author: MEIERHENRY, Justice.

text:
    2006 SD 47
    Marvin J. HALLS, Plaintiff and Appellant, v. Jerry A. WHITE and Janet D. White, Defendants and Appellees.
    Nos. 23683, 23708.
    Supreme Court of South Dakota.
    Argued on Feb. 14, 2006.
    Decided May 24, 2006.
    Rehearing Denied June 28, 2006.

      Patrick M. Ginsbach, Heather M. Sud-beck of Farrell, Farrell and Ginsbach, Hot Springs, South Dakota, for plaintiff and appellant.
    Timothy L. Thomas of Thomas, Nooney, Braun, Solay & Bernard, LLP, Rapid City, South Dakota, for defendants and appel-lees.
   MEIERHENRY, Justice.

[¶ 1.] Marvin J. Halls (Halls) sought a permanent injunction against Jerry and Janet White (Whites) to enforce a restrictive covenant prohibiting the use of a mobile home as a temporary or permanent residence in a housing development. Whites claimed that the covenants do not prohibit moving a “manufactured home” onto their lot because the definition of “mobile home” is different from and does not include “manufactured home.” Whites also claimed that Halls should be denied equitable relief because of unclean hands. Based on the evidence, the trial court found Halls could seek equitable relief; however, the court denied the relief. The court determined that the definition of “mobile home” as used in the restrictive covenant did not preclude Whites from placing their manufactured home on the lot. We affirm the trial court’s determination that Halls could seek injunctive relief, but we reverse the denial of the permanent injunction.

FACTS

[¶ 2.] Gary and Meredith Shelstead established the Pine Haven development in 1974 along with Malón and Katherine Anderson. Pine Haven included twenty lots which were subject to certain covenants and restrictions running with the land. On November 29, 2004, Whites, as buyers, and Gary and Meredith Shelstead, as sellers, signed a purchase agreement for a Pine Haven lot. Whites’ offer, however, was contingent on whether they would be allowed to place a manufactured home on the lot. Gary Shelstead (Shel-stead) agreed to that contingency.

[¶ 3.] Whites closed on the property in early 2005. Shortly thereafter they began the process of moving the home onto the lot. This prompted Halls, a resident of Pine Haven, to seek injunctive relief against Whites. Halls sought to enforce the Pine Haven covenants’ restriction against mobile homes. Halls claimed that Whites’ manufactured home fell within the “mobile home” restriction of the covenants. The trial court granted a temporary restraining order in Halls’ favor. After a hearing, however, the trial court dissolved the temporary restraining order and denied Halls’ request for a permanent injunction. Halls appeals that determination and presents for review the following issue:

Whether the trial court erred in holding that the Pine Haven covenants allowed Whites to place a manufactured home on their lot.

STANDARD OF REVIEW

[¶ 4.] Our review of a trial court’s decision regarding injunctive relief is well established:

Granting or denying an injunction rests in the sound discretion of the trial court. We will not disturb a ruling on injunc-tive relief unless we find an abuse of discretion. An abuse of discretion can simply be an error of law or it might denote a discretion exercised to an unjustified purpose, against reason and evidence.

Hendrickson v. Wagners, Inc., 1999 SD 74, ¶ 14, 598 N.W.2d 507, 510-11 (quoting Knodel v. Kassel Twp., 1998 SD 73, ¶ 6, 581 N.W.2d 504, 506) (citations omitted). In doing so, we review the trial court’s findings of fact under a clearly erroneous standard, but we give no deference to the trial court’s conclusions of law. Id. ¶ 9, 598 N.W.2d at 509 (citations omitted). The interpretation of a covenant is a legal question which we review de novo. Harksen v. Peska, 1998 SD 70, ¶ 11, 581 N.W.2d 170, 173. Equitable determinations, however, are reviewed only for abuse of discretion. Adrian v. McKinnie, 2002 SD 10, ¶ 9, 639 N.W.2d 529, 533.

DECISION

Applicability of Covenants to Whites’ Manufactured Home

[¶ 5.] The covenant provision at issue is entitled, “Mobile Homes, Trailers and Basement Houses Prohibited.” It provides:

No mobile home or trailer or basement house shall be used as a residence at any time, either temporary or permanent, on any of the lots in the above described subdivision. No mobile homes, excepting utility or camping trailers, may be stored on any lot.

The trial court found ambiguity in the term “mobile home” because it was not defined elsewhere in the covenants. Consequently, the trial court looked beyond the document to the statutory definitions of “mobile home” and “manufactured home.” In addition, the trial court considered Shelstead’s intent when drafting the covenants as well as testimony from realtors and contractors. Shelstead testified that he used the term “mobile homes” to mean pull-behind campers and self-contained motor homes. Construing the restrictive covenant strictly in favor of free use of property, the trial court concluded that covenants did not apply to Whites’ “manufactured home.”

[¶ 6.] Halls claims that the trial court erred in finding ambiguity in the term “mobile home” and should have applied the ordinary meaning set out in the South Dakota statutes in effect at the time the covenants were written in 1976. Alternatively, Halls argues that if the term is found ambiguous, it should be construed against the preparer and in favor of the testimony of several witnesses who testified that the commonly accepted definition of “mobile home” was the 1976 statutory definition. Under either scenario, Halls maintains that Whites’ manufactured home falls within the covenant’s prohibition of using a “mobile home” as a residence and that our decisions in Farnam v. Evans, 306 N.W.2d 228 (S.D.1981), and Vaughn v. Eggleston, 334 N.W.2d 870 (S.D.1983), control.

[¶ 7.] When interpreting the terms of a restrictive covenant, we use the same rules of construction applicable to contract interpretation. See Harksen, 1998 SD 70, ¶¶ 11-20, 581 N.W.2d at 173-74. A term is ambiguous if it is reasonably capable of being understood in more than one sense. Piechowski v. Case, 255 N.W.2d 72, 74 (S.D.1977). Thus, a covenant is ambiguous if we have “a genuine uncertainty as to which of two or more meanings is correct.” Harksen, 1998 SD 70, ¶ 15, 581 N.W.2d at 173 (citation omitted). A finding of ambiguity, however, requires more than the disagreement of two parties as to the meaning of a term. Id. (citation omitted). We have said, “[u]nder the Plain Meaning Rule, if a term ‘appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature.’ ” Id. (citation omitted).

[¶ 8.] The provision in the covenant clearly prohibits using a mobile home as a residence. It specifies that “[n]o mobile home ... shall be used as a residence at any time, either temporary or permanent, on any of the lots in the above described subdivision.” Because the term “mobile home” was not defined in the covenant, the trial court determined the term was ambiguous. Failure to define a term in a covenant, however, does not automatically create ambiguity. We have said that a term is not ambiguous if “the term ... has a plain and ordinary meaning and that meaning can be defined.” Spring Brook Acres Water Users Ass’n, Inc. v. George, 505 N.W.2d 778, 780 (S.D.1993). Guidance as to the plain and ordinary meaning of a term in a restrictive covenant may come from statutory definitions. Cf. Divich v. Divich, 2002 SD 24, ¶¶ 12-13, 640 N.W.2d 758, 762 (relying on the statutory definition of “benefit” in determining that the term had a plain and ordinary meaning as used in a divorce stipulation). Other courts have relied upon statutory definitions to determine the plain and ordinary meaning of an undefined word in a restrictive covenant. See, e.g., Adult Group Props., Ltd. v. Imler, 505 N.E.2d 459, 465-66 (Ind.Ct.App.1987) (considering definitions from case law, statutes, and a legal dictionary when interpreting the term “family” in a restrictive covenant); Newman v. Wittmer, 277 Mont. 1, 8-9, 917 P.2d 926, 930-31 (1996) (determining that a sentence in a restrictive covenant which prohibited mobile homes to be used as a residence was not ambiguous); Hill v. Cmty. of Damien, 121 N.M. 353, 359-60, 911 P.2d 861, 867-68 (1996) (considering the definition of “family” in zoning ordinances when interpreting that undefined term in a restrictive covenant); LuMac Dev. Corp. v. Buck Point Ltd. P’ship, 61 Ohio App.3d 558, 573 N.E.2d 681, 685-86 (1988) (consulting the statutory definition of “house trailer” which existed when covenants were drafted in order to determine if a “manufactured home” constituted a “house trailer” under restrictive covenants). Thus, the plain, ordinary meaning of a term in a covenant may be gleaned from statutory definitions. Consequently, we turn our attention to the term, “mobile home,” as established by South Dakota and federal law.

