author: ROBERT H. SCHUMACHER, Judge.

text:
    Nancy A. FLEMING, Respondent, v. Robert W. HAGEN, Jr. ESTATE, Appellant.
    No. A05-49.
    Court of Appeals of Minnesota.
    Aug. 30, 2005.

      William S. Partridge, Jay W. Ramos, Farrish Johnson Law Office, Chartered, Mankato, MN, for respondent.
    Joseph P. Bluth, Manahan, Bluth Kohl-meyer Law Office, Chartered, Mankato, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge; TOUSSAINT, Chief Judge; and ROBERT H. SCHUMACHER, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Robert W. Hagen, Jr. Estate challenges the district court’s adverse grant of summary judgment, arguing the court erred by concluding that a partnership between Robert W. Hagen, Jr. and respondent Nancy A. Fleming was not dissolved by operation of the estate’s pleadings and Fleming’s pleadings requesting enforcement of the right to dissolve the partnership. We affirm.

FACTS

In April 1989, Hagen and Fleming, who are siblings, executed a written agreement concerning a property-management partnership — Wesley Properties — that they had operated together since 1967. As to the partnership’s duration, the written agreement provided that the “partnership shall continue until terminated as such term is defined herein.”

One event triggering termination is “the purchase by either partner of the other partner’s interests,” which must occur “[u]pon the death of either partner[, at which time] the surviving partner shall purchase the deceased partner’s interest in the partnership and the estate of the deceased partner shall sell such interest to the surviving partner.” (Emphasis added.) The agreement specifies the terms of the sale: “The purchase price of a deceased partner’s interest in the partnership shall be: 1/2 interest of loans and contract [for] deeds due [plus] $25,000.”

The agreement lists three other events that trigger termination: “the bankruptcy, receivership, or dissolution of the partnership”; “the sale or transfer of all or substantially all of the assets of the partnership”; or “the mutual agreement of both partners.” The agreement does not provide that the partnership may be dissolved or terminated unilaterally by either partner.

In August 2002, Fleming filed a claim against Hagen, alleging that because of his “failure and refusal to follow the terms of the partnership agreement,” she believed it was “not reasonably practicable to carry on the business of the partnership with [him].” The complaint requested an order “[e]nforcing [Fleming’s] rights under the partnership agreement, ordering Hagen to provide a complete and accurate accounting” of the partnership’s finances, and “[e]nforcing Fleming’s rights under [the Uniform Partnership Act of 1994] including but not limited to dissolving and winding up the partnership pursuant to [Minn. Stat. § 323A.0801 (5) (2004)],” which provides that a partnership is dissolved

on application by a partner, a judicial determination that:
(i) the economic purpose of the partnership is likely to be unreasonably frustrated;
(ii) another partner has engaged in conduct relating to the partnership business which makes it not reasonably practicable to carry on the business in partnership with that partner; or
(iii) it is not otherwise reasonably practicable to carry on the partnership business in conformity with the partnership agreement[.]

Minn.Stat. § 323A.0801 (5).

Effective January 1, 2002, the Uniform Partnership Act of 1994 (1994 UPA), Minn. Stat. §§ 323A.1-01-.12-03 (2002), replaced the Minnesota Uniform Partnership Act, Minn.Stat. §§ 323.01-.47 (2000) (MUPA). 1997 Minn. Laws ch. 174, art. 12, § 69. The 1994 UPA “governs all partnerships” after January 1, 2002, regardless of the date of their formation, and therefore controls the agreement here. Minn.Stat. § 323A.1202(2)(b).

In April 2003, Hagen filed a counterclaim, alleging that Fleming had violated the agreement by failing to equally share partnership profits and that he had been undercompensated for services provided to the partnership. Hagen requested an order requiring Fleming to reimburse the partnership and compensate him for services and “[e]nforcing [his] rights to dissolve and wind up the partnership.” The day after filing the counterclaim, Hagen died. The district court subsequently granted Hagen’s motion requesting that his estate take his place in the proceeding.

In October 2003, Fleming brought a motion for summary judgment, arguing that the agreement controlled the parties’ rights and obligations, that Hagen’s death triggered the agreement’s sale-upon-death clause, and that Hagen’s estate was required as a matter of law to sell his partnership interest to Fleming pursuant to the terms set forth in the agreement. The estate also moved for summary judgment, arguing that the partnership had “terminated upon [Fleming’s] commencement of her action to dissolve the partnership or, due to mutual consent, when [Hagen] filed responsive pleadings also seeking dissolution” and that the agreement’s sale-upon-death provision was therefore unenforceable. The estate’s argument relied heavily upon Maus v. Galic, 669 N.W.2d 38 (Minn.App.2003), which held that a “partnership is dissolved by mutual consent and the express will of the partners upon an exchange of pleadings alleging dissolution of the partnership by the express will of a partner.” 669 N.W.2d at 39. Hagen’s family wanted to avoid application of the partnership agreement’s sale-upon-death provision because the terms of that provision would allow Fleming to buy Hagen’s share of the assets for far less than Ha-gen’s family believes the assets are worth.

In March 2004, the district court granted Fleming’s motion, reasoning that (1) Mans was inapposite to the extent that its holding concerning dissolution upon cross-pleadings was based upon the repealed MUPA, which gave partners broader dissolution powers than does the 1994 UPA in effect here, and (2) Fleming specifically requested relief under Minn.Stat. § 323A.0801 (5), which allows dissolution only following a judicial determination that specific circumstances exist and which is not a request for immediate dissolution of the partnership. The court concluded the agreement controls the disposition of the partnership assets and appointed a special master to determine the partnership’s property, assets, and liabilities.

The court denied the estate’s motion for amended findings of fact. In November 2004, the parties entered into a stipulation of partial settlement whereby Fleming paid the estate approximately $250,000 to settle various outstanding claims concerning the distribution of partnership assets and liabilities. The settlement specifically reserved the estate’s right to appeal the earlier grant of partial summary judgment to Fleming.

ISSUE

Did the estate’s answer and counterclaim operate to dissolve the partnership pursuant to Minn.Stat. § 323A.0801(1) (2004)?

ANALYSIS

On appeal from summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Summary judgment may be granted only if, after viewing the evidence in the light most favorable to the nonmov-ing party, the moving party has clearly sustained her burden of proving that no genuine issues of material fact exist and that judgment is warranted as a matter of law. Vacura v. Haar’s Equip., 364 N.W.2d 387, 391 (Minn.1985).

Statutory construction and the interpretation of contract language are legal issues also subject to de novo review. Vue v. State Farm Ins. Cos., 582 N.W.2d 264, 265 (Minn.1998). When, as here, a district court grants summary judgment after applying its interpretation of a partnership agreement and relevant statutory provisions to undisputed facts, we review the legal conclusion de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

The estate argues the district court erred by granting Fleming summary judgment without considering Minn.Stat. § 323A.0801(1) (2004), which provides that “a partnership at will [is dissolved upon] the partnership’s having notice from a partner ... of that partner’s express will to withdraw as a partner, or on a later date specified by the partner.” The estate maintains that the agreement was at-will and therefore susceptible to unilateral termination and that Hagen’s counterclaim constituted notice of his express will to withdraw from the partnership under section 323A.0801(1).

As a threshold matter, Fleming argues that the estate has waived the right to now raise an argument based upon section 323A.0801(1) by failing to properly raise the issue before the district court. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (this court does not generally consider matters or legal theories not presented to district court). We disagree. It is apparent from the memorandum accompanying the district court’s order that the court considered whether Hagen’s counterclaim was sufficient to dissolve the partnership either independently or in conjunction with Fleming’s complaint under section 323A.0801. The matter is properly before us.

We first address the estate’s assertion that the district court erred by not concluding that Hagen’s counterclaim unilaterally dissolved the agreement pursuant to Minn.Stat. § 323A.0801. First, section 323A.0801(1) is applicable only to an at-will partnership, defined by statute as “a partnership in which the partners have not agreed to remain partners until the expiration of a definite term or the completion of a particular undertaking.” Minn.Stat. § 323A.0101(10) (2004). In the agreement at issue here, the partners agreed that the death of either partner and subsequent purchase of that partner’s interests by the surviving partner would provide just such a definite term and particular undertaking, thereby ending the partnership. The agreement gives three other events that “shall terminate” the partnership, none of which is certain to happen: bankruptcy or dissolution, sale of the partnership’s assets, or the mutual agreement of the parties. We conclude that the partnership was not at-will and as such was not suscep-tibie to dissolution by operation of section 323A.08Q1(1).

Hagen and Fleming’s agreement simply does not contemplate a scenario whereby one partner can intentionally and unilaterally dissolve the partnership. In this respect, the estate’s continued reliance on Mans is misplaced insofar as there, “the termination provision in [the parties’] agreement allowed for either partner to terminate the partnership by leaving ‘for any reason.’ ” 669 N.W.2d 38, 39 (Minn. App.2003). Moreover, the repealed MUPA, relied upon by the Maus court, allowed dissolution of any partnership “[i]n contravention of the agreement between the partners, where the circumstances do not permit a dissolution under any other provision of this section, by the express will of any partner at any time.” Minn. Stat. § 323.30(2) (2000). The 1994 UPA applicable here contains no such provision.

Even if the partnership were at will and governed by section 323A.0801(1), we disagree with the estate’s contention that Ha-gen’s counterclaim requesting an order “[enforcing [his] rights to dissolve and wind up the partnership” constituted “notice” of his “express will to withdraw as a partner,” as required by the statute. “A person notifies or gives a notification to another by taking steps reasonably required to inform the other person.... ” Minn.Stat. § 323A.0102(e) (2004). It is true that the estate’s request for an order “[e]nforcing [his] rights to dissolve and wind up the partnership” does appear to request eventual termination of the partnership, but it is also true that the request was only one of several made of the court, and it does not reasonably constitute an unambiguous expression of Hagen’s will to immediately dissolve the partnership, as the estate now maintains.

