author: ZINTER, Justice.

text:
    2003 SD 35
    Kenneth R. HOFMEISTER, Mary Lou Hofmeister, Scott Dunham, John L. Overby, Katherine M. Overby, Thomas F. Overby, Kaye Overby, Frederick R. Heigold and Cynthia J. Heigold, Plaintiffs and Appellees, v. Gary L. SPARKS, Defendant and Appellant.
    No. 22480.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided April 9, 2003.

      Brad P. Gordon, A.P. Fuller of Fuller, Tellinghuisen, Gordon & Percy, Lead, South Dakota, Attorneys for plaintiffs and appellees.
    Reed C. Richards, Deadwood, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Kenneth and Mary Lou Hofmeis-ter; Scott Dunham; John, Katherine, Thomas and Kaye Overby; and, Frederick and Cynthia Heigold (collectively referred to as Hofmeister), own land in a subdivision in the Black Hills. Their property rights include a platted “66' access easement” across two other parcels of land. The easement gives them access from their land to Nemo Road, a public highway. Gary Sparks, a landowner upon which a portion of the access easement lies, placed a gate across the easement. Sparks contended that the easement was no longer valid. Hofmeister thereafter commenced a declaratory judgment action against Sparks to ascertain the legal status of the easement. The circuit court held that the easement was a public road, or in the alternative, a private access easement that had not been vacated or extinguished. Sparks appeals. We affirm the circuit court’s holding that a private access easement exists, and that it has not been extinguished or abandoned.

LAND DESCRIPTIONS

[¶2.] This appeal involves three parcels of land that have been platted, and in some cases, replatted. All three parcels were at one time owned by Jacob and Nadine Raskob, and are connected by the 66' platted access easement. (See attachment). Gary Sparks acquired some or all of the three parcels and subsequently conveyed some portions of the property to others, including Hofmeister. The two servient tenements are called HES 537 and HES 417. The dominant tenement is called Hailstorm. A more specific description follows.

HES 537

[¶ 3.] HES 537 lies adjacent to, and just south of Nemo Road. In 1976, Raskob filed a plat, which described the 66' access easement through HES 537. This easement created access from Nemo Road across Lot A of HES 537, and then to HES 417. In 1977 Raskob subdivided HES 537, changing its description from “Lot A” to Lots 3 through 9. The new plat for this subdivision included the 66' access easement, which was identical to the easement created in the 1976 plat. In 1977, Raskob deeded Lot 8 of HES 537 to Sparks.

HES 417

[¶ 4.] The south side of HES 537 borders the northeast portion of HES 417. The 66' easement continues from HES 537 through HES 417, and gives HES 417 access to Nemo Road, by way of HES 537. Sparks bought HES 417 in 1983. Sparks platted “Lot 2” of HES 417, and sold that lot to Bill Jacobson. Although that plat of Lot 2 does not specifically describe the access easement, the plat did not vacate any prior plats, including the plat that created the 66' access easement across HES 417. The portion of the easement that lies on HES 417 is the subject of this appeal.

Hailstorm

[¶ 5.] Hailstorm (Lots 2, 3, and 4), lies south of HES 417, but this property is separated from HES 417 by a 400 foot strip of Forest Service land. Hailstorm was given ingress and egress to Nemo Road by first crossing the Forest Service land, and then by use of the easement across HES 417 and HES 537.

[¶ 6.] Sparks purchased Hailstorm from Raskob in 1976. At that time, Sparks re-platted it into a single tract, referred to as “Tract A” (Hailstorm). Sparks sold this parcel in 1978. Hailstorm was sold again in 1990, and by several other conveyances, the lots in Hailstorm were ultimately transferred to the Hof-meister party plaintiffs. Significantly, all the transfers of Hailstorm property that occurred after Sparks’ ownership included the 66' access easement.

FACTS AND PROCEDURAL HISTORY

[¶ 7.] At some point prior to this action, a dispute over the access easement developed between Hofmeister and Sparks. Part of the dispute developed when Sparks sent a letter to Jacobson and Hofmeister suggesting improvements to the access easement. Hofmeister responded by letter to Sparks indicating that Hofmeister had obtained a lower estimate for the improvements. The letter also indicated that Hofmeister would be willing to pay $1,000 of the cost of the improvements if Sparks and Jacobson would split the remaining $1,725. Sparks ended this discussion by a letter claiming there was no easement from Hailstorm across HES 417. Sparks’s final letter also stated that “[w]e don’t expect to see you on the road.” Additionally, at some point prior to this action, Sparks placed a gate across the access easement at the point where the easement over HES 417 and the 400 foot strip of forest service land connect. Without the easement across HES 417, that particular access route from Hailstorm across HES 537 to Nemo Road was unavailable.

[¶ 8.] The owners of Hailstorm subsequently commenced this action to establish the existence of the access easement. They also sought to order Sparks to reopen the road. The circuit court decided the case on stipulated facts. The court held that the access easement was a public road, or in the alternative, a private easement that had not been extinguished or abandoned.

[¶ 9.] Sparks appeals raising four issues.

1. Whether the access easement was a dedicated public road.
2. Whether the access easement was abandoned.
3. Whether the access easement was extinguished by prescription.
4. Whether the access easement was extinguished when Sparks owned both the dominant and the ser-vient tenements.

STANDARD OF REVIEW

[¶ 10.] This is a declaratory judgment action submitted upon stipulated facts. In declaratory judgment actions, this Court “has an obligation to reach its legal conclusions independent from the conclusions reached by the trial court.” City of Rapid City v. Anderson, 2000 SD 77, ¶ 6, 612 N.W.2d 289, 291 (internal citations omitted).