[¶ 9.] At the time the Pine Haven covenants were drafted, South Dakota law defined the term “mobile home.” See Farnam, 306 N.W.2d at 229-30 (setting forth the statutory definition of “mobile home”). The term first appeared in South Dakota law in 1973. At that time, the statutory definition provided:

“Mobile home,” a moveable or portable unit, designed and constructed to be towed on its own chassis (comprised of frame and wheels), and designed to be connected to utilities for year-round occupancy. The term shall include: (a) units containing parts that may be folded, collapsed or telescoped when being towed and that may be expanded to provide additional cubic capacity; and (b) units composed of two or more separately towable components designed to be joined into one integral unit capable of being separated again into the components for repeated towing. The term shall include units designed to be used for residential, commercial, educational or industrial purposes, excluding however, recreational vehicles as defined in this Act.

1973 SD Laws ch. 216, § 1. The “Act” referred to in the statute defining “mobile home” is the South Dakota Mobile Home Safety Act, 1973 SD Laws ch. 216. Along with defining “mobile home,” the South Dakota Mobile Home Safety Act established safety guidelines applicable to the sale or rental of mobile homes in South Dakota. See 1973 SD Laws ch. 216, §§ 2-16. The state agency then known as the Department of Commerce and Consumer Affairs was responsible for administering those guidelines. See id. The Mobile Home Safety Act was codified in Chapter 34-34A of the South Dakota Codified Laws.

[¶ 10.] One year after South Dakota adopted mobile home safety standards, the federal government did the same. As a part of the Housing and Community Development Act of 1974, Congress enacted the National Mobile Home Construction and Safety Standards Act of 1974, which sought “to reduce the number of personal injuries and deaths and the amount of insurance costs and property damage resulting from mobile home accidents and to improve the quality and durability of mobile homes” by establishing “federal construction and safety standards for mobile homes” and authorizing “mobile home safety research and development.” Housing & Community Development Act of 1974, Pub.L. No. 93-383, §§ 601-02, 88 Stat. 633 (1974) (codified at 42 USC 5401). Like the South Dakota enactment, the federal act provided a definition of mobile home:

“Mobile home” means a structure, transportable in one or more sections, which is eight body feet or more in width and is thirty-two body feet or more in length, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein.

Id. § 603(6) (codified at 42 USC 5402). Neither the South Dakota Mobile Home Safety Act nor the National Mobile Home Construction and Safety Standards Act of 1974 contained a definition of the term “manufactured home.”

[¶ 11.] In 1980, however, Congress amended the National Mobile Home Construction and Safety Standards Act of 1974 so as to change all uses of the term “mobile home” to “manufactured home.” Housing and Community Development Act of 1980, Pub.L. No. 96-399, § 308(c)(4)-(5). Thus, the definition of “mobile home” established by Congress in 1974 became the definition of “manufactured home,” and the federal standards ceased to refer to “mobile home.” The Conference Report of the United States House of Representatives recognized the name change when it stated that “[i]t is expected that for a reasonably brief transition period the term ‘mobile home’ may have to be used interchangeably with the term ‘manufactured home.’ ” HR Conf. Rep. No. 96-1420, at 129 (1980), reprinted in 1980 USCCAN 3617, 3674.

[¶ 12.] South Dakota followed suit in 1982. That year the Legislature deleted the definition of “mobile home” from SDCL 34-34A-1 and added a definition of “manufactured home.” 1982 SD Laws ch. 361, § 1. The definition of “manufactured home” reflected the definition provided by federal law for the same term — that is, the federal definition which previously applied to “mobile home.” See id. In relevant part, the 1982 enactment provided that as used in Chapter 34-34A, the terms “manufactured home” and “home” mean:

[A] structure, transportable in one or more sections, which is eight body feet or more in width or forty body feet or more in length in the traveling mode, or is three hundred twenty or more square feet when erected on a site; which is built on a permanent chassis and designed to be used as a dwelling, with or without a permanent foundation, when connected to the required utilities; and which contains the plumbing, heating, air conditioning and electrical systems therein. The term includes any structure which meets all the requirements of this subdivision and any other structure which has been certified by the secretary of housing and urban development.

1982 SD Laws ch. 267, § 1. Significantly, the session law which amended SDCL 34-34A-1 was titled, “An act to revise mobile home safety requirements in accordance with the national manufactured housing construction and safety standards program.” 1982 SD Laws ch. 267 (emphasis added). In 1990, the definition of “manufactured home” was moved to SDCL 34-34A-1.1. The changes made in 1990 are still in effect today, and the statute currently provides:

A manufactured home is a structure that meets the following requirements:
(1) It is transportable in one or more sections;
(2) Its body is eight or more feet wide or forty or more feet long in the traveling mode or it occupies three hundred twenty or more square feet when erected on a site;
(3) It is built on a permanent chassis;
(4) It is designed to be used as a dwelling with or without a permanent foundation when it is connected to the required utilities.
The term includes the plumbing, heating, air conditioning, and electrical systems contained in the structure. The term also includes any structure that meets all of the requirements of this section except the size requirements and for which the manufacturer voluntarily files a certification required by the secretary and complies with the standards established under [Chapter 34-34A],

SDCL 34-34A-1.1. Thus, the structure formally referred to as a “mobile home,” in effect, was renamed “manufactured home.”

[¶ 13.] Several other courts have also noted the evolution of the terms “house trailer,” “mobile home,” and “manufactured home” when considering the meaning of those terms. See, e.g., White v. McGowen, — S.W.3d —,-, 2006 WL 62131 (Ark.2006); Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex.1987); Carr v. Michael Motors, Inc., 210 W.Va. 240, 246-47, 557 S.E.2d 294, 300-01 (2001). As one court stated,

[T]he term “house trailer” acquired an undesirable connotation resulting in a concerted effort by the industry to change its image. In the late 1960’s the term “mobile home” began to replace the term “house trailer.” In the late 1970’s the industry applied the term “manufactured home” to the products, replacing the name “mobile home.”

Wilmoth, 734 S.W.2d at 658. Another court stated,

“We use the term ‘mobile home’ interchangeably with the term ‘manufactured home,’ while acknowledging that the construction of mobile homes has improved greatly over the past thirty years. However ... ‘Even though mobile homes have a more pejorative connotation than manufactured housing, it is merely a rose by another name.’ ”

McCollum v. City of Berea, 53 S.W.3d 106, 107 n. 1 (Ky.Ct.App.2000).

[¶ 14.] The evolution of the term “mobile home” is instructive in this case. It appears, as other courts have pointed out, that the term “manufactured home” has replaced the term “mobile home” in modern parlance. “Mobile home,” as defined in South Dakota in 1976, included “a moveable or portable [residential] unit, designed and constructed to be towed on its own chassis (comprised of frame and wheels), and designed to be connected to utilities for year-round occupancy.” See Farnam, 306 N.W.2d at 229-30. It included “units composed of two or more separately towa-ble components designed to be joined into one integral unit capable of being separated again into the components for repeated towing.” See id. The definition of “manufactured home” in the current statute is very similar. See SDCL 34-34A-1.1. A “manufactured home” is a dwelling structure that “is transportable in one or more sections” “is built on a permanent chassis,” contains “the plumbing, heating, air conditioning, and electrical systems,” and is “designed to be used as a dwelling with or without a permanent foundation when it is connected to the required utilities.” SDCL 34-34A-1.1. The Pine Haven covenants clearly sought to exclude “mobile homes.” In light of the evolution of the term, we are convinced that the plain, ordinary meaning of “mobile home” as used in the restrictive covenant now includes “manufactured homes.”