DECISION

The record before us does not support the estate’s argument that Hagen’s counterclaim constituted notice of his express will to withdraw from the partnership and that the partnership and partnership agreement were therefore terminated at the time of Hagen’s death. The district court properly granted Fleming’s motion for summary judgment.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2005 SD 90
    STATE of South Dakota, Plaintiff and Appellee, v. Douglas WILLSON, Defendant and Appellant.
    No. 23228.
    Supreme Court of South Dakota.
    Considered on Briefs on April 25, 2005.
    Decided Aug. 3, 2005.
    Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Joseph M. Kosel and Manuel J. deCas-tro, Jr., Office of Lawrence County Public Defender, Deadwood, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Douglas Willson appeals the restitution provisions of his sentence for resisting arrest. We affirm.

FACTS

[¶ 2.] This case arose out of a confrontation between Willson and two police officers at a convenience store in the City of Whitewood on July 18, 2003. Willson, who appeared to be intoxicated, was inside the convenience store at approximately 6:00 p.m. panhandling customers for money while his girlfriend waited for him in their pickup parked outside the store. After twice being asked to leave by the cashier, Willson was approached by the Whitewood Police Chief who was off-duty and happened to be in the store. The chief phoned an on-duty officer, summoned her to the scene and then followed Willson outside the store where he spoke to Will-son and his girlfriend who was seated in the driver’s seat of the pickup. As the three conversed, Officer Wickenheiser, the on-duty officer, arrived, got out of her patrol car and approached the group. The chief instructed Wickenheiser to speak to Willson about what had been going on in the store and to get his “information,” referring to Willson’s identification, address, telephone number, etc.

[¶ 3.] Officer Wickenheiser approached Willson, confirmed his name and mentioned that she wanted to talk to him about the theft of some beer from a beer truck the previous evening. Willson had been a suspect in the crime and Wickenheiser wanted to tell him that, as a result of the investigation, he was no longer a suspect. Willson, however, did not seem to understand Wickenheiser and repeatedly told her that he was not a thief. Wickenheiser then asked Willson to have a seat in her patrol car so that she could get his information. Willson became belligerent and told her that he did not have to go “f-g anywhere” with her. Wickenheiser asked Willson not to use foul language and again asked him to have a seat in her car. At that point, Willson walked to the passenger side of his pickup, opened the door and started to get inside. Before Willson could enter his vehicle, Wickenheiser shut the pickup door, told Willson he could not leave and again told him that he would have to come with her for a little bit. At that time, Willson seemed to calm down and began to walk toward the patrol car.

[¶ 4.] As Willson and Officer Wicken-heiser made their way to the patrol car, Wickenheiser asked Willson for his I.D. and took out her pad so that she could begin making notes. Willson pulled out his wallet, gave Wickenheiser his I.D. and then noticed a man pumping gas and yelled at him, “Tell her I’m not a thief, to leave me alone!” After Willson’s outburst, Wickenheiser again asked him to come with her. Willson turned toward her, took a step, looked at her and said, “You f-g c — , I’m going to kick your ass.” When Wickenheiser asked Willson if he was threatening her, he replied, “You’re f-g right I’m threatening you, you better get ready.”

[¶ 5.] At Willson’s threat, Officer Wick-enheiser dropped her notepad and Will-son’s identification and began to reach for Willson’s arm with one hand as she reached for her handcuffs with the other. Wickenheiser advised Willson that he was under arrest for disorderly conduct, but Willson swung at her with his left hand. Wickenheiser avoided the punch and grabbed Willson’s hand and forearm with both of her hands. At that point, the police chief, who had been talking to Will-son’s girlfriend, became aware of the situation and rushed to assist Wickenheiser.

[¶ 6.] The two officers struggled with Willson, repeatedly instructing him to “get on the ground.” Eventually, all three individuals fell to the ground. Officer Wieken-heiser fell backwards, bending her wrist as she went down, and the weight of the other two individuals came down on her ankle. Despite her injuries, Wickenheiser continued struggling to subdue Willson who had the police chief pinned on the ground and was repeatedly pummeling him in the head with his fist and with a plastic mug he had been carrying. At one point the police chief told Willson he was “pissing [him] off’ and Willson replied, “Well, let’s just see how pissed off I can get you.” Wickenheiser grabbed one of Willson’s arms to pull him away from the chief and Willson hit her on the wrist several times with his mug to force her to let go. Wickenheiser stepped back from the struggle, pulled out her pepper spray, grabbed Willson around the shoulders, pulled his chin back and sprayed him in the eyes. Ignoring repeated commands to quit resisting and to “back off,” Willson got up off of the police chief and began lunging toward Wickenheiser. Willson’s movement gave the chief time to get up off of the ground and to grab one of Willson’s arms as Wickenheiser grabbed the other. The two officers were then able to handcuff Willson and to place him in the patrol car.

[¶ 7.] Even after being placed in the patrol car, Willson remained “uncontrollable” and continued “cussing and swearing.” When Wickenheiser reached in the car to try to connect Willson’s seat belt, he bit at her and head butted her, bloodying her nose. Wickenheiser finally drove Willson to jail in nearby Deadwood and endured a barrage of expletives and threats from Willson during the entire trip.

[¶ 8.] As a result of these events, Will-son was indicted for two counts of aggravated assault and one count of resisting arrest. A complaint was also filed charging Willson with one count of disorderly conduct. Willson’s jury trial was held on December 3 and 4, 2003. The jury returned verdicts convicting Willson of resisting arrest, but acquitting him on the aggravated assault and disorderly conduct charges. The trial court sentenced Will-son to one year in the county jail with nine months suspended on various terms and conditions including payment of restitution in an amount to be determined at a restitution hearing. The restitution hearing was held on February 17, 2004. The State presented testimony from Officer Wicken-heiser concerning her injuries, medical expenses and lost wages. The trial court subsequently entered findings of fact, conclusions of law and an order requiring Willson to pay restitution of $18,018.77 in connection with Wickenheiser’s damages. Willson appeals.

ISSUE ONE

[¶ 9.] Did the trial court err in ordering Willson to pay restitution for Officer Wickenheiser’s damages?

[¶ 10.] Under SDCL 23A-28-1, it is the policy of this State that criminal violators make “restitution” to the victims of their criminal activities. “Restitution” is “full or partial payment of pecuniary damages to a victim” including: “all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event[.]” SDCL 23A-28-2(4) & 23A-28-2(3). A “victim” is defined as: “any person ... who has suffered pecuniary damages as a result of the defendant’s criminal activities[.]” SDCL 23A-28-2(5). “ ‘Criminal activities’ includes any crime for which there is a plea of guilty or verdict of guilty upon which a judgment of conviction may be rendered and any other crime committed ... which is admitted by the defendant, whether or not prosecuted.” SDCL 23A-28-2(2). In State v. Joyce, 2004 SD 73, ¶ 16, 681 N.W.2d 468, 471, this Court held that these statutes require establishment of a “causal connection between a defendant’s crime and a victim’s damages” to support an award of restitution. Willson argues that the State failed to establish that causal connection here. We disagree.

[¶ 11.] In Joyce, the victim’s car was stopped waiting to make a left hand turn when the defendant rear-ended her vehicle. The defendant fled the scene, but was later apprehended. He pled guilty to leaving the scene of an accident and was ordered to pay some $13,000 in restitution for the victim’s medical and vehicle damages. On appeal, the defendant argued that the trial court erred in its restitution award because the victim’s damages were not caused by his leaving the scene of the accident. Following the causal connection requirement in the restitution statutes, this Court agreed with the defendant and reversed that portion of the judgment ordering restitution for the victim’s medical and vehicular damages.

[¶ 12.] Joyce was premised on the Iowa Supreme Court’s decision in State v. Starkey, 437 N.W.2d 573 (Iowa 1989). In Starkey, the defendant hit a victim who was changing a tire on her vehicle. The defendant did not stop, but was later apprehended and pled guilty to leaving the scene of a personal injury accident. After the victim’s leg was amputated, the judgment against the defendant was amended to include restitution for the victim’s medical expenses. The Iowa Supreme Court reversed the restitution award holding that there was no evidence that the defendant’s act of leaving the scene either caused or aggravated the victim’s injuries.

[¶ 13.] Clearly the causal connection necessary to support the restitution awards in Joyce, supra and Starkey, supra, was lacking because restitution was awarded for crimes committed after the infliction of the injuries in those cases. Here, however, restitution was awarded for a crime that did inflict injuries on the victim. Willson was convicted of resisting arrest by threatening to use physical force or violence against a law enforcement officer in violation of SDCL 22-ll-4(l). This Court explored the “threat” element of this statute in State v. Sullivan, 2003 SD 147, 673 N.W.2d 288 and concluded that it could include a physical component. In Sullivan, we reversed the resisting arrest conviction of a woman who repeatedly pulled away from the arresting officer’s grasp as she was sitting in the driver’s seat of her vehicle. At one point the woman actually locked her arms in the vehicle by wrapping them around the steering wheel. In reversing the woman’s conviction, we determined that despite her actual physical resistance, there were no actions constituting a threat against the arresting officer because none of her actions indicated an intention to inflict pain, injury or punishment on the officer. In that regard, we took particular note of the arresting officer’s testimony that, despite the physical resistance of the woman, her actions were neither offensive nor defensive, but merely attempts to get away from him. Despite our conclusion in Sullivan, we cautioned that:

This is not to suggest that physical acts by an arrestee can never constitute a threat under SDCL 22-11-4(1). It is not difficult to envision situations where an arrestee raises his arms in a fighting stance, actually swings at the officer, or gives some other indication of resistance that also indicates a threat to use force or violence. In such situations, the ar-restee’s actions could be tantamount to a threat of force or violence.

Sullivan, 2003 SD 147 at ¶ 13, 673 N.W.2d at 291 (emphasis original).

[¶ 14.] This case presents the scenario foreseen in Sullivan. Both Willson’s words and his physical acts indicated an intention to use force or violence on Officer Wickenheiser. Some of his physical acts actually translated into the infliction of injuries on the officer. This was sufficient to provide the causal connection necessary to support the restitution awarded for Officer Wickenheiser’s damages.