DECISION

1. The access easement was not a dedicated public road.

[¶ 11.] At the time this case was decided, the parties did not have the benefit of our decision in Selway Homeowners Association v. Cummings, 2003 SD 11, 657 N.W.2d 307. Selway reiterates the requirements for the dedication and acceptance of a platted public road. Like Sel-way, the plats here do not contain the necessary words of dedication of a public road. Furthermore, without such a dedication, Lawrence County could not have accepted the easement for public use. Id. at ¶ 20, 657 N.W.2d at 313. Consequently, we proceed to examine the remaining issues concerning the existence of a private access easement.

2. The access easement was not abandoned.

[¶ 12.] Sparks argues that two events resulted in Hofmeister’s abandonment of the access easement. Sparks first argues that an abandonment occurred when the Forest Service improved an area logging road that provided Hailstorm an additional route of access to public roads. This Forest Service road was designated as 582-1. Sparks argues that, because 582-1 provided Hofmeister with an alternate access to Hailstorm, Hofmeister abandoned the access easement.

[¶ 13.] SDCL 43-13-12 sets forth the requirements to extinguish an easement. “A servitude is extinguished by the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise.” Id. However, under SDCL 43-13-12, there must be an affirmative act of abandonment on the part of the owner of the easement to extinguish the easement. Mere nonuse of an easement, created by grant, is insufficient to satisfy this requirement. Clark v. Redlich, 147 Cal.App.2d 500, 305 P.2d 239, 244 (1957) (nonuse of easement by easement holder was insufficient to extinguish easement, even though easement owner had other access, and easement required extensive grading to make it suitable for travel). Therefore, while we have held that substituted access may be evidence of abandonment, that factor alone is not dis-positive.

The use of a substituted way may be evidence of abandonment of the original way. This, however, is not conclusive of non-use. The mere use of a new right-of-way will not extinguish the old. There must also be an abandonment by non-use of the old right-of-way.

Shippy v. Hollopeter, 304 N.W.2d 118, 121-122 (S.D.1981)(further citations omitted). The party claiming abandonment in such cases must show an intent to abandon the easement. Cleveland v. Tinaglia, 1998 SD 91, ¶ 26, 582 N.W.2d 720, 725.

[¶ 14.] Here, Sparks argues that intent to abandon was demonstrated by the fact that after the Forest Service improved 582-1, Hofmeister stopped using the access easement other than when Hofmeister asked for a “construction easement” to do some work in Hailstorm. However, we first note that the Forest Service builds, services, opens and closes its roads for its own purposes. This record does not reflect that the Forest Service’s motives in improving 582-1 also reflected that Hof-meister intended to intentionally abandon the platted access easement.

[¶ 15.] We also note that other evidence reflects that Hofmeister did not intentionally abandon the easement. Hof-meister not only used the easement for construction access, but Hofmeister also took affirmative steps to improve the easement. Indeed, in the summer of 1995, Hofmeister spent money to place a culvert on a portion of the access easement. Furthermore, Sparks essentially conceded the existence of the access easement in his 1997 letter in which he referred to it as “the road we use for access to our homes” and asked for Hofmeister’s help in improving it. If Hofmeister had unequivocally abandoned the access easement, Hofmeis-ter would not have installed the culvert, he would not have agreed to pay $1,000 for improvements, and Sparks certainly would not have used the language he did in his letters to Hofmeister.

[¶ 16.] Sparks, however, also argues that Hofmeister abandoned the easement because Hofmeister did not obtain an easement from the Forest Service to cross the 400 foot strip of Forest Service land. Without crossing that Forest Service land, it would not have been possible to go from Hailstorm to HES 417, and ultimately to Nemo Road. However, Hofmeister’s “legal right” to use the Forest Service land is irrelevant. The issue is simply whether Hofmeister has a platted easement on HES 417. Although evidence of a lengthy Forest Service refusal to permit crossing the 400' strip could be some evidence of abandonment, the existence of a formal Forest Service easement is not dispositive because there is nothing in the record indicating that the Forest Service had precluded Hofmeister from crossing the Forest Service land. The only record evidence of blocked access was from Sparks’ gate on HES 417 at the Forest Service property line. Therefore, in light of all of the facts, a lack of a formal Forest Service easement does not reflect that Hofmeister had unequivocally abandoned the access easement on HES 417.

3. The access easement was not extinguished by prescription.

[¶ 17.] Sparks argues that the easement was extinguished by prescription. Sparks contends that since 1978, he precluded Hofmeister’s use of the access road except by permission. We have held that an easement may be extinguished by prescription. An easement may be extinguished if the owner of the servient estate excludes the easement holder for the twenty-year statutory period. Shippy, 304 N.W.2d at 121; SDCL 15-3-1. To prove extinguishment, we believe that, like a party asserting the defense of permissive use to prevent the creation of a prescriptive right, the party asserting extinguishment by prescription also bears the burden of proof to show that the use was only permissive. See generally Kougl v. Curry, 73 S.D. 427, 432-433, 44 N.W.2d 114, 117 (1950) (stating that “[t]he owner of the servient estate, in order to avoid the acquisition of an easement by prescription, has the burden of rebutting this presumption by showing that the use was permissive.”)

Here, there is nothing in the stipulation of facts to establish the length of the alleged “permissive use.” Therefore, Sparks has not established that the access easement was only used by permission for more than twenty years and that the easement was extinguished by prescription.

4. The access easement was not extinguished when Sparks owned both the dominant and the ser-vient tenements.

[¶ 18.] Sparks argues that the access easement was extinguished because at one point in time, he simultaneously owned both the servient tenement (HES 417) and the land that benefited from the easement (Hailstorms). Sparks relies on SDCL 43-13-6, which provides that “[a] servitude is extinguished by the vesting of the right to servitude and the right to the servient tenement in the same person.”

[¶ 19.] However, we need not address this issue because even if this access easement was extinguished, it was subsequently revived. Here, the record reflects that if the easement was extinguished when Sparks owned both Hailstorm and HES 417 at the same time, during that same period of ownership, Sparks also deeded an identical access easement for the benefit of Hailstorm to Hofmeister’s predecessors in interest.

