author: LANSING, Judge.

text:
    WH LINK, LLC, Relator, v. CITY OF OTSEGO, Respondent.
    No. C7-02-2062.
    Court of Appeals of Minnesota.
    July 1, 2003.

      Mark J. Ayotte, Philip R. Schenkenberg, Briggs and Morgan, P.A., St. Paul, for relator.
    James J. Thomson, Robert J.V. Vose, Kennedy & Graven, Chartered, Minneapolis, for respondent.
    Kathleen A. Marrón, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, for amicus curiae, Minnesota Cable Communication Association.
    Gary A. Van Cleve, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington; and Paul Glist (pro hac vice), Cole Raywid & Braverman, L.L.P., Washington, DC, for amicus curiae, Charter Communications, Inc.
    Susan L. Naughton, League of Minnesota Cities, St. Paul, for amicus curiae, League of Minnesota Cities.
    Considered and decided by LANSING, Presiding Judge, PETERSON, Judge, and WRIGHT, Judge.
   OPINION

LANSING, Judge.

This appeal involves a dispute between a city and a telecommunications carrier over whether the carrier must comply with state-law requirements governing cable-television systems in order to provide video programming to its local telephone customers over an open-video system. The city approved the carrier’s application for a cable franchise, conditioned on the carrier’s acceptance of a service-area requirement under the “level playing field” provision of the Minnesota cable statute. Believing that condition to be illegal as applied to its proposed open-video system, the carrier appealed to this court for cer-tiorari review of the city’s decision. Because we conclude that the challenged state-law requirements apply to the carrier’s open-video system, we affirm.

FACTS

In 2000, WH Link, LLC, (WHL) received authorization from the Minnesota Public Utilities Commission to provide local telephone service in areas including the City of Otsego. With that authorization, and in compliance with the city’s right-of-way ordinance, WHL installed network facilities and began providing local telephone and Internet services within the city. The network, constructed with copper and fiber optic wire, has the capacity simultaneously to carry telephone, Internet, and video signals.

In order to add video programming to its services, WHL filed an application in April 2001 with the Federal Communications Commission (FCC) for certification to operate an open-video system (OVS). After the FCC approved the application, WHL filed with the FCC a notice of intent to establish an OVS in Otsego and several other communities. At that time, Charter Communications Holding Co., LLC, (Charter) provided cable television service in the city under an extension permit.

After filing its notice of intent, WHL met with city officials to discuss WHL’s plan to begin providing video programming in the city. The city took the position that WHL would have to obtain a cable franchise to provide OVS service. WHL disagreed, contending that the state-law franchise requirement was preempted by federal laws establishing the OVS regulatory framework. In December 2001, after no resolution had been reached, WHL informed the city that it would begin providing video programming in compliance with federal law over its OVS system in January 2002. After further negotiations, WHL agreed to apply for a cable franchise under state law, subject to a reservation of its “rights under applicable law.” In its franchise application, WHL asserted that it was exempt from state-law service-area requirements and affirmed that it sought “authorization to provide cable services over its open video system in its federal ‘telephone service area,’ without being obligated to go beyond that service area through the imposition of any specific build-out or line-extension obligations.”

The city initiated the statutory cable franchising application process in March 2002, and both WHL and Charter applied for franchises. (Charter’s extension permit was to expire at the end of 2002.) Charter proposed a service area comprising all incorporated areas of the city with a density of nine homes per quarter mile. WHL proposed initially to serve a smaller area of the city — five residential subdivisions in which it was already providing local telephone and Internet service — but indicated it would continue to expand its network so that its video service would be available to more city residents in the future.

After holding a public hearing and considering written comments of the applicants, in October 2002 the Otsego City Council adopted resolutions approving Charter’s franchise application and conditionally approving WHL’s application, subject to WHL’s acceptance of a service-area requirement. Specifically, the city’s draft franchise ordinance required WHL to extend its OVS service within seven years to all areas of the city with a dwelling density of nine homes per quarter mile. WHL rejected the service-area requirement and informed the city that it viewed the imposition of the requirement as effectively denying its franchise application. This appeal followed.

ISSUES

I. Does the cable-franchise requirement of Minn.Stat. § 238.08 (2002) apply to an open-video system operated by a local exchange carrier?

II. Does federal law preempt the application of a cable-franchise requirement to an open-video system or the imposition of a service-area requirement on an open-video system?

ANALYSIS

Decisions of administrative agencies, including cities, are presumed correct, and we will reverse or modify an agency decision only if it prejudiced a party’s substantial rights because it exceeded the agency’s statutory authority, was made upon unlawful procedure, was affected by other error of law, or was arbitrary or capricious. See Minn.Stat. § 14.69 (2002) (defining scope of judicial review of agency decisions). In considering questions of law, “reviewing courts are not bound by the decision of the agency and need not defer to agency expertise.” St. Otto’s Home v. Minnesota Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989) (citations omitted). Statutory construction is a question of law subject to de novo review. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

I

WHL contends that the city erred in requiring it to obtain a cable franchise to operate an open-video system. Cable communications in Minnesota are governed by chapter 238 of the. Minnesota Statutes. Section 238.08 states that “[a] municipality shall require a franchise * * * of any cable communications system providing service within the municipality.” Minn.Stat. § 238.08, subd. 1(a) (2002). The statute defines a “cable communications system” as

a system which operates the service of receiving and amplifying programs broadcast by * ⅝ *' television or radio stations and' other programs originated by a cable communications company or by another party, and distributing those programs by wire, cable, microwave or other means * * * to persons who subscribe to the service.

Minn'.Stat. § 238.02, subd. 3 (2002).