[¶ 15.] A similar case was presented to the Washington Court of Appeals in State v. C.G., 114 Wash.App. 101, 55 P.3d 1204 (2002). In C.G., a high school student who was being arrested threatened the arresting officer several times before kicking and damaging his patrol car as he placed her in the vehicle for transportation to a detention facility. The student was later convicted of felony harassment for the threats she made to the police officer. As part of her sentence, the court ordered her to pay restitution to the police department for the damage to the patrol car. On appeal, the student challenged the restitution order arguing that the damage to the patrol car was not causally related to the harassment offense for which she was convicted. The Washington Court disagreed stating:

The trial court reasoned that restitution was appropriate because the kicking of the car was part of the same criminal episode as the verbal threats — together, they constituted words or conduct that placed Officer Glover in reasonable fear that the threat would be carried out. This was a tenable basis for concluding the damage to the patrol car was caused by the criminal acts of harassment for which C.G. was convicted.

C.G., 55 P.3d at 1207.

[¶ 16.] Although C.G., supra was reversed on other grounds by the Washington Supreme Court (see State v. C.G., 150 Wash.2d 604, 80 P.3d 594 (2003)), we share its views on the restitution issue. Restitution here was appropriate because Will-son’s physical acts with regard to Officer Wickenheiser were part of the same criminal episode as his verbal threats — together they constituted threats of physical force or violence against the officer. This was a tenable basis for concluding that the damages sustained by Officer Wickenheiser were caused by the criminal act of resisting arrest for which Willson was convicted. Thus, we hold that the trial court did not err in ordering Willson to pay restitution for those damages.

ISSUE TWO

[¶ 17.] Did the trial court err in admitting expert testimony at the restitution hearing without a proper foundation?

[¶ 18.] Willson argues that Officer Wickenheiser’s testimony during the restitution hearing concerning her injuries, medical expenses and lost wages constituted expert medical testimony admitted without a proper foundation. Accordingly, Willson contends that the restitution award must be reversed.

[¶ 19.] Initially, we note that, “the rules of evidence and civil burden of proof do not apply” at a restitution hearing. State v. Ruttman, 1999 SD 112, ¶ 3, 598 N.W.2d 910, 911 (citing State v. Tuttle, 460 N.W.2d 157, 159 (S.D.1990)). Thus, the evidentiary rules on expert testimony relied upon by Willson are inapplicable to restitution hearings.

[¶ 20.] We also observe that Officer Wickenheiser did not testify as a medical expert at the restitution hearing, but as the victim of the crime with personal knowledge of its consequences including her injuries, her medical expenses and her lost wages. During trial, Officer Wicken-heiser repeatedly testified as to how she incurred injuries to her wrist and ankle during her struggle with Willson. During the restitution hearing, she linked those injuries to the treatment she received including the casting of her wrist, ankle surgery and physical therapy. She further linked her treatment to her various medical bills submitted as evidence. Finally, Wickenheiser testified concerning the time she was required to miss work because of her injuries and to her resultant loss of wages. We find no error in the admission of this evidence. See State v. Andrews, 2001 SD 31, ¶ 17, 623 N.W.2d 78, 83 (lay witness may give an opinion if he has personal knowledge of the matter and non-expert testimony requires no foundation). We further hold that it was sufficient to support the restitution awarded. See Harris v. State, 542 So.2d 1312 (Ala.Crim.App.1989)(uncertified copies of medical bills and expenses properly admitted into evidence at restitution hearing and properly considered by sentencing judge); State v. Wilson, 185 Ariz. 254, 914 P.2d 1346 (Ct.App.1996)(restitution order supported where victim authenticated his medical bills and testified concerning his out-of-pocket losses resulting from the injuries defendant inflicted on him); Sims v. State, 637 So.2d 21 (Fla.Dist.Ct.App.1994)(restitution order supported where victim testified concerning injuries she sustained during the crime and concerning her future tangible medical expenses resulting from her injuries); People v. Kim, 91 N.Y.2d 407, 671 N.Y.S.2d 420, 694 N.E.2d 421 (1998)(pre-sentence report’s detailed itemization of documented medical costs incurred by victim together with defendant’s express and implied concessions of the accuracy and authenticity of those figures afforded the court a sufficient evidentiary basis for restitution award); People v. Periard, 15 A.D.3d 693, 788 N.Y.S.2d 725 (2005)(vic-tim’s sworn testimony sufficient to establish losses she incurred including replacement of certain personal items, lost wages and medical expenses); State v. Bunn, 66 N.C.App. 187, 310 S.E.2d 792 (1984)(ample evidence supported court’s restitution recommendation where the series of medical bills establishing the amount were present at court); Maloy v. State, 990 S.W.2d 442 (Tex.App.1999)(finding that victim’s restitution expenses were “just” supported by victim’s detailed testimony concerning specific medical expense amounts incurred as a result of defendant’s crime/victim’s testimony concerning medical expenses actually incurred and of which she had direct knowledge not hearsay).

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . SDCL 22-11-4 provides:
      Any person who intentionally prevents or attempts to prevent a law enforcement officer or jailer, acting under color of his authority, from effecting an arrest of the actor or another, by:
      (1) Threatening to use physical force or violence against the law enforcement officer or jailer or any other person; or
      (2) Using any other means which creates a substantial risk of causing physical injury to the law enforcement officer, jailer or any other person;
      is guilty of resisting arrest. Resisting arrest is a Class 1 misdemeanor.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. David Anthony PETITHORY, Appellant.
    No. 03-1679.
    Supreme Court of Iowa.
    Aug. 26, 2005.
    Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey Noble and Frank Severino, Assistant County Attorneys, for appellee.
   STREIT, Justice.

Parents can commit a crime by exposing their children to danger — even if the parents themselves pose the danger. In this case, a baby girl lost her life because of her father’s meth abuse; coming down from a high, he fell asleep while she sat in a running bathtub. The father, who was convicted of involuntary manslaughter, child endangerment, neglect of a dependent person, possession of a controlled substance, and domestic assault causing bodily injury, appeals his convictions. He claims his trial counsel was ineffective and the district court should have merged some of his sentences. We affirm.

I. Facts and Prior Proceedings

On the night of February 12, 2003, Brooklin Petithory celebrated her first birthday with her three-year old sister, K.C., at the Chuck E. Cheese Restaurant in West Des Moines. That night, while Brooklin and K.C. slept, their parents, David Petithory and Amy Champoux, smoked methamphetamine together in the basement of the house the four shared. Both parents were chronic meth abusers.

High on meth, David Petithory stayed up late that night playing video games. He eventually came down from his meth binge and slept most of the next day while Champoux took care of the girls. Meth is a stimulant that often keeps addicts awake for long periods of time; inevitably, however, the body’s need for sleep overcomes the effects of the drug and the addict “crashes” into a deep sleep from which it can be difficult to awake.

When Petithory awoke in the middle of the afternoon, Champoux told him she was going to run a few errands and asked him to give the girls a bath. Petithory put the girls in the bathtub, placing Brooklin in a tub chair. Petithory turned on the water and left. He fell asleep on a stairway outside the bathroom.

KC.’s screams later dragged Petithory back to consciousness. He found Brooklin face down in the water. The tub was beginning to overflow. Tests later revealed the tub would have had to run for over eight minutes at full force to do so.

Brooklin was deprived of oxygen for between three and ten minutes. She sustained irreversible brain damage and died on March 23, 2003.

The State charged Petithory with a host of crimes, including involuntary manslaughter (two counts), child endangerment, neglect of a dependant person (three counts), and possession of a controlled substance (two counts). The State also charged Petithory with domestic abuse assault causing injury stemming from a previous altercation with Cham-poux. Following a bench trial, the district court convicted Petithory of all counts except for a count of involuntary manslaughter and a count of possession of a controlled substance. The court sentenced Petithory to twenty-seven years in prison.

Petithory appealed, and the court of appeals affirmed. In his application for further review, Petithory raises the same issues as he did before the court of appeals. First, he maintains the district court erred when it failed to merge his convictions for involuntary manslaughter, neglect, and child endangerment. See Iowa Code §§ 701.9 (2003) (merger statute), 707.5(1) (involuntary manslaughter by public offense), 726.3 (neglect of a depen-dant person), 726.6(1) (child endangerment). Second, he claims his trial counsel was ineffective because he failed to (1) make a specific motion for acquittal arguing the State’s evidence was insufficient to convict him on one of the counts of neglect, (2) object to a videotape showing Brooklin suffering in the hospital, or (3) move to suppress evidence obtained from a warrantless search of the home.

We granted further review to consider Petithory’s first allegation of ineffective assistance of counsel, i.e., his claim that there was insufficient evidence to convict him on one of the counts of neglect. Specifically, Petithory maintains there is not substantial evidence to show he neglected K.C. in the months leading up to the bathtub incident.

II. The Merits: Neglect of a Depen-dant Person

The district court convicted Petithory of neglecting K.C. from November 1, 2002 until February 13, 2003 because during that time he had “knowingly or recklessly expose[d] [her] to a hazard or danger against which [she could not] reasonably be expected to protect [her]self.” Iowa Code § 726.3. The alleged hazard or danger was Champoux and Petithory himself — two “illegal drug using parents.” Although Petithory’s trial counsel moved for a judgment of acquittal, Petithory contends his trial counsel was ineffective because he did not specifically argue in the motion that there was insufficient evidence to sustain his conviction.

A. A Question of Sufficiency, Not Ineffectiveness

In truth, the question posed in this case is not whether Petithory’s trial counsel was ineffective, but rather whether there was sufficient evidence to support his conviction. Unlike a jury trial, in a bench trial the defendant is not required to move for a judgment of acquittal to preserve error on a sufficiency of the evidence claim. See State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997) (citing what is now Iowa R.Crim. P. 2.19(8)). The district court’s finding of guilt necessarily includes a finding that the evidence was sufficient to sustain Petithory’s conviction. Id. Petitho-ry’s trial counsel nonetheless made a motion for acquittal. The fact that he did not specifically point out alleged deficiencies in the sufficiency of the evidence cannot constitute ineffective assistance of counsel, because he was not required to make the motion in the first place.