[¶ 20.] We affirm.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Although the stipulated facts and the Judge’s findings of facts list this date as 1997, it is clear from the deed that the actual date is 1977.

      . Raskob also deeded Lots 4-7 and 9 to David Sparks in 1977. David Sparks contracted to sell his HES 537 lots to Gary Sparks in 1999; however, that sale has not yet been completed.

      .In the statement of facts portion of Sparks's brief, Sparks’s counsel recites four "facts” that were offered as being material to the disposition of this case. However, those statements of fact were not accompanied by a reference to the record where the alleged facts appear as required by SDCL 15-26A-60(5). Consequently, Hofmeister vigorously disputed those facts and claimed that they were not in the record. In his reply brief, counsel for Sparks responded by claiming that the disputed facts were in the record, and for the first time provided this Court with citations to the record.
      However, counsel's citations to the record reveal that none of these "facts” were offered or received as evidentiary facts before the trial court. On the contrary, each alleged fact is only an assertion found in one of Sparks’s trial court pleadings (the answer, counterclaim, motion for summary judgment, proposed findings of fact and conclusions of law, motion for a new trial, or Sparks’s affidavits filed with those pleadings). Because these pleaded assertions relate to issues on the merits (as opposed to procedural disputes relating to those pleadings) we find that counsel’s initial recitation of such "facts” was not stated fairly, with complete candor to this Court as required by SDCL 15-26A-60(5).
      We take this opportunity to advise appellate practitioners that all material facts must contain a reference to the record. Id. Moreover, absent an issue on appeal which makes a party's assertion in a pleading relevant, the statement of facts required in appellate briefing should not recite as evidentiary facts, mere assertions from that party's pleadings. Sparks’s counsel’s use of assertions in pleadings as evidentiary facts in his opening brief was misleading to opposing counsel and this Court.

      . Although we found that an access easement was abandoned in Cleveland (partially because of the use of an alternative route) that abandonment was also evidenced by the fact that a culvert had washed out several years before the dispute, and travel over the easement was impossible from that time on. Cleveland, 1998 SD 91, ¶¶ 26-27, 582 N.W.2d at 725-726.

      . The original access easement was created by plat number 76-1420. When Sparks deeded Hailstorms to Hofmeister’s predecessor in 1978, he specifically deeded the access easement referred to in plat 76-1420.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Alan J. ALBRECHT, an Attorney at Law of the State of Minnesota.
    No. C3-97-356.
    Supreme Court of Minnesota.
    May 15, 2003.

      Kenneth L. Jorgenson, Director, Patrick R. Burns, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for Petitioner.
    Matthew J. Franken, Rebecca Egge Moos, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for Respondent.
   OPINION

PER CURIAM.

By order dated January 9, 1998, Alan J. Albrecht was suspended from the practice of law for 45 days. Albrecht was re-admitted to the practice of law on April 14, 1998. As part of his re-admission, Albrecht was required to, among other things, satisfactorily complete four years of supervised probation. On October 10, 2001, pursuant to Rule 12(a), Rules on Lawyers Professional Responsibility (RLPR), the Director of the Office of Lawyers Professional Responsibility (Director) served on Albrecht and filed with this court a petition for revocation of probation alleging professional misconduct in three client matters. On May 28, 2002, Renville County District Court Judge Randall J. Slieter, acting as referee, held a hearing on the petition. The referee issued his findings of fact, conclusions of law, and recommendation for discipline on July 15, 2002. Based on his findings and conclusions, the referee recommended that Albrecht serve an additional two years on supervised probation subject to the same terms and conditions that were set forth in this court’s April 14, 1998, order re-admitting Albrecht to the practice of law in Minnesota.

The Director ordered a transcript of the referee proceedings pursuant to Rule 14(e), RLPR and, thus, the referee’s findings and conclusions are not conclusive. The Director challenges findings 3, 15, 19, 20, 22, 23, 25, and 26, conclusions 4 and 7, and the recommendation for discipline. The Director recommends that Al-brecht be suspended from the practice of law for a minimum of one year. In response, Albrecht argues that the referee’s findings and conclusions are not clearly erroneous and that a one-year suspension would not serve the policies underlying attorney discipline.

I.

Albrecht was admitted to practice law in Minnesota in 1988 and has been a solo practitioner since the mid-1990s. In 1993, Albrecht received the first of nine admonitions from the Office of Lawyers Professional Responsibility. In addition, Albrecht has been the subject of public discipline three times. The first admonition was for negotiating checks that were not payable to him and for failing to properly deposit checks into his trust account. Albrecht was admonished twice in 1994 for making misleading statements to clients. He was admonished twice more in 1997 for overbilling and for failing to cooperate with the Director’s investigation.

In July of 1997, Albrecht stipulated to a public reprimand and two years of supervised probation. In re Albrecht, 565 N.W.2d 704, 705 (Minn.1997). The reprimand was based on a pattern of failing to cooperate with the Director, neglecting client matters, non-communication with clients, and failing to deposit a retainer in a trust account as required. Id. at 704. As part of the stipulation, Albrecht was required to regularly review his files, be supervised by another attorney, complete legal matters on a timely basis, set up appropriate office procedures, cooperate with the Director’s office in its efforts to monitor compliance with probation, and abide by the Minnesota Rules of Professional Conduct (MRPC). Id. at 705.