WHL does not argue that an open-video system is not a “cable communications system” for the purposes of the cable-franchise requirement. Rather, it contends that the legislature excluded cable services provided by telecommunications carriers from the franchise requirement when it adopted certain legislative amendments in 1997. That year the legislature amended chapter 237, which regulates telephone, telegraph, and telecommunications operations, to add provisions governing the use and regulation of public rights-of-way. See 1997 Minn. Laws ch. 123, §§ 3-4. One of the new provisions prohibits local governments from “requiring] a telecommunications right-of-way user to obtain a franchise or pay for the use of the right-of-way.” Id. at § 4 (now codified at Minn.Stat. § 237.163, subd. 7(a)(4) (2002)). WHL contends that because it is a telecommunications carrier that uses the right-of-way, section 237.163 prohibits the city from requiring it to obtain a franchise for its OVS operation under chapter 238. WHL overlooks, however, that “telecommunications right-of-way user” is a term of art, which is defined by statute to exclude “cable communication .systems”:

‘Telecommunications right-of-way user’ means a person owning or controlling a facility in the public right-of-way * * * that is used or is intended to be used for transporting communications or other voice or data information. A cable communication system defined and regulated under chapter 238 * * * [is] not [a] telecommunications right-of-way user[ ] for the purposes of* * * section 237.163.

Minn.Stat. § 237.162, subd. 4 (2002) (emphasis added). Therefore, if WHL’s open-video system is a “cable communications system” under chapter 238, section 237.163, subd. 7(a)(4), would have no effect on the city’s obligation to require it to obtain a franchise under chapter 238.

According to WHL’s franchise application, its open-video system would receive television and-other video programming by satellite, and. would distribute programs by copper and fiber-optic wire to residential subscribers. Because such a system satisfies the statutory definition of “cable communications system” set out in section 238.03, and because a “cable communications system” is not a “telecommunications right-of-way user” exempted from the municipal right-of-way franchise authority, we conclude that the city did not err in requiring WHL to obtain a cable franchise for its open-video system.

II

WHL argues that federal law preempts both the application of the chapter 238 cable-franchise requirement to an open-video system and the city’s imposition of a service-area requirement on WHL’s proposed OVS operation.

The city contends that this court does not have jurisdiction to decide WHL’s preemption claims because the claims amount to a collateral attack on two final FCC orders, over which federal appellate courts have exclusive jurisdiction. The first of the. orders referred to by the city is an FCC. order amending its OVS rules; the second is the FCC’s certification of WHL as an OVS operator. We reject the city’s jurisdictional challenge. While exclusive jurisdiction “to enjoin, set aside, suspend * ⅜ * or to determine the validity of’ an FCC order adopting a rule lies in the federal appeals courts, 28 U.S.C. § 2342(1) (2002), this certiorari action does not seek to enjoin, set aside, suspend or determine the validity of any FCC rule. Similarly, although federal law also requires challenges to FCC licensing decisions to be brought in the United States Court of Appeals for the District of Columbia Circuit, 47 U.S.C. § 402(b) (2002), WHL does not ask this court to invalidate the FCC’s order on its OVS application — an order in which the FCC granted WHL’s application.

The question presented by WHL’s preemption argument is whether Congress preempted local cable-franchising requirements as applied to open-video-system operators when it adopted federal legislation governing cable communications. This is not a question Congress directed to the FCC, nor does the question require interpretation of any FCC rule or regulation. This court accordingly has jurisdiction to decide the preemption issues. Consol. Tel. Co-op. v. W. Wireless Corp., 637 N.W.2d 699, 709 (N.D.2001) (stating that state courts have concurrent jurisdiction to determine preemption questions arising under the communications act).

A

In its first preemption argument, WHL contends that the Minnesota cable-franchise requirement conflicts with federal law as applied to an open-video system and is therefore preempted. Conflict preemption arises when “state law conflicts with federal law, either because compliance with both federal and state law is impossible or because the state law is an obstacle to the accomplishment of the purposes of the federal scheme.” Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 11 (Minn.2002). The preemptive effect of a statute involves a question of law, which this court reviews de novo. Id. at 9.

The first step in a conflict-preemption analysis is to determine whether in fact the challenged state law conflicts with federal law. See Martin, 642 N.W.2d at 8-10 (considering whether state law conflicts with federal law before determining preemptive effect). Federal law generally bars the provision of “cable service” without a franchise. 47 U.S.C. § 541(b)(1) (2002). When Congress adopted legislation in 1996 permitting common carriers to enter the cable-television market by delivering video programming through open-video systems, it also amended the statutory definition of “cable service” to exclude open-video systems. Telecommunications Act of 1996, Pub.L. No. 104-104, §§ 301(a), 302(b)(2), 110 Stat. 56, 114, 124 (1996). WHL argues that Congress’s exclusion of open-video systems from the definition of “cable system” operates to bar state and local governmental units from requiring OYS operators to obtain a cable franchise.

The effect of the 1996 amendments on state franchising of open-video systems was addressed by the United States Court of Appeals for the Fifth Circuit in City of Dallas v. FCC, 165 F.3d 341 (5th Cir.1999). In City of Dallas, the court determined that the franchising requirement from which OYS systems were exempted by operation of the 1996 amendments was the federal requirement that a cable operator obtain a franchise. Id. at 347. Eliminating that requirement, the court explained, “does not eviscerate the ability of local authorities to impose franchise requirements, but only their obligation to do so.” Id. In reaching its decision, the court squarely rejected the FCC’s contention that local franchising authority is a creation of federal law. Id. at 348.

WHL argues that we are bound to follow an earlier ruling of the Eighth Circuit which, according to WHL, limits local cable franchising authority to “cable systems” as defined under federal law. In Guidry Cablevision/Simul Vision Cable Sys. v. City of Ballwin, 117 F.3d 383 (8th Cir.1997), the owner of a satellite master antennae system (SMATV) challenged a city’s franchising requirement as applied to a closed cable system which provided service to two apartment buildings. Id. at 384. The SMATV operator argued that federal law exempted its system from federal cable regulation and that the city therefore could not demand that it obtain a cable franchise. Id. at 385. At issue was the meaning of 47 U.S.C. § 522(7)(B) (2002), which excluded from the definition of “cable system” any “facility that serves subscribers without using any public right-of-way.” Id. The SMATV operator argued that the mere fact that its cables crossed under a single public street was insufficient to establish “use” of the right-of-way. Id. The court agreed and concluded that because the SMATV system did not “use” the right-of-way, the city had no authority to impose a franchise requirement. Id. at 386.