We decline the State’s invitation, however, to rule adversely to Petithory on this basis alone. Properly framed, the question in this case is simply whether the evidence was sufficient to support Petitho-ry’s conviction. Our review, therefore, is not de novo, but for errors at law. See, e.g., State v. Evans, 671 N.W.2d 720, 724 (Iowa 2003) (reviewing sufficiency-of-the-evidence claim for errors at law); State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App.1998) (same). We will uphold the district court’s finding of guilt so long as there is substantial supporting evidence in the record. State v. Spies, 672 N.W.2d 792, 796 (Iowa 2003), cert denied, 541 U.S. 1089, 124 S.Ct. 2820, 159 L.Ed.2d 253 (2004). Evidence is substantial if a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt. Id. We are obliged to view the evidence in the light most favorable to the State, affording it all legitimate and reasonable assumptions that may be deduced from the evidence in the record. Id. That said, we consider not only the evidence that supports the verdict, but also that which detracts from it. State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005).

B. Leaving Your Kids With Meth Addicts Can Constitute Criminal Neglect

Iowa’s neglect statute makes it a crime for

[a] person ... having custody of a child ... who knowingly or recklessly exposes [the child] to a hazard or danger against which such person cannot reasonably be expected to protect [herself]....

Iowa Code § 726.3. It is not disputed that Petithory had custody of K.C. from November 1, 2002 to February 13, 2003. Only two elements of the neglect charge are at issue in this case: whether, on account of his and Champoux’s meth abuse, during that same time frame Peti-thory (1) knowingly or recklessly (2) exposed K.C. to a hazard or danger against which she could not reasonably be expected to protect herself.

We conclude there is substantial evidence in the record to support the district court’s findings that Petithory knowingly (or at least recklessly) exposed K.C. to a hazard or danger against which she could not reasonably be expected to protect herself. We consider the scienter and hazard/danger elements of the statute simultaneously because, as is often the case, a finder of fact may impute scienter to a defendant from the normal consequences of his actions. See State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003); State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998).

It is not disputed that Petithory used meth on a daily basis during the period alleged in the trial information. Petithory also regularly left himself alone with the children after Champoux left for work. When Champoux was home, she often used meth, too — as much as twice a week by her own account. These admissions are corroborated by methamphetamine residue and paraphernalia found in the house. It is abundantly clear from the record that during the alleged time frame Petithory repeatedly left his daughter, K.C., in the custody of meth addicts — whether in the person of himself or Champoux. This clearly posed an ongoing danger or hazard to the children.

Petithory stresses that there is no evidence K.C. had any meth in her system and disputes whether the girls ever had access to the drug. He maintains he was a careful drug abuser, smoking it only in the basement, where the children were not allowed. It remains, however, that both parents handled and consumed the illegal drug in the very house wherein the girls resided. The hazards the girls faced were not limited to the possibility of accidentally ingesting methamphetamine residue. Champoux testified Peti-thory became “mean” and “frustrated” when coming down from methamphetamine. Importantly, the State presented expert testimony which detailed — in intricate and comprehensive fashion — the dangers a parent’s meth use poses to his custodial children. The State’s expert witness testified:

Parents who are addicted to methamphetamine are not available ... to their children because under the influence of methamphetamine there is an initial high that an individual perceives and very soon after that high comes a downfall or a depression, which is much more severe with methamphetamine than other drugs of abuse.... When that happens, many meth-using adults will fall asleep, and that period can last for hours at a time. In that period of time they’re not capable of providing supervision and care for young children around the household.
Methamphetamine is a drug that ... stimulates the sensory nervous system and it also blocks the higher centers ... that are responsible for checks and balance of impulses. Perception of danger [and] reasoning ability ... are hindered from ongoing methamphetamine use. So that over a period of time an adult using methamphetamine loses [his] capacity to function on a daily basis because of lack of comprehension of what are the risks in the environment, what are children’s needs on a day-to-day basis because they don’t have the energy level to provide those needs. And also, because of the poor impulse control and increased risk of losing their temper and anger, the children in an environment where parents use meth are at increased risk of physical abuse.

K.C. faced these dangers every day while her parents used meth in the family home. The district court found:

As described by [the State’s expert], the methamphetamine user is removed physically and emotionally from the household. Such detachment may not always result in sufficient hazards or risks to older children. However, in this court’s opinion it is almost inevitable when coupled with the ongoing responsibility to care for children the ages of Brooklin and [K.C.].
[Children] rely entirely on the care of responsible adults to protect them from the dangers the world has to offer. To his credit, it appears that the defendant did not directly expose the children to the direct toxic effects of his methamphetamine use. However, he exposed them on a daily basis to the more subtle and more destructive effects of the drug.... [T]he changes in [Petithory’s] behavior brought about from his methamphetamine use ... exposed them to a significantly greater risk of injury or death.

(Emphasis added.) Moreover, the district court explicitly found Petithory knowingly or at least recklessly exposed K.C. to this danger. The court wrote:

The defendant is a chronic abuser of methamphetamine. He has learned through his years of use and treatment of the deleterious effects of methamphetamine. He was aware of how the drug changed him behaviorally and of the cycles of highs and lows described by the expert witnesses. He had specific discussion with Champoux regarding how the effects of methamphetamine were potentially harmful to their family.... His actions, both in continuing to use methamphetamine on a daily basis while in the household ... [was] clearly “knowing” for purposes of ... [the] neglect charges.
This conduct also satisfies the recklessness requirement of the neglect charges. Children of such tender years require a level of vigilance in those entrusted with their care that is simply not attainable in a person using methamphetamine to the degree that the defendant was over the time period in question in this case.

We conclude there is substantial evidence in the record to support the district court’s findings. We have long recognized the dangers and hazards of leaving one’s children in the custody of chronic drug abusers. See, e.g., In re J.K., 495 N.W.2d 108, 113 (Iowa 1993) (finding that “parents [who] have severe chronic substance abuse problems” “clearly” presented a danger to their children). This danger is recognized daily in our juvenile courts, which are often forced to terminate the parental rights of those who are addicts precisely because their continued drug abuse poses a danger to their children. See, e.g., id. The danger is not any less or qualitatively different if the allegation is made in a criminal case. Meth affects a person even after the drug has left the person’s body. The after-effects are pervasive and staggering'— much more so than with other drugs such as alcohol or marijuana.

To rule otherwise in this case would countenance absurd results and be contrary to the common-sense manner in which we ought to interpret a statute. See generally State v. Anderson, 636 N.W.2d 26, 35 (Iowa 2001) (stating court interprets statutes to avoid an absurd result); accord Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003) (interpreting statute consistent with common sense). The dangers of leaving one’s children in the custody of actively using methamphetamine addicts cannot be denied. No parent should leave his small children in the care of a meth addict — the hazards are too great. Experience sadly teaches us that any hope that no parent would leave his children in the care of a meth addict is misplaced; the law, however, sets a standard of conduct for parents and rightly mandates that no parent should do so.

Petithory rejoins that his conviction was based on mere speculation and conjecture, insofar as generalized risks are attributed to him without an affirmative showing such factors occurred in this case. He also points to testimony of his friends and family members that he was a loving father. Whether he loved his children we are not called upon to decide; he exposed them to dangers and hazards, which is the statutory standard. Dangers and hazards need not be realized; dangers and hazards are by their very nature risks, not certainties. Cf Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 845 (Iowa 2005) (noting that “[d]anger invites rescue” not only when the victim is actually injured, but where there is imminent risk of peril). Russian roulette is dangerous each time it is played, not just when someone has his head blown off. Although in this case danger was not realized until December 13, danger was present throughout the foregoing months, as well. Tragedy was waiting to happen.

As the trial court pointed out, the dangers posed to the children in the months prior to Brooklin’s drowning were real. Neither the district court nor we need speculate to arrive at this conclusion. The particular constellation of facts present in this case is important. There is no question the defendant used meth on a daily basis; there is no debate about the pernicious effects of meth; there is specific testimony regarding Petithory’s irate behavior whenever he “crashed” from a meth-induced high; and the children in Petithory’s care were clearly of such a tender age that they could not be expected to protect themselves from the dangers and hazards to which he exposed them. This is not a case in which a parent is accused of using a less-potent drug once or twice and then caring for his teenage children; this is a parent of two very young children who left his children in the exclusive care of meth addicts for a period of months. What parent among us would entrust a three-year old to a meth addict? No right thinking parent would do so, because of the dangers and hazards. The law recognizes this common-sense notion and criminalizes those who subject their children to such peril.

Nor is Petithory’s conviction based purely upon his status as an illegal drug user. A “status crime” is “[a] crime of which a person is guilty by being in a certain condition or of a specific character.” Black’s Law Dictionary 400 (8th ed. 2004). Peth thory’s conviction does not rest solely upon the fact that he is a drug abuser; it is that fact, plus his additional act of placing his children in his and Champoux’s care while consuming and consumed by the drug, that is sufficient to support his conviction. It is one crime to possess methamphetamine; it is another crime to use methamphetamine and then try to supervise one’s children or leave one’s children in the care of an addict.

The defense would have it that only when the child has meth in her system does a parent expose the child to a danger or a hazard. The particular circumstances of this case, buttressed by expert testimony regarding the affects of meth addiction and its concomitant dangers, also fit within the statute’s prohibitions. The effects of meth are felt long after the last hit has left the body. The trail of danger left by meth is often profound. See State v. Bulington, 802 N.E.2d 485, 440 (Ind.2004) (recognizing the dangers methamphetamine use poses — including “neglect by adults on a long, cheap high” (citation omitted)). A parent in this state is a danger, to which it is a crime to expose a defenseless child.

It does not matter that part of the danger to which Petithory exposed the children was himself. The statute forbids a parent from exposing a child to a danger; it does not distinguish among the sources of the dangers. For example, it is no different than a parent being charged with neglect for driving down the road, asleep, at a high rate of speed with a child. A parent who works seventy-two straight hours and then starts driving his children on the highways — sound asleep as he drives his trusting little treasures to their destruction — knowingly exposes a child to danger. As in the case at bar, the parent is the source of the danger. Even if the statute implicitly barred prosecutions of self-imposed dangers, however, this would not help Petithory. Here Petithory was charged in part for exposing K.C. to another danger, Champoux.

