author: CADY, Justice.

text:
    Phouc NGUYEN, Appellee, v. STATE of Iowa, Appellant.
    No. 04-0223.
    Supreme Court of Iowa.
    Dec. 23, 2005.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and George Karnas and Joe Weeg, Assistant County Attorneys, for appellant.
    Jeffrey T. Mains of Mains Law Office, P.L.C., Des Moines, for appellee.
   CADY, Justice.

In this appeal, we primarily consider whether trial counsel’s failure to object to prosecutorial misconduct condemned in State v. Graves, 668 N.W.2d 860 (Iowa 2003), resulted in prejudice sufficient to support postconviction relief. The district court granted postconviction relief. It found that questions the prosecutor asked the defendant during cross-examination in a murder case involving the defense theory of mistaken identity, which required the defendant to answer whether specific State’s witnesses to the incident were either lying or mistaken, resulted in prejudice and warranted a new trial. We transferred the case to the court of appeals. The court of appeals reversed the district court decision. For the reasons that follow, we agree with the conclusion reached by the court of appeals. We vacate the decision of the court of appeals and reverse the judgment of the district court.

I. Background Facts and Proceedings

Phuoc Nguyen was charged with first-degree murder after he was arrested for participating in the drive-by shooting of Monty Thomas on July 15, 1998. The shooting occurred outside a bar on Forest Avenue in Des Moines called The Cloud. Nguyen claimed he was the victim of mistaken identity. The case proceeded to trial. The State called six eyewitnesses to support its claim that Nguyen was present at the scene and participated in the shooting. These witnesses were Elgin Byron, Shawn Duncan, David Gray, Owen Smith, Rodney Martin, and Deb Doherty.

Elgin Byron, a cousin of the shooting victim, identified Nguyen as the driver of the car involved in the shooting. Byron testified that between 8:30 and 8:45 on the evening of the shooting, as the sun was setting, he was at the Drake Liquor Store on Forest Avenue about a block from The Cloud. As he left the store to go to his car, he saw a dark-colored vehicle turn west from Martin Luther King Boulevard onto Forest Avenue and stop in the middle of the street in front of The Cloud. Byron was attracted to the vehicle because its tires “screeched” as it turned the corner. After the car stopped, he heard “a lot of shooting.” Byron immediately ran back into the store and told the clerk to call 9-1-1. He then exited the store and observed the dark car speed west on Forest Avenue — toward him — then turn south on 21st Street. The car drove past Byron to turn on 21st Street. He recognized the car from having seen it at the bank where he worked. He also recognized the driver, Nguyen, as a bank customer.

Shawn Duncan testified that he was standing outside The Cloud when the shooting occurred. He could not identify Nguyen, but he testified the shots came from “a four-door Mitsubishi Diamante between a '95 and '97 model.” In addition, Duncan identified Thanh Dao, who was a passenger in the car when Nguyen was arrested, as a shooter.

David Gray testified that he came upon a dark-colored car as he was driving east on Forest Avenue on July 15. The car was stopped, facing oncoming traffic, in front of The Cloud. After he stopped his vehicle, he observed the passenger and driver step out of the dark-colored car, fire shots, and return to the car. The car then sped away. Gray wrote down the following information on a brochure he had in his car: “376 ETA,” “black guy,” “Oriental,” “a black car,” and “Cougar?” Additionally, Gray identified Thanh Dao as the passenger. Gray initially identified the driver as African-American (Nguyen is Vietnamese). At trial, Gray explained: “[The driver] had black hair and wasn’t that much taller than the damn door and he was dark complected, you know, [the event] was happening so fast I assumed he was black, and that’s what I wrote down on my brochure.”

Owen Smith was also at The Cloud on July 15, 1998. He testified that he saw Nguyen and Dao outside The Cloud shortly before the shooting. Dao indicated he was looking for an ounce of cocaine and ended up walking down the alley with some men to conduct a drug deal. Nguyen waited by the car, talking to Smith. When Dao returned from the alley, he had been beaten, was barefoot and screaming in a foreign language. Nguyen got in the car and drove away, and Dao ran back down the alley. Then Smith went into The Cloud, had a beer, and went back outside. Once outside, he saw a black car pull up with four Asian occupants. He knew “what was getting ready to happen.” Smith immediately ran around to the back of The Cloud, as the sounds of a hail of gunshots rang out. He then entered the back door of The Cloud. After the shooting stopped, he saw Monty Thomas, a bar patron, lying on the floor. He had been mortally wounded.

Rodney Martin invoked his privilege against self-incrimination and testified by deposition at the trial. In his deposition, Martin testified that he saw Dao, Nguyen, and another man at The Cloud twenty-five to thirty minutes before the shooting. Dao wanted to buy some drugs, and a man named “T” indicated to Martin that he was going to rob Dao. Dao and “T” went down the alley by The Cloud, while Nguyen stayed in the car, and Martin and his cousin served as lookouts. Martin saw “T” beat Dao, choke him, and take his money. Martin said Nguyen and the third man heard Dao screaming for help and drove off. Martin and his cousin then left the bar, and a short time later, heard gunshots. Martin stated he recognized Nguyen, who was present at the deposition, because they attended the same high school.

Deb Doherty lived in the Drake Park neighborhood, three blocks west of The Cloud. On the evening of July 15, 1998, she and a friend drove to The Cloud following the shooting to observe the commotion. However, crime scene tape had been placed around the area, and they were unable to get near the bar. On the way back to her apartment, they came upon a dark-colored, four-door car parked in the middle of 21st Street. There were no occupants in the car at the time. However, she saw three Asian men appear and enter the car. Doherty wrote her observations on a piece of paper: “Three Asians,” “20+ years,” “376 ETA,” and “Dk. car.” She identified the person who entered the back of the car as Thanh Dao. She did not identify Nguyen.

Other evidence presented by the prosecution at trial included the testimony of two Des Moines police officers. Officer Steven Kees arrested Nguyen on July 15. He testified that he pulled Nguyen over in response to a radio dispatch that advised police to be on the lookout for a late-model Mitsubishi, license plate 376 ETA, occupied by Asian males. Kees saw the vehicle at a stop sign at 21st Street and Forest Avenue. He activated his emergency lights, and the car eventually stopped. Kees exited his patrol vehicle with his gun drawn and ordered everyone out of the car. Three Asian males exited: Thanh Dao, who was the backseat passenger; Nguyen, who was the driver; and Hieu Tran. All three were arrested. Nguyen was taken to the police station, questioned, and later released. However, an arrest warrant was issued the next day. Officer Holly Glenn served the warrant and arrested Nguyen at his parents’ house on July 16. After Glenn placed Nguyen in her police vehicle, she testified he asked, “Why am I being arrested?” Glenn replied, “You’re being arrested for the part you played in last night’s homicide.” Then, Glenn testified, Nguyen responded that “[a]ll he did was drive the car. ‘A cop told me I was being pulled over for a broken taillight, I don’t know anything else.’ ”

Hung Pham was the owner of the black Mitsubishi with the license plate number 376 ETA. He testified Nguyen borrowed the car around the time of the shooting. He also testified that when he obtained possession of the car after it had been impounded following Nguyen’s arrest, he observed bullet holes in the trunk.

After the State concluded its case in chief at trial, and the court denied Nguyen’s motion for directed verdict, Nguyen took the stand in his own defense. He denied any involvement in the shooting and stated he was on his way to Saylorville Lake when he was pulled over by police on July 15. He testified that Officer Kees only told him he was being pulled over for a broken taillight. On cross-examination, the prosecutor questioned Nguyen about the testimony of five of the eyewitnesses produced by the State.

The prosecutor first asked Nguyen if he heard the testimony of Rodney Martin at trial, in which Martin placed Nguyen at the crime scene just prior to the shooting. After Nguyen answered affirmatively, the following exchange took place:

Q. Is he wrong or is he lying? A. I’m not saying that he was lying, but I think he was mistaken because I wasn’t there.

(Emphasis added.)

The prosecutor then asked Nguyen if he heard Elgin Byron testify at trial that he observed Nguyen drive the vehicle at the time of the shooting. After Nguyen answered affirmatively, the following exchange took place:

Q. Was Elgin Byron mistaken, or is he lying, about seeing you drive in the car at the scene of the shooting? A. I did not say that he lie[d], but I am sure that he was mistaken because he saw me earlier driving that car and when he saw that car, he thought I would be the driver of that car.
Q. So like Rodney Martin, Elgin Byron was mistaken; is that right? A. Yes.

(Emphasis added.)

The prosecutor then asked Nguyen if he had heard Deb Doherty testify that she saw three men in a dark-colored car, license plate number 376 ETA, after the shooting, one of whom she was able to identify as Thanh Dao. After Nguyen answered affirmatively, the following exchange took place.

Q. Do you think Deb Doherty was mistaken about seen Thanh Dao in the car? A. I wouldn’t know if she said that she saw him, then he was there, maybe he was.

(Emphasis added.)

The prosecutor then asked Nguyen if he heard Owen Smith testify he saw Nguyen and Dao together just prior to the shooting. After answering in the affirmative, the following exchange took place.

Q. Is he lying or is he mistaken? A. I didn’t say he was lying, but I am sure that he’s mistaken because he said something about a guy wearing the— necklace with something, but I never had anything like that on me.

(Emphasis added.)