Albrecht stipulated to further discipline in January and again in April of 1998. In re Albrecht, 573 N.W.2d 89 (Minn.1998); In re Albrecht, 577 N.W.2d 712 (Minn.1998). In January 1998, Albrecht stipulated to a 45-day suspension for failing to promptly respond to correspondence from the Director, in violation of his probation. In re Albrecht, 573 N.W.2d at 90. The stipulation provided that, on re-admission, Albrecht was required to provide the Director’s office with a written plan to ensure compliance with his probation, provide progress reports as requested, and continue his current mental health treatment, medication, and therapy programs, in addition to the probation requirements set forth in the July 1997 stipulation. Id. at 90-91. The April stipulation was based on Albrecht’s failure to diligently pursue the matters of seven clients and failure to timely pay a judgment against his firm. In re Albrecht, 577 N.W.2d at 712. As part of the April stipulation, Albrecht was reinstated to the practice of law and placed on an additional four years of supervised probation. Id. at 713. The terms of the probation were essentially the same as those set forth in the January 1998 disciplinary matter. See id. at 712-13. Al-brecht acquired a new supervisor in July 1998.

After the April 1998 discipline, Albrecht was admonished four more times. He was admonished twice in 1999, once for failing to pay a court reporter for services provided, and once for failing to promptly return an unused retainer. He was admonished in 2000 for prejudicing the administration of justice by leaving an opposing counsel with the impression that he was representing a client at trial, when he was not. Finally, Albrecht was admonished in 2001 for making false statements to a client in order to collect fees.

On December 26, 2001, the Director filed the instant petition alleging that Al-brecht engaged in misconduct in matters involving three clients: Arnovich, Raatz, and Christopherson. The Arnovich matter involved Albrecht’s failure to provide a timely response to the Minnesota Department of Human Rights (MDHR) in an employment-discrimination matter. As a result, the MDHR dismissed Arnovich’s complaint. Albrecht subsequently commenced a civil action on Amovieh’s behalf, but took no other action between the summer of 1999 and September of 2000, when Arnovich terminated Albrecht’s services. The referee concluded that there was clear and convincing evidence that Albrecht’s conduct in the Arnovich matter violated Rules 1.3 and 1.4, MRPC. The Director does not challenge the referee’s findings and conclusions with respect to the Arno-vich matter.

In the Raatz matter, Albrecht filed an untimely appeal of a district court order with the court of appeals. The court of appeals dismissed the untimely appeal. Albrecht did not inform Raatz that the appeal had been filed or that the court of appeals dismissed the appeal. Subsequent to the dismissal of the appeal, Albrecht recommended that Raatz commence a second lawsuit involving essentially the same issues that had been finally resolved as the result of the court of appeals’ dismissal of the untimely appeal. The subsequent lawsuit was dismissed with prejudice based on res judicata and collateral estoppel by the district court, which also awarded attorney fees against Albrecht. The referee found that Albrecht did not keep Raatz reasonably informed and did not act with reasonable diligence in representing Raatz. Thus, the referee found that Albrecht violated Rules 1.3 and 1.4, MRPC. The referee also found, however, that on the facts presented he could not conclude that the second lawsuit was frivolous. The referee did not find any violations with respect to Rules 1.1, 3.1, 8.1(a)(1), or 8.4(c), MRPC. Finally, the referee noted that he was “confident that necessary changes in [Al-brecht’s] practice will eliminate the repeat of the timing issue that led to the dismissal of the [Raatz] appeal.”

In the Christopherson matter, Christo-pherson sought Albrecht’s assistance in an employment-based age-discrimination case. Albrecht was initially retained by Christo-pherson in June of 1996. In the stipulation that led to this court’s April 14, 1998, order reinstating Albrecht to the practice of law, Albrecht admitted that he had neglected Christopherson’s employment matter and that the statute of limitations on her claim against her former employer had run no later than June 7, 1997. At no time, either before or after he was disciplined for his neglect in the Christopher-son matter, did Albrecht inform Christo-pherson that the statute of limitations on her claim had run.

Notwithstanding the fact that the statute of limitations had expired, Albrecht arranged for Christopherson to come to his office and sign a pro se complaint that he had drafted and that was ultimately served on Christopherson’s former employer. Although it is not clear when Al-brecht drafted the complaint, it is clear that Christopherson came to his office to sign it during the time that Albrecht was suspended from the practice of law.

With respect to this employment-discrimination claim, the referee found that Christopherson’s testimony was not credible and that it was not clear from the evidence when Albrecht drafted the complaint or whether he practiced law during a period in which he was suspended from the practice of law. The referee nonetheless found that Albrecht failed to keep Christopherson reasonably informed about the status of her matter, failed to promptly reply to her requests for information, and failed to act with reasonable diligence and promptness in representing her. He thus found a violation of Rule 1.4, MRPC. He specifically found no violations of Rules 1.1, 3.1, 4.1, 5.5, or 8.4(c), MRPC.

While finding that Albrecht violated Rule 1.3, MRPC, in the Arnovich and Raatz matters and Rule 1.4, MRPC, in the Arnovich, Raatz, and Christopherson matters, the referee also found that Albrecht’s misconduct was mitigated as a result of supervision “that he is currently participating in” and that the existence of a medical condition, sleep apnea, contributed to the disciplinary matters. With respect to Albrecht’s previous discipline, the referee found that disciplinary history was not an aggravating factor because there were mitigating circumstances surrounding each previous discipline. Based on his findings and conclusions, the referee recommended that Albrecht serve an additional two years of supervised probation subject to the same terms and conditions set forth in this court’s April 14, 1998, order re-admitting Albrecht to the practice of law.

II.

The purpose of attorney discipline is not to punish the attorney, but rather to protect the public, the courts, the legal profession, and the administration of justice. In re Shaughnessy, 467 N.W.2d 620, 621-22 (Minn.1991). This court defers to the referee’s findings on disputed facts and will not reverse those findings and conclusions unless clearly erroneous. In re Westby, 639 N.W.2d 358, 367 (Minn.2002). We also consider the attorney’s disciplinary history, especially when the discipline is for misconduct similar to present violations because an attorney is expected to show a “renewed commitment” to professional ethics after being disciplined. In re Milloy, 571 N.W.2d 39, 45-46 (Minn.1997). “A finding in previous disciplinary proceedings that a lawyer committed conduct warranting discipline is, in proceedings under these Rules, conclusive evidence that the lawyer committed the conduct.” Rule 19(b)(3), RLPR. In addition, we consider any other aggravating or mitigating factors. In re Milloy, 571 N.W.2d at 45. While the court looks to other discipline cases for guidance in the current matter, each case is decided individually based on its facts. In re Geiger, 621 N.W.2d 16, 23 (Minn.2001).