In sum, we conclude Petithory’s sufficiency-of-the-evidence claim is without merit because substantial evidence supports his conviction. Petithory knowingly or at least recklessly exposed both girls to a danger against which they could not protect themselves — caretakers suffering from the effects and after-effects of drug abuse.

III. Conclusion

There is sufficient evidence in the record to support Petithory’s conviction of neglect of a dependant person. Finding no error in the district court judgment or the decision of the court of appeals, Petithory’s convictions are affirmed on all counts.

AFFIRMED.

      . A tub chair makes it easier for an adult to bathe an infant, but is clearly not designed to replace adult supervision.

      . The State filed separate neglect charges against Petithory for (1) repeatedly exposing Brooklin to drug addicts during the same period of time and (2) the act of putting K.C. in the tub unsupervised on February 13, 2003. These counts are not at issue here.

      . Petithory does not claim that the child neglect statute is unconstitutionally vague or overbroad.


author: TOUSSAINT, Chief Judge.

text:
    Randy ERICKSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-2082.
    Court of Appeals of Minnesota.
    Sept. 6, 2005.

      Robert D. Miller, Stephen V. Grigsby, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, James B. Early, Office of the Attorney General, St. Paul, MN; and Michelle Elise Moren, Roseau County Attorney’s Office, Roseau, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; WILLIS, Judge; and FORSBERG, Judge.

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

   OPINION

TOUSSAINT, Chief Judge.

Appellant Randy Erickson challenges an order denying his postconviction petition contesting his 2003 probation revocation. Appellant argues that the district court abused its discretion when it failed to make the Austin findings and failed to consider treatment as an alternative to revoking his probation. Additionally, appellant argues that he received ineffective assistance of counsel at his revocation hearing because of a conflict of interest in representation. Because he was abusing alcohol and antidepressants at the time, appellant also contends that his guilty plea was not knowing or intelligent.

FACTS

Officers from the Roseau County Sheriffs Department stopped at appellant’s residence on September 9, 2001. The purpose of their stop was to determine if appellant was complying with the conditions of his release on a pending controlled-substance charge. The officers observed beer cans and a container similar to one previously retrieved from a dismantled methamphetamine lab in the back of a truck parked in appellant’s driveway.

Appellant invited the officers to speak with him in his garage. While speaking with appellant, the officers observed empty cold-tablet containers, Coleman fuel, coffee filters and strainers, and crumpled aluminum foil lying around the garage. Additionally, the officers observed a “yellowish discoloration” on the concrete floor of the garage that was similar to the discoloration produced by the earlier-seized methamphetamine lab.

The officers informed appellant that a number of the items in his garage were similar to items seized from a suspected methamphetamine lab near a neighbor’s residence. Appellant initially indicated that he allowed some of the employees of Stoskopf Redi-Mix to use his shop and they could have made methamphetamines. Officers also informed appellant of the recent thefts of anhydrous ammonia in the area. Appellant checked his propane cylinders and found one that had contained anhydrous ammonia, but indicated that he did not know how the ammonia got into the cylinder.

Because the officers were suspicious that methamphetamine was being manufactured at appellant’s residence, they asked appellant for permission to search his property. Appellant consented to the search, and the officers seized a number of items commonly used to manufacture methamphetamine.

The officers asked appellant to go to the law-enforcement center and provide a urine sample for testing. Random testing was a condition of his earlier release from Sherburne County. Appellant agreed and provided a urine sample, which tested positive for methamphetamine.

Appellant was read his Miranda rights and agreed to speak with an officer. Appellant eventually admitted that he had stolen anhydrous ammonia on September 7, 2001. Appellant admitted that, in an attempt to manufacture methamphetamine, he crushed up 100-200 pills in a bowl and added Coleman fuel, anhydrous ammonia, and sulfuric acid. Appellant also admitted that, in a separate attempt to create methamphetamines, he crushed up some pills, mixed them with white gas, and then evaporated the gas from the mixture.

On February 15, 2002, appellant pleaded guilty to one count of controlled-substanee crime in the first-degree, one count of controlled-substanee crime in the fourth degree, and one count of gross-misdemeanor driving while intoxicated (DWI). In accordance with a plea agreement, appellant received a 110-month sentence, which was stayed for a probationary period of 15 years. The district court informed appellant that if he violated his probation he could be sent to jail.

In January 2003, appellant was arrested because the officer believed appellant had violated his probation by consuming alcohol. Later, a case of beer was recovered from his vehicle. Upon arriving at the Roseau County Sheriffs Office, appellant was given a PBT, which produced a reading of .08.

At appellant’s revocation hearing in February 2003, appellant admitted to violating his probation by consuming alcohol. On February 26, 2003, the district court revoked appellant’s probation and executed his sentences for the controlled-substance convictions — 110 months for the controlled-substance crime in the first degree and a concurrent sentence of 21 months for the controlled-substance crime in the fourth degree.

On August 20, 2004, appellant filed a petition for postconvietion relief. Appellant argued that the district court failed to make the Austin findings required to revoke his probation. The district court denied appellant’s petition for postconvietion relief on September 1, 2004. This appeal follows.

ISSUES

I. Appellant challenges the denial of his petition for postconvietion relief, alleging that the district court erred when it revoked his probation. Did sufficient evidence exist to support the district court’s decision to revoke appellant’s probation?

II. In appellant’s pro se supplemental brief, he claims that the attorney representing him at his revocation hearing also represented an individual he previously testified against. Did a conflict of interest create an ineffective-assistance-of-counsel issue for appellant?

III. Appellant claims that when he entered his original guilty plea he was under the influence of antidepressants and alcohol. Was his guilty plea voluntary?

ANALYSIS

I.

Postconvietion Relief

Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001) (citation omitted). Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Id. “The decisions of a postconvietion court will not be disturbed unless the court abused its discretion.” Id.

Appellant argues that the district court erred when it denied appellant’s petition for postconvietion relief because the revocation of appellant’s probation was improper. Specifically, appellant claims that the district court erred in revoking his probation by (1) failing to make written findings on the Austin factors, based on a the record that is inadequate to support the revocation; and (2) failing to consider treatment as an option before revoking his probation.

Austin Findings

The district court “has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn.1980). The district court must engage in a three-step analysis before probation can be revoked: (1) designate the specific condition that was violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Id. The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity. Id. at 251.

a. Impact of State v. Modtland

In the past, appellate courts have applied a “sufficient evidence exception” to the requirement that district courts make findings in support of the Austin factors. See State v. Theel, 532 N.W.2d 265, 267 (Minn.App.1995) (stating that the district court’s failure to make the express findings on the Austin factors is not an abuse of discretion when the record contains sufficient evidence to warrant the revocation), review denied (Minn. July 10, 1995); State v. Hamilton, 646 N.W.2d 915, 918 (Minn.App.2002) (the lack of explicit findings is not an abuse of discretion when the decision to revoke probation is supported by ample evidence in the record). However, the Minnesota Supreme Court recently determined that the “sufficient evidence” exception previously recognized by this court cannot “be reconciled with the language of Austin itself.” State v. Modtland, 695 N.W.2d 602, 606 (Minn.2005). The supreme court specified that it is not the defendant’s burden to request that the district court make specific findings on each of the Austin factors and reaffirmed the essential holding of Austin, requiring that the district court make the three findings on the record before probation may be revoked. Id. In this case, the district court failed to provide Austin findings on the record. Because Modtland was not released at the time appellant’s probation was revoked, the initial determination must be whether Modtland applies retroactively. If Modtland applies, appellant’s probation revocation would be in error.

Whether or not a decision applies retroactively is a question appellate courts review de novo. O’Meara v. State, 679 N.W.2d 334, 338 (Minn.2004). Generally, new rules of law are not retroactively applicable to cases on collateral review. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). However, two exceptions to this general rule exist. Id. at 311, 109 S.Ct. at 1075-76. The first exception is for rules placing “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Id., 109 S.Ct. at 1075 (quotation omitted). The second exception allows a rule to be applied retroactively if it “requires the observance of ‘those procedures that ... are implicit in the concept of ordered liberty.’ ” Id., 109 S.Ct. at 1076 (quotation omitted).

Under Teague, a district court’s decision articulates “a ‘new rule of law’ when the decision was not dictated by precedent existing at the time the defendant’s conviction became final.” O’Meara, 679 N.W.2d at 339. Existing precedent at the time of appellant’s probation revocation included a sufficient-evidence exception to the Austin factors. In fact, this court has utilized the sufficient-evidence exception when reviewing probation-revocation decisions for at least 16 years. See State v. Wittenberg, 441 N.W.2d 519, 521 (Minn.App.1989) (relying on sufficient-evidence exception to affirm probation revocation). In Modt-land, the supreme court overruled the previous interpretations of State v. Austin and held that the district court must make findings on all of the Austin factors on the record. Modtland, 695 N.W.2d at 606. Thus, Modtland created a new rule of law. The next question is whether the new rule fits into either of the two exceptions that would make it apply retroactively.

The first exception allows for retroactive application of a new rule that places particular private conduct beyond the scope of lawmakers to proscribe. Teague, 489 U.S. at 311, 109 S.Ct. at 1075. The rule created in Modtland, that district courts must place the Austin factors on the record before revoking a defendant’s probation, does not proscribe any private conduct, and thus does not fall into the first exception.

The second exception allows for retroactive application of a new rule that requires the observance of procedures that implicate the fundamental fairness of a trial and that are implicit in the concept of ordered liberty. Teague, 489 U.S. at 311, 109 S.Ct. at 1075 (citation and quotation omitted). An example of a rule that would alter the “bedrock procedural elements” is the requirement that counsel is now a necessary condition to any conviction for a serious crime. Id., 109 S.Ct. at 1076. While Modtland creates a specific requirement for the district courts, it does not prescribe procedures that implicate the fundamental fairness of a trial. The Modt-land rule merely requires the district court to place the Austin findings on the record. Modtland, 695 N.W.2d at 606. The rule does not change the discretion allowed to the district court in weighing the factors and making the decision to revoke or continue the defendant’s probation. Therefore, the rule created in Modt-land does not fit into the second exception and should not be applied retroactively.