The prosecutor then asked Nguyen if he heard David Gray testify about his observations at the time of the shooting and his identification of the license plate number of the vehicle involved in the shooting. After Nguyen answered in the affirmative, the following exchange took place.

Q. Is Mr. Gray mistaken about what he testified to? A. I didn’t say that he was mistaken, he wrote it down so he must have seen it.

(Emphasis added.) Nguyen’s counsel made no objections to any of the questions. In addition to his own testimony, Nguyen produced expert testimony concerning the unreliability of eyewitness identification.

The jury found Nguyen guilty of first-degree murder. Nguyen’s counsel did not make a motion for a new trial following the verdict. The court sentenced Nguyen to life in prison.

Nguyen appealed, and we transferred the ease to the court of appeals. Nguyen contended:

(1) the evidence [wa]s insufficient to support his conviction; (2) the district court abused its discretion in limiting the testimony of an expert on eyewitness identification; (3) the district court abused its discretion by allowing evidence of Thanh Dao’s attempt to purchase drugs; (4) his Sixth and Fourteenth Amendment rights were violated because he was unable to cross-examine Dao; (5) his Sixth and Fourteenth Amendment rights were violated when a witness’s deposition was read to the jury; and (6) he was denied effective assistance of counsel in a number of respects.

State v. Nguyen, No. 99-1444, 2002 WL 575746 (Iowa Ct.App. Mar: 13, 2002) (unpublished opinion). Nguyen did not claim error based upon the prosecutor’s “were they lying/mistaken” questions on direct appeal. The court of appeals rejected all of Nguyen’s arguments, except the ineffective-assistance-of-counsel claim based on the failure to make a motion for a new trial. The court preserved this claim for postconviction proceedings. We denied further review.

Nguyen then filed an application for postconviction relief in district court. He claimed his trial counsel was unconstitutionally ineffective in three ways:

1. Counsel failed to object to the prosecutor’s impermissible questioning of Petitioner by confronting him with the testimony of various State witnesses, which intruded into the province of the jury to determine witness credibility;
2. Counsel failed to fully explore Petitioner’s proposed testimony before it was given and failed to explain the consequences of Petitioner’s decision to testify, which resulted in more harm than good, especially given the serious problems of identification that were present in the State’s case in chief.
3.Counsel failed to move for a new trial.

In response to the first assignment of error, the State conceded that it was improper for the prosecutor to ask Nguyen if the eyewitnesses who testified at trial were lying or mistaken in their testimony. However, the State claimed the questions were not prejudicial.

The district court found that Nguyen’s counsel was ineffective for failing to object to the prosecutor’s questioning. It reversed Nguyen’s conviction and ordered a new trial. The court did not rule on any other issues. Accordingly, Nguyen filed a rule 1.904(2) motion. The motion asked the court to rule on his additional claims that counsel was ineffective for allowing him to testify without adequate preparation and for failing to make a motion for a new trial, so he could raise these issues on cross-appeal. The court entered enlarged findings and conclusions. It found that trial counsel was ineffective for failing to move for a new trial, but not for allowing Nguyen to testify.

The State appealed the district court ruling. We transferred the case to the court of appeals. The court of appeals reversed the district court. It concluded Nguyen did not suffer prejudice from counsel’s omissions and therefore was not denied the effective assistance of counsel. Nguyen applied for, and we granted, further review.

II. Standard of Review

When a postconviction relief “applicant asserts claims of a constitutional nature, our review is de novo.” Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (citing Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998)). The basis for relief in this case is the denial of the effective assistance of counsel, in violation of the Sixth Amendment. See State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005) (“Claims of ineffective assistance of counsel are derived from the Sixth Amendment of the United States Constitution.” (Citation omitted.)). Thus, our review is de novo. Id. (citing State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000); State v. Carrillo, 597 N.W.2d 497, 499 (Iowa 1999); State v. Mapp, 585 N.W.2d 746, 747 (Iowa 1998); Osborn, 573 N.W.2d at 920).

III. Preservation of Error

“Generally, a claim not raised on direct appeal cannot be raised in a post-conviction relief proceeding unless the applicant can demonstrate a sufficient cause or reason for not properly raising the issue previously.” Id. (citing Iowa Code § 822.8 (1995); Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999); Osborn, 573 N.W.2d at 921; Washington v. Scurr, 304 N.W.2d 231, 234 (Iowa 1981)). Nguyen raised two arguments in his application for postcon-viction relief that he did not raise on direct appeal: (1) trial counsel was ineffective for failing to object to the prosecutor’s questions; and (2) trial counsel was ineffective for allowing Nguyen to testify without adequately preparing him.

Nguyen claimed in district court that his failure to raise his postconviction relief claims on direct appeal was excused because appellate counsel was ineffective for failing to raise them. See Berryhill, 603 N.W.2d at 245 (stating that generally, “any claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim of error”, but both ineffective assistance of appellate counsel and “factual or legal matters which were excusably unknown at the time of the trial and appeal” are exceptions to the general rule (citations omitted)). In response, the State agreed with Nguyen. Consequently, the issues were properly before the district court, and the State cannot now claim Nguyen failed to preserve error by first raising the issues on direct appeal. See State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005) (holding the State waived error-preservation issue by failing to point out defendant’s failure to preserve error at district court level (citing DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002))).

IV. Merits

The State claims the district court erred by finding Nguyen was prejudiced and suffered ineffective assistance of counsel warranting a new trial. The district court reached its conclusion based on our decision in State v. Graves, 668 N.W.2d at 860.

In Graves, we held it was improper for a prosecutor to ask a defendant at trial whether other witnesses were lying in their testimony at trial. See Graves, 668 N.W.2d at 873 (citing State v. Singh, 259 Conn. 693, 793 A.2d 226, 238-39 (2002)). We explained:

[Qjuestions that ask a defendant to comment on another witness’s veracity invade the province of the jury.... [A]s a general rule, such questions have no probative value and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence.

Id. at 871 (citation, quotation marks, and additional brackets omitted). We laid down a bright-line rule against such questions, which was violated in this ease when the prosecutor asked Nguyen if the State’s eyewitnesses were “lying or mistaken.” Nguyen claims his trial counsel rendered ineffective assistance by failing to object to the prosecutor’s questions.

To establish a claim of ineffective assistance of counsel, a defendant must show that (1) counsel failed to perform an essential duty, and (2) prejudice resulted. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). The State acknowledges it was improper for the prosecutor to ask the “were they lying or mistaken” questions, but contends Nguyen’s counsel did not breach an essential duty by failing to object. We agree the questioning constituted misconduct, but we need not decide if counsel’s failure to object constituted a breach of an essential duty if Nguyen cannot show prejudice. State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004) (“Because proof of both prongs of this test is required, should [a defendant] fail to prove prejudice we need not consider whether his trial counsel failed to perform an essential duty.” (citing Oetken, 613 N.W.2d at 683)). Therefore, we begin by addressing the prejudice element. See Ledezma, 626 N.W.2d at 142 (“If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed de-ficiently.” (citing Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984); State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995); State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990); Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984))). Under this second prong, “the defendant must ‘show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). To determine if the prejudice standard has been met, we look to the totality of the evidence, the factual findings that would have been affected by counsel’s errors, and whether the effect was pervasive, minimal, or isolated. Strickland, 466 U.S. at 695-96, 104 S.Ct. at 2069, 80 L.Ed.2d at 698.

We begin our analysis by considering the factual findings that would have been affected by the misconduct. See id. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 698 (“Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways.”). To properly consider this factor in this case, we return to Graves. The predominant factor supporting prejudice in Graves was the pervasive manner in which the error was used to obtain a conviction. See Graves, 668 N.W.2d at 883 (“The misconduct ... was the centerpiece of the prosecutor’s trial strategy.” (Citation omitted.)). The misconduct affected the trial by transforming the issue of contradictory testimony on a critical factual point in the case into an aggressive attack by the prosecutor to portray the defendant as a liar and a person who called another witness — a police officer — a liar, something that could only be done to inflame the jury in deciding the factual dispute. See id.

In this case, as in Graves, the issue affected by the error pertained to a critical factual point — mistaken identity — not a secondary or inconsequential issue. Yet, it is not enough that the affected issue was a critical factual point. We must examine the manner in which the error would have affected the factual findings to support the conviction. This requires us to examine both the error and the factual findings.