WHL contends that because section 522(7) also excludes open-video systems from the definition of “cable system,” under Guidry the city’s franchise requirement is preempted as applied to an open-video system. This argument is unpersuasive. First, Guidry did not squarely decide the question of whether local franchising authority is limited to “cable systems” as defined under federal law. The issue in Guidry was whether the SMATV qualified for what the court labeled the “private cable exemption” established in section 522(7)(B). Id. at 385. Second, irrespective of factual differences distinguishing this case from Guidry, WHL’s argument rests on faulty logic. The argument assumes- that because private cable systems are excluded from the definition of “cable system” and are also exempt from local franchising requirements under Guidry, any other system excluded from the definition of “cable system” must also be exempt from local franchising under Guidry. The Guidry court’s ruling as to the scope of franchising authority over private cable systems such as SMATV systems simply does not support WHL’s argument.

Because the Minnesota cable-franchise requirement as applied to open-video systems does not conflict with federal law, it presents no issue of preemption for us to decide.

B

WHL also argues that the city’s service-area requirement conflicts with federal law and is therefore preempted. In the proposed ordinance granting WHL a cable franchise, the city required WHL, as a condition of the franchise, to offer cable service in areas of the city outside the area of its telephone service. This requirement is consistent with the Minnesota “level playing field” statute, which states:

No municipality shall grant an additional franchise for cable service for an area included in an existing franchise on terms and conditions more favorable or less burdensome than those in the existing franchise pertaining to: (1) the area served * * *.

MinmStat. § 238.08, subd. 1(b) (2002). According to WHL, the service-area requirement is inconsistent with 47 U.S.C. § 573(a)(1) (2002). That statute establishes that

[a] local exchange carrier may provide cable service to its cable service subscribers in its telephone service area through an open video system that complies with this section.

WHL contends that by authorizing a local exchange carrier to provide OVS service “in its telephone service area,” Congress simultaneously exempted such carriers from service-area requirements that would oblige the carrier to provide video service beyond the limits of the telephone service area.

WHL’s argument fails to present any conflict between the relevant state and federal statutes. The federal statute permits WHL to enter the cable market by offering open-video service in its telephone service area while the state statute requires the city, when franchising WHL to provide that service, to do so on terms similar to those included in pre-existing franchises. Despite its claim that the city “creat[ed] and impose[d] its own build-out and service-area requirement that is different from that established by federal law” (emphasis added), WHL points to no federal law regulating (or prohibiting) service-area or build-out requirements.

WHL argues that permitting a municipality to impose a service-area requirement on an OVS operator would “render meaningless the FCC’s OVS certification.” But the federal OVS statutes indicate that the certification process serves to determine compliance with FCC regulations governing open-video systems, not to create an enforceable right to operate such a system free from state or local regulation. See 47 U.S.C. § 573(a)(1).

In the absence of any demonstrated conflict between the state and federal statutes, we conclude that the service-area requirement imposed by the city is not preempted by federal law.

DECISION

An open-video system is a “cable communications system” as defined by Minn. Stat. § 238.02, subd. 3 (2002), and is therefore subject to the cable-franchise requirement under Minn.Stat. § 238.03 (2002). As a “cable communications system,” an open-video system is not a “telecommunications right-of-way user” exempt from the municipal right-of-way franchise authority under Minn.Stat. § 237.163, subd. 7(a)(4) (2002). Finally, neither the state-law cable-franchise requirement nor application of a service-area requirement to an open-video system conflicts with federal law. Accordingly, we affirm the city’s decisions to require WH Link to obtain a cable franchise and to impose a service-area requirement as a condition of that franchise.

Affirmed.

      . The city argues that WHL may not raise this argument on appeal because it was not presented in proceedings before the city council. This court generally does not consider issues not raised and decided in the originating forum. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). But the record in this case indicates that WHL did raise the issue in the council proceeding. A summary of WHL's arguments prepared for the city by its outside counsel indicates that WHL contested the city’s authority to require that a telecommunications carrier obtain a franchise as a condition of using the right-of-way to provide OVS service. We therefore consider the merits of WHL's argument.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Brian Adam MAAS, Appellant.
    No. C3-02-2186.
    Court of Appeals of Minnesota.
    July 1, 2003.

      Samuel A. McCloud, Jeffrey Sheridan, Carson J. Heefner, John A. Price, III, Shakopee, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, HARTEN, Judge, and MINGE, Judge.
   OPINION

HARTEN, Judge.

Appellant challenges his conviction of felony driving while impaired, arguing that a 1994 conviction was not a “prior impaired driving conviction” within the meaning of Minn.Stat. § 169A.03, subd. 20 (2002). Because the 1994 conviction was within ten years of the conviction being appealed, we affirm.

FACTS

Appellant Brian Maas was convicted of driving while impaired in 1994, 1998, and 2000. In 2002, he was found driving his boat with an alcohol concentration of 0.19. He was charged with first degree felony driving while impaired because he had three prior convictions within ten years. See MinmStat. § 169A.24, subd. 1(1) (2002) (one who violates the statute forbidding driving while impaired “within ten years of the first of three or more qualified prior impaired driving incidents” is guilty of first degree driving while impaired.)

Appellant moved to dismiss on the ground that one of his convictions occurred prior to 1998 and therefore was not a qualified prior impaired driving incident. The district court denied his motion, and he appeals.

ISSUE

Does the reference to “Minnesota Statutes 1998” in MinmStat. § 169A.03, subd. 20(3) (2002), limit the ten-year look-back provision of Minn.Stat. § 169A.24, subd. 1(1) (2002)?

ANALYSIS

The application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

A person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person:
(1) commits the violation within ten years of the first of three or more qualified prior impaired driving incidents ***.