In this case, appellant is challenging a denial of his petition for postconviction relief. A petition for postconviction relief is a collateral attack. Pederson v. State, 649 N.W.2d 161, 163 (Minn.2002). And, generally, new rules of law are not retroactively applicable to cases on collateral review. Teague, 489 U.S. at 310, 109 S.Ct. at 1075. Because this is a collateral attack on a conviction, and because the rule created in Modtland does not fall within either of the exceptions allowing retroactive application, Modtland does not apply to appellant’s case. Therefore, when determining whether appellant’s probation revocation was an error, we use the law that was in place at the time, which included the sufficient-evidence exception.

b. Austin factors

Appellant claims not only that the district court failed to make Austin findings but that it failed to appropriately exercise its discretion when deciding to revoke. When appellant’s probation was revoked, controlling precedent held that if the district court failed to make the Austin findings, the reviewing court “may nevertheless affirm the [district] court’s revocation of the stayed sentence, provided that there is sufficient evidence in the record to support the necessary findings.” State v. Balma, 549 N.W.2d 102, 105 (Minn.App.1996).

Here, the district court’s failure to make the Austin findings on the record does not facilitate effective appellate review. It is unclear what information the district court relied on when making the decision to revoke appellant’s probation. Therefore, we reverse and remand to the district court to make the necessary findings in support of revocation of appellant’s probation.

Consideration of Treatment

Appellant also argues that the district court erred when it failed to consider treatment as an option before revoking his probation. Based on our determination above, we need not address this argument.

II.

Conflict of Interest

Appellant asserts in his pro se supplemental brief that the attorney representing him at his probation-revocation hearing had a conflict of interest and, thus, he was denied his Sixth Amendment right to conflict free representation. Essentially, appellant is making an ineffective-assistance-of-counsel claim on postconviction review. A postconviction petitioner who claims ineffective assistance of counsel must allege facts that would affirmatively prove that counsel committed unprofessional errors and that, but for those errors, there is a reasonable probability the result would have been different. Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990).

Appellant argues that the attorney representing him at his probation-revocation hearing had a conflict of interest because she also represented one of the individuals appellant had previously testified against. However, appellant fails to show how that fact, even if true, affected the outcome of his hearing. In fact, appellant admitted to violating his probation, and evidence was presented of this violation. It is unclear how his counsel’s previous representation could have had any influence on appellant’s situation. Therefore, appellant’s claim of ineffective assistance of counsel fails.

III.

Guilty Plea

Appellant claims that the guilty plea he entered on April 15, 2002, was in error because he was under the influence of alcohol and Paxil at the time. A criminal defendant may withdraw a guilty plea if the withdrawal is necessary to correct a manifest injustice. Minn. R.Crim. P. 15.05, subd. 1. A guilty plea must be accurate, voluntary, and intelligent to be valid. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003). If a guilty plea is inaccurate, involuntary, or unintelligent, a manifest injustice occurs, and a defendant should be allowed to withdraw his plea. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998). However, a record showing a voluntary guilty plea may preclude a claim that the plea was involuntary. See State v. Ecker, 524 N.W.2d 712, 719 (Minn.1994) (holding that the contested plea was voluntary because defendant repeatedly stated on the record that he was making his own decision).

Appellant asserts in his pro se supplemental brief that he was on both Paxil, a commonly prescribed anti-depressant medication, and alcohol at the time that he entered the guilty plea. However, at the plea hearing, appellant testified that he had time to consider what he was doing and that he understood what rights he was foregoing. Additionally, at the time he entered the guilty plea, appellant testified that he was not under the influence of any alcohol or drugs. Because appellant clearly testified that he was not under the influence of drugs or alcohol and that he understood the ramifications of his guilty plea, appellants claim that the plea was involuntary also fails.

DECISION

Because the record is vacant as to the factors the district court relied on when it revoked appellant’s probation, we reverse and remand.

Reversed and remanded.


author: PARKER, Judge.

text:
    Christopher P. SCHERMER, et al., on behalf of themselves and all other similarly situated, Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, et al., Respondents.
    Nos. A04-2054, A04-2088.
    Court of Appeals of Minnesota.
    Sept. 6, 2005.

      Lawrence R. King, T. Joseph Snodgrass, Shawn M. Raiter, Larson King, LLP, St. Paul, Minnesota; and Charles N. Ñauen, Robert K. Shelquist, Lockridge Grindal Ñauen P.L.L.P., Minneapolis, Minnesota; and Charles S. Zimmerman, J. Gordon Rudd, David M. Cialkowski, Zimmerman Reed, P.L.L.P., Minneapolis, Minnesota; and Rhett A. McSweeney, McSweeney & Fay, Minneapolis, Minnesota, for appellants.
    Todd A. Noteboom, William L. Greene, Daniel Oberdorfer, Douglas R. Boettge, Monica L. Davies, Leonard, Street and Deinard, Professional Association, Minneapolis, Minnesota, for respondents.
    Mike Hatch, Attorney General, Brian Dockendorf, Assistant Attorney General, St. Paul, Minnesota, for amicus State of Minnesota.
    Sharon L. Van Dyck, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota; and Jeffrey D. Bores, Chestnut & Cambronne, P.A., Minneapolis, Minnesota, for amicus Minnesota Trial Lawyers Association.
    Considered and decided by PETERSON, Presiding Judge; MINGE, Judge; and PARKER, Judge.
   OPINION

PARKER, Judge.

In this class action suit, appellants challenge the district court’s grant of summary judgment in favor of respondent, arguing that the district court erred by (1) rejecting appellants’ argument that respondents violated Minn.Stat. § 72A.20, subd. 13 (2004) as a matter of law; (2) holding that no private right of action exists under Minn.Stat. § 72A.20, subd. 13 (2004); and (3) holding that the filed rate doctrine bars appellants’ claims. Because no private right of action exists under Minn.Stat. § 72A.20, subd. 13 (2004), and because the filed rate doctrine bars appellants’ claims, we affirm. Therefore, we need not address appellants’ argument that respondents violated Minn.Stat. § 72A.20, subd. 13 (2004), as a matter of law.

FACTS

On May 8, 1997, respondent State Farm Fire and Casualty Company and State Farm General Insurance Company (State Farm) filed an initial version of a “Utilities Rating Plan” (URP) with the Department of Commerce (DOC) for homeowners and farm insurance policies. The URP had an effective date of June 15, 1997. It based a rate differential on the age of the oldest of the electrical, plumbing, and heating/cooling system. On May 22, 1997, the DOC notified State Farm that its filing had been reviewed and had to be amended to comply with Minn.Stat. § 72A.20, subd. 13. Pending that amendment, the filing was held in suspense. On June 5, 1997, State Farm submitted a revised URP. Under this revision, homeowners would be placed in different rate categories based on the age of the electrical system only. On June 10, 1997, the DOC informed State Farm that the URP required further amendment. Pending that amendment, the URP continued to be held in suspense. On June 27, 1997, State Farm submitted a further revision to the URP in response to this request. On July 18, 1997, the DOC again informed State Farm that further amendments were required to the URP and, pending those amendments, the filing would continue to be held in suspense. On July 28, 1997, the DOC accepted the URP for use effective August 1,1997.

The accepted URP placed insured homeowners in different rating categories based on the age of the electrical system. A home with a new system would be eligible for a discount from the base premium; a home with an older system would be subject to an additional charge over the base premium. State Farm used the age of the home as a surrogate for the age of the home’s electrical system as part of the development of a rating plan that assigned rates based on the age of the homeowner’s electrical system. At all times during this process, State Farm relied on its original actuarial exhibit that utilized all noncatas-trophic losses (not just those related to electrical systems) as its support for the URP. Approximately one year later, in September 1998, State Farm filed a modified URP with the DOC. Under the revised URP, policyholders could more easily avoid the surcharge by making updates to their electrical system. The September 1998 filing also combined the three rating categories associated with the oldest electrical systems into a single 40-plus year category subject to a six-percent premium.

In January 2001, a private citizen filed a complaint with the DOC about State Farm’s URP rating classification. In response to this complaint, the DOC began an investigation. The investigation took approximately 19 months and was led by Martin Fleischhacker. Fleischhacker reviewed the 1997 actuarial data that was supplied in support of the URP and found that the URP was based on the age of the primary structure, not the age of the electrical system. He also found that it did not include information demonstrating the risk of loss due to the age of the electrical system. He believed that when an insurer places homeowners in different rating categories based upon the age of a utility system, such as an electrical system, any differential in rates must be limited to differential in losses caused by or related to the age of that particular system. It was clear that the actuarial exhibits submitted by State Farm in 1997 indicated that the differentials in URP charges and discounts had been calculated using all noncatastrophic losses, not just those caused by aging electrical systems. Fleischhacker concluded that the URP violated Minn.Stat. § 72A.20, subd. 13.

State Farm disagreed with Fleischhacker’s interpretation of the statute. In October 2002, Fleischhacker sent State Farm a letter attaching a “DRAFT: CEASE AND DESIST ORDER AND NOTICE OF RIGHT TO HEARING.” The letter alleged that State Farm did not track and had no loss data to show that the age of the structure’s electrical system affects the risk of loss. It alleged that State Farm tracked the age of the insured’s dwelling and that its loss data were correlated with the age of the dwelling. Finally, it concluded that the URP was based on the age of the primary structure, which is prohibited by Minn.Stat. § 72A.20, subd. 13(b).

In December 2002, the DOC entered into a settlement with State Farm which was effectuated by a consent order. The order set forth the allegations of wrongdoing. It noted that State Farm denied those allegations. State Farm acknowledged that it had been advised of its right to a hearing and to appeal from any adverse determination after a hearing but expressly waived those rights. The consent order contained the following: “Both the Commissioner and Respondent agree that this Order represents an informal settlement and that there has been no hearing, findings of fact, or conclusions of law with respect to the allegations of the Commissioner.” Under the terms of the consent order, State Farm agreed to discontinue the surcharge portion of the URP for one year while continuing to offer discounts. It retained the right to seek approval of the rates thereafter. It also agreed to reimburse the department $75,000 for its investigative costs.