At a trial, a lawyer may properly examine a witness about an event by pointing out the factual differences between the witness’s testimony and the testimony of other witnesses to the same event. See John A. Burgess, Persuasive Cross-Examination, 59 Am.Jur. Trials 1, § 44 (2004) [hereinafter Burgess] (suggesting focusing on “the inconsistency of the claimed observation with the observations of others or exhibits in the case” when cross-examining an observation witness”); 98 C.J.S. Witnesses § 482, at 456 (2002) (“It is proper cross-examination to interrogate a witness as to facts or circumstances inconsistent with, and contradictory of, the witness’ testimony, or that of another, or acts or conduct at a variance and inconsistent with what would be natural or probable if the witness’ statements were true.”); see also State v. Roth, 403 N.W.2d 762, 767 (Iowa 1987) (“Ordinarily a party may contradict and discredit an adverse witness by presenting evidence showing the facts were other than as indicated by the testimony of the witness.” (citing State v. Odem, 322 N.W.2d 43, 45 (Iowa 1982))). The factfin-der must resolve such factual differences in reaching a verdict, and it can be helpful to the factfinder to have the factual differences identified or highlighted, whether in questioning or closing argument. Fact-based reasons that might account for disparate testimony by witnesses to the same event are also a proper area of inquiry. See Burgess, 59 Am.Jur. Trials § 44 (stating that examiner should inquire into facts that make the claimed observation impossible or inaccurate, intervening events that may have affected the witness’s memory, as well as possible interest, prejudice, or bias of the witness). Again, the identification of facts to explain the differences may be helpful to the factfinder in resolving the disputes. However, it is not proper to take the further step of asking one witness if another witness is untruthful, mistaken, or to otherwise ask the witness to comment on the credibility of another witness. This type of examination asks for an improper conelusory opinion. See Iowa R. Evid. 5.701 (stating that lay opinions are only admissible if they are helpful to the jury). It is simply irrelevant and in no way helpful to the factfinder. See People v. Melton, 44 Cal.3d 713, 244 Cal.Rptr. 867, 750 P.2d 741, 758 (1988) (“[S]uch an opinion has no ‘tendency in reason’ to disprove the veracity of the statements.” (Citation omitted.)); see also Iowa R. Evid. 5.401 (‘“Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”). Moreover, as illustrated in Graves, it can quickly erode into a personal attack that can inflame jurors and interfere with their factfinding mission.

This discussion helps reveal that witness credibility is the underlying issue normally associated with the type of misconduct identified in Graves. Of course, a prosecutor, or any attorney, can generally inquire into the credibility of a witness on cross-examination and refer to that credibility in closing argument. See 1 John W. Strong et al., McCormick on Evidence § 30, at 114 (5th ed.1999) (noting an objective of cross-examination is “to test the witness’s story by exploring its details and implications, in the hope of disclosing inconsistencies or impossibilities”); see also State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993) (“In closing arguments, counsel is allowed some latitude. Counsel may draw conclusions and argue permissible inferences which reasonably flow from the evidence presented.” (citing State v. Phillips, 226 N.W.2d 16, 19 (Iowa 1975))). Thus, the misconduct, and resulting prejudice, does not occur by raising the issue of credibility of a witness, but by the manner in which it is done. The factfinder must resolve conflicts in the testimony of witnesses if possible, and improper prosecuto-rial tactics can affect the resolution of this issue, especially when the tactics are severe and pervasive. Yet, just as the line between proper and improper questioning in this area depends on the facts, so does the line between prejudicial and nonprejudicial misconduct. The bright-line rule of Graves is not a bright-line rule for prejudice. Accordingly, we turn to consider whether the effect of the misconduct in this case was pervasive enough to undermine confidence in the verdict. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698 (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).

In Graves, the prosecutor not only aggressively cross-examined the defendant with “liar” questions, but told the jury in closing argument that the defendant’s testimony called the State’s witness — a police officer — a liar, and the prosecutor repeatedly and explicitly called the defendant a liar. Graves, 668 N.W.2d at 868. In contrast, the prosecutor in this case did not make any reference to lying in closing argument. He never called Nguyen a liar or implied that Nguyen called any eyewitness a liar. Indeed, in closing, the prosecutor explained:

[Y]ou should try to reconcile any conflicts that you have about the evidence amongst yourselves and while doing so, you determine what testimony you’re going to believe; what testimony you’re not going to believe, and the part of what testimony you might have heard from someone that you believe because it fits in, it’s consistent and the part you may choose to disbelieve of that witness’s testimony because it may be inconsistent or because for some reason you don’t, and that’s where you begin the process of — filtering through the evidence that you’ve heard and — and deciding on what the facts are, as you are the judges of the facts....

Thus, the prosecutor did not engage in any name-calling tactics. Rather, he reviewed the evidence and told the jury to decide which evidence it believed. By the time the case reached the jury, the issue was whether the evidence showed the eyewitnesses were mistaken or correct about seeing Nguyen at The Cloud, not whether Nguyen was a bad person because he said these witnesses were mistaken. See Graves, 668 N.W.2d at 880 (stating prosecutor’s attempt to reduce case to the issue of whether Graves lied or police officer told the truth was improper, diverted the jury’s proper focus, and distorted the State’s burden of proof). Unlike Graves, the issue of lying did not become a central theme, or any theme, in the case.

Finally, we must also consider the relative strength or weakness of the totality of the evidence. “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.

Two witnesses testified that Nguyen was at The Cloud with Thanh Dao before Monty Thomas was shot. Both of these witnesses testified that Nguyen waited by the car while Dao attempted to purchase drugs but was instead beaten and robbed. Another witness, Elgin Byron, identified Nguyen as the driver of the car from which the shots were fired. Another witness identified the car as a black Mitsubishi. Another witness testified that the license plate number of the car involved in the shooting was 376 ETA. Nguyen was pulled over near The Cloud after the shooting driving a black Mitsubishi, license plate number 376 ETA, with bullet holes in the trunk. The owner of the car testified that Nguyen had borrowed the car. When Nguyen was pulled over, Thanh Dao— whom two witnesses identified as a shooter — was with Nguyen. Further, another witness testified that she saw Thanh Dao and two other Asian men get into the Mitsubishi near The Cloud alter the shooting but before Nguyen was pulled over. Finally, the police officer who arrested Nguyen testified that Nguyen admitted to driving the car.

Considering all of the factors, we conclude Nguyen has not met his burden of showing a reasonable probability that the result of the trial would have been different had his attorney objected to the prosecutor’s improper questions. See id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698 (“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”). Accordingly, Nguyen has failed to establish a claim of ineffective assistance of counsel. See id. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 699 (stating that if the defendant makes an insufficient showing on one element, the court need not discuss the other element).

The State also claims the district court erred in finding Nguyen’s counsel was ineffective in failing to move for a new trial. We agree.

The grounds for granting a new trial following a guilty verdict are set forth in Iowa Rule of Criminal Procedure 2.24(2)(b). Nguyen claims that had his attorney made a motion for a new trial, there is a reasonable probability the court would have granted it on the ground that the verdict was contrary to the- evidence. See Iowa R.Crim. P. 2.24(2)(6 )(6). We have held that “contrary to the evidence” under this rule “means ‘contrary to the weight of the evidence.’ ” State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). “The ‘weight of the evidence’ refers to ‘a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’ ” Id. at 658 (quoting Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982)). This is a more stringent standard than the sufficiency-of-the-evidence standard. Id.

“On a motion for judgment of acquittal, the court is required to approach the evidence from a standpoint most favorable to the government, and to assume the truth of the evidence offered by the prosecution. If on this basis there is substantial evidence justifying an inference of guilt, the motion for acquittal must be denied.
On a motion for new trial, however, the power of the court is much broader. It may weigh the evidence and consider the credibility of witnesses. If the court reaches the conclusion that the verdict is •contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted.
... The motion [for new trial] is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked -only in exceptional cases in which the evidence preponderates heavily against the verdict.”

Id. at 658-59 (quoting 3 Charles A. Wright, Federal Practice and Procedure § 553, at 245-48 (2d ed.1982)) (emphasis added).

We have reviewed the evidence presented in Nguyen’s trial. We conclude the evidence does not “ ‘preponderate heavily against the verdict.’ ” Id. at 659 (citation and emphasis omitted). We therefore find no reasonable probability that the district court would have granted a new trial had Nguyen’s counsel made the motion. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698 (“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”). Thus, Nguyen’s second claim of ineffective assistance of counsel fails. See id. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 699 (stating that if the defendant makes an insufficient showing on one element, the court need not discuss the other element). We need not decide whether counsel’s failure to move for a new trial breached an essential duty. Id.

V. Conclusion

Nguyen failed to establish he was prejudiced by either his counsel’s failure to object .to the prosecutor’s improper questions or his failure to move for a new trial. Accordingly, the district court erred in reversing Nguyen’s conviction and ordering a new trial. We vacate the decision of the court of appeals and reverse the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.

All justices concur except LAVORATO, C.J., who takes no part.

      . Martin's deposition testimony came into evidence under the former testimony exception to the hearsay rule. See Iowa R. Evid. 5.804(⅛ )(1) (allowing, when declarant is unavailable, admission of former testimony "if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination”); id. r. 5.804(a )(1) (stating declarant is unavailable if he or she refuses to testify, invoking a privilege).


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Lynn FAETH, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 03-1552.
    Supreme Court of Iowa.
    Dec. 23, 2005.

      Nicholas G. Pothitakis of Pothitakis Law Firm, P.C., Burlington, for appellant.
    Matthew J. Nagle and Corinne R. But-kowski of Lynch Dallas, P.C., Cedar Rapids, for appellee.
   CARTER, Justice.

Plaintiff, Lynn Faeth, who was injured in a motor vehicle collision involving Um-thun Trucking Company (Umthun), a self-insured motor carrier that later became insolvent, appeals from the denial of his motion for summary judgment against defendant, State Farm Mutual Automobile Insurance Company (State Farm), on a claim made under the uninsured-motorist coverage provided to Faeth by. State Farm. State Farm cross-appeals from the denial of its motion for summary judgment. The appeals concern the efficacy of a contractual limitation on the time for bringing suit contained in the State Farm policy. The policy provision at issue requires that actions to recover on uninsured-motor-vehicle coverage must be commenced within two years of the date of the accident.