Minn.Stat. § 169A.24, subd. 1 (2002). “ ‘Qualified prior impaired driving incident’ includes prior impaired driving convictions and prior impaired driving-related losses of license.” MinmStat. § 169A.03, subd. 22 (2002).

“Prior impaired driving conviction” includes a prior conviction under:
(1) section 169A.20 (driving while impaired) * * * [or]
(3) Minnesota Statutes 1998, section 169.121 (driver under influence of alcohol or controlled substance) * * ⅜.

Minn.Stat. § 169A.03, subd. 20 (2002). Appellant argues that his 1994 conviction was not under “Minnesota Statutes 1998, section 169.121” and therefore is not a “prior impaired driving conviction” or a “qualified prior impaired driving incident.”

This court recently rejected that argument in the context of impaired driving related loss of license. State v. Coleman, 661 N.W.2d 296, 297 (Minn.App.2003) (“[a] pre-1998 prior impaired-driving-related loss of license may be used as an aggravating factor under Minn.Stat. § 169A.03, subd. 21(3) (2000)”).

Although subdivision 21(3) refers to the 1998 statute, subdivision 3(1), in defining “aggravating factor,” provides a ten-year look-back period. * * * We conclude, therefore, that the language of subdivision 21 is ambiguous.

Id. at 299. Having reached this conclusion, the court rejected the interpretation that only events occurring in or after 1998 were aggravating factors because it

yields an absurd and unreasonable result. * * * Given the strong public policy in favor of preventing drunk driving, it is unlikely that the legislature intended such a result.

Id. at 300 (citation omitted).

The same result Coleman reached can be achieved by concluding that the statute is unambiguous. When a statute is subject to only one reasonable interpretation, it is not ambiguous. State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003). Minn.Stat. § 169A.03, subd. 20(3), is subject to only one reasonable interpretation. Minn.Stat. § 169A.20 was the successor statute to Minn.Stat. § 169.121. See 2000 Minn. Laws ch. 478, art. 2, § 7 (instructing revisor to delete references to Minn.Stat. § 169.121 and insert references to Minn.Stat. § 169A.20). The Coleman court concluded that the statutory interpretation posed by appellant “yields an absurd and unreasonable result.” We agree. As indicated by the district court in the instant case, the only reasonable interpretation of Minn.Stat. § 169A.24, subd. 1, Minn.Stat. § 169A.03, subd. 22, and Minn.Stat. § 169A.03, subd. 20, taken together, is that convictions under either of the successive statutes or their antecedents are prior impaired driving convictions and, if three or more of them occurred within ten years of a subsequent conviction, they operate to enhance that conviction to a felony.

Moreover, Stevenson held that, when a defendant claimed a statute had both a broad and a narrow interpretation, “[the] narrow interpretation would frustrate the legislative intent that is evident from the choice of a broad phrase and, therefore, is not a reasonable interpretation.” Id. at 239. Here, the legislature specified that three or more prior convictions within ten years would enhance a conviction; accepting as a valid interpretation the narrowing of that language to “three or more convictions since 1998” would also frustrate the legislative intent.

DECISION

The reference to “Minnesota Statutes 1998” in Minn.Stat. § 169A.03, subd. 20(3) (2002), does not limit the ten-year look-back provision of Minn.Stat. § 169A.24, subd. 1(1) (2002).

Affirmed.

      . The relevant language of Minn.Stat. § 169A.03, subd. 21(3) (2000) is identical to the language of Minn.Stat. § 169A.03, subd. 20(3) (2002): the former refers to prior impaired driving-related loss of license and the latter to prior impaired driving conviction under "Minnesota Statutes 1998, section 169.121 (driver under influence of alcohol or controlled substance).” See also State v. Varner, No. C9-03-193, 2003 WL 21386550 (Minn.App. Jun. 17, 2003) (following Coleman in context of Minn.Stat. § 169A.03, subd. 20(3) (2000)).


author: STONEBURNER, Judge.

text:
    Stephen M. MODAFF, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C5-02-2190.
    Court of Appeals of Minnesota.
    July 1, 2003.
    Brandon V. Lawhead, Lawhead Law Offices, Austin, MN, for appellant.
    Mike Hatch, Attorney General, Darren Dejong, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, TOUSSAINT, Chief Judge, and MINGE, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Stephen M. Modaff argues that the district court erred by sustaining the revocation of his driver’s license under the implied-consent law because the court’s findings of fact are both clearly erroneous and unsupported by the record. Because any clearly erroneous facts. and unsupported findings of fact in the district court’s order do not relate to Modaffs challenge to the legality of his seizure, and because there is evidence in the record to support implicit findings that the officer observed driving behavior and a traffic violation that constitute probable cause to believe Modaff was driving while impaired, we affirm.

FACTS

Austin Police Officer Mark Walski testified that at 1:07 a.m., on June 8, 2002, he observed a vehicle coming from a freeway at what appeared to be a high rate of speed. The vehicle came to an abrupt stop that caused the rear of the vehicle to rise, and crossed over the normal stop line at an intersection. This driving conduct caused Officer Walski to suspect that the driver had delayed reactions, which, the officer testified, is commonly found in drunk drivers. The officer then .observed the vehicle make a wide turn into the farthest driving lane, which constituted a traffic offense. Officer Walski testified that failing to obey basic traffic rules and making wide- turns are common things that a drunk driver would do and that this behavior furthered his suspicion that the driver could be intoxicated.

The officer flashed his emergency lights to clear a red light at the intersection and followed the vehicle, which had turned into a parking lot and parked near the entrance to a bar and grill. The officer parked behind the vehicle, intentionally blocking it from leaving, and approached the driver’s side. The officer identified the driver, appellant Stephen M. Modaff, and, after observing indicia that Modaff was intoxicated, arrested him for driving while impaired. The Commissioner of Public Safety revoked Modaffs driving privileges.