[¶ 15.] Whites argue, however, that their home is not a “mobile home” because that term maintains a meaning separate from “manufactured home” under South Dakota law. While Whites are correct that the term “mobile home” still appears in other sections of the South Dakota code, it no longer appears in the section of the law which sets forth the safety standards applicable to such homes, SDCL Chapter 34-34A. In fact, for a period of time the term was completely removed from the statutes. In 1982, the term “mobile home” and its definition in Chapter 34-34A were replaced by the term “manufactured home” and its definition under federal law. In 1985, an act by the Legislature to correct minor errors and inconsistencies reinserted the definition of “mobile home” into SDCL 34-34A-1. 1985 SD Laws ch. 15, § 42. In 1990, however, that definition was again removed. 1990 SD Laws ch. 278 (entitled “An act to revise provisions relating to manufactured homes and to provide for the promulgation of certain rules”). Since 1990, the term “mobile home” has not appeared in Chapter 34-34A.

[¶ 16.] Even if we were to look to the current statutory definition of “mobile home” in the motor vehicle statutes, we cannot say that Whites’ manufactured home falls outside that definition. The characteristics of Whites’ home are virtually indistinguishable from the home at issue in Farnam, which we found to fall within the original definition of “mobile home.” See 306 N.W.2d at 229-30. It therefore follows that the covenants preclude the placement of Whites’ manufactured home on the Pine Haven lot. The trial court’s ruling to the contrary was in error.

Unclean Hands

[¶ 17.] Whites argued to the trial court that Halls was not entitled to injunctive relief because of the doctrine of unclean hands. They claimed that Halls breached the covenants when he placed a mobile home on his lot during construction of his current home. The trial court determined that Halls purged himself of unclean hands. We review the trial court’s determination under an abuse of discretion standard. Adrian, 2002 SD 10, ¶ 9, 639 N.W.2d at 533. Under the facts of this case, we cannot say that the trial court abused its discretion.

[¶ 18.] We have recognized the doctrine of unclean hands which requires that “[a] party seeking equity must act fairly and in good faith.” Action Mech., Inc. v. Deadwood Historic Pres. Comm’n, 2002 SD 121, ¶ 26, 652 N.W.2d 742, 751. In the same vein, we have stated that “the right to enforce restrictive covenants may be lost.” Vaughn, 334 N.W.2d at 873. None of our cases, however, consider whether unclean hands have been purged. Under that concept, “[i]f a person guilty of unconscionable or wrongful conduct purges himself or herself by adequate and effective renunciation and repudiation, the right to relief will be restored.” 27A Am. Jur. 2d Equity § 135; see also Beavers v. Walters, 537 N.W.2d 647, 651 (N.D.1995) (stating that “one who purges himself of his wrongdoing will have his right to relief restored” and finding that parties purged themselves of wrongdoing when they reached a settlement with another party).

[¶ 19.] The only discoverable case which applies this doctrine in the context of restrictive covenants is Stewart v. Jackson, 635 N.E.2d 186 (Ind.Ct.App.1994). In that case, the plaintiffs sought to preclude their neighbors from operating a home day care by invoking covenants barring both nonresidential and commercial uses of property. Id. at 188. The plaintiffs had previously operated two businesses in their home, and they admitted doing so violated the covenants. Id. at 188-89. The court found, however, that the plaintiffs purged their wrongdoing by ceasing business operations in their home. Id. at 190.

[¶ 20.] In this case, Halls admitted that he placed a motor home on his Pine Haven lot on a temporary basis, and he testified that his adjoining landowners agreed to his action. Halls admitted, however, that he did not get Shelstead’s approval, even though Shelstead owned most of the Pine Haven lots at that time. Halls never admitted his actions violated the covenants, but like the plaintiff in Stewart, he quit violating the restrictive covenants. Halls’ offensive act was committed and remedied long before the issue in this case arose. Under the facts of this case, we cannot say that the trial court abused its discretion by not precluding Halls from seeking equitable relief.

[¶ 21.] Whites’ other arguments challenging the validity and enforceability of the covenants are without merit. We reverse and remand for the trial court to enter a permanent injunction in conformity with this opinion.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and WILBUR, Circuit Judge, concur.

[¶ 23.] WILBUR, Circuit Judge, sitting for ZINTER, Justice, disqualified.

      . The covenants, which were recorded in 1976, included 17 numbered provisions preceded by a preamble. Whites' structure did not violate any of the other provisions. The preamble declares that the purpose of the covenants was for "enhancing and protecting the value, desirability, and attractiveness of the lands and every part thereof.” Other restrictions limited certain lots to single family units not exceeding two stories, garages were limited to housing no more than three cars, either attached or separate. Storage and pet structures were allowed on the lots. Total structures were limited to four per lot, including the dwelling. A one-story dwelling had to measure at least 1300 square feet; a two story dwelling had to be at least 1500 square feet. Placement of the family dwelling had to be on concrete or cement block foundation and had to be a minimum 24 feet long. Horses, cows and sheep were allowed on each home site, "but no more than three animals [] allowed on any one lot,” unless the animals were 4-H or FFA projects and cared for properly. Swine, unless kept as 4-H or FFA project, and poultry, kennels, billy goats or boarded horses were not allowed. All lots with large animals had to be fenced to comply with SDCL 43-23-4. Other provisions involved set backs, garbage disposal, sewage disposal and culverts. The provisions ran with the land and "were binding on all parties and all persons claiming under them for a period of thirty years from the date the[] covenants [were] recorded.” After thirty years, covenants would be "automatically extended for successive periods of ten years unless an instrument signed by a majority of the then owners of the lots had[ ] been recorded, agreeing to change said covenants in whole or in part.”

      . Whiles' home clearly falls within the statutory definition of “manufactured home.’’ See infra ¶ 12. It consisted of two 14-feet-wide sections which were 72 feet long. Those sections were built on permanent chassis and they included plumbing, heating, air conditioning, and electrical systems. Once erected on Whites' Pine Haven lot, the home consisted of 1989 square feet. The mechanisms used to haul the home to Pine Haven, including the wheels and the axels, were not included in the purchase price and were removed once the home was placed on its foundation, which consisted of concrete block footings and concrete piers. All the documentation concerning Whites' home refers to it as a "manufactured home.”

      . The same definition of "manufactured home” exists in the motor vehicle licensing statutes at SDCL 32-3-1(6).

      . Currently, the definition of "mobile home” appears in two places in the code, both of which lie within the motor vehicle statutes, Title 32. See SDCL 32-3-1; SDCL 32-7A-1. It appears in SDCL 32-3-1(8) and provides the definition of "mobile home” for purposes of chapter 32-3 (Title Registration, Liens and Transfers), chapter 32-3A (Title, Registration and Taxation of Boats), chapter 32-4 (Theft and Misappropriation of Vehicles), chapter 32-5 (Annual Registration and License Plates), chapter 32-5A (County Wheel Tax), and chapter 32-5B (Excise Tax on Motor Vehicles). Additionally, it appears in SDCL 32-7A-1(5) and provides the definition of "mobile home” for purposes of chapter 32-7A (Dealers and Manufacturers of Manufactured Homes and Mobile Homes).


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellant, v. James M. BOX, Appellee.
    No. 05-1788.
    Supreme Court of Iowa.
    June 16, 2006.

      Wendell J. Harms, Des Moines, for appellant.
    Kent A. Gummert and Frank A. Comito of Gaudineer, Comito & George, L.L.P., West Des Moines, for appellee.
   CARTER, Justice.

Pursuant to Iowa Court Rule 35.11(2), the Iowa Supreme Court Attorney Disciplinary Board was granted permission to appeal from the findings and recommendations of the Grievance Commission concerning alleged disciplinary rule violations by the respondent attorney. The respondent attorney has cross-appealed from those findings and recommendations. Until now the matter has proceeded under the confidentiality provisions of Iowa Court Rule 35.11(2). Because we now conclude that public discipline is warranted, confidentiality is no longer required, and we refer to the respondent attorney by name in our opinion.