After reviewing the record and considering the arguments presented, we find that the mandatory protection against uninsured motorists contained in Iowa Code section 516A.1 (1997) extends to legally sanctioned, self-insured motorists who become insolvent after the accident occurs. An uninsured-motorist claim in that situation does not accrue until the occurrence of the insolvency. Because the application of the contractual limitation on time to sue contained in State Farm’s policy would serve to extinguish Faeth’s uninsured-motorist claim before it accrued, it is unreasonable and may not be enforced. By default, Iowa Code section 614.1(5) becomes the applicable period of limitation. As a result of these conclusions, we reverse the district court on Faeth’s appeal and affirm the district court on State Farm’s appeal.

Faeth was injured on November 15, 1997, when the motor vehicle he was driving was rear-ended by a truck owned by Umthun and operated by its driver, Dany-iel L. Simmons. On November 4, 1999, Faeth filed an action against Umthun and Simmons in the State of Illinois, seeking to recover for the injuries he had sustained in the November 15, 1997 collision. On the date of the collision, Umthun was self-insured under the authority of the United States Department of Transportation for the first $300,000 of liability incurred on bodily injury claims. However, on February 28, 2002, Umthun became insolvent. It was thereafter unable to make payments on claims made against it during its self-insured status. Subsequently, Faeth, on September 25, 2002, brought this action for uninsured-motorist benefits against State Farm.

I.The Summary Judgment Rulings.

The first motion for summary judgment was filed by State Farm. The motion asserted that the action was barred by the limitations on the time to sue contained in its policy. The policy provision in question provides:

Suit Against Us
There is no right of action against us:
d. under uninsured motor vehicle coverage unless such action is commenced within two years after the date of the accident.

The district court denied State- Farm’s motion for summary judgment, stating, in part:

The Plaintiff [Faeth] rightly argues that if the suit had been brought within two years from the date of the accident, the claim for uninsured motorist benefits would have been denied because Um-thun was not uninsured during that period.
Reasonable limitations on an uninsured motorist policy must take into consideration the practical application of how that benefit is to be realized.

The second motion for summary judgment was filed by Faeth and was considered by a different judge. In denying Faeth’s motion, the judge concluded that the contractual limitation on the time to sue was clear and unambiguous and required an uninsured-motorist claim to be brought within two years of the accident. The court also ruled that State Farm’s uninsured-motorist coverage did not apply to claims against self-insured motor vehicles in any event.

Because the second summary judgment ruling involved a motion filed by Faeth, the district court concluded that the ruling denying the motion could not include a dismissal of the action. Because the two inconsistent rulings on summary judgment motions left the case in an interlocutory impasse, this court granted the parties permission to appeal in advance of final judgment.

II. Standard of Review.

Summary judgment rulings are reviewed for correction of errors at law. Kiesau v. Bantz, 686 N.W.2d 164, 171 (Iowa 2004). Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). Further considerations when reviewing a motion for summary judgment are summarized as follows:

“A fáctual issue is material only if the dispute is over facts that might affect the outcome of the suit. The burden is on the party moving for summary judgment to prove the facts are undisputed. In ruling on a summary judgment motion, the court must look at the facts in a light most favorable to the party resisting the motion. The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record.”

Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004) (quoting Phillips v. Covenant Clinic, 625 N.W.2d 714, 717-18 (Iowa 2001)).

III. Whether Uninsured-Motorist Protection Extends to Claims Against Self-Insured Entities.

Prior to determining the issues involving the application of the contractual period of limitations, we consider the district court’s conclusion on Faeth’s motion for summary judgment that under State Farm’s policy uninsured-motorist coverage did not apply to claims against self-insured motor vehicles in any event. The provision on which the court relied for this conclusion was:

An uninsured motor vehicle does not include a land motor vehicle:
2. owned or operated by a self-insurer under any motor vehicle financial responsibility law, a motor carrier or any similar law....

Faeth argues that this policy provision is only intended to make it clear that those motor vehicle operators who enjoy a legally sanctioned, self-insured status are not to be considered as uninsured. We agree with Faeth’s interpretation of the policy provision involving self-insurers. However, as recognized by a New Jersey court in interpreting a similar provision, policy provisions removing legally sanctioned self-insurers from uninsured status for purposes of uninsured-motorist coverage only apply to solvent self-insured entities. Goodwin v. Rutgers Cas. Ins. Co., 223 N.J.Super. 195, 538 A.2d 425, 427 (1988).

The court in Goodwin described the situation as follows:

An effective self-insurer must be an entity which can pay claims in the usual course, not an empty or shallow pocket left to personal injury claimants who are reduced to general creditors’ status awaiting payment from the debtor’s estate after liquidation or reorganization proceedings are finally concluded.

Id. The district court was wrong in concluding that the policy provision excepting a legally sanctioned, self-insured entity from the status of an uninsured motorist applies to self-insurers who have become insolvent.

If the provision in State Farm’s policy excluding self-insurers from being considered as uninsured motorists were to be applied to insolvent self-insurers, the policy would not provide the coverage mandated by Iowa Code section 516A.1. As recognized by the New Jersey court in Goodwin:

The instruction of that provision is that an authorized and financially responsible self-insurer is not to be deemed “uninsured.” Such a self-insurer has provided an acceptable equivalent of liability insurance. An insolvent self-insurer is neither insured nor financially responsible. There is no reason to conclude that the statute permits a person injured by such an owner to be deprived of UM coverage.

538 A.2d at 427.

IV. Whether Self-Insurers Who Become Insolvent After the Accident Are Considered in the Same Manner as Conventional Liability Insurers Under Iowa Code Section 516A.3.

Although the application of State Farm’s -time limit on bringing suit in cases involving conventional liability insurers is not before us, it is nevertheless necessary to consider that matter in deciding Um-thun’s situation. Had Umthun been insured by a conventional liability insurer at the time of the accident and that insurer had become insolvent at a time subsequent to the accident, Iowa Code section 516A.3 would provide that those claiming against Umthun for motor-vehicle negligence would be confronting an uninsured motorist, thus triggering any UM coverage that they might have. In the present case, we must decide whether the postaccident insolvency of a legally sanctioned self-insurer triggers the same result. We are convinced that it does.

The financial liability coverage recognized under Iowa Code section 321.20B(1) (as defined in Iowa Code section 321.1(24B)) includes both insurance policies issued by carriers licensed to do business in Iowa and a valid certificate of sanctioned self-insurance. To be a sanctioned self-insurer, a motor carrier must satisfy the Iowa Department of Transportation that it has and will continue to have the ability to pay judgments arising out of the ownership or operation of a motor vehicle in this state. Iowa Code § 321A.34. For interstate carriers such as Umthun, Iowa authorities accept the determination of federal regulators as to the carrier’s self-insured status pursuant to 49 U.S.C. § 13906(d) and 49 C.F.R. § 387.3. Iowa Admin. Code r. 761-524.7(2).

As a result of this statutory scheme, we conclude that Umthun was the equivalent of an insured motorist at the time of the collision of its vehicle with Faeth’s vehicle. Conversely, when it became insolvent on February 28, 2002, it then became an uninsured motor vehicle, as that term is contemplated in section 516A.1. Consequently, irrespective of any interpretation that might be placed on the language contained in State Farm’s policy, a failure to provide uninsured-motorist coverage to Faeth as a result of Umthun’s insolvency would amount to a noncompliance with the statutory mandate to provide insurance against “an uninsured motor vehicle.”

State Farm argues that a determination that Umthun was an uninsured motorist would violate the rule of statutory interpretation that equates an express mention of one thing with the implied exclusion of other things. Based on this premise, State Farm urges that, because section 516A.3 only mentions insolvency proceedings instituted against a “liability insurer,” the legislature had no intention of also designating self-insured entities who become insolvent subsequent to the accident as uninsured motorists for purposes of section 516A.1.

In interpreting statutes, we often do apply the rule that an express mention of one thing implies the exclusion of other things. See, e.g., Locate Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 618 (Iowa 2002); State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001). However, we have recognized that this rule of interpretation is subordinate to the primary search for the intention of the legislature. State v. Carpenter, 616 N.W.2d 540, 543 (Iowa 2000). In our search for legislative intent, we consider the objects sought to be accomplished and the evils and mischief sought to be remedied and seek a result that will advance rather than defeat the statute’s purpose. Harris v. Olson, 558 N.W.2d 408, 410 (Iowa 1997); Doe v. Ray, 251 N.W.2d 496, 500 (Iowa 1977). The result should not depend on dogmatic terms of expression. State ex rel. Winterfield v. Hardin County Rural Elec. Coop., 226 Iowa 896, 899, 285 N.W. 219, 229 (1939). In invoking this approach to statutory interpretation, we reaffirm the statement that this court made in Rodman v. State Farm Mutual Automobile Insurance Co., 208 N.W.2d 903 (Iowa 1973), with respect to the purpose of uninsured-motorist insurance protection:

It is plain the legislature intended to assure protection to an insured against motorists whose liability to the insured is not covered. Under the uninsured motorist statute we believe an automobile or motor vehicle liability policy must protect the insured in any case to the same extent as if the tortfeasor had carried liability insurance covering his liability to the insured in the amounts required to establish financial responsibility.

Rodman, 208 N.W.2d at 909. In keeping with this purpose, we conclude that Um-thun is an uninsured motorist within the meaning of section 516A.1, thus triggering State Farm’s uninsured-motorist protection for Faeth’s benefit.