Modaff petitioned for rescission of the revocation, asserting 16 separate grounds for rescission and two and one-half single-spaced pages of “additional relief and grounds.” The hearing on Modaffs petition was combined with a hearing on pretrial issues in his criminal case. Counsel for Modaff stated at the beginning of the hearing that the only issue being pursued in each case was the legality of the stop.

The district court issued an order denying Modaffs petition to rescind the revocation of his license and denying his motion to suppress evidence in the criminal proceedings. The district court’s order incorporates a memorandum setting out findings of fact. The memorandum erroneously identifies the issues before the court as whether (1) the officer had probable cause to arrest Modaff for suspicion of driving while impaired; (2) Modaff had physical control of the vehicle; and (3) the implied consent advisory violated due process.

The memorandum recites a description of Officer Walski’s testimony about the events leading up to the officer’s encounter with Modaff, and describes, from police reports not in the record, what transpired after the officer blocked Modaffs vehicle in the parking lot. The memorandum fails to mention that the testimony of Modaff and his passenger contradicts the officer’s testimony about Modaffs driving conduct. The memorandum asserts that “[Modaff] does not dispute the facts,” but Modaff clearly disputed the officer’s description of his driving conduct. The memorandum fails to address whether the. officer had probable cause to stop or seize Modaff, and analyzes the legality of Modaff s arrest based on information from the .police report about what transpired after the officer had had face-to-face contact with Mo-daff. This appeal followed.

ISSUE

Does the district court’s failure to make findings on the issue of the legality of Modaff s seizure, coupled with the fact that the district court addressed issues not before it and made findings based on a report that is not in the record, preclude the reviewing court from determining, based on the record and findings inferred from the district court’s ultimate conclusion, whether the officer had probable cause to stop or seize Modaff?

ANALYSIS

Respondent Commissioner of Public. Safety concedes that Officer Walski seized Modaff, either by stopping his vehicle or by blocking his vehicle by parking directly behind it once it was stopped in the parking lot. Respondent further concedes that unless the officer had probable cause for the seizure, the seizure was illegal and the revocation of Modaff s driving privileges should be rescinded.

When an appellate court reviews a stop on given facts, the test is not whether the district court decision is clearly erroneous, but whether, as a matter of law, the basis for the stop was adequate. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732-33 (Minn.1985).

In this case, the district court, citing Crawford v. Comm’r of Pub. Safety, 441 N.W.2d 837, 839 (Minn.App.1989), concluded that “no stop requiring reasonable suspicion will have occurred when the officer approaches an already stopped vehicle to speak to the driver.” But Crawford is inapplicable to the facts of this case because in Crawford, the officer who approached a stopped vehicle did not block the vehicle to keep it from leaving; there was no seizure such as occurred here. The district court’s erroneous reliance on Crawford caused it to fail to address whether probable cause existed for officer Walski’s undisputed seizure of Modaff.

But implicit in the district court’s memorandum is the finding that the officer’s recitation of the events that led up to the seizure was credible and that the testimony about those events by Modaff and his passenger was not credible. See Umphlett v. Comm’r of Pub. Safety, 533 N.W.2d 636, 639 (Minn.App.1995) (stating that implicit findings may be derived from the trial court’s final resolution of a matter), review denied (Minn. Aug. 30, 1995). A remand for additional findings of fact is unnecessary when we are able to infer findings from the district court’s conclusions. Welch v. Comm’r of Pub. Safety, 545 N.W.2d 692, 694 (Minn.App.1996).

Modaff argues that the district court’s consideration of matters not properly before it, failure to .specifically address the issue of probable cause for the seizure, and its findings based on evidence not in the record render the district court’s decision so imprecise and confusing, that it must be reversed in the interests of justice. See State v. Hanson, 356 N.W.2d 689, 693 (Minn.1984) (characterizing court’s decision of matters not before it as procedural impropriety). The respondent agrees that the district court’s order is confusing.

We take this opportunity to emphasize that it is often essential for appellate review, and always helpful to the litigants, for the district court to clearly and accurately state the issues to be decided and the bases for the decision of each issue. Nevertheless, in this case, we can discern that the district court found the officer’s testimony about the events leading up to Modaffs seizure to be credible and Mo-daffs version of those events not credible. And the officer’s testimony supports a determination that he had a specific and articulable basis to suspect that Modaff was driving while impaired, and that the seizure was not based on mere whim, caprice, or idle curiosity. See State v. George, 557 N.W.2d 575, 578 (Minn.1997) (stating that violation of a traffic statute, no matter how minor, constitutes a valid basis for a stop); Marben v. Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980).

The non-issues addressed by the district court and the facts based on evidence not in the record do not involve Modaffs challenge to the stop or seizure and do not change the conclusion based on the record and findings implicit in the district court’s decision that the officer had probable cause to detain Modaff for driving while impaired.

DECISION

Any errors that the district court may have committed by determining issues not properly before it and by making findings not supported by the record do not relate to Modaffs grounds for challenging the revocation of his driving privileges. The record substantiates implicit findings of the district court and those findings support a determination that the officer had probable cause to seize Modaff for driving while impaired, therefore, we affirm the district court’s denial of Modaffs petition to rescind the revocation of his driving privileges.

Affirmed.

      . Minn.Stat. § 169A.53, subd. 3 (2002), provides that a hearing on an implied-consent petition may be conducted concurrently and in the same manner as hearings on pretrial motions in the criminal prosecution under Minn.Stat. § 169A.20 (2002).

      . Modaff asserts that one of the district court's clearly erroneous findings is the statement in its order that “Officer Walski followed, but did -not turn on his overhead lights, as the vehicle entered the * * * parking lot.” The statement, however, is a correct description of the officer’s testimony that he only activated his emergency lights to clear the intersection and did not use his emergency lights as he entered the parking lot.

      . The district court relied on the officer’s report, which was not part of the record, to make findings of fact, but none of those find-tags related to Modaff s challenge to the legality of his seizure.


author: ROBERT H. SCHUMACHER, Judge.

text:
    Roger REILING, et al., Appellants, v. CITY OF EAGAN, Respondent.
    No. CX-03-249.
    Court of Appeals of Minnesota.
    July 1, 2003.