The complaint against attorney James M. Box alleged that he violated Disciplinary Rules 7 — 104(A)(1) and (2) of the Iowa Code, of Professional Responsibility for Lawyers. These rules will henceforth be referred to in our opinion as DRs. DR 7— 104(A)(1) prohibits communication by a lawyer representing a client with another person involved in the same transaction if it is known that the other person is represented by counsel with respect to that transaction. DR 7 — 104(A)(2) prohibits a lawyer representing a client from giving advice to another person whose interests are in conflict with those of the lawyer’s client. The Grievance Commission found that attorney Box violated DR 7— 104(A)(1), but did not violate DR 7— 104(A)(2). Attorney Box on his cross-appeal contends that he violated neither of these disciplinary rules. The appeal of the disciplinary board does not challenge the finding concerning DR 7 — 104(A)(2), but does challenge the Grievance Commission’s recommended sanction of a private admonition for the violation of DR 7— 104(A)(1). The disciplinary board urges that the violation that was established calls for public discipline in the form of a reprimand. We agree with that contention.

The facts that bear on our inquiry, as gleaned from the record, show the following events. In September 2001 Martha Hillard was an eighty-year-old widow. She was childless and, although she owned a home in Mediapolis, Iowa, she was then residing temporarily with her niece, Shirley Slonaker, in the Ottumwa area.

Martha had previously owned substantial farm real estate in Des Moines County, but after her brother, John, had moved his farming operations from Des Moines County to the Ottumwa area, she effected a tax-free exchange in 1996 of her Des Moines County farm property for agricultural land of like quantity in a tri-county area in Wapello, Mahaska, and Keokuk Counties. In September 2001 the farm property owned by Martha in this tricounty area totaled 315 acres and had a market value of $975,000.

In June 2001 Martha had executed a will prepared by a Burlington attorney. In that will, she devised a life estate in her farmland to her niece, Shirley Slonaker, with the remainder gifted in equal shares to each of Shirley’s four children. One of Shirley’s four children was Todd Gingrich. Todd, who was married, was farming Martha’s land in the tri-county area under lease in partnership with Martha’s brother, John Gingrich.

Sometime prior to August 2, 2001, Martha had been approached by two life insurance brokers who influenced her to convert her estate plan into- a living trust and, in the process, purchase some additional life insurance. Ultimately, she never purchased the additional life insurance, but she did execute a living trust instrument prepared by a Cedar Rapids lawyer. The trust was accompanied by a pour-over will that, upon her death, distributed all of her assets to the trust that had not previously been transferred there. The pour-over will revoked the will prepared by the Burlington lawyer less than two months before. Under the trust instrument, Shirley was to be the sole beneficiary of the trust assets upon Martha’s death. Shirley was nominated as executor under the pour-over will and was designated as a successor trustee of the trust.

Martha’s brother, John, and her nephew, Todd, learned of her estate planning activities and convinced her to go with them to attorney Box, who had previously represented both John and Todd, in order that Box might explain to her what the ultimate disposition of her property was to be under the trust instrument. They also sought to have Box counsel Martha as to the purchase of additional life insurance. John arranged for a meeting at Box’s office in Ottumwa on September 7, 2001. Martha arranged to have the Burlington attorney fax a copy of her June will to Box’s office. John and his wife came to the meeting with Todd. Shirley, who had previously furnished Box with a copy of the trust instrument, came to the meeting alone. There was at once an acrimonious discourse between Shirley and the others concerning Martha’s affairs.

John and Todd insisted that the discussion not proceed further until Martha was present and drove to Shirley’s home to get her. Eventually, Martha joined the others in Box’s office. During the course of the discussion that followed, Box, who had read both the June will and the August trust instrument, advised all persons present, including Martha, concerning the contrasting disposition of Martha’s assets under the two instruments. He advised all persons concerning Shirley’s status as a successor trustee and what her powers would be. He also advised Martha against purchasing additional life insurance.

On September 10, 2001, Martha, accompanied by Shirley, counseled with attorney Orville Bloethe. She arranged to have attorney Bloethe prepare an amendment to the trust instrument, which provided that upon her death Shirley would have a life interest in the trust assets with the remainder gifted to Shirley’s four children in equal shares. This amendment also provided that if one of Shirley’s children was farming the agricultural property at the time of Shirley’s death that person would have an option to purchase the farm at fair market value. Attorney Bloethe testified before the Grievance Commission that, at the time of the September 10 conference in his office, Martha appeared frightened and told him she was being pressured into granting Todd a five-year lease on the trust farm property and an option to purchase that property for less than market value. Martha had informed Bloethe of the meeting in Box’s office three days before. This prompted Bloethe to write attorney Box as follows:

Martha M. Hillard has visited with me concerning her Last Will & Testament and her Revocable Trust, together with other personal matters.
In the event you would want to communicate with Martha, you should contact me instead inasmuch as I will be representing Martha.

This communication was dated September 11, 2001. Concerning the purposes of that letter, Bloethe testified:

I didn’t want to send those people home without what I would say was protection. I’m just trying to protect them and see that if something came up, then I would be consulted; and then we can sit down and go from there. That’s all I was wanting to do.

Several weeks prior to October 10, 2001, Todd and his wife prepared a written five-year lease of the farmland in Martha’s trust with John and Todd as tenants. The lease agreement also contained an option for Todd to purchase approximately two-thirds of the trust farm property at a price substantially below its market value. On October 10, 2001, Shirley was visiting one of her children in Virginia. That morning about 8 a.m., John picked up Martha, who was staying at Shirley’s house, for purposes of taking her to the Mahaska County Courthouse to claim an agricultural tax exemption for the trust real estate. Todd joined them later in the morning. While the three were together, Martha was presented with the proposed lease and option-to-purchase agreement, which she signed. According to the testimony of John and Todd, Martha then stated that perhaps she should give the farm property to Todd.

Todd’s version of what then occurred was that he declined to accept the property as a gift but expressed a willingness to purchase the land if the price were less than market value. According to both Todd and John, an -agreement was then reached for Todd to purchase all of the trust farm property for $362,000 pursuant to an installment contract. The terms of the agreement were to include a down payment of $40,000 by March 1, 2002, and annual payments of $40,000 per year thereafter. John and Todd testified that, after reaching such an oral understanding, they sought to schedule an appointment that same day with an attorney named Neary for purposes of obtaining a written installment contract. That attorney was on vacation. They next contacted attorney Box’s law office seeking an appointment with James Box. Box was busy so they obtained an appointment for the afternoon of October 10 with his nephew, who was an associate in the office.

When John, Todd, and Martha went to Box’s office later on October 10, Box was in fact available and ushered them into his office. At this time, he was not aware of their purpose in seeking his services. He was told the reason the group was there was Martha’s intention to sell the trust farm property to Todd on terms to which the parties had agreed. Box then spoke with Martha concerning Bloethe’s letter and expressed the view that he should not be talking to her. According to Box and the others present, Martha responded testily that she could speak to whatever lawyer she chose. Box accepted this as a renunciation by Martha of Bloethe’s representation of her as to the subject matter of her meeting with Box. After being advised of the agreement that had been reached between Martha and Todd, Box proceeded to prepare an installment contract for the sale of the trust real estate pursuant to the terms that had been previously negotiated. According to Todd and John, Martha wanted Todd to pay the lowest possible rate of interest. The only input Box had involving the structure of the transaction was to make a suggestion concerning the minimum rate of interest necessary to avoid an imputed interest penalty under Internal Revenue Service imputed interest rules and to explain how the property taxes should be prorated in order to correspond with the March 1, 2002 possession date. When Box completed the contract document, Todd signed it. Box then informed Martha that she did not have to sign the agreement at that time or at any other time. He told her that she could go home and think it over and discuss it with someone else. Notwithstanding that sug-gestión, Martha signed the agreement in Box’s office on October 10.

Later that day, or the following day, Martha spoke with Shirley’s exhusband, Kenneth Slonaker, concerning her visit to the Box law office. Kenneth telephoned Shirley in Virginia concerning that matter, and during the conversation, Martha joined the telephone conversation and told Shirley that she did not know what she had done, but she believed she may have sold the farm to Todd. On October 18, 2001, an associate in the Bloethe law office wrote to attorney Box, advising him that Martha was rescinding the contract of sale. This was followed up by two subsequent letters to Box concerning Martha’s intention to rescind the transaction. Eventually, Todd communicated to Martha, through Shirley, that he would not agree to rescission of the contract of sale. Litigation followed in which the district court ultimately rescinded the contract of sale. In the meantime, Martha had amended the trust in such a way that Todd was denied the remainder interest and option to purchase that had previously been accorded him.