Y. The Contractual Limitation on Time for Bringing Suit.

We now move to the issue involving the policy provision requiring that an uninsured-motorist claim be brought within two years of the accident. We have recognized the validity of contractual limitations on the time for bringing suit against an insurer. Douglass v. Am. Family Mut. Ins. Co., 508 N.W.2d 665, 667 (Iowa 1993). In order to be enforced, such provisions must be reasonable. Nicodemus v. Milwaukee Mut. Ins. Co., 612 N.W.2d 785, 787 (Iowa 2000). In Douglass we upheld a contractual period of limitation which provided that the insurer could not be sued under uninsured-motorist coverage on any claim barred by the tort statute of limitations. We interpreted that clause to refer to the personal-injury statute of limitations contained in Iowa Code section 614.1(2) and, based on the assumption that the claim accrued on the date of the accident, found that limiting the time to sue to a period of two years following the accident was not unreasonable. Douglass, 508 N.W.2d at 666-67.

In Nicodemus we dealt with a statutory limitation on the time to sue on an under-insured-motorist claim. The statutory provision required suit to be brought within two years of the accident. We held that limitation was unreasonable because conditions precedent to suit imposed by the policy could force the claimant to delay bringing the underinsured-motorist claim until after the contractual period of limitation had expired. Nicodemus, 612 N.W.2d at 787-88. As a result, we declared the contractual limitation on time to sue invalid and, by default, imposed the statutory period of limitations contained in Iowa Code section 614.1(5). Id. at 789.

Because we have concluded that the insurance protection to be accorded those who claim against uninsured motor vehicles under section 516A.1 extends to sanctioned, self-insured vehicles that become insolvent subsequent to the accident, those claimants must be given some reasonable time after the insolvency occurs within which to bring suit to enforce their uninsured motorist coverage. The two-year limitation from the date of the accident contained in State Farm’s policy left Faeth with no time to sue following the accrual of his claim. In dealing with a similar situation, the Ohio Supreme Court observed

a provision in a contract of insurance which purports to extinguish a claim for uninsured motorist coverage by establishing a limitations period which expires before or shortly after the accrual of the right of action for such coverage is per se unreasonable and violative of the public policy of the state of Ohio ....

Kraly v. Vannewkirk, 69 Ohio St.3d 627, 635 N.E.2d 323, 329 (1994). We agree with the observation of the Ohio court, and as applied here, the limitation contained in the State Farm policy is clearly unreasonable as applied to Faeth’s claim. We hold that the contractual period of limitation is invalid, and by default, we impose the statutory period of limitations contained in Iowa Code section 614.1(5).

We have considered all issues presented and conclude that the district court’s ruling bn Faeth’s motion for summary judgment is reversed. The district court’s ruling on' State Farm’s motion for summary judgment is affirmed. Costs of appeal are assessed against State Farm.

REVERSED ON PLAINTIFF’S APPEAL; AFFIRMED ON DEFENDANT’S APPEAL.

      . On October 15, 2002, Faeth recovered a default judgment in the amount of $456,986 against Umthun and Simmons in the Illinois litigation. We express no opinion concerning the preclusive effect of that judgment with respect to the present claim against State Farm.

      . The material portions of this statute provide:
      [T]he term "uninsured motor vehicle” shall, subject to the terms and conditions of the coverage herein required, be deemed to include an insured motor vehicle with respect to which insolvency proceedings have been instituted against the liability insurer thereof ....
      Prior to 1991, the statute only included liability insurers who became insolvent within one year following the accident. 1967 Iowa Acts ch. 374, § 3. That time limitation was removed by a 1991 amendment. 1991 Iowa Acts ch. 26, § 46.

      . In the later case of Hamm v. Allied Mutual Insurance Co., 612 N.W.2d 775, 784 (Iowa 2000), we determined that we had erroneously interpreted the policy provision in Douglass as stating a reduced statute of limitations for bringing an uninsured-motorist claim when in fact it merely imposed a condition precedent to suit. Our decision in Hamm did not affect our holding in Douglass that an insurer may reasonably reduce the ten-year statutory limitations period for contractual claims to a two-year period for filing suit against the insurer.

      . The effect of our reversal is to establish that Umthun was an uninsured motorist for purposes of triggering the UM coverage in the State Farm policy. We do not determine if Faeth was legally entitled to collect damages from Umthun or, if so, in what amount.


text:
    In re Petition for TRANSFER TO DISABILITY INACTIVE STATUS OF William C. MORTENSEN, a Minnesota Attorney, Registration No. 75620.
    No. A05-2361.
    Supreme Court of Minnesota.
    Dec. 29, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility (Director) and respondent William C. Mortensen have entered into a stipulation for transfer of respondent to disability inactive status under Rule 28(a), Rules on Lawyers Professional Responsibility (RLPR), without further proceedings, coupled with a stay of a pending disciplinary investigation concerning respondent. The stipulation and a petition for transfer to disability inactive status have been filed in the above-entitled matter. Respondent is not currently practicing law.

The court has reviewed the petition and stipulation and concludes that transfer to disability inactive status and a stay of the pending disciplinary proceedings are appropriate.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that effective immediately respondent William C. Mortensen is transferred to disability inactive status under Rule 28, RLPR. During the period respondent is on disability inactive status, respondent may not render legal advice, discuss legal matters with clients, or otherwise engage in the practice of law.

IT IS FURTHER ORDERED that the pending disciplinary proceedings concerning respondent are stayed until such time as respondent petitions for reinstatement to the practice of law under Rule 28(d) and Rule 18, RLPR. Upon filing of a petition for reinstatement, the stay of the disciplinary proceedings will automatically be lifted, and in addition to the requirements of Rules 28(d) and 18 the reinstatement proceedings will involve a determination whether discipline is warranted.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST John Canfield LILLIE, III, a Minnesota Attorney, Registration No. 286850.
    No. A05-2436.
    Supreme Court of Minnesota.
    Dec. 29, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent John Canfield Lillie, III, committed professional misconduct warranting public discipline, namely, misuse of legal correspondence in order to evade Department of Corrections rules, in violation of Minn. R. Prof. Conduct 8.4(c) and (d).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is public reprimand and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent John Canfield Lillie, III,’ is publicly reprimanded and that he shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Eric Christopher THOLE, a Minnesota Attorney, Registration No. 232063.
    No. A05-2435.
    Supreme Court of Minnesota.
    Dec. 29, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Eric Christopher Thole committed professional misconduct warranting public discipline, namely, misuse of law firm correspondence in violation of Rules 8.4(c) and (d), Minnesota Rules of Professional Conduct.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is public reprimand and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Eric Christopher Thole is publicly reprimanded and that he shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for REINSTATEMENT TO the PRACTICE OF LAW OF Richard H. MARTIN, a Minnesota Attorney, Registration No. 68135.
    No. A05-1650.
    Supreme Court of Minnesota.
    Dec. 29, 2005.
   ORDER

On September 13, 2005, this Court suspended petitioner from the practice of law for a period of 30 days. Petitioner has filed an affidavit stating that he has fully complied with the terms of the suspension order and requests reinstatement. The Director of the Office of Lawyers Professional Responsibility does not oppose the request.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that petitioner Richard H. Martin is reinstated to the practice of law in the State of Minnesota effective as of the date of this order.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard A. CABRERA, a Minnesota Attorney, Registration No. 17242X.
    No. A05-2360.
    Supreme Court of Minnesota.
    Dec. 30, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility (Director) has filed a petition for disciplinary action alleging that respondent Richard A. Cabrera has committed professional misconduct warranting public discipline, namely, that respondent failed to provide competent representation to a criminal defendant, failed to appear at a hearing after having been personally served with an order to do so, failed to pursue a criminal defendant’s matter and failed to properly withdraw and return the unearned portion of the client’s retainer, failed to have a written retainer and contingent fee agreement, failed to timely file motion papers, repeatedly failed to appear for a hearing, failed to communicate a judge’s order to clients, failed to properly withdraw from representation and return client files when he ceased practicing law, and engaged in a conflict of interest by simultaneously representing four clients without their informed consent, in violation of Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 1.7, 1.16(d), 3.4(c), and 8.4(d).

Respondent has admitted his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is indefinite suspension, effective immediately, with reinstatement subject to payment of costs and disbursements of $900 pursuant to Rule 24, RLPR, compliance with Rule 26, RLPR, successful completion of the professional responsibility portion of the bar examination pursuant to Rule 18(e), RLPR, satisfaction of continuing legal education requirements pursuant to Rule 18(e), RLPR, restitution of any unearned retainers, and presentation of clear and convincing evidence of physical and mental health necessary to practice law.

This court has independently reviewed the file and approves the jointly recommended disposition.

' Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that effective immediately respondent Richard A. Cabrera is indefinitely suspended from the practice of law. Respondent shall be reinstated only upon satisfaction of the agreed-upon conditions set forth above.

BY THE COURT:

/s/ Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Todd Richard PAULSON, a Minnesota Attorney, Registration No. 181341.
    No. A05-2413.
    Supreme Court of Minnesota.
    Dec. 30, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Todd Richard Paulson committed professional misconduct warranting public discipline, namely, failing to pay over client funds, making false statements of fact in the course of representing a client, and engaging in conduct involving dishonesty and fraud, in violation of Rules 1.15(c), 4.1, and 8.4(c), Minnesota Rules of Professional Conduct (MRPC).