      Michael F. Swensen, Minneapolis, MN, for appellants.
    George C. Hoff, Hoff, Barry Kuderer, P.A., Eden Prairie, MN, for respondent.

      Considered and decided by KALITOWSKI, Presiding Judge, RANDALL, Judge, and SCHUMACHER, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellants Roger and Gladys Reiling, Ray and Marilyn Sandford, Patricia and Frank Pavlik, and Ray-Mar Rental challenge the district court’s grant of summary judgment dismissing their claim, alleging that respondent City of Eagan improperly included their property in a redevelopment tax increment financing (TIF) district. By notice of review, respondent argues the district court lacked subject-matter jurisdiction to review respondent’s quasi-judicial TIF determination. We affirm.

FACTS

By resolution passed in February 2002, the Eagan city council created a redevelopment TIF district pursuant to Minn.Stat. § 469.174, subd. 10 (2000). Minnesota State Highway 55 bisects the district into a northern area that includes primarily residential property owned and inhabited by appellants and a southern area occupied primarily by commercial and industrial property.

A municipality may create a redevelopment TIF district only after finding by resolution that at least 70% of the parcels in the district are occupied by improvements covering at least 15% of the area of each parcel and that at least 50% of the buildings, excluding outbuildings, are “structurally substandard.” Minn.Stat. § 469.174, subd. 10(a)(1)(e). A building is considered structurally substandard if the cost of modifying the budding to satisfy the budding code applicable to new buddings is greater than 15% of the cost of constructing a new structure of the same square footage and type on the site. Id., subd. 10(c). .In determining whether a budding is structurady substandard, a municipality may consider

reasonably avadable evidence, such as the size, type, and age of the budding, the average cost of plumbing, electrical, or structural repairs, or other simdar reliable evidence. * * * An interior inspection of the property is not required, if the municipality finds that (1) the municipality or authority is unable to gain access to the property after using its best efforts to obtain permission from the party that owns or controls the property; and (2) the evidence otherwise supports a reasonable conclusion that the budding is structurally substandard.

Id.

A TIF redevelopment district can be comprised of “contiguous or noncontiguous” geographic areas. Id., subd. 9. If a redevelopment TIF district consists of two or more noncontiguous areas, each area must independently meet the statutory definition of a redevelopment district. Id., subd. 10(f). The terms “contiguous” and “noncontiguous” are not defined in any of the applicable statutes.

Respondent’s resolution establishing the redevelopment TIF district included the findings and supporting documentation required by Minn.Stat. § 469.175, subd. 3 (2000). Among the materials before the city council was a' property inspection report prepared by Bonestroo, Rosene, An-derlik & Associates, an engineering firm. The Bonestroo report noted that appellants’ residential parcels, on the north side of highway 55, are all located on an unpaved street with no curbs, gutters, or storm drainage structures and that none of appellants’ residences are served by municipal sewer or water services. The report concluded the proposed redevelopment TIF district met the statutory criteria for a redevelopment district and that, without exception, the cost of modifying appellants’ buildings to satisfy the building code applicable to new homes would be greater than 15% of the cost of constructing a similar budding on each site.

After respondent passed the resolution, appellants brought an action in district court seeking a temporary injunction prohibiting respondent from including their parcels in the redevelopment TIF district. Appellants argued highway 55 divides the district into noncontiguous areas and that each area must independently meet the statutory definition of a redevelopment district as required by section 469.174, subd. 10(f). Appellants contended then-area, considered independently, did not meet the definition and must be excluded from the district. Appellants also challenged the methodology used by Bonestroo in determining appellants’ properties were structurally substandard. The court issued the injunction.

Respondent brought a motion for summary judgment, arguing the district court lacked subject-matter jurisdiction to review respondent’s quasi-judicial TIF determination, and, if jurisdiction did lie, the court must uphold respondent’s decision as reasonable and supported by the record.

The district court granted respondent’s motion and dismissed appellants’ complaint as a matter of law, finding highway 55 does not divide the TIF redevelopment district into noncontiguous areas and there was a reasonable factual basis in the record to support respondent’s findings in support of including appellants’ property in the district.

Appellants now challenge the grant of summary judgment and request a remand to the district court for further proceedings. By notice of review, respondent challenges the district court’s jurisdiction to review respondent’s TIF determination.

ISSUES

1. Did the district court have subject-matter jurisdiction to review respondent’s determination of a tax-increment financing district?

2. Was respondent’s inclusion of appellants’ property in the redevelopment tax-increment financing district reasonable and supported by substantial evidence?

ANALYSIS

1. Respondent argues the district court lacked subject-matter jurisdiction to review respondent’s inclusion of appellants’ property within the redevelopment TIF district. We disagree.

“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Minn. R. Civ. P. 12.08(c). We note that although the district court stated in its order that it would not address respondent’s jurisdictional challenge, it nonetheless assumed jurisdiction by issuing an order resolving the dispute. Subject-matter jurisdiction is a question of law, which this court reviews de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn.2000).

A municipality acts in a quasi-judicial capacity when it determines that property meets the definition of a redevelopment TIF district under Minn.Stat. §§ 469.174, subd. 10, 469.175, subd. 3 (2000). Walser Auto Sales, Inc. v. City of Richfield, 635 N.W.2d 391, 401 (Minn.App.2001), aff'd, 644 N.W.2d 425 (Minn.2002). “[A]bsent statutory authority for a different process,” a party may obtain review of a quasi-judicial decision only by writ of certiorari to the court of appeals. Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn.1996). The authority of the district court to review such decisions is jurisdictional. Mowry v. Young, 565 N.W.2d 717, 719 (Minn.App.1997), review denied (Minn. Sept. 18, 1997).

In its appellate brief, respondent asserted no statute authorizes a process for review of municipal TIF decisions other than by writ of certiorari to this court. But the TIF statute’s enforcement provision provides:

The owner of taxable property located in the city * * * in which the tax increment financing district is located may bring suit for equitable relief or for damages * * * arising out of a failure of a municipality or authority to comply with the provisions of sections 469.174 to 469.1798, or related provisions of this chapter.

