clear from the order what part of the Act the court relied upon to support releasing the data or what classification governed access to the data. In its order, the court granted judgment for costs and disbursements and specifically awarded reasonable attorney fees to appellants as “aggrieved personfe]” under the Act. But the court, in a second amended order, later vacated that part of its order awarding reasonable attorney fees in response to Washington v. Independent School Dist. No. 625, 610 N.W.2d 347 (Minn.App.2000). Washington is a court of appeals case in which the opinion was released on the same day as the district court’s original order in Wiegel. Washington held that “aggrieved” under the Act means a person entitled to data as a matter of right. 610 N.W.2d at 849. The district court did not detail why it concluded that Washington prevented an award of attorney fees; it only stated that the “award of attorneys fees is inappropriate in light of Washington.”

Appellants appealed the district court’s decision vacating the award of attorney fees, arguing that Washington was inapplicable because the district court found that the data in question were “private data on individuals” to which appellants were entitled as a matter of right. The court of appeals affirmed, concluding that the district court’s order classified the data as “examination data,” which the city had discretion to withhold under certain circumstances, and were therefore not data to which appellants were entitled as a matter of right. On appeal to this court, appellants raise the same questions as they did before the court of appeals, arguing that under the district court’s order they were entitled to the requested data as a matter of right, and therefore Washington does not prevent the award of attorney fees.

I.

The issues presented in this case involve an examination of a district court’s grant of summary judgment on undisputed facts and an interpretation of the Data Practices Act. When a district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion that is reviewed de novo. Lefto v. Hoggsbreath Enter., Inc., 581 N.W.2d 855, 856 (Minn.1998). Similarly, statutory construction is a question of law, which we review de novo. State v. Ambaye, 616 N.W.2d 256, 258 (Minn.2000).

This case involves interpretation of the Data Practices Act, a complex and technical chapter of the Minnesota Statutes. Therefore, it is helpful to our analysis if we begin with a brief overview of the key provisions of the Act applicable to this case. The Act “regulates the collection, creation, storage, maintenance, dissemination, and access to government data in state agencies, statewide systems, and political subdivisions.” Minn.Stat. § 13.01, subd. 3 (2000). The Act operates through a system of classification and how the data are classified ultimately determines who has access to the data.

Most government data are first classified into one of two broad categories: “data on individuals” or “data not on individuals.” Minn.Stat. § 13.02, subds. 4, 5 (2000). Each of these categories is further divided into three subclasses. Data on individuals are divided into “public data on individuals,” “private data on individuals,” and “confidential data on individuals.” Minn.Stat. § 13.02, subds. 3, 12, 15 (2000). Similarly, data not on individuals are divided into three parallel subclasses: “public data not on individuals,” “nonpublic data,” and “protected nonpublic data.” Minn. Stat. § 13.02, subds. 9, 13, 14. (2000). Generally, “public data” are accessible to the public. Minn.Stat. § 13.02, subds. 14, 15. “Private data on individuals” and “nonpublic data” are generally not accessible to the public, but are accessible to the subject of the data. Minn.Stat. § 13.02, subds. 9, 12; see also Minn.Stat. § 13.04, subd. 3 (2000) (allowing the person who is the subject of public data on individuals or private data on individuals to have access to such data). This second parallel tier of data subclasses is most relevant to this case. Lastly, “confidential” and “protected nonpublic data” are generally not accessible to either the public or the subject of the data. Minn.Stat. § 13.02, subds. 3, 13.

The Data Practices Act consists of numerous sections that attempt to sort all government data into the above-defined categories. See Minn.Stat. § 13.32-99 (2000). These sections include but are not limited to provisions on the classification of educational data, examination data, federal contracts data, medical data, and personnel data. Id. Generally, these sections and their attendant classifications control whether and how a government entity provides access to data it collects.

Government officials must routinely interpret and apply the many provisions of the Data Practices Act; therefore, it is likely that disagreements will arise regarding the proper classification of data. The legislature has recognized this potential for disagreement and provided two important mechanisms, both administrative and judicial, for parties to appeal government determinations regarding data. First, if a person disagrees with the government’s determination regarding data practices, that person may request a written opinion from the Commissioner of the Department of Administration regarding the person’s rights and access to the data. MinmStat. § 13.072, subd. 1(a) (2000). The legislature has indicated that these written opinions must be given deference by a court in a proceeding involving the data. Id., subd. 2 (2000).

Second, persons seeking access to data may bring a court action against the governmental entity in control of the data. Minn.Stat. § 13.08, subds. l-4(a) (2000). Specifically, a person may bring an action for damages for violation of the Data Practices Act, an action to enjoin practices that violate the Act, or an action to compel compliance with the Act. Minn.Stat. § 13.08, subds. 1, 2, 4(a). Importantly, when bringing an action to compel compliance, an “aggrieved person * * * may recover costs and disbursements, including reasonable attorney’s fees.” Minn.Stat. § 13.08, subd. 4(a). The recovery of attorney fees is not mandated by the Act and remains within the discretion of the court. Id. (stating that aggrieved persons “may recover” attorney fees) (emphasis added). Here, the ultimate issue is whether appellants were aggrieved persons within the meaning of the Act and therefore potentially able to recover attorney fees. Unfortunately, “aggrieved person” is not defined in section 13.08 or elsewhere in the Act. Further, at the time the district court first addressed this issue, neither this court nor the court of appeals had addressed the definition of aggrieved person in the context of the Act. However, on the same day that the district court entered its first order, the court of appeals addressed this issue in Washington. It was the court of appeals’ decision in Washington that prompted the district court to later vacate the award of attorney fees made in its first order.