III.

The Director asserts that the referee committed clear error in failing to find that the second Raatz lawsuit violated Rule 3.1, MRPC, in finding that Albrecht’s sleep apnea was a mitigating factor, in finding that Albrecht’s misconduct is mitigated by the fact that he is on probation, and in failing to consider Albrecht’s disciplinary history as an aggravating factor. Finally, the Director asserts that the discipline recommended by the referee is insufficient to guard the administration of justice, to protect the court, the legal profession, and the public, and to deter similar misconduct. We will address the Director’s claims in that order.

A. The Second Raatz Lawsuit

As for the Director’s claim that the referee erred with respect to the second Raatz lawsuit, Rule 3.1, MRPC, provides:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

The second Raatz lawsuit named the same defendants and sought the same relief as the first Raatz lawsuit. The district court dismissed the second lawsuit on the basis of collateral estoppel and res judica-ta. In doing so, it awarded attorney fees as a Rule 11 sanction against Albrecht and specifically found that the suit was brought for the purpose of harassing the defendants, was not supported by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that Albrecht did not have an objectively reasonable basis for bringing the suit. The court of appeals, after concluding that the claims presented in the second lawsuit were identical to those in the first lawsuit, affirmed in all respects. Raatz v. Koerner, No. C3-00-1194, 2001 WL 69473, at *2-3 (Minn.App. Jan.30, 2001). The court of appeals also affirmed the district court’s decision to award attorney fees against Albrecht. Id. at *4. The referee indicated without explanation that he would not find that the lawsuit was frivolous. Given the district court’s findings and award of sanctions and the court of appeals’ affirmance of the district court, we conclude that the referee’s finding that there was no violation of Rule 3.1, MRPC, is clearly erroneous. While a court of appeals’ affirmance of a district court’s award of sanctions based on findings that a lawsuit was brought without good faith or for purposes of harassment will not always automatically result in a violation of Rule 3.1, it will be the rare case that does not. This is not the rare case.

B. Sleep Apnea

We have held that when a mental or physical disability is put forward as a mitigating factor the attorney must show by clear and convincing evidence that he or she has the' disability, the disability caused the misconduct, the attorney is undergoing treatment for the disability and making progress in recovery, the recovery has halted the misconduct, and the misconduct is not likely to reoccur. In re Merlin, 572 N.W.2d 737, 741 (Minn.1998).

Here, the referee relied on the testimony of Dr. Theodore M. Berman to conclude that Albrecht’s sleep apnea mitigated his misconduct. Dr. Berman testified that Al-brecht had severe sleep apnea, symptoms of which include daytime hypersomnia, impairment of memory and attention to detail, and lack of concentration. Dr. Ber-man further testified that the allegations of misconduct by Albrecht, such as failing to follow through and failing to return phone calls, are consistent with the effects of sleep apnea. There was also evidence presented at the hearing that, at the time of the hearing, Albrecht was being treated for sleep apnea. Thus, there was evidence before the referee that would permit the finding that Albrecht suffers from sleep apnea, that the symptoms of sleep apnea could result in Albrecht missing dates, failing to return calls, and sleepiness during the day, and that Albrecht was undergoing treatment for the sleep apnea at the time of the hearing. Other than Albrecht’s own testimony, however, there is no evidence in the record to support a finding that Al-brecht was making progress in his recovery from sleep apnea. Further, there is no evidence that the recovery has halted the misconduct or that the misconduct is unlikely to recur. Because there is no evidence that would support such findings, we conclude that the referee’s findings and conclusions that Albrecht’s sleep apnea is a mitigating circumstance are clearly erroneous.

C. Disciplinary History

Finally, the Director argues that the referee’s failure to consider Albrecht’s disciplinary history as an aggravating factor was clearly erroneous. We agree. Although the referee found that Albrecht had been previously disciplined, he further found that “there are separate mitigating circumstances surrounding those such that such evidence does not demonstrate a substantial aggravating factor to the current violations.” As discussed above, Albrecht has been admonished nine times and publicly disciplined three times since 1993. The public discipline has included supervised probation and a 45-day suspension. The fact that his previous misconduct may have been, as the referee found, “a result of * * * disciplinary actions against his partner and former associate, and * * * a lack of mentoring” does not make that misconduct any less serious. Albrecht’s current misconduct is strikingly similar to the conduct for which he has been disciplined in the past. Based on our review of the record in this case and Albrecht’s disciplinary history, we conclude that the referee’s finding that Albrecht’s previous misconduct is not an aggravating factor is clearly erroneous.

Moreover, we conclude that the referee’s conclusion that “the Respondent’s conduct is substantially mitigated as a result of the supervision that he is currently participating in” is also clearly erroneous. In In re Milloy, we made it clear that this court looks closely at previous misconduct, especially when the current misconduct occurs while an attorney is on probation. 571 N.W.2d at 45-46. We noted that “ ‘for probation to be successful, it must result in renewed commitment to ethical and professional behavior.’ ” Id. at 46 (quoting In re Munns, 475 N.W.2d 82, 85 (Minn.1991)). Engaging in misconduct while on probation similar to that for which he had been previously disciplined indicates that Al-brecht has failed to show a renewed commitment to professional ethics. Further, the mere fact that he now has a new supervisor in place and has instituted procedures and practices that may help him avoid future misconduct does not mean that his current misconduct is mitigated. Therefore, we view his disciplinary history as an aggravating factor.