MinmStat. § 469.1771, subd. 1(a) (2000). Respondent argued this provision does not confer jurisdiction upon the district court because the statutory authorization to “bring suit for equitable relief or for damages” does not specifically designate an action in district court.

We do not find respondent’s interpretation of the statute compelling. When statutory language is not reasonably susceptible to more than one interpretation, we must give effect to its plain meaning as a manifestation of legislative intent. Kersten v. Minn. Mut. Life. Ins. Co., 608 N.W.2d 869, 874-75 (Minn.2000); Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986). It is true that section 469.1771, subd. 1(a), does not contain the words “district court.” Cf. Minn.Stat. § 462.361, subd. 1 (2000) (authorizing individuals aggrieved by municipal planning decisions to seek “an appropriate remedy in the district court”). We nonetheless believe the process and remedies contemplated by section 469.1771, subd. 1(a)— “bringing] suit for equitable relief or for damages” — reasonably permit only one interpretation, i.e., the district court has jurisdiction over a challenge to a municipal TIF determination in the first instance.

Minnesota district courts have “original jurisdiction” to hear requests for equitable relief. Holmberg v. Holmberg, 588 N.W.2d 720, 724 (Minn.1999); see also DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn.1981) (stating district court’s equitable jurisdiction gives court “inherent power to grant equitable relief’). Similarly, the district court has broad discretion to determine damages and “will not be reversed except for a clear abuse of discretion.” Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 267 (Minn.1992) (citation omitted). The statutory provision in section 469.1771, subd. 1(a) authorizing claimants to “bring suit” does not plainly, commonly, or reasonably designate an appeal to this court, either by notice of review or by writ of certiorari.

We therefore conclude the language of section 469.1771, subd. 1(a), unambiguously confers jurisdiction upon the district court to review municipal TIF determinations.

2. Appellants challenge the district court’s grant of summary judgment to respondent, arguing that highway 55 divided the TIF district into noncontiguous parts and there was insufficient evidence in the record to support respondent’s decision to include appellants’ property in the redevelopment TIF district.

Summary judgment is appropriate when a district court determines that “there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. This court reviews a grant of summary judgment de novo to determine whether there are any genuine issués of material fact and whether the district court erred in applying the law. Zip Sort, Inc. v. Comm’r of Revenue, 567 N.W.2d 34, 37 (Minn.1997). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

Judicial review of respondent’s quasi-judicial decision is limited to a determination of whether respondent “erred as a matter of law, issued a decision unsupported by substantial evidence, or acted arbitrarily or capriciously.” Walser, 635 N.W.2d at 401 (quotation omitted). The reviewing court may consider only the evidence in the record before respondent when the decision was made. See Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992).

Appellants argue the district court erred by concluding their parcels were contiguous with the rest of the redevelopment TIF district, as the term “contiguous” is used section 469.174, subd. 10(f), despite the fact that highway 55 crosses the district. We review the district court’s interpretation of a statutory term de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Although the statute does not define the term “contiguous,” the word commonly means “[touching at a point or along a boundary” or “adjoining.” Black’s Law Dictionary, 315 (7th ed.1999). Similarly, “abut” means “[t]o join at a border or boundary.” Id. at 10. An “abutter” is the “owner of adjoining land.” Id. The Eagan city code defines “abutting” as “making contact with or separated only by a public thoroughfare * * Eagan, Minn., Code of Ordinances § 11.03 (2003). Given the synonymy of the terms “abutting” and “contiguous,” we conclude contiguity is not affected by the presence of a public thoroughfare such as highway 55.

As respondent argues, virtually every parcel within the district at issue here is separated from other parcels by public thoroughfares, which do not by their mere presence divide the district into so many noncontiguous districts. See Walser, 635 N.W.2d at 401 (observing that roadway may act as “a clear dividing line between ⅜ * * two groups of properties” in redevelopment TIF district without creating noncontiguous districts). We conclude highway 55 does not disrupt the contiguity of the district.

Appellants also contend the methodology used by Bonestroo was flawed and argue respondent’s inclusion of their properties in the district was unreasonable by virtue of its rebanee on the Bonestroo report. We disagree and conclude respondent’s TIF determination was reasonably based upon the record before it when the decision was made.

Appellants argue Bonestroo did not make a sufficient effort to obtain their permission to conduct interior inspections of their residences. The record before respondent contained uncontroverted evidence that appellants were repeatedly contacted by Bonestroo and refused to allow interior inspections. Bonestroo found, and it is undisputed, that appellants’ properties are not served by municipal water, sewer, and storm drainage systems. Appellants concede they have actively opposed respondent’s past attempts to connect their homes to these services. Pursuant to section 469.174, subd. 10(c), Bonestroo included the cost of installing these services in its estimate of the costs of modifying appellants’ residences to satisfy the current building code.

Appellants challenge Bonestroo’s claim that their insulation and windows were substandard, arguing their windows and insulation were recently replaced as part of an airport noise abatement program. There was no evidence of insulation and window improvements in the record before respondent. Finally, appellants cite no authority in support of their argument that respondent must encourage property owners to improve their buildings themselves before it conducts or commissions an assessment to determine whether the buildings are substandard.

The record before respondent consisted of the Bonestroo report, the TIF plan, resolutions passed by both the Eagan Advisory Planning Commission and the Ea-gan Economic Development Authority approving the redevelopment TIF plan, a report from respondent’s TIF financial consultant recommending approval of the plan, and testimony taken at the public hearing held on the redevelopment district. On this record, we conclude respondent’s quasi-judicial determination that the redevelopment TIF district included appellants’ properties and met the statutory definition of a redevelopment district was supported by the record and was not arbitrary or capricious.