In Washington, the court of appeals began its analysis of section 13.08 by specifically rejecting an interpretation of “aggrieved” to mean simply “prevailing.” Washington, 610 N.W.2d at 349. The court concluded that to be aggrieved, a person must satisfy the common and approved usage of the term. Id. According to the court, “[t]he common usage of ‘aggrieved’ is ‘[tjreated wrongfully,’ or ‘offended,’ ‘as by denial of or infringement upon one’s legal rights.’ ” Id. (quoting the American Heritage Dictionary of the English Language 34 (3d ed.1992)). The court then applied this definition to the facts in Washington, noting that the requested data were only accessible to the subject of the data by court order under Minn.Stat. § 13.39 (2000). Washington, 610 N.W.2d at 349. The court then concluded that the subject’s rights were not infringed upon because he was not entitled to access to the data outright, but instead was required to obtain a court order to obtain access to the data. Id. Thus, in Washington the subject of the data was not entitled to the data as a matter of right, and therefore not an aggrieved person under Minn.Stat. § 13.08, subd. 4(a). Washington, 610 N.W.2d at 349-50.

We agree with much of the reasoning used by the court of appeals in Washington. We reject an interpretation of “aggrieved” to mean simply “prevailing.” The common and approved definition of aggrieved is to be “[tjreated wrongly,” “offended,” or “[t]reated unjustly, as by denial of or infringement upon one’s legal rights.” American Heritage Dictionary of the English Language 34 (3d ed.1992). A person may be wronged, offended, or have one’s legal rights infringed upon by a government violation of the Data Practices Act. Further, a person may (1) recover damages resulting from a violation of the Act, (2) enjoin government practices or proposals which violate the Act, or (3) compel the government to comply with the Act. MinmStat. § 13.08, subds. 1-4. The government may violate the Act when it improperly denies persons access to certain classifications of data.

The Act specifically sets up classifications of data to which certain persons are entitled to access as a matter of right. See, e.g., Minn.Stat. § 13.02, subd. 12 (defining private data on individuals as data to which the individual subjects are entitled to have access); Minn.Stat. § 13.04, subd. 3 (giving individual subjects of private data access to the data as a matter of right upon proper request). Such a person is wronged — and therefore aggrieved — when the government refuses to grant access to data to which the person is entitled as a matter of right under the Act. However, it is important to note that sometimes a person can prevail in a legal action by obtaining access to data, but not be aggrieved by the government’s action because the data were not available to the person as a matter of right — as was the case in Washington. 610 N.W.2d at 349. In Washington, the person was ultimately entitled to gain access to certain data, but not as a matter of right because he was first required by the Act to get a court order before obtaining access to the data. Id. Therefore, we hold that when the government violates the Act by improperly denying a person access to data that the government is required by the Act to make available — that is, refuses to grant access to data that is available as a matter of right — the person denied access is an “aggrieved person” under section 13.08, subd. 4(a).

II.

Having determined the definition of “aggrieved person,” we next apply this definition to the facts of the case before us. Here, appellants were denied access to data by the city. Therefore, we must determine whether the city violated the Data Practices Act as to appellants — that is, were appellants entitled to access to these data as a matter of right? Whether appellants were entitled to these data as a matter of right depends upon how the requested data are classified under the Act. The district court addressed this issue in its order granting appellants’ summary judgment motion and ordering disclosure of the requested data. The validity of the court’s classification of the requested data was not appealed by either party. Instead, the issue appealed was whether appellants were aggrieved persons under section 13.08, subd. 4(a). However, whether appellants were aggrieved persons turns on the data’s classification under the Act. Therefore, we must determine how the court classified the requested data before we can determine whether appellants were aggrieved persons. Once we properly interpret the court’s order, we can then use the court’s classification in our analysis.

As noted above, the district court did order disclosure of the requested data, but in doing so it did not make clear its classification of the data. As previously noted, the court’s classification is crucial because it determines who has access to the data. More particularly, the classification determines whether appellants were entitled to the data as a matter of right. Several important details lead us to conclude that the court classified the requested data as private data on individuals — data that are generally accessible to the subject of those data as a matter of right. Minn.Stat. § 13.02, subd. 12. First, in its order requiring disclosure of the requested data, the court apparently deferred to and adopted the commissioner’s advisory opinion. Then the court noted that the advisory opinion concluded that the requested data were “private data.” In fact, the advisory opinion noted that the requested data were private data under section 13.43. Section 13.43 governs personnel data and it appears that the commissioner treated the default classification for personnel data as private data on individuals. See Minn. Stat. § 13.43, subd. 4. Private data on individuals must be made available to the subjects) of the data- — here, Wiegel, Leopold, and Simon. Minn.Stat. § 13.02, subd. 12. Finally, the court concluded that the city was “without authority to render unavailable to the examinee that which the Data Practices Act requires be available to the examinee.”

Although the district court did not specifically label or identify the classification of the requested data, the court’s classification of the data as private data on individuals is evident. Here, the only conclusion that can be drawn after a close reading of that part of the order addressing the requested data is that the court, giving deference to the commissioner’s advisory opinion, concluded the requested data were private data on individuals. We therefore conclude that the requested data were classified by the district court as private data on individuals.

Under the Data Practices Act, the individual subjects of private data on individuals are entitled to access to such data as a matter of right upon request. Minn.Stat. § 13.04, subd. 3. Here, appellants properly requested access to private data on individuals, but were denied access to such data by the city. The city violated the Act by withholding private data on individuals from appellants. Thus, appellants are “aggrieved persons” under Minn.Stat. § 13.08, subd. 4(a). As “aggrieved persons” under section 13.08, subd. 4(a), they may be awarded reasonable attorney fees by the district court.