Our review is de novo. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d 746, 748 (Iowa 1999). The disciplinary board must estab lish the violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001). While we give respectful consideration to the Grievance Commission’s findings and recommendations, we are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Winkel, 599 N.W.2d 456, 460 (Iowa 1999). Ultimately, it is our duty to decide what discipline is appropriate. Id.

The Grievance Commission found that attorney Box’s conduct at the October 10, 2001 meeting constituted a violation of DR 7 — 104(A)(1). That rule provides:

(A) During the course of representing a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party known to be represented by a lawyer in that matter except with the prior consent of the lawyer representing such other party or as authorized by law.

Iowa Code of Profl Responsibility for Lawyers DR 7 — 104(A)(1).

Attorney Box points out that some courts have found that this rule only applies to formal adversary proceedings such as litigation. United States v. Ryans, 903 F.2d 731, 739 (10th Cir.1990); Tucker v. Norfolk & W. Ry., 849 F.Supp. 1096, 1098 (E.D.Va.1994). This narrow approach has been rejected by other courts. The Supreme Court of Vermont addressed the meaning of the word “parties” in DR 7— 104(A)(1) as follows:

[W]e have no trouble concluding that the definition of “parties” under the rule is not restricted to named parties in a lawsuit. The language of the rule suggests no limitation on the word “party.” Instead, the rule prohibits communication “on the subject of the representation” with a party that is represented by a lawyer “in that matter.” The use of the words “subject” and “matter,” rather than “lawsuit,” indicates that DR 7 — 104 applies to all transactions for which lawyers are hired and cannot be construed to imply that its application is limited to cases where suit is filed.

In re Illuzzi, 159 Vt. 155, 616 A.2d 233, 236 (1992). In a similar vein, a New York federal court has concluded:

[DR 7 — 104(A)(1)], which has a long history in the canons of ethics, does not by its terms apply only to litigation, nor does it apply specifically to a prosecutor. Indeed, it applies to persons retained to handle real estate transactions, administer estates for an executor, seek legislative relief, or any other of the myriad of tasks for which lawyers are employed. Its essential purpose is to avoid misunderstandings, unfairness or overreaching when a skilled lawyer speaks to a layperson, and to preserve the collegiality which must exist among members of the bar, and cannot if lawyers talk to another’s client behind the lawyer’s back.

United States v. Galanis, 685 F.Supp. 901, 902 (S.D.N.Y.1988) (citation omitted). We agree with the view of those courts that apply DR 7—104(A)(1) to any transaction in which the contacted party is represented by a lawyer.

Attorney Box next urges that Bloethe’s representation of Martha was not in regard to any transaction that was continuing in nature. He points out that Bloethe testified that when Martha left his office on September 10 there was no additional legal work that he was scheduled to do for her (the September 11 letter to Box had been dictated at this time, but not transcribed). This argument ignores the fact that the September 11 letter clearly speaks to contacts with Martha on matters arising in the future. Nor are we persuaded that DR 7 — 104(A)(1) does not apply because the subject matter of Bloethe’s representation of Martha at the time he wrote the letter did not involve the sale of real estate. The second paragraph of Bloethe’s letter is broadly inclusive and indicates that he will be representing Martha in any matter for which Box might need to communicate with her in Box’s professional capacity. We are satisfied that this was also Martha’s view of their relationship.

The final argument advanced by Box in contending that he did not violate the disciplinary rule is that Martha waived representation by counsel by presenting herself at his office and responding to his reference to Bloethe’s letter by stating that she could talk to whatever lawyer she chose. To accept this contention would in our view greatly undermine the protection sought to be afforded by DR 7 — -104(A)(1). As observed by the Tennessee Supreme Court:

The main function of the disciplinary rule [7 — 104(A)(1)] is to preserve the proper functioning of the legal system and to “prevent situations in which a represented party may be taken advantage of by adverse counsel.”

Monceret v. Bd. of Prof'l Responsibility, 29 S.W.3d 455, 459 (Tenn.2000) (quoting Wright v. Group Health Hosp., 103 Wash.2d 192, 691 P.2d 564, 567 (1984)) (footnote omitted). The court in Monceret went on to state:

[T]he language of the Rule specifically requires the consent of the party’s lawyer, and there is no indication that the party alone may waive the protections of the Rule....
An apparent majority of courts have followed this interpretation and have held that the Rule is not waived simply because the represented person initiates contact or is otherwise willing to communicate .... In short, the ethical responsibility rests with the attorney and not the layman.

Monceret, 29 S.W.3d at 461 (citations and footnote omitted). In a similar vein, the Indiana Supreme Court has stated that “lawyers should independently verify that opposing parties wishing to communicate directly with them are in fact not represented by counsel ....” In re Capper, 757 N.E.2d 138, 140 (Ind.2001). We are in accord with the interpretation of the rule that the Tennessee and Indiana courts have approved.

The Minnesota Supreme Court recently traced the lengthy history of the so-called “no contact rule” as an accepted principle of legal ethics beginning in 1836. State v. Miller, 600 N.W.2d 457, 463 n. 5 (Minn.1999). This discussion indicates the rule has been universally accepted during the Twentieth Century and was included first in the American Bar Association’s 1908 Canon of Ethics and has been carried forward in both the ABA Code of Professional Responsibility for Lawyers (which is the basis for DR 7 — 104(A)(1)) and is now included in rule 4.2 of the ABA Rules of Professional Conduct. We adopted rule 4.2 of the ABA Model Rules effective July 1, 2005. Our version of that rule, Iowa R. Prof'l Conduct 32:4.2, provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Comment 3 accompanying that rule provides:

The rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this rule.

We are satisfied that neither this new ethical rule nor the comment accompanying it added any new ethical requirement that had not been contained in DR 7— 104(A)(1). The substance of comment 3 is embodied in the language of DR 7-— 104(A)(1) that specifically requires the consent of the party’s lawyer. Based on our conclusion as to the meaning of DR 7— 104(A)(1), we find by a convincing preponderance of the evidence that Box violated that rule by carrying out the October 10, 2001 transaction with Martha.

We are not suggesting that DR 7— 104(A)(1) serves to defeat the right of the party sought to be contacted by an attorney to discharge that party’s own lawyer. It does, however, require verification that this has been done before the other lawyer makes contact with a previously represented party. We are satisfied that DR 7— 104(A)(1) required Box to recognize the vulnerability of Martha, as an unrepresented party at the meeting, and, at the very least, to verify the status of Bloethe’s representation by a simple telephone call.

In considering the application of DR 7— 104(A)(1) as a rule of legal ethics, we are not concerned with the bona fides of the real estate sales transaction between Martha and Todd. Even if the facts presented convinced us that Martha, in the exercise of sound and independent judgment, wished to sell the land to Todd for the contract price, this would not alter the fact that attorney Box violated the disciplinary rule by failing to run the proposed transaction through her attorney. The circumstances facing Box at the October 10 meeting were such that he should have welcomed the participation of an attorney representing Martha’s interests. The acrimonious discourse among family members concerning Martha’s affairs that took place in Box’s office on September 11 should have served as a warning to him that controversy was likely to arise from the sale of property to his client, who was one of several objects of Martha’s bounty, for only one-third of its value.

Having determined that Box has violated a disciplinary rule, we agree with the disciplinary board’s conclusion that this conduct warrants a public reprimand rather than the private admonition recommended by the Grievance Commission. The proper sanction to be imposed for a disciplinary violation rests on the particular facts of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Herrera, 626 N.W.2d 107, 115 (Iowa 2001). Comparison with other disciplinary cases involving like conduct is a factor that ordinarily weighs heavily in our determination of a proper sanction. In the present situation, a case exactly like this one is not available because our previous decisions dealing with a violation of DR 7-104(A)(1), Herrera, 626 N.W.2d at 113-14, and Comm. on Prof'l Ethics & Conduct v. Zimmermann, 522 N.W.2d 619 (Iowa 1994), involved additional violations by the offending attorneys. We concluded that the two violations in combination warrant ed a public reprimand in Zimmermann and a suspension in Herrera. Despite the absence of a similar case, we can draw some comparison from cases involving simple conflicts of interest in which a public reprimand or suspension has been ordered. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999) (suspension ordered); Comm. on Prof'l Ethics & Conduct v. Jackson, 492 N.W.2d 430, 434-35 (Iowa 1992) (reprimand ordered). Of more importance perhaps is the fact that Box’s violation resulted in substantial harm, initially to Martha, and eventually to his own client. We have consistently held that harm to a client or third party is an aggravating factor with regard to disciplinary violations. Adams, 623 N.W.2d at 819; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 604 (Iowa 1999).