Respondent has admitted his conduct violated the Rules of Professional Conduct, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is disbarment and payment of $900 in costs pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Todd Richard Paulson is disbarred effective as of the date of this order. Respondent is further ordered to pay $900 in costs as stipulated and agreed to.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Eric A.L. DE RYCKE, a Minnesota Attorney, Registration No. 22299.
    No. A04-417.
    Supreme Court of Minnesota.
    Jan. 5, 2006.

      Kenneth L. Jorgenson, Director, Timothy M. Burke, Senior Assistant Director, Craig D. Klausing, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Appellant.
    Eric A.L. De Rycke, Lake Benton, MN, Pro Se.
   OPINION

PER CURIAM.

In March 2004, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Eric De Rycke. Because De Rycke failed to respond, the allegations are deemed admitted. The only issue is the appropriate discipline for an attorney who, after having been disciplined three times for similar misconduct, misappropriated client funds, neglected his clients, mismanaged his client trust account, violated a court order, and failed to cooperate with the Director’s investigation of these matters. We conclude that the facts and circumstances of this case warrant disbarment.

The disciplinary petition alleges numerous incidents of misconduct based on five matters. Because De Rycke did not answer the petition, the allegations are deemed admitted. In re Geiger, 621 N.W.2d 16, 17 (Minn.2001); Rules 12(c) & 13(b), Rules on Lawyers Professional Responsibility (RLPR).

A. R.K. Matter

R.K. retained De Rycke in October 2001 on a DWI matter. De Rycke told R.K. he would reschedule R.K’s court hearing, but he failed to do so. As a result, R.K. did not appear and was charged for failing to appear. The charge was later dropped and the hearing was rescheduled. De Rycke failed to appear at this hearing and did not notify R.K. or the court of his absence. R.K. acted on his own behalf and was able to reschedule the hearing. De Rycke later told R.K. that he missed the hearing because he had car problems, but he did not answer when R.K. asked why he did not call him or notify the court.

B. H.K Matter

In June 1999, H.K. paid De Rycke $700 to defend him against a DWI charge. Although H.K. understood this to be a nonrefundable flat fee, De Rycke did not provide H.K. with a retainer agreement explaining the nature of the fee. De Rycke initially maintained contact with H.K., but failed to tell H.K. of a plea offer that would have resulted in no jail time until after the offer had expired.

In June 2001, H.K. paid De Rycke $2,000 to hire an expert witness who De Rycke said would testify that H.K’s blood test was inaccurate. No expert ever testified for H.K., and De Rycke failed to provide the Director with the requested documentation to prove that he actually hired an expert. De Rycke did not refund any of H.K.’s $2,000.

While H.K’s DWI matter was still pending, De Rycke was suspended from the practice of law for his repeated failure to comply with terms of probation. In re De Rycke (De Rycke III), 644 N.W.2d 797, 801 (Minn.2002). Rule 26, RLPR, requires that a suspended lawyer “notify each client, opposing counsel * * * and the tribunal involved in pending litigation * * * of the lawyer’s * * * suspension” unless this court orders otherwise. This court’s May 23, 2002, order did not notify De Rycke that he need not comply with Rule 26. See De Rycke III, 644 N.W.2d at 797-801. De Rycke did not inform H.K. of his suspension.

C. T.B. and L.G. Matter

Prior to his suspension, De Rycke was representing T.B. and L.G. in criminal matters. A judge from the Fifth Judicial District notified the Director that De Rycke did not inform T.B., L.G., or the court of his suspension.

D. Trust Account Matter

In January 2002, First Farmer’s & Merchant’s Bank honored two checks drawn on De Rycke’s trust account. The account had insufficient funds to cover these checks, resulting in overdrafts and NSF charges totaling $326.37.

E. Noncooperation

In response to the complaints on each of these matters, the Director wrote De Rycke numerous letters demanding an explanation or response. Several of the letters informed De Rycke that the failure to respond could provide a separate basis for discipline. De Rycke failed to respond to any of the letters. The Director made numerous attempts to contact De Rycke but no one knew .of De Rycke’s whereabouts. The Director’s last contact with De Rycke was in the fall of 2001, when De Rycke called to explain his absence at a meeting to discuss these disciplinary matters.

Because the allegations of the petition are deemed admitted, we will address only the appropriate discipline in this case. In considering a petition for attorney discipline, this court has the ultimate responsibility for determining the appropriate sanction. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). “The purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” Id. (citing In re Daffer, 344 N.W.2d 382, 385 (Minn.1984)). This court considers four factors to determine the appropriate sanction: “1) the nature of the misconduct, 2) the cumulative weight of the violations of the rules of professional conduct, 3) the harm to the public, and 4) the harm to the legal profession.” Oberhauser, 679 N.W.2d at 159 (quoting In re Singer, 541 N.W.2d 313, 316 (Minn.1996)). Appropriate sanctions are determined on a case-by-case basis after considering both aggravating and mitigating circumstances. In re Wentzell, 656 N.W.2d 402, 408 (Minn.2003). This court often looks to similar cases for guidance in imposing discipline that is appropriate in the circumstances and consistent with discipline imposed on others for similar conduct. In re Thedens, 557 N.W.2d 344, 347 (Minn.1997).

The Director urges this court to disbar De Rycke. He compares De Rycke’s unprofessional behavior to conduct that warranted disbarment in In re Grzybek, 567 N.W.2d 259, 265 (Minn.1997). Grzybek’s violations consisted of repeated neglect of client matters, failure to follow the disciplinary process less than a year after being suspended, misappropriation of client funds, and repeated failure to comply with court orders. Id. at 261-63. We noted that each of these violations provided sufficient independent grounds for disbarment. Id. at 265. Similarly, De Rycke misappropriated $2,000 from a client, neglected several client matters, failed to comply with a court order, and did not cooperate with the Director’s investigation of these matters.

Rule 1.3 of the Minnesota Rules of Professional Conduct requires a lawyer to “act with reasonable diligence and promptness in representing a client.” The rules also require a lawyer to “keep a client reasonably informed about the status of a matter.” Minn. R. Prof. Conduct 1.4. In extreme cases, we have disbarred attorneys for repeated neglect of client matters, misrepresentations, and failure to communicate with clients. In re Walker, 461 N.W.2d 219, 222 (Minn.1990); Grzybek, 567 N.W.2d at 263. De Rycke clearly violated Rules 1.3 and 1.4 when he failed to reschedule R.K’s hearing, appear at R.K’s later hearing, explain the nature of his fees to H.K., tell H.K. why his case had been continued, and inform H.K. of a plea offer. And we have disciplined De Rycke in the past for similar misconduct. See In re De Rycke (De Rycke I), 577 N.W.2d 922, 923 (Minn.1998). To make matters worse, De Rycke’s neglect this time potentially subjected his clients to jail time that could have been avoided. Because of De Rycke’s numerous other violations, we need not determine whether this alone warrants disbarment. But we note that these incidents of client neglect are serious violations of the rules of professional conduct. See Grzybek, 567 N.W.2d at 262.

De Rycke also violated the rules-of professional conduct when he misappropriated $2,000 from his client. See Minn. R. Prof. Conduct 8.4(c) (prohibiting dishonesty, fraud, deceit or misrepresentation); In re Olsen, 487 N.W.2d 871, 873-74 (Minn.1992) (holding the misappropriation of funds is a violation of Rule 8.4(c)). When determining the appropriate sanction for financial misconduct, we consider mitigating and aggravating factors, the amount of money involved, whether the funds were returned, the cumulative effect of the other violations, and the attorney’s disciplinary history. See Grzybek, 567 N.W.2d at 264. Absent “clear and convincing evidence of substantial mitigating circumstances,” disbarment is the usual sanction for misappropriation of client funds. In re Swerine, 513 N.W.2d 463, 466 (Minn.1994).

While the amount of money here is not as extreme as in some other disbarment cases, see, e.g., In re LaChapelle, 491 N.W.2d 17, 21 (Minn.1992) ($13,670); In re Weems, 540 N.W.2d 305, 308 (Minn.1995) ($70,000), we have found disbarment appropriate in cases involving less money than the $2,000 De Rycke misappropriated, see, e.g., Grzybek, 567 N.W.2d at 265 ($750); In re Walker, 461 N.W.2d 219, 223 (Minn.1990) ($1,600). Further, De Rycke has not returned this money to his client, which constitutes an aggravating factor. Weems, 540 N.W.2d at 309. De Rycke has also demonstrated a pattern of financial misconduct, having been disciplined once before for failing to file his tax returns and pay taxes, see De Rycke I, 577 N.W.2d at 922; once for trust account mismanagement, see In re De Rycke (De Rycke II), 627 N.W.2d 331, 331 (Minn.2001); and now having overdrawn from his trust account in violation of Rule 1.15 of the Minnesota Rules of Professional Conduct. Finally, the record does not provide any mitigating factors.

De Rycke also committed misconduct by not cooperating with the Director in the investigation of these matters. Rule 25, RLPR; Minn. R. Prof. Conduct 8.1(a)(3). Failure to cooperate with disciplinary authorities is a serious violation that constitutes separate grounds for discipline. In re Olson, 545 N.W.2d 35, 38 (Minn.1996). “In connection with other misconduct, noncooperation increases the severity of the disciplinary sanction.” In re Samborski, 644 N.W.2d 402, 407 (Minn.2002). Thus, De Rycke’s failure to respond to any of the Director’s requests for replies further supports disbarment.