IV.

When determining the discipline to be imposed for attorney misconduct, this court accords great deference to the referee’s recommendations for discipline, but retains final responsibility for determining the appropriate discipline. In re Kaszynski, 620 N.W.2d 708, 713 (Minn. 2001). “In determining the appropriate discipline, we consider the nature of the [attorney’s] misconduct, the cumulative weight of the rule violations, the harm to the public, and the harm to the legal profession.” In re Terrazas, 581 N.W.2d 841, 845 (Minn.1998).

The referee recommended that Al-brecht’s supervised probation be extended two years, subject to the same terms and conditions set forth in this court’s April 14, 1998, order. The Director, after recommending a three-year suspension before the referee, now recommends that Al-brecht be suspended for one year. We conclude that the appropriate discipline, on the facts presented, is a 90-day suspension, plus an additional two years of supervised probation. Accordingly, we order that:

(1) respondent Alan J. Albrecht is hereby suspended from the practice of law for 90 days commencing 14 days from the date of this order;

(2) respondent comply with the requirements of Rule 26, RLPR;

(3) upon reinstatement, respondent be placed on supervised probation for a period of two years, subject to all of the conditions set forth in this court’s order reinstating respondent to the practice of law dated April 14,1998;

(4) within one year of the date of this order, respondent successfully complete such written examination as required for admission to the practice of law by the state board of law examiners on the subject of professional responsibility; and

(5) respondent shall pay to the Director the sum of $900 in costs and disbursements pursuant to Rule 24 RLPR.

So ordered.

      . Rule 14(e), RLPR, provides that:
      The referee shall make findings of fact, conclusions, and recommendations, file them with this Court, and notify the respondent and the Director of them. Unless the respondent or Director, within ten days, orders a transcript and so notifies this Court, the findings of fact and conclusions shall be conclusive. If either the respondent or the Director so orders a transcript, then none of the findings of fact or conclusions shall be conclusive, and either party may challenge any findings of fact or conclusions.

      . Christopherson was one of the seven clients referred to in this court’s April 14, 1998, order reinstating Albrecht to the practice of law. The misconduct alleged in the instant petition occurred while the earlier disciplinary matter was pending, but did not come to light until after the court's April 14 order.


author: PAUL H. ANDERSON, Justice.

text:
    David James DOPPLER, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C4-02-1371.
    Supreme Court of Minnesota.
    May 15, 2003.

      Daniel Guerrrero, Jonathan M. Peck, Meshbesher & Spence, Ltd., Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, State of Minnesota, St. Paul, MN, Donald F. Ryan, Crow Wing County Attorney, Brainerd, MN, for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

David James Doppler seeks review of an order from the Crow Wing County District Court denying his second petition for post-conviction relief. In June 1996, a jury found Doppler guilty of first-degree premeditated murder. Doppler filed a direct appeal with this court, but asked that his case be remanded for an evidentiary hearing regarding ineffective assistance of trial counsel. We granted the motion and the district court denied relief, concluding that trial counsel was not ineffective. Doppler then filed both a postconviction and a direct appeal with this court. We affirmed the conviction. In March 2001, Doppler filed a second petition for postconviction relief alleging, among other claims, ineffective assistance of appellate counsel. After a postconviction hearing was held, Doppler filed a motion to reopen the record. The postconviction court denied both the motion to reopen and the petition for postcon-viction relief, concluding that the ineffective assistance of appellate counsel claim was proeedurally barred. Doppler appealed both rulings and we affirm.

The facts of appellant David James Doppler’s conviction were fully described in State v. Doppler; therefore, we will review only the facts relevant to provide context for the issues presented here. 590 N.W.2d 627 (Minn.1999). In April 1995, Michael L. Sargent’s body was found near an access road to Little Blackhoof Lake in Crow Wing County. Id. at 629. Four gunshot wounds were discovered on Sargent’s body — one to the right leg, one to the chin, and two to the head. An extensive investigation led the police to Doppler. During an interview with agents from the Bureau of Criminal Apprehension (BCA), Doppler confessed to killing Sargent. In May 1995, Doppler was charged with second-degree murder. Id. at 632. Four months later, a grand jury indicted him for first-degree premeditated murder and conspiracy to commit first-degree premeditated murder. The conspiracy charge was subsequently dropped and a jury trial for first-degree premeditated murder began in May 1996. At trial, Doppler admitted that he shot Sargent, but claimed he was acting in self defense. Id. at 631. The jury found Doppler guilty of first-degree premeditated murder. Id. at 632.

Doppler appealed directly to this court. Through an attorney, he filed a motion asking that we remand his case for a postconviction evidentiary hearing on his claim of ineffective assistance of counsel. We granted the motion. During the evi-dentiary hearing, Doppler argued that his trial counsel failed to attack the grand jury indictment, present an intoxication defense, and raise Schwartz issues. The postconviction court found that these decisions did not render Doppler’s trial counsel ineffective and denied Doppler’s request for relief.

Doppler then appealed to this court and was represented by the same attorney who represented him in the first postconviction hearing. Doppler requested a new trial, arguing that his trial counsel was ineffective because he failed to: (1) object to the grand jury indictment; (2) present evidence of Doppler’s intoxication; and (3) request a jury instruction on intoxication. Id. Doppler also appealed his first-degree murder conviction, claiming there was insufficient evidence to support the conviction. We concluded that Doppler’s ineffective assistance of trial counsel claims failed and that the state presented evidence sufficient to support the jury’s verdict. Id. at 635, 636.