Our conclusion that appellants are aggrieved persons does not resolve the ultimate issue of whether they are to be awarded attorney fees. An award of reasonable attorney fees is not required by the statute and the decision whether to award fees lies within the discretion of the district court. Minn.Stat. § 13.08, subd. 4(a) (stating that “any aggrieved person * * * may recover costs and disbursements, including reasonable attorney’s fees, as determined by the court.”) (emphasis added). In this case the district court first made an award of attorney fees to appellants, but later vacated that award because the court believed that the award was “inappropriate” after the Washington decision. Apparently, when the court vacated its first order, it believed that it was unable to make an award of attorney fees to appellants after Washington because appellants did not meet the definition of aggrieved persons. Under the rule we articulate today, appellants are “aggrieved persons” and may be awarded attorney fees under Minn.Stat. § 13.08, subd. 4(a). Therefore, because the district court erred in its application of the law when it denied attorney fees, we remand to allow that court, in its discretion, to consider an award of reasonable attorney fees to appellants.

Reversed and remanded.

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

      . The Data Practices Act underwent minor changes and a slight recodification from 1999 to 2000, after this case began. None of the sections relied upon in this opinion underwent substantive changes and the new codification will be used.

      . We note that classification of these data as examination data under section 13.34 is problematic and might not have the effect desired by the city. In essence, under section 13.34, "[d]ata consisting solely of testing or examination materials, or scoring keys” are classified as nonpublic. Minn.Stat. § 13.34. However, nonpublic data are defined in section 13.02, subd. 9, as data that are "accessible to the subject, if any, of the data.” Minn. Stat. § 13.02, subd. 9 (2000).

      . Section 13.39 provides that data gathered by the government in anticipation of defending a civil action are classified as "protected nonpublic data.” Minn.Stat. § 13.39, subd. 2(a). As noted above, protected nonpublic data are ordinarily not accessible to the subject of the data, but section 13.39 allows a person to bring an action in district court to compel disclosure of these data when a civil action is pending. Id., subd. 2(a) (2000). When a civil action is determined to be pending, the court may order disclosure of these protected nonpublic data if it determines that the benefits of disclosure outweigh the harm of disclosure. Id. Thus, the subject of data classified as protected nonpublic under section 13.39 may eventually obtain access to such data. However, the subject is not entitled to these data as a matter of right under the Data Practices Act because the subject is only entitled to access to these data after a court balances the risks and benefits in the subject’s favor and orders disclosure of those data.

      . Even though the district court's classification of the data was not appealed by either appellants or respondents, both parties disagree on what classification the district court actually made in its order.

      . Some ambiguity regarding the data’s classification is created by that part of the district court's order regarding prospective relief. Appellants requested prospective relief regarding access to similar data in the future, and the court specifically addressed this request in its order. The prospective relief part of the order engenders ambiguity because it uses language taken from the examination data section of the Data Practices Act, section 13.34, and does not refer to personnel data or private data on individuals. This part of the order is also ambiguous because the court, on the one hand, concluded that a specific kind of data — the requested data — were private and therefore could not be withheld by the city, but, on the other hand, concluded that in the future this same kind of data may be withheld by the city. Nevertheless, this appeal does not involve that part of the order granting prospective relief and we have restricted our analysis to that part of the order granting appellants access to the requested data. The prospective relief part of the order is separate from the court's conclusions regarding the requested data and does not alter the court’s basic conclusion regarding the requested data.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Elizabeth Soli BRODSKY, petitioner, Respondent, v. Joseph Alan BRODSKY, Respondent, Nancy L. Ponto, intervenor, Appellant.
    No. C8-01-1170.
    Court of Appeals of Minnesota.
    Feb. 12, 2002.

      Dan K. Nelson, Peterson & Nelson, St. Paul, for respondent Elizabeth Brodsky.
    John A. Warchol, Warchol, Berndt & Hajek, P.A., Minneapolis, for appellant.
    Considered and decided by HARTEN, Presiding Judge, ANDERSON, Judge, and STONEBURNER, Judge.
   OPINION

HARTEN, Judge.

Appellant, after representing respondent in this dissolution action, intervened to collect her fees. While the district court found that the fee contract had been orally modified, it nonetheless refused to permit appellant to submit evidence relevant to whether an oral agreement existed. Appellant challenged that decision, and this court remanded for the district court to hear appellant’s evidence. After the hearing on remand, the district court again found that the contract had been modified and that the opposing party, on whom a part of appellant’s fees had been imposed as a sanction, was exclusively liable for that part. Appellant again challenged the decision. Because we conclude that the parties’ contract was not orally modified and hold that the imposition of a client’s attorney fees on another party does not itself relieve the client of liability, we reverse and remand.

FACTS

1. The Underlying Action

From August 1995 to June 1998 appellant Nancy Ponto, an attorney, represented respondent Elizabeth Soli in the dissolution of Soil’s marriage to respondent Joseph Brodsky, also an attorney. The couple had three young children, and the primary marital assets were Brodsky’s law practice and a number of rental properties.