Finally, we note that we have previously ordered discipline against De Rycke on three separate occasions in the past. In 1998, we suspended him from the practice of law for 90 days for failing to file tax returns, client neglect, client noncommuni-cation, and noncooperation with the investigation of these matters. De Rycke I, 577 N.W.2d at 922. He was subsequently reinstated, subject to 2 years of supervised probation. In re De Rycke, 583 N.W.2d 281, 281 (Minn.1998). In 2001, we publicly reprimanded De Rycke and extended his probation for 2 additional years for commingling business funds, trust account mismanagement, violating the terms of his probation, and noncooperation with the investigation of these matters. De Rycke II, 627 N.W.2d at 331. Finally, in 2002, we again suspended De Rycke from the practice of law, but this time indefinitely without eligibility for reinstatement for a minimum of 6 months because of his repeated failure to comply with the terms of his probation and for noncooperation with the Director. In re De Rycke (De Rycke III), 644 N.W.2d 797 (Minn.2002).

“After a disciplinary proceeding, this court expects a renewed commitment to comprehensive ethical and professional behavior, and where leniency has been shown once, this court is reluctant to do so again.” Grzybek, 567 N.W.2d at 262 (internal citations omitted). De Rycke has fallen far short of showing a renewed commitment to the ethical practice of law. First, he failed to comply with the obligation that arose from his third disciplinary proceeding to inform his clients, opposing counsel, and the court of his suspension from the practice of law. See Rule 26, RLPR; Minn. R. Prof. Conduct 3.4(c). Second, several instances of De Rycke’s misconduct in this case are similar or identical to conduct for which we have disciplined him in the past, including trust account mismanagement, client neglect, and noncooperation with the Director. And we recognize an alarming escalation in the seriousness of his misconduct. Finally, all of the new allegations occurred either while De Rycke was on probation following the 2001 extension, or after he was suspended in 2002. In fact, the misappropriation incident occurred only 8 days after we publicly reprimanded De Rycke and ordered that he, inter alia, “abide by the Minnesota Rules of Professional Conduct.” See De Rycke II, 627 N.W.2d at 332.

For these reasons, we conclude that De Rycke’s repeated neglect of client matters, misappropriation of client funds, neglect of his clients, mismanagement of his trust account, violation of this court’s order, and failure to cooperate with the Director’s investigation, after three previous disciplinary proceedings, warrant disbarment.

So ordered.

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


author:
HANSON, Justice. ANDERSON, PAUL H., Justice
      PAGE, Justice

text:
    Danny O. LUNDELL and Mary E. Lundell, Appellants, v. COOPERATIVE POWER ASSOCIATION, a Minnesota Corporation, Respondent.
    No. A04-1045.
    Supreme Court of Minnesota.
    Jan. 5, 2006.

      Lance R. Heisler, Lampe, Swanson, Morisette & Heisler L.L.P., Northfield, MN, for Appellant Lundell.
    Paul Barney Zisla, Moss & Barnett, Peter A. Roller, Moss & Barnett, P.A., Minneapolis, MN, for Respondent Cooperative Power Association.
    Carol K. Lee, Assistant Goodhue County Attorney, Red Wing, MN, for Respondent Goodhue County.
   OPINION

HANSON, Justice.

This appeal arises from the condemnation by respondent Cooperative Power Association (CPA) of property belonging to appellants Danny and Mary Lundell (Lun-dells). Lundells opposed CPA’s condemnation petition, arguing that (1) there was no public purpose or necessity for the taking because CPA already had the use and possession of the property through a lease; (2) CPA acted in bad faith by failing to complete negotiations for amendments to the lease; and (3) CPA was not entitled to use the quick take procedures under Minn. Stat. § 117.042 (2004) because it was already in possession of the property. The Goodhue County District Court granted CPA’s petition, finding that CPA had demonstrated a public purpose for the use of the property in its electric utility operations, CPA had demonstrated the need to acquire fee title to the property to eliminate uncertainty as to its use rights and CPA was entitled to use the quick take procedure. The district court made no findings regarding Lundells’ bad faith arguments. The court of appeals affirmed, holding that the district court’s findings were not clearly erroneous because there was sufficient evidence of public purpose and necessity. The court rejected Lun-dells’ bad faith arguments and affirmed CPA’s use of the quick take procedure. Coop. Power Ass’n v. Lundell, No. A04-1045, 2005 WL 44911 (Minn.App. Jan.11, 2005). We affirm.

In 1999, CPA entered into a management services agreement with Great River Energy (GRE) whereby GRE had the power and right to act on behalf of CPA. As a result, this opinion will refer both to actions taken by CPA directly and those taken by GRE on CPA’s behalf.

CPA and GRE are cooperative corporations that sell and distribute electricity to their member distribution cooperatives, which in turn distribute electricity to the public. As such, CPA and GRE possess the power of eminent domain under Minn. Stat. § 308A.201, subd. 13 (2004), which allows incorporated cooperatives “engaged in the electrical, heat, light, power, or telephone business [to] exercise the power of eminent domain.”

On April 29, 1980, CPA entered into a Land Lease Agreement (the Lease) with Howard and Luella McKinley for the right to use 4.5 acres of the McKinleys’ land to house a telecommunications tower (the “Tower”). The Tower is “used to manage electrical power transmission and distribution systems, by, among other things, communicating with electrical substations to monitor and manage electrical flow.” The Lease was to expire on February 28, 2015, but was renewable at CPA’s option until February 28, 2030. Rent for the property was set at $100 per acre per year, for a total of $450 per year, and was subject to a 10% increase in rent every 5 years beginning in 2005. CPA was responsible for paying any property taxes assessed against the leased land or improvements. From 1980 until the beginning of 2002, CPA paid the specified rent without dispute. CPA did not pay any property taxes.

On December 14, 2001, the McKinleys conveyed title in the property to Lundells. Lundells suspected CPA was subleasing space to another corporation. Further, Lundells could see that CPA was occupying more space and had erected more buildings than permitted by the Lease. Lundells’ counsel inquired of GRE whether CPA’s rights under the Lease had been assigned to another company. Because GRE did not respond to the inquiry, Lun-dells’ counsel sent a follow-up letter threatening to evict any undisclosed parties that were occupying the property. GRE’s counsel replied that CPA had subleased part of the property to Sprint Spectrum L.P. because it had a legal right to do so. The Lease did not explicitly allow or disallow subleases.

Lundells then requested that CPA pay taxes assessed for the leased property and proposed that the rent for the property be increased from $450 per year to $750 per month ($9,000 per year), which Lundells claimed was the fair-market rental value of the Tower site. GRE refused to pay the proposed additional property taxes, claiming that the information Lundells provided did not clearly establish the amount of taxes assessed to the area that CPA occupied or to the improvements it made. GRE said it was amenable to an increase in rent.

Negotiations for amendments to the Lease continued for approximately 3 months. As a result of the negotiations, GRE drafted a proposed Amendment to the Lease (the Amendment). The Amendment recited an increase in rent to $750 per month. It also explicitly gave CPA permission to sublease and install improvements in its discretion. The Amendment made no mention of taxes.

Although Lundells executed the Amendment and returned it to GRE, neither GRE nor CPA ever executed the Amendment. According to GRE, despite the fact that it drafted the Amendment to recite the increase in rent to $750 per month, its intent was to increase the rent to only $750 per year.

When Lundells’ counsel learned that GRE was unwilling to follow through with the Amendment, he sent GRE notice of default of the Lease and threatened eviction after a 30-day period. The notice of default cited as the grounds for default only CPA’s refusal to pay the proposed increased rent.

Thereafter, GRE’s board of directors determined by resolution that it was necessary and convenient to acquire ownership of the Tower site and authorized eminent domain proceedings under Minn.Stat. § 308A.201, subd. 13. On April 25, 2003, CPA petitioned the district court to take title and possession of the Tower site by the quick take procedure under Minn.Stat. § 117.042, which allows a condemning authority, when reasonably required, to obtain title to the property before “the filing of an award by the court appointed commissioners.”

The district court held a hearing and issued findings of fact and conclusions of law. The district court found that CPA “needs to own the Tower site in fee simple and needs to do so prior to the award of the commissioners to enable [CPA] to maintain and have the Cannon Falls Tower without dispute or uncertainty as to use rights, responsibility for real estate taxes, termination and continuity of use, and the terms and conditions of use and occupancy, and to economically have and maintain the Cannon Falls Tower.” The court concluded that CPA “possesses the right of eminent domain and has properly exercised the same herein” and that the “taking of the fee simple absolute title of the land is for a public purpose, and is authorized by law.” The court granted CPA’s petition to take immediate title to and possession of the land. The court appointed commissioners, who concluded that the total fan-market compensation for the taking of the property was $154,005.50, which CPA paid to Lundells.

Lundells appealed and the court of appeals affirmed. The court held that the public purpose of supplying electricity was not in dispute and that the lease dispute between the parties supported a finding of necessity. Lundell, 2005 WL 44911, at *2. The court also rejected Lundells’ bad faith arguments and affirmed the use of the quick take procedure because of the lease dispute. Id. at *3.

We granted Lundells’ petition for review.

I.