In making our decision, we do not ignore the fact that Box has established a fine reputation as a competent attorney who has served his clients well for many years. His ethical lapse in October 2001 was an isolated incident that was inconsistent with his normal pattern of care and concern for the profession. Notwithstanding that factor, the ethical violation we have discussed did occur, and Box must bear the consequences of that violation. We hereby reprimand attorney James M. Box and order that he pay the costs of this disciplinary proceeding.

ATTORNEY REPRIMANDED.

      . By the time of the Grievance Commission hearing, which took place in September 2005, Martha's memory of the events at the October 10, 2001 meeting in Box's office had faded. In her testimony before the commission on that subject, she was able to recall few of the details other than to maintain that Bloethe was her attorney at the time.


author: MEYER, Justice.

text:
    Shane PIERSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-2030.
    Supreme Court of Minnesota.
    June 8, 2006.

      Shane Pierson, Bayport, MN, pro se appellant.
    . Michael Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Asst. Ramsey County Attorney, St. Paul, MN, for respondent State.
   OPINION

MEYER, Justice.

Appellant Shane Pierson appeals the postconviction court’s summary dismissal of his second petition for postconviction relief. Pierson claims that the postconviction court erred in summarily dismissing his petition because he was subject to multiple convictions for the same offense in violation of Minn.Stat. § 609.04, subd. 1 (2004), and therefore should have been sentenced on the less serious offense. We affirm.

On March 25, 1994, a Ramsey County jury found Pierson guilty of murder in the first degree, murder in the second degree, and aggravated robbery for his involvement in the robbery of Raymond Barnett and the murder of Dural Woods. Our opinion in State v. Pierson, 530 N.W.2d 784 (Minn.1995), provides a comprehensive statement of the facts. On direct appeal, Pierson raised the sole issue of whether the evidence presented at trial was sufficient to sustain his conviction of first-degree murder. Id. at 785. We affirmed. Id.

Pierson subsequently filed his first petition for postconviction relief, in which he made three claims: (1) newly discovered evidence entitled him to a new trial or an evidentiary hearing; (2) the district court improperly admitted Spreigl evidence; and (3) he was denied effective assistance of counsel. Pierson v. State, 637 N.W.2d 571, 576 (Minn.2002). The postconviction court denied relief, and we affirmed. Id. at 574.

Pierson then filed this, his second petition for postconviction relief, claiming that the jury was improperly instructed on both first- and second-degree murder and that, when the jury found him guilty of both, the district court improperly sentenced him on the first-degree murder charge. The post-conviction court summarily dismissed his petition, and Pierson appealed. Here, Pierson claims that the postconviction court erred in summarily dismissing his petition because he was subject to multiple convictions for the same offense in violation of Minn.Stat. § 609.04, subd. 1, and therefore should have been sentenced on the less serious offense.

A defendant may seek postconviction relief “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (2004). A petitioner seeking postconviction relief has the burden of establishing “by a fair preponderance of the evidence” the facts alleged in the petition. Minn.Stat. § 590.04, subd. 3 (2004). A postconviction court must hold an evidentiary hearing unless the petition, files, and record conclusively show that the petitioner is not entitled to relief. Id., subd. 1 (2004). We review a postcon-viction court’s dismissal of a petitioner’s claims for an abuse of discretion. Scales v. State, 620 N.W.2d 706, 707 (Minn.2001).

When a direct appeal has been taken by a convicted defendant, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Knaffla also bars claims that should have been known by the appellant at the time of direct appeal. Koskela v. State, 690 N.W.2d 133, 134 (Minn.2004). “There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review.” Taylor v. State, 691 N.W.2d 78, 79 (Minn. 2005). The second exception may be applied if fairness requires and “‘the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.’ ” Boitnott v. State, 640 N.W.2d 626, 630 (Minn.2002) (quoting Russell v. State, 562 N.W.2d 670, 672 (Minn.1997)).

Pierson claims that he was improperly subject to multiple convictions for the same offense and therefore the district court erred in sentencing him on the more serious offense. We have previously barred a petitioner’s claim that he was improperly sentenced based on the charging indictment because the claim was known or knowable at the time of direct appeal. Powers v. State, 695 N.W.2d 371, 374-75 (Minn.2005). Similarly, Pierson knew or should have known about this issue at the time of his direct appeal. Moreover, neither Knaffla exception is applicable to Pierson’s claim.

Additionally, irrespective of Knaffla, Pierson’s claim has no merit. Under Minn.Stat. § 609.04, subd. 1, a defendant “may be convicted of either the crime charged or an included offense, but not both.” “We have long recognized that the ‘conviction’ prohibited by this statute is not a guilty verdict, but is rather a formal adjudication of guilt.” State v. Pflepsen, 590 N.W.2d 759, 767 (Minn.1999). In other words, a conviction occurs only after the district court judge accepts, records, and adjudicates the jury’s guilty verdict. See State v. Lindsey, 632 N.W.2d 652, 664 (Minn.2001).

Here, a jury found Pierson guilty of first-degree murder, second-degree murder, and aggravated robbery. However, contrary to Pierson’s assertion, the district court convicted him of only the first-degree murder and aggravated robbery offenses. The district court did not formally adjudicate the jury’s finding of guilt on the second-degree murder charge. Therefore, the district court did not violate MinmStat. § 609.04, subd. 1, when it convicted and sentenced Pierson on the first-degree murder charge rather than on the second-degree murder charge.

The postconviction court did not abuse its discretion when it summarily dismissed Pierson’s petition, and, therefore, we affirm.

Affirmed.


author: WILLIS, Judge.

text:
    STATE of Minnesota, ex rel. Andrew Allen GUTH, petitioner, Appellant, v. Joan FABIAN, Commissioner of Corrections, Respondent.
    No. A05-1554.
    Court of Appeals of Minnesota.
    June 13, 2006.
    Review Denied Aug. 15, 2006.

      Andrew Allen Guth, Moose Lake, MN, pro se appellant.
    Brent D. Wartner, Assistant Legal Counsel, St. Paul, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; KALITOWSKI, Judge; and WILLIS, Judge.
   OPINION

WILLIS, Judge.

In this appeal from the denial of a petition for a writ of habeas corpus, appellant contests his removal from the challenge incarceration program (CIP) and the “abscond/escape charge” on his prison record. Because these arguments lack merit, we affirm in part. Appellant also argues that the time he served during phase I of the CIP should be applied against his term of imprisonment. Because Minn.Stat. § 244.171, subd. 4 (2004), does not prohibit applying against the term of imprisonment of an offender removed from the CIP the number of days that he served in a state correctional facility during phase I of the program, we reverse in part and remand to the district court to recalculate appellant’s remaining term of imprisonment.

FACTS

In February 2008, appellant Andrew Allen Guth pleaded guilty to second-degree controlled-substance crime and was sentenced to an executed 44-month prison term, with 71 days of jail credit. The sentence was to be served consecutively to the executed sentence that Guth was then serving for a conviction of theft of a motor vehicle.

In November 2003, Guth was approved for participation in the challenge incarceration program (CIP), which is a three-phase, community-integration program for eligible nondangerous-drug and property offenders that includes rigorous physical training, work and education programs, chemical-dependency treatment, intensive supervision and surveillance, random drug and alcohol testing, and a high level of offender accountability. An offender completes phase I, commonly called “boot camp,” in a participating Minnesota correctional facility and completes phases II and III at a pre-approved residence, under the supervision of an assigned supervising agent.

Before entering the CIP, Guth signed an agreement that includes the following provision:

I understand and agree that violation of any of the rules of the facility may constitute grounds for termination of my CIP status and return to a Minnesota Correctional Facility, and that if my CIP status is terminated the time served in the CIP will not be credited toward my original term of imprisonment.