The dissolution proceedings were acrimonious throughout, primarily because of Brodsky’s conduct. As the district court found:

[Brodsky,] even after the issuance of the original Order for Protection * * *,
used the children and visitation as a means to harass [Soil].
* # ⅝ *
Nondisclosed Debts.
(1) Until ⅜ ⅜ * [Soil] brought a motion to compel production, [Brodsky] refused to produce his charge account records. His contention was that he did not have to produce any personal records for the period following the separation or any of his business charge account records. [Brodsky’s] refusal was specious and without any legal basis whatsoever.
(2) ⅞ * * [Although [Soil] had requested the data be updated, [Brodsky] again refused to produce financial records in defiance of this Court’s February 1996 Orders.
(3) * * * Because [Soil] did not have .a substantial number of these records at the start of the trial she was severely hampered in her ability to prepare her case for trial. In addition, the limited records [Soil] did have revealed an astounding number of misappropriations by [Brodsky],
5»C ⅝ ⅝ ⅝
At some point during the pendency of the proceeding, despite [Soil’s] outstanding document production request for copies of all charge account statements, [Brodsky] decided to destroy his credit card statements. This Court issued Orders February 9 and February 12, 1996 requiring [Brodsky] to produce all credit card statements. Despite those Orders, [Brodsky] continued to destroy the credit card statements without providing copies to [Soli].
i|> í{« rj.
During the pendency of this action, while [Brodsky] was Court ordered to make mortgage payments or provide adequate support for [Soil] to do so, the mortgage secured by the homestead property was foreclosed. The redemption period following the Sheriffs sale expired August 23,1996, and the property was not redeemed.
[Soil] and the minor children of the parties resided in the homestead until August 23,1996, at which time [Soli] and the minor children were forced to vacate the homestead. [Brodsky] refused to assist [Soil] in securing suitable housing for her and the parties’ three minor children, even among the parties’ many rental properties. [Soli] did not have sufficient funds to obtain housing for herself and the minor children and had to make arrangements to temporarily reside with her mother and step-father * * *
At all times during this proceeding [Brodsky] had both money available and the ability to obtain credit to sustain his family during the parties’ separation, and he could have prevented the homestead mortgage from being foreclosed. Instead, [Brodsky] manipulated the parties’ income, diverting more than $38,000.00 from his law practice alone to his own use and used his credit card to take trips and gamble.
The evidence of [Brodsky’s] misconduct throughout these proceedings constitutes bad faith. [Brodsky’s] uncooperative attitude and lack of candor seriously impaired [Soil’s] ability to adequately prepare for trial, delayed these proceedings and added considerably to the cost she incurred in doing so. The records [Brodsky] did produce showed a course of extravagant spending and misappropriation of marital funds by [Brodsky] throughout this proceeding. In addition, [Brod-sky] has violated nearly every interim order entered by this Court, not once, but in most cases, repeatedly. He has breached his fiduciary duty to [Soli] and the minor children. He very purposely and intentionally created a financial crisis for [Soil], causing [Soil] and the children to be ejected from the family homestead and left without suitable living quarters from August 1995 to the present. During the pen-dency of these proceedings, [Brodsky] threatened to leave [Soli] without a place to live and penniless. His actions during the pendency of this case appear to be consistent with his expressed goal.
⅝ ⅝ sfc ⅜
At least $74,822.64 of [Soil’s] current counsel’s fees have been incurred in dealing with violations of Court Orders by [Brodsky] and in attempting to obtain financial information from [Brod-sky] which was critical to these proceedings. These fees were necessary and reasonable under the circumstances.

Based on these findings, the district court concluded that

[Brodsky] shall pay an additional $62,822.64 of [Soil’s] attorney’s fees as a consequence of his bad faith conduct in this case which resulted in considerable unnecessary delay and expense, unduly prejudicing [Soil] and the parties’ children. This amount represents $74,822.64 incurred by [Soil] specifically as a result of [Brodsky’s] bad faith conduct, less $12,000 previously paid [Soil’s] counsel * * *.

Following trial, Brodsky told Soli and Ponto that he planned to file for bankruptcy and offered $9,000 to settle the $62,822 debt. They rejected the settlement offer. Brodsky filed for bankruptcy in February 1999.

2. The Ponto-Soll Relationship

At their first meeting, Ponto gave Soli a copy of her representation agreement to sign and return. It provided in relevant part:

Your bill for legal services performed will be based on an hourly charge for the number of hours we work on your case. * * *
To ensure that your bill will be paid according to the terms of this Agreement, by signing this Agreement, you give me a lien on the property owned by you and your spouse.
⅜ ⅜ ⅝ ⅜
It is impossible to determine in advance the amount of time that will be needed to complete your case. Any estimate which was given to you was based on an average cost for the type of services we anticipated, and amount of time based on information you gave us. We do not have complete control of the amount of time which your case will require. Your spouse may engage in activities which will require more time than we originally anticipated.
In certain cases, the court may order your spouse to pay part or all of your fees and out-of-pocket expenses. Court orders requiring payment on your behalf of fees and expenses will not affect our Agreement and do not in any way limit the amount of fees. You are primarily liable for payment of your total bill with us and will be expected to pay according to the terms of this Agreement.

In October 1995, Soil and her mother met with Ponto. When asked what the cost of the dissolution would be, Ponto replied that it could go as high as $50,000. By July 1996, Ponto’s fee had gone beyond $50,000, and Soil’s payments were in arrears. In August 1996, Ponto became aware that, contrary to Ponto’s normal practice, Soil’s file did not contain a signed copy of the representation agreement. Ponto had her legal assistant ask Soli for it. The legal assistant testified that Soil said, “something like — * * * T don’t know if I have it or not, but I’ll see if I can find it. I’ll look through my stuff.’ ” Again in January 1997, the legal assistant asked Soli for the signed representation agreement. She testified that Soil’s “response at that point * * ⅜ was that her boxes were totally in storage. There wasn’t any way for her to even look to see if she had a copy.” The legal assistant also testified that, when Soil was asked for the signed agreement, Soil did not say either that she refused to sign it or that the original signed agreement did not exist.