In March 2001, Doppler filed a second petition for postconviction relief requesting that his conviction be vacated. He initially appeared pro se. Doppler alleged the following grounds for postconviction relief: (1) ineffective assistance of trial counsel based on a conflict of interest and failure to uncover evidence about the murder victim’s prior criminal record; (2) the state’s failure to disclose evidence favorable to the defense; (3) ineffective assistance of appellate counsel based on appellate counsel’s failure to raise on direct appeal the conflict of interest claim, the failure to uncover evidence claim, and the state’s withholding of evidence claim; and (4) newly discovered evidence. The postconviction court granted a hearing. By the time of the hearing, Doppler was represented by counsel and the basis for the petition for post-conviction relief was changed. Doppler now argued ineffective assistance of appellate counsel predicated on appellate counsel’s failure to raise on appeal trial counsel’s decision to not call three witnesses. Specifically, Doppler argued that trial counsel failed to call Dr. John Plunkett, an expert witness who could have supported Doppler’s self-defense claim, and Rhonda and Scott Hanestad, who would have testified to Sargent’s propensity for violence. Doppler, his mother, and his brother testified at the hearing.

Doppler testified that before the trial he was told by his counsel that Dr. Plunkett reviewed photos of Sargent and the autopsy report and was of the opinion that the evidence supported Doppler’s self-defense claim. Doppler was under the impression that his counsel would call Plunkett as a defense witness. However, his counsel did not call Plunkett to testify. During trial when the state’s expert witness was on the stand, Doppler asked his counsel whether he was going to call Plunkett. Counsel indicated that there was no reason to call Plunkett as long as the state’s expert witness testified that Sargent’s wounds could have been inflicted in a manner different than the one he described on direct examination. More particularly, Doppler stated that his counsel replied “as long as [the state’s expert "witness] agreed that [the murder] could have happened in another way ⅜ * * that was fine.”

Doppler also testified that before the first postconviction hearing and before the direct appeal, he spoke often with his appellate counsel about his trial counsel’s failure to call Plunkett. Doppler testified that he reviewed both the postconviction memorandum and the brief to this court and that his trial counsel’s failure to call Plunkett was not raised in either. He asserts that those briefs were submitted to the court before he had an opportunity to give feedback to his appellate counsel. Finally, Doppler testified that he told his trial counsel that Rhonda and Scott Hanes-tad would testify in support of his self-defense claim.

On cross-examination, Doppler admitted that he testified at the first postconviction hearing, but he did not testify about his trial counsel’s failure to call Plunkett and the Hanestads to testify. He agreed that while he was on the stand and under oath, he had the right and the opportunity to discuss his counsel’s failure to call these witnesses. He also admitted that he reviewed the postconviction memorandum submitted by his appellate counsel before the postconviction court made its ruling and that his counsel did a good job on the issues that he did raise.

Approximately one month after the first postconviction hearing, but before the court made its decision, Doppler filed a motion to reopen the record to allow Plunkett to testify. In an order filed June 17, 2002, the court denied both the motion to reopen and the petition for postconviction relief, concluding that the ineffective assistance of appellate counsel claim was procedurally barred.

In support of its decision, the postcon-viction court noted that Doppler, on his direct appeal, argued ineffective assistance of trial counsel, but did not raise his counsel’s failure to call the three witnesses as a basis for that claim. Thus, the court reasoned “[t]he current appeal is just another aspect of the same issue previously litigated: ineffective assistance of counsel.” Moreover, the court found that when Doppler raised his ineffective assistance of trial counsel claim on direct appeal, he knew of his current claim regarding counsel’s failure to call the three witnesses.

The postconviction court noted that Doppler admitted to reading his appellate counsel’s briefs in support of the first post-conviction proceeding and the briefs submitted on his direct appeal. Thus, at the time of appeal, Doppler was aware that appellate counsel was not using the failure to call the three witnesses as a basis for the ineffective assistance of trial counsel claim. Accordingly, the court concluded “[Doppler’s] knowledge of the current claim and failure to raise it at the proper time bars this court from considering it now.” The court also concluded that Doppler was aware of his trial counsel’s failure to call the Hanestads at the time of appeal and accordingly that claim was also procedurally barred.

On appeal, Doppler requests that we review whether: (1) his ineffective assistance of appellate counsel claim is procedurally barred; (2) the postconviction court abused its discretion by denying his motion to reopen the record; and (3) his appellate counsel’s performance was ineffective.

Doppler first argues that the postconviction court abused its discretion when it concluded that his ineffective assistance of appellate counsel claim is procedurally barred. We review the postconviction court’s findings to determine whether there is sufficient evidentiary support in the record and will not reverse the court’s findings of fact unless they are clearly erroneous. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). We will not disturb the court’s decision unless we conclude that the court abused its discretion. Id. Accordingly, we review Doppler’s claim under an abuse of discretion standard.

In State v. Knaffla, we established that once a petitioner has directly appealed a conviction, all matters raised in that appeal, and all matters that were known but not raised, “will not be considered upon a subsequent petition for postconviction relief.” 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). We recognize two exceptions to the Knaffla rule. First, a postconviction court may hear and consider a claim that was previously known but not raised if the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn.1995) (citation omitted). Second, even if the claim contained in a petition for postcon-viction relief was known at the time of direct appeal or its legal basis was reasonably available, we still allow substantive review of the claim when fairness so requires and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Id. (citation omitted).

Doppler argues that his claim for ineffective assistance of appellate counsel is not procedurally barred under the Knaffla rule because the second exception to the rule applies. Before we can determine whether the exception applies, we must first determine whether the Knaffla rule applies to Doppler’s claim. The relevant inquiry is whether Doppler knew of the claim at the time of his direct appeal. Id.

The second postconviction court found that at the time Doppler directly appealed his conviction and the findings of the post-conviction court, he was aware of the basis for his current ineffective assistance of appellate counsel claim. The record supports the court’s conclusion. Doppler admitted that on several occasions before the first postconviction hearing and before the direct appeal, he expressed to appellate counsel his desire to contest trial counsel’s failure to call the witnesses. Thus, both Doppler and appellate counsel were aware of this issue not only before direct appeal, but also before the first postconviction hearing when the issue should have been raised and litigated. Finally, at the time of the direct appeal, Doppler was aware that appellate counsel did not use trial counsel’s failure to call the witnesses ás a basis for his first petition for postconviction relief. Accordingly, we conclude that the evidence in the record is sufficient to support the postconviction court’s conclusion that Doppler knew of the basis of the ineffective assistance of appellate counsel claim at the time of his direct appeal.