Between November 13, 2003, and May 9, 2004, Guth completed phase I of the CIP. On May 10, 2004, Guth began phase II of the CIP, during which he was permitted to live at his parents’ residence after he agreed to certain conditions of release, including a provision that he would “maintain contact with [his supervising agent] as directed” and “at all times follow the instructions of the agent.” During phase II, Guth tested positive for alcohol, for which he received an intermediate sanction; Guth claimed that there was beer in a marinating sauce that he tasted. And in July 2004, Guth was cited for failing to maintain contact with his supervising agent. Guth admitted to the violation, and his conditions of release were restructured to require 30 days of electronic home monitoring.

In November 2004, Guth began phase III of the CIP, and, according to his supervising agent, he “appeared to be doing well.” Guth was employed and attending college part time. On November 14, 2004, Guth’s father called Guth’s supervising agent and reported that Guth had not been living at his parents’ house since November 6, 2004; that Guth had been in an accident with his motor vehicle; and that Guth was “again hanging out with his ‘using’ friends.” Guth’s supervising agent called Guth that evening, leaving a numeric page on Guth’s cell phone, but Guth did not return his agent’s call. Guth’s supervising agent also verified that Guth was not at his residence at 10:40 p.m., despite the fact that Guth had a 10:30 p.m. curfew. So, on November 14, 2004, Guth’s supervising agent obtained an arrest warrant, and Guth was taken into custody on November 19, 2004. Guth’s supervising agent cited him for failing to inform his agent of his residence and activities, failing to maintain contact with his supervising agent as directed, and failing to follow his supervising agent’s instructions. Guth’s supervising agent recommended that Guth be removed from the CIP.

At his revocation hearing, Guth denied all three of his supervising agent’s allegations. Guth claimed that he was having problems with his cell phone; that he had turned his cell phone off the evening of November 14, 2004; and that he never received the numeric page. Guth also claimed that he did not believe that the 10:30 p.m. curfew applied on the nights he was attending school, that he “had no idea that there had been a warrant issued,” and that he “had not been directed to turn himself [in].” The hearing officer dismissed the allegation that Guth had failed to reside at an approved residence because “the standard of proof [had] not been met.” But the hearing officer found that Guth had violated the conditions of his release by failing to maintain contact with his supervising agent and by not being available to his supervising agent at Guth’s residence at 10:40 p.m. on November 14, 2004. The hearing officer revoked Guth’s CIP status and returned him to serve his original prison term. Guth appealed to the executive officer of the hearings-and-release unit, who affirmed the hearing officer’s decision.

In May 2005, Guth filed a petition for a writ of habeas corpus, arguing that (1) there was no evidence that he violated the conditions of his release; (2) the revocation hearing officer was biased; (3) that “a five-day abscond/escape charge” was improperly placed on his record for the dates November 14 through 19, 2004; and (4) the time he served during phase I of the CIP should be applied against his term of imprisonment. The district court denied Guth’s petition without an evidentiary hearing. This appeal follows.

ISSUES

1. Did the revocation hearing officer abuse her discretion by revoking Guth’s CIP status?

2. Was “an abscond/escape charge” wrongly placed on Guth’s record?

3. Should the number of days that Guth spent in a state correctional facility during phase I of the CIP be applied against his term of imprisonment?

ANALYSIS

On appeal from the denial of a petition for a writ of habeas corpus, the district court’s findings are entitled to great weight and they will be sustained if they are reasonably supported by the evidence. Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn.App.1998), review denied (Minn. Nov. 17, 1998). Questions of law, however, are subject to de novo review. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn.App.1993), review denied (Minn. Mar. 11, 1993).

A writ of habeas corpus is a statutory civil remedy available “to obtain relief from [unlawful] imprisonment or restraint.” Loyd v. Fabian, 682 N.W.2d 688, 690 (Minn.App.2004) (quoting Minn.Stat. § 589.01 (2000)), review denied (Minn. Oct. 19, 2004); see MinmStat. § 589.01 (2004). A writ of habeas corpus may also be used to raise claims involving fundamental constitutional rights and significant restraints on a defendant’s liberty or to challenge the conditions of confinement. See, e.g., Kelsey v. State, 283 N.W.2d 892, 895 (Minn.1979) (noting that habeas corpus may be used to challenge prison conditions as cruel and unusual punishment).

I.

Guth argues that he was wrongfully removed from the CIP. The commissioner of corrections “shall impose severe and meaningful sanctions for violating the conditions of the [CIP],” including removing an offender from the program if the offender “commits a material violation of or repeatedly fails to follow the rules of the program.” MinmStat. § 244.171, subd. 4 (2004). The rules for a supervised-release revocation govern the process for removing an offender from the CIP, and those rules provide that a revocation hearing must be held. Minn.Stat. §§ 244.171, subd. 4(3), .05, subd. 2 (2004); see also Minn. R. 2940.3500-.4500 (2003). If a revocation hearing officer finds that an offender is “in violation of [his] ... supervised release,” the hearing officer may revoke the supervised release and return the offender to prison. Minn. R. 2940.3700. Revocation is justified when there is enough evidence to satisfy the decision-maker that the conduct of the offender does not meet the conditions of his release. United States v. Strada, 503 F.2d 1081, 1085 (8th Cir.1974). This court reviews a decision to revoke an offender’s release for a clear abuse of discretion. State v. Schwartz, 615 N.W.2d 85, 90 (Minn.App.2000), aff'd, 628 N.W.2d 134 (Minn. June 28, 2001).

Guth argues that there is insufficient evidence to support the revocation hearing officer’s findings that Guth violated the conditions of his release by failing to maintain contact with his supervising agent as directed and by failing to follow his supervising agent’s instructions by violating his curfew. The record shows that the hearing officer based her findings on the facts that both “Guth and [his supervising agent] confirm[ed] that there was no contact between [Guth] and [the] agent between [November 14 and November 19, 2004]” and that the supervising agent stated that Guth was not at his residence after his 10:30 a.m. curfew on November 14, 2004. Because this is sufficient evidence to support the findings that Guth violated the conditions of his release and because these violations are sufficient to justify revocation, we conclude that the hearing officer did not abuse her discretion by revoking Guth’s CIP status.

Guth argues that his supervising agent lied about leaving a numeric page on Guth’s cell phone on the evening of November 14, 2004. The record shows that Guth’s supervising agent consistently stated that he left a numeric page on Guth’s cell phone that evening. Guth told the hearing officer that his cell phone was not working and that he had turned it off that evening. The hearing officer chose to believe Guth’s supervising agent. This court defers to a fact-finder’s credibility determinations. See, e.g., Sefkow v. Sefkow, 427 N.W.2d 203, 211-12 (Minn.1988) (deferring to a district court’s credibility determinations); Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn.App.2000) (deferring to the credibility determination of the representative of the commissioner of economic security), review denied (Minn. Dec. 20, 2000). And regardless of whether Guth’s supervising agent left him a numeric page, Guth violated the conditions of his release by not being home before his 10:30 p.m. curfew that night, and this alone is a sufficient basis for revocation.

Guth argues that his supervising agent’s recommendation to revoke Guth’s CIP status was improperly based on Guth’s prior violations. But the commissioner may revoke an offender’s CIP status for “repeatedly failing] to follow the rules of the program.” Minn.Stat. § 244.171, subd. 4(1). Therefore, by statute, a hearing officer may consider prior violations of CIP rules when determining whether to remove an offender from the program.

Guth also argues that he “was denied his right to an impartial hearing officer [because the revocation hearing officer] only listened to the recommendations of the parole agent and did not seek out any other facts, testimony or evidence.” But the record shows that the hearing officer considered Guth’s version of the events that led to his revocation, and Guth does not suggest what “other facts, testimony or evidence” the hearing officer should have considered. The fact that the hearing officer decided against Guth does not alone show that she was biased against him. Cf. State v. Laughlin, 508 N.W.2d 545, 548 (Minn.App.1993) (stating that judicial bias cannot be based simply on a litigant’s subjective belief); Olson v. Olson, 392 N.W.2d 338, 341 (Minn.App.1986) (stating that prior adverse rulings do not constitute bias).

II.