In March 1997, Ponto filed liens on the Brodsky-Soll properties. Ponto then wrote Soil, stating in relevant part:

The other and major issue here is the size of the bill with no payments being made. When I stopped work on the file last year, I asked for a minimum payment of $15,000 to continue work. When you came up with $10,000, I told you I would go back to work, but you needed to work on getting payments of several thousand dollars a month to me. I have received $-0-and never heard one word from you about it until I contacted you last month. I still have not received anything.
Before we go on any further with this [post-trial] motion, you need to look at your bill and decide whether you can afford to incur the expense. I am looking at the bill and have decided I can not go on any farther without some substantial payment. When you decided earlier that you could not afford not to bring the motion, it was my time and money you were intending to spend.
* * * I have kept my part of the bargain and gotten the case through the trial, but you and your family did not keep your part and try to raise $2,000-$3,000 a month to pay on the bill so we could ride this out. Consequently, I am again at a point where I have no options. You will have to make up the missing payments (now eight months) and continue to pay $3,000 a month until the properties are sold and the bill paid in full. As we discussed, I have filed the liens. * * *
I realize this is all very difficult for you and it is for me as well. However, I can not put my practice at any further risk to financially support this case. If your family is not able or willing, for whatever reason, to make the financial commitment necessary, I think it is not reasonable for you to expect me to do it.

Soli replied in a short letter, “Won’t you please reconsider your position and file the motion?” She did not dispute Ponto’s fee or mention a $50,000 limit. In June 1998, Soil discharged Ponto, who refused to do further work on the case until some payment was made.

3. The Present Appeal

Ponto intervened in the dissolution action and moved for an evidentiary hearing on the issue of her fees. At the hearing, the district court made it clear that, in her view, there were two separate issues: Brodsky’s liability for the fees imposed on him as a sanction and Soil’s possible overpayment of Ponto in light of Soil’s $50,000 maximum liability.

This particular amount [$62,822] was awarded as a sanction, as opposed to a contractual provision between the attorney and the client. As a sanction against [Brodsky], And it’s clearly stated [in the dissolution decree] that it was awarded as a sanction. And that he and he alone * * * was responsible to pay that amount as a sanction. I view them to be two separate things. * * * [T]he only issue about the contract [between Soli and Ponto] is whether or not [Soil] has in fact overpaid [Ponto] already for attorney’s fees. * * *
[T]his amount that was awarded as a •sanction is not part of the agreement between [Soli] and [Ponto], but was awarded by the court as a sanction, attorney’s fees as a sanction for [Brod-sky’s] bad conduct * * *.

The hearing was continued until February 1999. The district court, believing that the only issue between Soil and Ponto was whether Soli had overpaid Ponto, did not allow Ponto’s testimony discrediting the $50,000 limit Soil claimed as a modification of their contract. On September 13, 1999, the district court issued a finding that Soil’s pre-dissolution liability to Ponto was limited to $50,000 and an order that Pon-to’s liens on Soil’s property be removed except to the extent necessary to satisfy Soil’s post-dissolution liability.

Ponto challenged the order. This court remanded the case because it concluded:

[Soli] contended that she and [Ponto] had orally agreed to limit fees and costs to $50,000 through the entire dissolution proceeding. But when [Ponto] attempted to present oral and written testimony tending to show that no such oral agreement existed, and that [Soil] had spoken and acted inconsistently with such an alleged agreement, the trial court refused to allow the testimony- — even though the testimony was directly relevant to whether an agreement existed.
⅝ * * At the very least [Ponto] must be permitted to present evidence tending to show the validity of the decree provision and the weakness of [Soil’s] position that fees were limited to $50,000.

In re the Marriage of Brodsky v. Ponto, No. C9-99-1693, 2000 WL 890416, at *4 (MinnApp. July 3, 2000). At the hearing on remand, the district court reiterated the view that Brodsky, not Soil, is obligated to pay Ponto the $62,882 and that Ponto is not entitled to liens on Soil’s properties.

[W]e all understood the only reason * * * Soil got all of those properties was not to pay her attorney’s fees, but was so she and the kids would have some support after we got done with the litigation, because we couldn’t depend on Mr. Brodsky to pay them one dime.
[H]ow does that help [Soli] if everything I awarded her then is subject to [Ponto’s] lien to pay something that [Brodsky] now hasn’t paid [Ponto]?

The district court also remarked, “I mean, I can’t help it that Brodsky declared bankruptcy.” Ponto responded, “And neither can I.”

In the order from which this appeal is taken, the district court reaffirmed its previous order removing Ponto’s liens on Soil’s properties and denying Ponto’s other requests for relief.

ISSUES

1. Does an attorney’s statement that the cost of a dissolution action could go as high as $50,000 modify the contract between the parties?

2. Did the district court, by imposing payment of part of Ponto’s fees on Brod-sky, relieve Soli of the obligation to pay Ponto and abrogate Ponto’s right to be paid?

ANALYSIS

1. Modification

In its September 13, 1999, Order, the district court correctly found that, in part, “Soil’s and Ponto’s * * * contract, as evidenced by their statements and actions, consisted] of the terms provided in [Pon-to’s] standard retainer agreement.” But the district court also found that Ponto’s oral statement that the cost of Soil’s divorce “could go as high as $50,000” modified that contract by imposing a $50,000 limit on Soli’s pre-dissolution liability. As this court previously observed, “[A]rgu-ably, this statement is insufficient to create an express binding contract for $50,000 maximum in fees and costs.” Brodsky, 2000 WL 890416, at *4 n. 3. We believe that it was insufficient.