Nevertheless, Doppler argues that fairness requires substantive review. In response, the state argues that by couching the failure to call the three witnesses in an ineffective assistance of appellate counsel claim, Doppler is merely taking a second shot at ineffective assistance of trial counsel. We agree. To prove an ineffective assistance of appellate counsel claim predicated on ineffective assistance of trial counsel, the petitioner must first prove that trial counsel was ineffective. Sanders v. State, 628 N.W.2d 597, 602 (Minn.2001). At his first postconviction proceeding, Doppler unsuccessfully argued ineffective assistance of trial counsel based on his counsel’s failure to object to the grand jury proceedings and failure to raise an intoxication defense. At that time, Doppler was aware of his counsel’s failure to call the three witnesses and that the actions of his counsel were being raised at the postconviction hearing. Nonetheless, he failed to raise this alleged failure as a basis for ineffective assistance of trial counsel. Thus, the current ineffective assistance of appellate counsel claim is merely Doppler recharacterizing an ineffective assistance of trial counsel issue that he should have raised at the first postconviction hearing. See Sutherlin v. State, 574 N.W.2d 428, 485 (Minn.1998) (stating defendant’s ineffective assistance of appellate counsel claim was “recharacterizing an issue that he should have raised on direct appeal”).

Moreover, as the state argues, to allow substantive review of this claim would be to promote serial appellate proceedings. A convicted defendant is entitled to one right of review by an appellate or postconviction court. Knaffla, 309 Minn, at 252, 243 N.W.2d at 741. The purpose of the postconviction procedure Doppler followed when he brought his ineffective assistance of trial counsel claim is to accomplish that end without serial appellate proceedings. Roby, 531 N.W.2d at 484 n. 1 (stating that the appropriate procedure for raising ineffective assistance of counsel claims is to seek a postconviction hearing before appeal so that the appellate court will have a complete record).

Doppler argues that ineffective assistance of appellate counsel claims cannot be raised on direct appeal because they do not arise until after the direct appeal has been completed. However, that is not the situation here. Doppler filed a direct appeal, then moved to stay that appeal and filed for postconviction relief based on ineffective assistance of trial counsel. He then filed an appeal with this court challenging the decision of the first postconviction court and directly appealing his conviction. We have already concluded that, at the time of both his first postconviction hearing and direct appeal, Doppler was aware that his trial counsel failed to call the witnesses. Thus, we conclude that fairness does not require substantive review of Doppler’s ineffective assistance of appellate counsel claim and, therefore, we need not determine whether Doppler inexcusably or deliberately failed to raise the claim on direct appeal.

Doppler also argues that he is entitled to substantive review because the second postconviction court found it necessary to hold an evidentiary hearing. Doppler relies on a court of appeals case to support his argument. Berg v. State, 557 N.W.2d 593 (Minn.App.1996). In Berg, the defendant filed a petition for postconviction relief subsequent to her direct appeal raising various claims, including ineffective assistance of trial counsel. Id. at 595. After conducting a hearing, the postconviction court concluded that the defendant was proeedurally barred from raising the ineffective assistance of counsel claim because it was known at the time of direct appeal. Id. at 594. The court of appeals reversed, holding that the defendant did not deliberately and inexcusably fail to raise the claim and that fairness required substantive review. Id. at 596. The court of appeals also noted that the defendant was entitled to substantive review of her claim because the postconviction court conducted an evi-dentiary hearing and received testimony on the ineffective assistance of counsel claim. Id. at 596. Doppler argues that the same rationale is applicable here.

We conclude that the reasoning of Berg is not applicable here. Unlike the court in Berg, we do not conclude that fairness requires substantive review of Doppler’s claim. In addition, in his pro se petition, Doppler raised several claims, but he did not raise the ineffective assistance of counsel claim based on trial counsel’s failure to call the three witnesses. That claim was raised for the first time by Doppler’s present counsel at the second postconviction hearing. The postconviction court set a hearing, unaware that the focus of the hearing would be changed to the ineffective assistance of counsel claim predicated on trial counsel’s failure to call the witnesses. Therefore, the hearing was not originally set with the intent of receiving evidence on this aspect of Doppler’s ineffective assistance of appellant counsel claim. Moreover, the postconviction court is required to grant a hearing for all post-conviction petitions “[ujnless the petition and the files and the records ⅜ * * conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2002). The court relied on evidence admitted at the hearing to reach its conclusion that the ineffective assistance of appellate counsel claim is proeedurally barred. Therefore, the petition itself could not have conclusively shown that Doppler was not entitled to relief because the present issue was not even raised in the petition.

For the above reasons, we hold that the postconviction court did not abuse its discretion in concluding that Doppler’s ineffective assistance of counsel claim is procedurally barred. Because Doppler’s ineffective assistance of appellate counsel claim is procedurally barred, we do not reach the issue of whether the court abused its discretion in failing to reopen the record.

Affirmed.

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

      . References in the opinion to Doppler's "direct appeal” refer to this combined appeal.

      . See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960). Schwartz issues involve jury misconduct, and the purpose of a Schwartz hearing is to investigate jury misconduct. State v. Martin, 614 N.W.2d 214, 225-226 (Minn.2000).

      . In its order, the postconviction court noted that in his pro se petition for postconviction relief, Doppler raised the issues of trial counsel's breach of confidentiality, trial counsel’s failure to investigate, ineffective assistance of counsel, and a Brady claim. However, because these issues were not addressed at the hearing or in Doppler’s brief, the court deemed these issues waived.