Guth argues that because he did not know that there was a warrant for his arrest and he “did not deviate from his pre-approved work/school/residence routine,” “an abscond/escape charge” was wrongly placed on his record. The record shows that Guth absconded from supervision from November 14 through November 19, 2004: Guth failed to maintain contact with his supervising agent by failing to respond to his agent’s numeric page; Guth was not at his residence before his 10:30 p.m. curfew on November 14, 2004; and Guth was not taken into custody until November 19, 2004. This is sufficient evidence to support the determination of the Department of Corrections (DOC) that Guth absconded from supervision for five days. When an offender has absconded from supervision, the issuance of a warrant “shall stop the time from running on the sentence until the [offender] is returned to custody.” Minn. R. 2940.4400, subp. 3 (providing also that a warrant may be issued when an offender “has absconded from supervision”). Therefore, the DOC was justified in stopping the five days during which Guth absconded from running on Guth’s sentence.

Guth argues that by prolonging his term of imprisonment by five days to account for the five days that he absconded, the DOC violated the separation-of-powers doctrine because the “imposition of sentences ... is exclusively a judicial function that cannot be delegated to executive agencies.” The Minnesota Supreme Court has concluded, however, that “the commissioner’s statutory authority over supervised and conditional release operates within and does not impede the court’s sentencing authority.” State v. Schwartz, 628 N.W.2d 134, 140-41 (Minn.2001) (concluding that the commissioner’s addition of a five-year conditional-release term because sex offender violated the terms of his probation did not violate the separation-of-powers doctrine).

Guth also argues that his record of absconding now “adversely affects [his] minimum custody status and programming options such as vocation school [and] work release.” But there is no constitutional right to or liberty interest in prison programming, and therefore, it is not an appropriate matter for habeas corpus relief. State ex rel. McMaster v. Young, 476 N.W.2d 670, 674 (Minn.App.1991) (holding that inmate has “no liberty interest in his custody status classification nor in access to rehabilitative programs in the Minnesota prison system”), review denied (Minn. Dec. 13, 1991). And if an inmate’s “custody classification is not arbitrary or capricious but is pursuant to Department of Corrections policies and procedures,” such a classification does not warrant habeas corpus relief. Id. at 673-74. Guth does not dispute that the DOC’s policies and procedures were properly followed in determining his custody classification. Because the evidence supports the finding that Guth absconded from supervision, which is the basis for his current custody classification, and because Guth has no liberty interest in participating in prison programs, we conclude that his claims arising from his record of absconding do not warrant habeas corpus review.

III.

Guth argues that the days he spent completing phase I of the CIP in a state correctional facility — November 13, 2003, to May 9, 2004 — should be “deducted from his sentence.” See Minn.Stat. § 244.172, subd. 1 (2004) (providing that during phase I of the CIP an “offender must be confined in a state correctional facility”). The district court concluded that Guth was not entitled to credit for time served while in the CIP, citing Seaborn v. Roehrich, No. C4-02-351, 2002 WL 2004867 (Minn.App. Sept. 3, 2002), to support its conclusion. The commissioner also cites Seaborn to support her argument that “the calculation of prison time is not affected by the time spent in CIP if the offender is terminated from the program.” But the analysis in Seaborn does not apply here. First, the appellant in Seaborn argued that he was entitled to “good-time” credit for the time he was in the CIP, which is not the issue here. Guth is seeking credit for time served, not “good time” credit. Id. at *1. Second, the court in Seaborn cited Minn. Stat. § 244.171, subd. 3 (2004), to support its conclusion that an offender who is terminated from the CIP is “not entitled to ‘good time,’ or any reduction in sentence, for his time spent in CIP.” Id. at *2-*3 (emphasis added). But subdivision 3 refers only to good-time credit and does not address a reduction of a prison term on any other basis; therefore, the Seaborn court’s reference to “any reduction in sentence” is dictum. And finally, Seaborn, as an unpublished case, has no precedential value. See Minn.Stat. § 480A.08, subd. 3(c) (2004) (providing that “[ujnpublished opinions of the court of appeals are not precedential”); Chamberlain v. Chamberlain, 615 N.W.2d 405, 411 n. 1 (Minn.App.2000) (stating that “[u]npublished opinions are of limited value in deciding an appeal”), review denied (Minn. Oct. 25, 2000).

The commissioner argues that the following statutory language shows that the “legislature specifically mandated that those removed from CIP shall not receive credit for time served in CIP against their sentences”:

An offender who is removed from the challenge incarceration program shall be imprisoned for a time period equal to the offender’s term of imprisonment, minus earned good time if any, but in no case for longer than the time remaining in the offender’s sentence. “Term of imprisonment” means a time period equal to two-thirds of the sentence originally executed by the sentencing court, minus jail credit, if any.

Minn.Stat. § 244.171, subd. 4. The record shows that Guth signed at least two agreements, one before entering phase I and one before entering phase II of the CIP, in which he acknowledged that he understood and accepted the fact that he would not receive any reduction in his sentence for time spent in the CIP if he did no;t successfully complete the program. These agreements also include the above language from Minn.Stat. § 244.171, subd. 4. There is no published caselaw interpreting this statute. Therefore, whether an offender may receive credit for time served in a correctional facility during phase I of the CIP is a matter of first impression.

This court need not defer to an administrative agency’s interpretation of a statute. Brula v. St Louis County, 587 N.W.2d 859, 861 (Minn.App.1999), review denied (Minn. Mar. 30, 1999). But if the statutory language is technical in nature and the agency’s interpretation is longstanding, the agency’s interpretation is entitled to some deference. Special Sch. Dist. No. 1 v. E.N., 620 N.W.2d 65, 68 (Minn.App.2000). Here, the language of the statute is not technical. And although the commissioner’s interpretation of Minn. Stat. § 244.171, subd. 4, is incorporated into the DOC’s CIP agreements, the record shows that the DOC’s revocation hearing officer told Guth at the end of his hearing that he would receive credit for the time he served in a correctional facility during phase I of the CIP. Therefore, the DOC does not interpret Minn.Stat. § 244.171, subd. 4, consistently.

MinmStat. § 244.171, subd. 4, does not provide that time served in phase I of the CIP should be excluded from the calculation of the term of imprisonment of an offender who is removed from the program. And this court cannot supply what the legislature has deliberately omitted or inadvertently overlooked. State v. Jones, 587 N.W.2d 854, 856 (Minn.App.1999), review denied (Minn. Mar. 16, 1999). Not applying the days that Guth actually served in prison against his term of imprisonment is also generally inconsistent with the caselaw on jail credit or “custody credit.” See, e.g., Asfaha v. State, 665 N.W.2d 523, 528 (Minn.2003) (concluding that “fairness and equity demand that jail credit be awarded” when “the level of confinement and limitations imposed are the functional equivalent of those imposed at a jail, workhouse, or regional correctional facility” and awarding jail credit for time spent at a treatment facility to an offender’s executed sentence after the offender violated the conditions of his probation). Therefore, we conclude that an offender who is removed from the CIP is entitled to the application of the number of days served in phase I of the CIP against his term of imprisonment. We remand to the district court to recalculate Guth’s term of imprisonment. If necessary, the district court may re-open the record to receive additional evidence regarding the dates that Guth was in custody.

DECISION

Because the record supports the determination that Guth was properly removed from the CIP and absconded from supervision for five days in November 2004, we affirm in part. Because Minn.Stat. § 244.171, subd. 4 (2004), does not prohibit credit for the days served in a state correctional facility during phase I of the CIP against the term of imprisonment of an offender who is removed from the CIP, we reverse in part and remand to the district court to recalculate Guth’s remaining term of imprisonment.

Affirmed in part, reversed in part, and remanded.

      . "Good time” is defined as "the period of time by which an inmate’s term of imprisonment is reduced pursuant to section 244.04.” Minn.Stat. § 244.01, subd. 5 (2004). Subdivision 1 of section 244.04 (2004) states that good time is the reduction in the duration of an eligible offender’s term of imprisonment "by one day for each two days during which the inmate violates none of the disciplinary offense rules promulgated by the commissioner.”

      . Minnesota statutes do not define the term "jail credit,” but the term has been used to mean that an offender’s term of imprisonment is reduced by the number of days the offender spends "in custody in connection with the offense or behavioral incident for which sentence is imposed.” Minn. R.Crim. P. 27.03, subd. 4(B).