“While a written contract may be modified by the parties’ subsequent conduct, whether such a modification occurred is a question for the factfinder.” Poser v. Abel, 510 N.W.2d 224, 228 (Minn.App.1994), review denied (Minn. Feb. 24, 1994). The district court, having heard both parties’ evidence, concluded that a modification had occurred. In reviewing a district court’s conclusions on ultimate issues, this court must carefully examine the explanations given by the court for its decisions. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn.1990).

The reason given by the district court for its conclusion leads us to believe that the conclusion was erroneous. The district court explained that “the evidence supported a finding that Soil understood her divorce would altogether cost her no more than $50,000 * * But Soil’s understanding is not the dispositive factor in deciding whether the parties’ agreement had been modified. ‘Whether a pre-exist-ing agreement has been modified depends on the parties’ objective manifestations, not their subjective understanding.” Beer Wholesalers, Inc. v. Miller Brewing, 426 N.W.2d 438, 440 (Minn.App.1988), review denied (Minn. Aug. 24, 1988).

Here, “the parties’ objective manifestations” do not indicate that modification occurred. The record reflects that: (1) at their first meeting, Ponto gave Soil a copy of her representation agreement providing that Ponto would receive an hourly fee and that the number of hours necessary to complete the case could not be determined; (2) Ponto expected to be paid for the work she did and Soil was aware of this expectation; (3) Soil received itemized monthly statements whose total surpassed $50,000 more than two years before Soil claimed the parties had a $50,000 limit; (4) Soil did not make that claim until Ponto attempted to collect her fees; (5) Soil sought and the district court imposed an award of attorney fees of $75,000 on Brodsky; (6) Pon-to’s staff testified that, when Soil was asked for the signed copy of the representation agreement, she did not say that she had not signed or would not sign it; and (7) after the dissolution, Soil did not dispute Ponto’s bill but rather asked Ponto to collect from Brodsky.

Even if, as Soil now claims, it was her understanding that Ponto’s fee would not go over $50,000, that understanding cannot support the conclusion that the parties’ contract had been modified because the parties’ objective manifestations, not their subjective understanding, are dispositive of modification. See Beer Wholesalers, 426 N.W.2d at 440. The parties’ objective manifestations here indicate that a maximum fee of $50,000 was not part of their contract.

2. The Imposition of Ponto’s Fee on Brodsky

It is undisputed that a district court may impose attorney fees as a sanction against a party “who unreasonably contributes to the length or expense” of a dissolution proceeding. Minn.Stat. § 518.14, subd. 1 (2000). We hold, however, that imposing attorney fees as a sanction on an opposing party does not relieve a client of the contractual obligation to pay those fees.

Here, Soli contracted with Ponto to handle her dissolution. Ponto zealously defended Soil’s interests and obtained for her an award of the great majority of the parties’ marital assets. The district court found that the work Ponto did was necessary and reasonable. Ponto is entitled to be paid for that work, and the person who contracted to pay her is Soli. In effect, the district court read into the parties’ contract two provisions: that Ponto’s entitlement to her fee was contingent on Brod-sky’s solvency and that Soil’s obligation to pay was transferable to Brodsky. But “courts cannot remake contracts or imply provisions through judicial interpretation.” In re Stevenson Associates, Inc. 777 F.2d 415, 421 (8th Cir.1985) (citing Telex Corp. v. Data Products, 271 Minn. 288, 295, 135 N.W.2d 681, 687 (1965)).

Moreover, Soil could not reasonably have believed that her obligation to pay was transferable. She testified that she read Ponto’s representation agreement and had it reviewed by a retired attorney. It provides

[T]he court may order your spouse to pay part or all of your fees and out-of-pocket expenses. Court orders requiring payment on your behalf of fees and expenses will not affect our Agreement and do not in any way limit the amount of fees. You are primarily liable for payment of your total bill with us and will be expected to pay according to the terms of this Agreement.

Soil also testified that Ponto had told her that she was responsible for the total bill.

Ponto is entitled to be paid, and the district court has ordered Brodsky to pay her. But Soil remains primarily liable for that payment, and, in the event that Ponto cannot obtain payment from Brodsky, she is entitled to a lien on Soli’s properties.

DECISION

The parties’ representation agreement whereby the client would pay the attorney an hourly fee was not modified by the attorney’s oral estimate of the total fee, and the client’s obligation to pay the attorney was not abrogated by the district court’s imposition of the fee as a sanction on the opposing party. We reverse the district court’s order removing the liens and remand for further proceedings consistent with this opinion including our direction that the district court forthwith reinstate Ponto’s liens on Soil’s properties.

Reversed and remanded.

      . Although listed as a respondent in this appeal, Brodsky has taken no part in it.

      . Each of Ponto's other theories of recovery (contract implied in fact, contract implied in law, and estoppel) is based on the premise that Soil's contractual agreement to pay her was not affected by the district court's imposition on Brodsky of part of Ponto's fees.


author: WILLIS, Judge.

text:
    STATE of Minnesota, Respondent, v. COMPASSIONATE HOME CARE, INC., Appellant.
    No. CX-01-683.
    Court of Appeals of Minnesota.
    Feb. 12, 2002.
    As Corrected Feb. 27, 2002.

      Mike Hatch, Attorney General, Sara De-Santo, Assistant Attorney General, St. Paul (for respondent).
    Richard H. Kyle, Jr., Minneapolis, (for appellant).
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and ANDERSON, Judge.
   OPINION

WILLIS, Judge.

This appeal is from a conviction of criminal neglect of a vulnerable adult in violation of Minn.Stat. § 609.233, subd. 1 (1996). Because the district court abused its discretion in instructing the jury and erred in responding to a jury question without notifying counsel, we reverse and remand.