Appellants Christopher Schermer, John Smith, Marjorie Smith, and Reverend Albert Gallmon, on behalf of themselves and all others similarly situated (the class), filed their first class action on December 6, 2002, within days of the announcement of the consent order. The class states that this lawsuit was “filed to force State Farm to pay the Class back for State Farm’s violation of state law.” The class sought a refund of all surcharges collected by State Farm from 1997-2002 under the URP. The surcharges totaled nearly $20,000,000. Due to procedural matters and court rulings, the operative complaint is the class’s third amended class action complaint. The class alleged the following eight counts in this complaint:

• Count 1: Rescission of Unlawful Contract Terms
• Count 2: Breach of Contract and Duty of Good Faith and Fair Dealing
• Count 3: Violation of Prevention of Consumer Fraud Act Minn.Stat. § 325F.69, subd. 1 (as to the public)
• Count 4: Violation of Prevention of Consumer Fraud Act Minn.Stat. § 325F.69, subd. 1 (as to the DOC and the Commissioner of Commerce)
• Count 5: Unreasonable Restraint on Trade or Commerce in Violation of Minnesota Antitrust Law Minn.Stat. § 325D.53, subd. 2(1) to (4) and § 325D.03, subd. (l)(l)(a)
• Count 6: Violation of the Act Against Unfair Discrimination and Competition Minn.Stat. § 325D.03 and § 325D.072
■Count 7: Fraud by Nondisclosure
• Count 8: Filed Rate Doctrine

Each count in the complaint was based on State Farm charging an allegedly improper rate, a rate that was approved by the Commissioner of Commerce in 1997 and then subject to a consent order in 2002. In its third amended complaint, the class summarized their claim in a section entitled “Nature of Action”:

This is a class action against Defendants State Farm Fire and Casualty Company and State Farm General Insurance Company (referred to collectively as “STATE FARM”), for redlining in Minnesota by dramatically charging higher premiums for homeowners and farm/ranch insurance for older homes, farms, ranches, buildings and other structures without actuarial support. STATE FARM is a homeowners and farm/ranch insurer who, under the moniker “Utilities Rating Plan” (“URP”), has systematically charged unfair and discriminatory premiums to Minnesotans living in older homes, farms and ranches to subsidize deep premium discounts for consumers living in new homes, farms and ranches. STATE FARM’S URP was a transparent effort to redline and discriminate. STATE FARM’S misconduct was and is in violation of state law.

(Emphasis added.)

In 2004, State Farm submitted a rate filing to the DOC in which it sought approval of the same URP filed and approved by the DOC in 1997 and 1998, which is the same URP at issue in this litigation. As it did in 1997, State Farm used age-of-home data as a surrogate for the age of the electrical system. It also provided its actuarial support for the rate differential based on all noncatastrophic losses. In its review, the DOC considered the actuarial data filed in support of the URP in light of the criticisms raised by Fleischhaeker in 2002. There were differences of opinion among DOC staff members.

On April 9, 2004, the DOC approved State Farm’s filing. In its approval, the DOC accepted the use of the age of the dwelling as a surrogate for the age of the utilities as well as the use of all noncatas-trophic losses as actuarial support for the rate differential. According to one staff member of the department, the approval of State Farm’s URP in 2004 reflected a return to the position of Minn.Stat. § 72A.20, subd. 13, that the DOC had followed until 2001.

Both parties moved the district court for summary judgment. On September 3, 2004, the district court denied the class’s motion for partial summary judgment. The class sought summary judgment on the ground that as a matter of law State Farm’s 1997-1998 URP violates Minn.Stat. § 72A.20, subd. 13, because (1) the URP differential is based solely on the age of dwelling; and (2) the statute requires URP rate differentials to be calculated based on losses caused by the age of a home’s electrical system, not all noncatas-trophic losses. The district court held that there is a genuine issue of material fact with regard to the sole use of age of dwelling. But in response to the class’s motion, the district court agreed with State Farm that because the class’s claims are predicated on an alleged violation of Minn.Stat. § 72A.20, subd. 13, summary judgment in favor of State Farm is appropriate because there is no private cause of action for a violation of Minn.Stat. § 72A.20, subd. 13, pursuant to Morris v. Am. Family Mut. Ins. Co., 386 N.W.2d 233 (Minn.1986). On this same date, the district court also granted State Farm’s motion for summary judgment under the “filed rate doctrine.” This appeal followed.

ISSUES

I. Does a private right of action exist under the Unfair Claims Practices Act, Minn.Stat. § 72A.20, subd. 13 (2004)?

II. Does the filed rate doctrine bar the class’s claims?

ANALYSIS

On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

I.

Minnesota law requires every homeowner insurer doing business in Minnesota to file its rates and rate revisions with the DOC, and no rate is effective until it has been filed. Minn.Stat. § 70A.06, subd. 1 (2004). The DOC has the power to examine any insurer “[a]t any time and for any reason related to the enforcement of the insurance laws.” Minn.Stat. § 60A.031, subd. 1 (2004). The DOC may initiate enforcement proceedings to remedy a violation of the applicable statutes. Minn. Stat. §§ 45.027, 60A.052, subd. 1 (2004). If, after a contested proceeding, the DOC determines that a rate violates Minnesota law, it shall order that the rate be discontinued and “shall order the excess premium plus interest ... to be refunded to the policyholder” from the date the proceeding was commenced. Minn.Stat. § 70A.11, subd. 1 (2004). Further, if the DOC determines that an insurer has charged illegal or improper rates, engaged in any fraudulent or misleading conduct during the filing process, or engaged in any other unfair trade practice, the commissioner may seek administrative remedies, including the revocation of an insurer’s license and penalties. Minn.Stat. §§ 45.027, 60A.031, 60A.052 (2004).

Under the Unfair Claims Practices Act (UCPA), no person shall engage in this state in any trade practice which is defined in sections 72A.17 to 72A.32 as or determined pursuant to sections 72A.17 to 72A.32 to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance. Minn. Stat. § 72A.19, subd. 1 (2004). Subdivision 13 of section 72A.20, entitled “Refusal to renew,” prohibits the following trade practice:

Refusing to renew, declining to offer or write, or charging differential rates for an equivalent amount of homeowner’s insurance coverage, as defined by section 65A.27, for property located in a town or statutory or home rule charter city, in which the insurer offers to sell or writes homeowner’s insurance, solely because:
(b) of the age of the primary structure sought to be insured.

Minn.Stat. § 72A.20, subd. 13(b) (2004). Subdivision 13 also contains a “safe harbor provision” stating:

This subdivision shall not prohibit the insurer from applying underwriting or rating standards which the insurer applies generally in all other locations in the state and which are not specifically prohibited by clauses (a) to (d).... Clause (b) shall not prohibit the use of rating standards based upon the age of the insured structure’s plumbing, electrical, heating or cooling system or other part of the structure, the age of which affects the risk of loss.

The class argues that (1) it did not assert a private cause of action under Minn.Stat. § 72A.20, subd. 13, but instead requested that the district court rescind the surcharge terms of its respective contracts because these terms violated this statute; (2) the common law recognizes this distinction and affords the right to collect for discriminatory rate charges that violate a regulatory scheme; and (3) the legislature expressly intended to allow suits relating to subdivision 13 through the exception-to-immunity provision in Minn. Stat. § 65A.29, subd. 6 (2004).

State Farm argues that the class’s claims fail as a matter of law because the Minnesota Supreme Court in Morris v. Am. Family Mut. Ins. Co., 386 N.W.2d 233 (Minn.1986), held that there is no private cause of action for claims premised on an alleged violation of Minn.Stat. § 72A.20, subd. 13.

The court in Morris held that a private party does not have a cause of action against an insurer for a violation of the UCPA, Minn.Stat. § 72A.20. Morris, 386 N.W.2d at 238. In Morris, the first-party insured plaintiff sued her insurer for basic economic loss no-fault benefits arising out of an auto accident. Id. at 233, 237 n. 7. The plaintiff sought to amend her complaint to add a count alleging that the insurer violated the UCPA. Id. at 233. The supreme court reasoned in Morris that the “comprehensive scheme of administrative enforcement” under the UCPA is “more appropriate to investigating and regulating an insurer’s general business practices.” Id. at 237; see also LaBarre v. Credit Acceptance Corp., 175 F.3d 640, 643 (8th Cir.1999) (“Minnesota law permits only administrative recourse for violations of § 72A.20 and ... does not provide a private cause of action for violations of this provision.”).

The class’s claims were predicated on an alleged violation of Minn.Stat. § 72A.20, subd. 13. The class claimed that State Farm’s alleged breaches of contract violated this statute. Thus, the class sought to bring a private cause of action under the UCPA, which is barred by Morris.

Moreover, this court has rejected a plaintiff’s attempt to use an alleged violation of the UCPA as an element of the plaintiffs common law claim for tortious interference with prospective relations. See Glass Serv. Co. v. State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867 (Minn.App.1995), revieio denied (Minn. May 2, 1995). Relying on Morris, this court in Glass Serv. reiterated that the UCPA does not create any “private cause of action,” regardless of how the claims are styled. Id. at 872; cf. Olson v. Moorhead Country Club, 568 N.W.2d 871, 873 (Minn.App.1997) (relying on Morris and Glass Serv. to hold that an employee did not have a private cause of action for conversion where his only alleged right arose under a statute that did not provide for a private cause of action), review denied (Minn. Oct. 31, 1997); see also Elder v. Allstate Ins. Co., 341 F.Supp.2d 1095, 1100-02 (D.Minn.2004) (citing Morris and the absence of a private cause of action under the UCPA to hold that a common law claim for negligence per se cannot be based on an insurer’s alleged violation of the UCPA). Thus, the law is settled that a litigant cannot directly sue under Minn.Stat. § 72A.20, subd. 13, or use an alleged violation of this statute to prove elements of a common law claim.