Before condemning private land, a condemning authority, such as CPA, must determine that there is a public use for the land and that the taking is reasonably necessary or convenient for the furtherance of that public use. City of Duluth v. State, 390 N.W.2d 757, 762-65 (Minn.1986). Although we have said that questions of public use and necessity are “judicial questions,” id. at 763-64, the scope of judicial review of the condemning authority’s determination of these questions is actually-narrower than that characterization might imply. This is because the determinations of the condemning authority are regarded as legislative decisions which will be overturned only when they are “manifestly arbitrary or unreasonable.” Housing & Redevelopment Auth. v. Minneapolis Metro. Co., 259 Minn. 1, 15, 104 N.W.2d 864, 874 (1960). Thus, there are two levels of deference paid to condemnation decisions: the district court gives deference to the legislative determination of public purpose and necessity of the condemning authority and the appellate courts give deference to the findings of the district court, using the clearly erroneous standard. City of Duluth, 390 N.W.2d at 762.

A.

We first examine whether the district comí clearly erred in upholding CPA’s determination of a public purpose for the taking. Public purpose is construed broadly. City of Duluth, 390 N.W.2d at 763. “[T]he standard for overturning a [condemning authority’s] decision on public purpose grounds is very strict.” City of Minneapolis v. Wurtele, 291 N.W.2d 386, 390 (Minn.1980).

The stated purpose of CPA’s condemnation is for “locating, having, and keeping a telecommunications tower on the described property” to facilitate the “transmission and distribution of electrical power.” We have held that supplying electric power is a public purpose. See City of Shakopee v. Minn. Valley Elec. Coop., 303 N.W.2d 58, 60 (Minn.1981); see also Town of Fayal v. City of Eveleth, 587 N.W.2d 524, 528 (Minn.App.1999). Lundells concede that “the use of the land by GRE for its stated purpose — to operate and maintain a telecommunications tower — has never been in question.” Moreover, Lundells do not argue that the land has been or is proposed to be used for any significant nonpublic purpose. Because it is undisputed that the purpose for taking the land is to operate the Tower in conjunction with the transmission and distribution of electricity, we agree with the court of appeals that the district court’s refusal to overturn CPA’s determination of the public purpose for the taking was not clearly erroneous.

B.

We next examine the public necessity for the taking. CPA need not determine that there is absolute necessity, only that the taking is “reasonably necessary or convenient for the furtherance of the end in view.” N. States Power Co. v. Oslund, 236 Minn. 135, 137, 51 N.W.2d 808, 809 (1952) (footnote omitted). To overcome a condemning authority’s finding of necessity there must be overwhelming evidence that the taking is not necessary. City of Duluth, 390 N.W.2d at 764. “The mere suggestions of possible alternatives to the condemning authority’s plan will not in itself support a finding of arbitrariness.” City of Pipestone v. Halbersma, 294 N.W.2d 271, 274 (Minn.1980).

Lundells do not directly dispute that CPA needs to continue using the Tower to maintain a constant supply of electricity. Rather, Lundells maintain that because CPA had the use and possession of the Tower site under the Lease, CPA must also show that it is necessary to take fee title to the land rather than to continue under the Lease.

Lundells concede that the existence of the Lease does not prevent CPA from exercising its eminent domain rights because, as we have held, a condemning authority cannot bargain away its power of eminent domain. Village of St. Louis Park v. Minneapolis, Northfield & S. Ry. Co., 156 Minn. 164, 169, 194 N.W. 327, 329 (1923). But Lundells argue that once a condemning authority has the use and possession of property under a lease, its condemnation requires an additional determination of necessity, focused not on the underlying need for the land to further a public purpose but on the need to increase the condemning authority’s property interest from a lease interest to a fee interest. We hold that such an additional determination of necessity is not required. Whether or not a condemning authority has a present interest in the land less than fee title, the determination of necessity to support the taking of fee title by eminent domain is the same. The authority need only determine the underlying necessity to use the property in order to further its public purpose. In other words, CPA’s determination in support of condemnation is the same whether it has a present lease interest or no interest at all.

From the start, a condemning authority has the option to either condemn property or negotiate some lesser interest in it. It need not choose one alternative over the other. In light , of the deference given to condemning authorities, the mere fact that CPA might have had the alternative to continue under the Lease would not invalidate CPA’s finding of necessity. Accordingly, we agree with the court of appeals that the district court’s refusal to overturn CPA’s determination of necessity was not clearly erroneous.

C.

Lundells argue that CPA acted in bad faith and the condemnation “was merely a subterfuge to allow [CPA] to escape its legal obligation under the lease.” In essence, Lundells claim that CPA negotiated the lease in bad faith and acted in bad faith in terminating the negotiations. As such, they claim the taking is an abuse of CPA’s condemnation power. Incorporated in this argument is Lundells’ suggestion that condemning authorities should be required to show good cause for a taking when the authority already has a lease interest in the land.

We have applied a bad faith analysis to condemnation proceedings only in limited circumstances, namely to the public purpose element of the condemnation where the land is being taken from a private party to be transferred to another private party. See Wurtele, 291 N.W.2d at 390; Housing & Redevelopment Auth. v. Schapiro, 297 Minn. 103, 108, 210 N.W.2d 211, 214 (1973). Those cases do not suggest that good cause must be independently shown in any condemnation proceeding.

In any event, there is no evidence to show that CPA acted in bad faith. Lun-dells have not claimed that the land is being taken for a private purpose. Moreover, CPA could reasonably have concluded that it did not have any enforceable rights under the Lease. CPA was apparently in breach of the Lease. It was occupying land beyond that described by the Lease, had erected more buildings than permitted by the Lease, and had not paid any property taxes. Lundells had declared the Lease in breach and had threatened eviction. Further, Lundells made it clear that they were unwilling to abide by the original terms of the Lease. Although the parties had engaged in preliminary negotiations for the Amendment, those negotiations did not ripen into an agreement because CPA refused to sign. Of course, CPA could have secured leasehold rights in the property by signing the Amendment, but this would have required it to capitulate to Lundells’ demands, which it had no obligation to do. The mere fact that CPA chose to exercise its power of eminent domain rather than continue negotiations with the landowner does not make this taking an abuse of CPA’s condemnation power.

Lundells argue that it was bad faith to terminate negotiations and proceed with eminent domain because CPA had a superior bargaining position due to its condemnation power. It is true that a condemning authority has leverage in lease negotiations, but that is leverage that the law intends such an authority to have when it is given the power of eminent domain. A condemning authority has the option to attempt to acquire an interest in the land by negotiation, but it is not obligated to follow that option where, in its discretion, it determines that condemnation of fee title is preferable.

II.

Lundells claim, there is no basis for a quick take because CPA was already in possession of the property at the time of the condemnation proceedings. CPA claims it reasonably determined it needed early title to maintain the Tower without dispute or uncertainty so it could continue supplying electricity to the public.

A quick take has been found proper where, even though parts of the condemned- property would not be developed until a much later date, “the city needed to assure itself * * * of clear title before further investments were made.” Wurtele, 291 N.W.2d at 396. Here, CPA’s right to maintain possession of the land under the original Lease had been called into question. Like the condemning authority in Wurtele, it was reasonable for CPA to determine that it needed to take immediate title to ensure the continued supply of electricity. Therefore, we agree with the court of appeals that the district court’s refusal to overturn CPA’s determination that a quick take was reasonably required was not clearly erroneous.

Affirmed.

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

ANDERSON, PAUL H., Justice

(concurring).

I concur in the opinion of the court. I write separately to temper, for my own part, the court’s very narrow characterization of our ability to exercise judicial review over what constitutes a public purpose sufficient to warrant the taking of private property under the eminent domain provisions of both the United States and Minnesota Constitutions. While the case before us today does not provide the proper occasion for an in-depth analysis of what type of takings case might require a more demanding standard of review, this court should not foreclose the possibility that a more stringent standard than what we articulate today might be appropriate under certain circumstances. Neither constitution permits a taking that confers benefits on particular, favored private entities with only incidental or pretextual public benefits; yet, the possibility definitely exists that such a case will come before us. If and when such a case comes before us, we must retain the ability to apply a sufficiently demanding level of scrutiny such that the constitutional right of the people of our state to remain secure in the ownership of private property may be protected.

PAGE, Justice

(concurring).

I join in the concurrence of Justice Paul H. Anderson.

      . The court’s findings of fact and conclusions of law are identical to the proposed findings and conclusions submitted by CPA. We discourage district courts from adopting proposed findings of fact and conclusions of law verbatim because it does not allow the parties or a reviewing court to determine the extent to which the court's decision was independently made.

      . The "public use,” or more frequently called the "public purpose,” element comes directly from Minn. Const, art. I, § 13 ("Private property shall not be taken, destroyed or damaged for public use without just compensation therefore, first paid or secured.”). The "public necessity” element is inferred from this constitutional provision and from Minn. Stat. § 117.075 (2004) (providing that the commissioners shall value the property only after a determination that "the proposed taking shall appear to be necessary and such as is authorized by law”). City of Duluth, 390 N.W.2d at 762-65.

      . Although some public policy. arguments might be made to support a requirement that a condemning authority take only the smallest interest in property that is necessary to serve the public purpose, the legislature has not enacted that requirement. Thus, a condemning authority is free to take fee title even though it could serve the public purpose with a leasehold interest, so long as it can demonstrate that its use of the property is necessary to support the public purpose.