FACTS

Appellant Compassionate Home Care (CHC) is a corporation that is licensed to provide home-care services. In 1997, at the time of the events charged in the criminal complaint, CHC was owned by Charlie and Roberta Parker, and Trina Asche, the assistant administrator, was in charge of its day-to-day operations.

Since 1989, CHC had provided home-care services to Carol Forbes, a 52-year-old woman who was quadriplegic and suffered from cerebral palsy, scoliosis, osteoarthritis, degenerative joint disease, and asthma. In May 1997, these services were being provided by Kimberly Benjamin, a personal-care attendant (PCA) recently hired by CHC, as well as other PCAs. At that time, Forbes was living in an apartment complex in Stillwater.

In May 1997, Benjamin gave notice on behalf of Forbes to the manager of the apartment complex that Forbes would be moving out for a week or two to go camping. Benjamin called Asche at CHC’s offices in Minneapolis to tell her that she was taking Forbes to the house where Benjamin was living in Isanti County, where Forbes would be “camping” in the backyard for one or two weeks. Benjamin told Asche that Forbes’s equipment — a hospital bed and Hoyer lift, along with her medications — would be available in the tent. Asche approved the arrangement.

The state presented evidence that Forbes lived in the tent, whose walls were constructed only of mesh screening, for about ten days, through a wide range of temperatures and weather conditions. The supervising nurse who managed Forbes’s care told a state investigator that she did not visit Forbes while she lived in the tent, and CHC kept no records documenting the living conditions there. Friends who visited Forbes reported that she seemed happy but that she also seemed isolated. Benjamin was not attending Forbes when the friends arrived, and she did not return until the Mends had been there for two hours.

In early June, Benjamin moved Forbes from the tent into an upstairs bedroom in the house. The supervising nurse visited the house on June 10 and reported no problems with the living arrangements when she called Asche. Forbes’s mother, however, visited her in Benjamin’s house and testified that Forbes was in a very small bedroom, with no lift by her bed, and no air conditioning, although the weather was very hot. She also testified that, despite her daughter’s asthma and allergies, there were three cats and two dogs in the house, as well as three smokers. When Forbes’s social worker informed state officials of the change in Forbes’s living sitúation, a state agency employee, later joined by Forbes’s social worker and a representative of a private agency, visited the house and determined that the living conditions were “not safe.” After the social worker began the process of having a conservator appointed, CHC moved Forbes out of Benjamin’s house. Forbes died of a blood clot in her lungs the following month.

The state filed a criminal complaint charging CHC with neglect of a vulnerable adult. Shortly before trial, CHC requested that the district court instruct the jury on corporate criminal liability. The state submitted a proposed jury instruction on corporate criminal liability, although the prosecutor also argued that such an instruction was not necessarily appropriate. The district court declined to instruct the jury on corporate criminal liability, concluding that the legislature, in enacting the neglect statute, “clearly contemplated a corporate caregiver,” yet had not attempted to define corporate criminal liability.

During its deliberations, the jury sent a written question to the court, asking

Is Compassionate Care liable & responsible for the actions of their employees?

The district court, without notifying counsel, responded in writing, through the bailiff:

I can’t give you any further instructions. You will have to decide based on what you’ve been given.

The jury found CHC guilty of neglect of a vulnerable adult, in violation of Minn. Stat. § 609.233, subd. 1 (1996). CHC moved for a new trial, arguing that the district court erred in failing to instruct the jury on corporate criminal liability and by responding to the jury’s question during deliberations without first notifying counsel. The district court denied CHC’s motion. This appeal follows.

ISSUES

1. Did the district court abuse its discretion in refusing to instruct the jury on corporate criminal liability?

2. Did the district court prejudicially err in responding to a jury question without first notifying counsel?

ANALYSIS

I.

A district court is given “considerable latitude” in selecting the language of jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990) (quotations omitted). The refusal to give a particular jury instruction lies within the district court’s discretion “and no error results if no abuse of discretion is shown.” State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). A party is entitled to a particular jury instruction if the evidence presented at trial supports the instruction. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). Jury instructions are viewed in their entirety to determine whether the law of the case is fairly and adequately explained. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988).

During trial, CHC requested a jury instruction on corporate criminal liability, based on language in State v. Christy Pontiac-GMC, Inc., 354 N.W.2d 17, 20 (Minn.1984). The district court declined to give the requested instruction, concluding that because the criminal neglect statute “clearly contemplated a corporate caregiver” but the legislature had not included the language from Christy Pontiac-GMC, the standard jury instruction on the offense of criminal neglect was sufficient.

The criminal-neglect statute provides:

A caregiver or operator who intentionally neglects a vulnerable adult or knowingly permits conditions to exist that result in the abuse or neglect of a vulnerable adult is guilty of a gross misdemeanor.

Minn.Stat. § 609.283, subd. 1 (1996). A “caregiver” is defined, in part, as an “individual or facility” that has “assumed responsibility” for the care of a vulnerable adult. Minn.Stat. § 609.232, subd. 2 (1996). CHC conceded at trial that it was a “caregiver.” In particular, it appears that CHC was a “home care provider licensed or required to be licensed” and therefore a “facility.” Minn.Stat. § 609.232, subd. 3 (1996).

The supreme court in Christy Pontiac-GMC held that “a corporation may be prosecuted and convicted for the crimes of theft and forgery.” 354 N.W.2d at 19. The court, however, went on to lay out “the evidentiary basis on which criminal responsibility of a corporation is to be determined.” Id. The court stated:

We believe, first of all, the jury should be told that it must be satisfied beyond a reasonable doubt that the acts of the individual agent constitute the acts of the corporation.