Finally, the class argues that this court must recognize that the legislature expressly intended to allow litigation concerning violations of subdivision 13. The class cites Minn.Stat. § 65A.29, subd. 6, entitled “Immunity of Insurer or commissioner,” which provides:

There shall be no liability on the part of and no cause of action of any nature shall arise against the commissioner or against any insurer, its authorized representative, its agents, its employees or any firm, person or corporation furnishing to the insured information as to reasons for declination, nonrenewal, or cancellation, for any statement made by them in any written notice of declination, nonrenewal or cancellation, for the providing of information relating thereto, or for statements made or evidence submitted at any hearings or investigations conducted in connection therewith. This subdivision shall not apply to any action or proceeding arising under section 72A.20.

(Emphasis added.) According to the class, “by declaring an exception, [section 65A.29] permits litigation concerning violations of § 72A.20, subd. 13.”

We reject the class’s argument that this statute authorizes it to bring a suit against State Farm. While State Farm is not “immune” from liability under Minn.Stat. § 72A.20, subd. 13, because the DOC may bring an action against State Farm, the class may not bring a private cause of action against State Farm.

II.

Next, the class argues that the district court erred in granting summary judgment because the “filed rate” doctrine does not apply to bar its claims.

In Keogh v. Chicago & Nw. Ry. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922), Justice Brandéis set forth what has come to be known as “the filed rate doctrine.” In Keogh, the plaintiff alleged that the defendant carrier conspired to fix rates for transporting freight, and that this conspiracy violated the Sherman Act. Id. at 160, 43 S.Ct. at 48. The plaintiff alleged that because he was forced to pay higher rates than he would have absent the conspiracy, he suffered damages to the extent of that difference in rates. Id. The Supreme Court dismissed the plaintiffs claim, holding that where the defendant charged a rate that had been filed with the Interstate Commerce Commission, “the rates were reasonable and non-discriminatory.” Id. at 161, 43 S.Ct. at 49.

Thus, the filed rate doctrine forbids “a regulated entity [from charging] rates for its services other than those properly filed with the appropriate federal regulatory authority.” Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577, 101 S.Ct. 2925, 2930, 69 L.Ed.2d 856 (1981). The doctrine holds that any filed rate — a rate that has been approved by the governing regulatory agency- — “is per se reasonable and unassailable in judicial proceedings brought by ratepayers.” Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir.1994). The filed rate doctrine applies to regulation by state agencies as well as federal. H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 494 (8th Cir.1992) (applying filed rate doctrine to Minnesota phone rates). This court has recognized the filed rate doctrine. See, e.g., G & T Trucking Co. v. GFI America, Inc., 535 N.W.2d 658, 660-61 (Minn.App.1995) (noting that the filed rate doctrine requires a regulated entity to prove its filed rate).

The district court held that the filed rate doctrine bars the class’s claims and relied on the Wegoland decision. In Wegoland, the plaintiff class alleged that two telephone companies gave regulatory agencies and consumers misleading financial information to support the inflated rates they requested. Wegoland, Ltd. v. NYNEX Corp., 806 F.Supp. 1112, 1113 (S.D.N.Y.1992), aff'd, 27 F.3d 17 (2d Cir.1994). The plaintiffs alleged that companies purchased products at inflated prices, then used those prices to justify inflated rates which resulted in high profits. Id. The Second Circuit affirmed the district court’s holding that the filed rate doctrine barred the plaintiffs claims and that no fraud exception to the doctrine exists. Wegoland, 27 F.3d at 21-22. The district court found that the facts in Wegoland are “exceedingly similar” to this case, in which the class alleges that State Farm gave the DOC misleading actuarial information in support of its surcharge. We affirm the district court’s holding that the filed rate doctrine bars the class’s claims.

The class argues that (1) the facts of this case do not warrant adoption of the filed rate doctrine; (2) the filed rate doctrine does not apply to insurance; (3) the filed rate doctrine does not apply to discriminatory insurance practices; (4) the filed rate doctrine does not apply because it conflicts with Minnesota common law; and (5) the filed rate doctrine cannot apply to the class’s rental dwelling policy claims. State Farm argues that the filed rate doctrine applies in this case and that the exceptions the class cites are inapplicable. We address each of the claims.

The class first argues that the facts of this case do not warrant adoption of the filed rate doctrine because “[w]hile initially created to protect consumers, the filed rate doctrine has been used in recent times to victimize consumers.” But here, applying the filed rate doctrine comports with the policies underlying the doctrine. Application of the filed rate doctrine (1) prevents the judiciary from “reconstitute[ing] the whole rate structure” of an industry; (2) avoids retroactive relief that would lead to discrimination in rates such that a victorious plaintiff would end up paying less than similarly situated nonsu-ing customers;- and (3). avoids “under-minting] the congressional scheme of uniform rate regulation.” Wegoland, 27 F.3d at 19 (quoting Keogh, 260 U.S. at 163-64, 43 S.Ct. at 49-50; Ark. La. Gas, 453 U.S. at 579, 101 S.Ct. at 2931). Additionally, the filed rate doctrine preserves the regulatory agency’s authority to determine the reasonableness of an entity’s filed rates. Id. at 21. We agree with the Wegoland court that “[a]s compared with the expertise of regulating agencies, courts do not approach the same level of institutional competence to ascertain reasonable rates.... Courts are simply ill-suited to systematically second guess the regulators’ decisions and overlay their own resolution.” Id.

Here, State Farm complied with Minnesota law by filing its rates with the DOC and thus should not now be subject to retroactive rate revisions when it satisfied the regulatory agency — the DOC. Furthermore, it was only after the DOC completed its review and required changes to comply with the statute at issue that the DOC accepted the URP for use in Minnesota. Allowing the class to challenge retroactively the reasonableness of the DOC-approved URP would undermine Minnesota’s statutory process.

Next, the class argues that the competitive and deregulated nature of the private insurance market and the absence of exclusive jurisdiction of the DOC do not support applying the filed rate doctrine in Minnesota. But the class lacks authority for its position that the filed rate doctrine is premised upon the exclusive jurisdiction of regulators. Our decision is consistent with other courts that have applied the filed rate doctrine to the insurance industry. See Kirksey v. Am. Bankers Ins. Co., 114 F.Supp.2d 526, 529-30 (S.D.Miss.2000); Allen v. State Farm Fire & Cas. Co., 59 F.Supp.2d 1217, 1228-29 (S.D.Ala.1999); Korte v. Allstate Ins. Co., 48 F.Supp.2d 647, 650-52 (E.D.Tex.1999); Morales v. Attorneys’ Title Ins. Fund, Inc., 983 F.Supp. 1418, 1426-29 (S.D.Fla.1997); Uniforce Temp. Pers., Inc. v. Nat’l Council on Comp. Ins., Inc., 892 F.Supp. 1503, 1511-12, 1512 n. 11 (S.D.Fla.1995), aff'd, 87 F.3d 1296 (11th Cir.1996); Richardson v. Standard Guar. Ins. Co., 371 N.J.Super. 449, 853 A.2d 955, 962-64 (N.J.Super.Ct.App.Div.2004); Horwitz v. Bankers Life & Cas. Co., 319 Ill.App.3d 390, 253 Ill.Dec. 468, 745 N.E.2d 591, 604-05 (2001); Am. Bankers’ Ins. Co. v. Wells, 819 So.2d 1196, 1204 (Miss.2001); N.C. Steel, Inc. v. Nat’l Council on Comp. Ins., 347 N.C. 627, 496 S.E.2d 369, 372 (1998); Byan v. Prudential Ins. Co., 242 A.D.2d 456, 662 N.Y.S.2d 44, 45 (N.Y.App.Div.1997); Prentice v. Title Ins. Co., 176 Wis.2d 714, 500 N.W.2d 658, 661-63 (1993).

Next, the class argues that the filed rate doctrine does not apply to discriminatory insurance practices. The class argues that State Farm “cloaked its discriminatory intent behind a fictitiously named ‘utilities’ classification, when the classification was really an age of dwelling classification.” The class cites Dehoyos v. Allstate Corp., 345 F.3d 290 (5th Cir.2003), for the proposition that courts have allowed class action lawsuits seeking to restore premiums charged under discriminatory classifications to proceed. But the court in Deho-yos did not address the filed rate doctrine. Instead, the court addressed whether the McCarran-Ferguson Act preempted federal discrimination law. Id. at 293. Thus, we do not find persuasive the class’s argument that there is a “discriminatory practice” exception to the filed rate doctrine.

Next, the class argues that the filed rate doctrine does not apply because it conflicts with Minnesota common law. The class cites Bell Lumber Co. v. Great N. Ry. Co., 135 Minn. 271, 160 N.W. 688 (1916), for the proposition that Minnesota law has long permitted a ratepayer to recover for illegal rate charges regardless of the existence of a regulatory scheme, in contradiction to the filed rate doctrine. Similarly, the class cites Sullivan v. Minneapolis & R.R. Ry. Co., 121 Minn. 488, 142 N.W. 3 (1913), arguing that a Minnesota rate regulation scheme did not impair the right of a ratepayer to recover under the common law for illegal, discriminatory rates.

The class’s reliance on these two Minnesota cases is not persuasive because they predate the U.S. Supreme Court’s decision in Keogh and because they do not involve challenges to the reasonableness or legality of rates properly filed with and approved by a regulatory agency. Furthermore, the Minnesota Supreme Court’s decision in Morris confirms the policies embodied in the filed rate doctrine.

Finally, the class arg-ues that if this court adopts the filed rate doctrine, remand is required for holders of rental dwelling policies (RDP). The class argues that the filed rate doctrine cannot apply to the class’s RDP claims because an RDP is a policy form covering one- or two-family dwellings owned, but not occupied, by the policyholder. We disagree. The district court properly dismissed the class’s RDP claims because Minn.Stat. § 72A.20, subd. 13, applies to “homeowners’ insurance,” and not rental dwellings. Thus, MinmStat. § 72A.20, subd. 13, does not cover RDP claims.

DECISION

Because the class has no private cause of action under the Unfair Claims Practices Act, Minn.Stat. 72A.20, subd. 13 (2004), and because the filed rate doctrine bars the class’s claims, the district court did not err by granting summary judgment in favor of State Farm.

Affirmed.

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