Id. at 20. The court went on to specify “the kind of proof required,” stating:

we hold that a corporation may be guilty of a specific intent crime committed by its agent if: (1) the agent was acting within the course and scope of his or her employment, having the authority to act for the corporation * * *; (2) the agent was acting, at least in part, in furtherance of the corporation’s business interests; and (3) the criminal acts were authorized, tolerated, or ratified by corporate management.

Id.

The state argues that Christy Pontiac-GMC does not apply here because CHC was not charged with a specific-intent crime. The statute imposes criminal liability on a caregiver who “knowingly permits” conditions to exist that result in the abuse or neglect of a vulnerable adult. Minn.Stat. § 609.233, subd. 1. Specific intent requires that the defendant acted with the intent to produce a specific result. State v. Orsello, 554 N.W.2d 70, 72 (Minn.1996). The statutory language relied on by the state (“knowingly permitfs]”) does not imply any intent to produce the prohibited result. But the statute also imposes criminal liability on a caregiver who “intentionally neglects” a vulnerable adult. Minn.Stat. § 609.233, subd. 1. In instructing the jury on the elements, the court included the “intentionally neglects” language, and even defined the term “intentionally.”

CHC argues that the prosecution presented to the jury the theory that CHC intentionally neglected Forbes, as well as the theory that it “knowingly permitted” conditions of neglect. We agree that the prosecution argued to the jury several omissions on the part of CHC from which the jury could infer specific intent to neglect Forbes. The prosecutor emphasized CHC’s failure to do an assessment of the living conditions in the tent, an omission that suggested intentional neglect while precluding the knowledge required to “knowingly permit.” Moreover, the jury was not told who at CHC needed to “knowingly permit” conditions of neglect in order for the corporation to be guilty.

The prosecutor also argued that CHC failed to properly assess Forbes’s living conditions in Benjamin’s house and failed to keep adequate records. In listing these omissions, the prosecutor was arguing intentional neglect by CHC, not merely conditions that it permitted to exist. Furthermore, the jury, in asking about CHC’s liability for the “actions” of its employees, appears to have focused on acts or omissions that could have been intentional, not merely on corporate knowledge or conditions that were permitted to exist.

The court has an obligation to clearly instruct the jury on exactly what it is they must decide. Rosillo v. State, 278 N.W.2d 747, 749 (Minn.1979). The district court’s instructions did not inform the jury exactly how it was to determine, from the evidence of what various CHC employees knew and what actions they took, what the corporation intended to do or “knowingly permitted” to happen to Carol Forbes. The district court concluded that the language of the criminal-neglect statute was sufficient. But, as the supreme court has held, it is desirable to explain the elements of the offense, not merely to read the statute. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001). Here, while the district court gave the standard jury instruction on criminal neglect, CRIMJIG 13.76, it gave the jury no instruction on whose acts or knowledge could be imputed to the corporation. The court referred to the “defendant’s act” and defined the requisite knowledge of the “actor” but did not tell the jury how or through whom a legal entity such as a corporation could act or have knowledge.

The state argues that any error in failing to instruct the jury on corporate criminal liability was harmless because there was ample evidence to establish CHC’s guilt, even under the Christy Pontiac-GMC test, and because the attorneys’ closing arguments emphasized that corporate liability had to be based on the conduct of corporate management. An error in instructing the jury is harmless if it can be said beyond a reasonable doubt that the error had no significant impact on the verdict. State v. Pendleton, 567 N.W.2d 265, 270 (Minn.1997).

The state points to the evidence that CHC’s management (the Parkers and Asche) knew that Forbes was living in a tent and then in a bedroom in Benjamin’s house. But there was conflicting evidence on whether those living situations by themselves constituted neglect. The evidence was not overwhelming that living in a tent for seven to ten days, a “camping” experience that Forbes had eagerly sought, constituted “neglect” or that CHC’s management knew of conditions inside Benjamin’s house that would constitute “neglect.” See MinmStat. § 609.233, subd. 1 (defining neglect as failure to provide vulnerable adult with “necessary food, clothing, shelter, health care, or supervision”). Moreover, the jury’s question, which was directed at corporate criminal liability, indicates that the court’s failure to instruct on that subject may have had a significant impact on the verdict.

II.

CHC also argues that the district court erred in responding to the jury’s written question about corporate criminal liability, submitted during the jury’s deliberations, without giving notice to defense counsel.

The rule provides:

If the jury, after retiring for deliberation, desires to be informed on any point of law, the jurors, after notice to the prosecutor and defense counsel, shall be conducted to the courtroom.

Minn. R.Crim. P. 26.03, subd. 19(3)1. The supreme court has recently emphasized the mandatory nature of the rule. State v. Sessions, 621 N.W.2d 751, 755-56 (Minn.2001) (noting that rule requiring that jury be conducted to the courtroom is mandatory and does not depend on the nature of the court’s response).

We conclude that the district court erred in failing to notify counsel of the question and in answering it without prior notification. As discussed above, the jury’s question signaled its need for an instruction on corporate criminal liability. Had CHC’s attorney been notified of the jury’s question, he could have argued, with additional support, the need for such an instruction. Because we have concluded that failure to instruct on corporate criminal liability was reversible error, we need not determine whether the failure to notify counsel of the jury’s question would by itself warrant a new trial.

DECISION

The district court abused its discretion in refusing to instruct the jury on corporate criminal liability. The court also erred in answering a jury question on that subject without first notifying counsel.

Reversed and remanded.