DECISION

Pursuant to Minn.Stat. § 469.1771, subd. 1(a) (2000), the district court has jurisdiction to review a municipality’s inclusion of property within a tax-increment financing district. The district court correctly concluded that highway 55 does not disrupt the contiguity of the redevelopment TIF district at issue here and that respondent’s inclusion of appellants’ properties in the district was based upon evidence in the record and was reasonable. The court therefore did not err by granting respondent summary judgment and dismissing appellants’ suit.

Affirmed.


text:
    GRINNELL MUTUAL REINSURANCE COMPANY, Respondent, v. Bonnie EHMKE, et al., Appellants, Respondents, Jeffrey EHMKE, Appellant.
    Nos. C8-02-2247, C6-02-2263.
    Court of Appeals of Minnesota.
    July 8, 2003.

      Ken D. Schueler, Dunlap and Seeger, P.A., Rochester, MN, for respondent, Grinnell.
    Charles A. Bird, Bird & Jacobsen, Rochester, MN, for appellants, Bonnie Ehmke, et al.
    Charles James Suk, Suk Law Firm, Ltd., Rochester, MN, for appellant, Jeffrey Ehmke.
    Considered and decided by STONEBURNER, Presiding Judge, TOUSSAINT, Chief Judge, and MINGE, Judge.
   OPINION

STONEBURNER, Judge.

The district court granted summary judgment declaring that respondent Grin-nell Mutual Reinsurance Company’s homeowner’s policy issued to appellant Bonnie Ehmke does not provide coverage for an incident in which appellant Jessica Ehmke, a minor, injured her father, appellant Jeffrey Ehmke. Appellants Bonnie and Jessica Ehmke argue that the district court erred by concluding that the intentional-act and criminal-act exclusions in the policy preclude coverage. Because the undisputed evidence demonstrates that, as a matter of law, Jessica Ehmke did not intend to injure her father, we reverse and remand for entry of summary judgment in favor of appellants Bonnie and Jessica Ehmke on the issue of coverage.

Appellant Jeffrey Ehmke challenges the district court’s confirmation of an arbitration award in his separate arbitration agreement with Grinnell. Because Jeffrey Ehmke has not briefed or argued this issue, we consider it waived.

FACTS

Jessica Ehmke, age 17, was standing next to the refrigerator arguing with her father, Jeffrey Ehmke, who was seated at the kitchen table. Jessica reflexively threw a refrigerator magnet at her father after he threw a can of beer that struck her in the leg. Despite the fact that Jessica Ehmke used her non-dominant hand for the admittedly retaliatory toss, the magnet unexpectedly struck Jeffrey Ehmke in the left eye. He is now blind in that eye.

Jeffrey Ehmke, who is Jessica Ehmke’s non-custodial parent, sued Bonnie Ehmke (Jessica Ehmke’s mother) and Jessica Ehmke for his injuries. Respondent Grin-nell Mutual Reinsurance Company insures Bonnie and Jessica Ehmke under a homeowner’s policy issued to Bonnie Ehmke. Grinnell accepted Bonnie Ehmke’s tender of defense under a reservation of rights and brought a declaratory judgment action, asserting that the intentional-act and criminal-act exclusions in the policy preclude coverage for this event.

For reasons not explained in the record, Jeffrey Ehmke, who is a party to the declaratory judgment action, entered into binding arbitration with Grinnell under Minn.Stat. § 572.08-30 (2002). The sole arbitration issue was “whether the acts of Jessica Ehmke * * * were sufficient to exclude coverage under [Grinnell’s] policy ⅜ * The arbitrator concluded that Jessica Ehmke’s acts are excluded from coverage. Jeffrey Ehmke moved to vacate the arbitrator’s award under Minn.Stat. § 572.19, subd. 1 (2002). The arbitrator denied the motion. Grinnell sought confirmation of the arbitrator’s award in district court under Minn.Stat. § 572.18 (2002) and Minn. R. Gen. Pract. 114.09. The district court confirmed the arbitrator’s award. Jeffrey Ehmke appealed confirmation of the arbitration award, but failed to assert any argument or authority to support his position on appeal. Because the issue was not briefed on appeal, we consider it waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982). At oral argument, counsel for Grinnell candidly conceded that the arbitration award has no effect on Jeffrey Ehmke’s right to pursue his tort action against Jessica Ehmke and no effect on whether there is coverage for Jessica Ehmke’s act.

Grinnell and Bonnie and Jessica Ehmke filed cross-motions for summary judgment in the declaratory judgment action. The district court granted summary judgment to Grinnell based on the intentional-act and criminal-act exclusions in the policy. Bonnie and Jessica Ehmke appeal from that judgment.

ISSUE

Can intent to injure Re inferred, as a matter of law, from the act of a 17-year-old child’s spontaneous retaliatory throwing of a small object at a parent who has struck the child with an item thrown during an argument?

ANALYSIS.

A motion for summary judgment should be granted when the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal from summary judgment, we ask (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The reviewing court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio, 504 N.W.2d at 761.

Bonnie Ehmke’s Home-Guard Policy issued by Grinnell contains an exclusion with respect to comprehensive personal liability protection coverage for intentional acts.

We do not cover bodily injury or property damage resulting from the act of any insured person if a reasonable person would expect or intend bodily injury or property damage to result from the act.

The policy also contains a criminal-act exclusion, which provides:

We do not cover bodily injury or property damage arising out of:
“Intentional Loss,” meaning loss arising out of or in the furtherance of any crime or offense of a violent nature or any act committed:
a. by or at the direction of the insured person; and
b. with the intent to cause a loss.

The underlying facts of the incident in which Jessica Ehmke injured Jeffrey Ehmke are undisputed. The issue is whether, as a matter of law, intent to injure can be inferred from those facts.

The language in an exclusionary provision is construed in accordance with the expectations of the insured party. Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 613 (Minn.2001). Exclusions are also construed strictly against the insurer. Id. The purpose of intentional-act exclusions is to exclude coverage for wanton and malicious acts by an insured, and therefore, the court may, absent evidence of specific intent to injure, infer intent to injure as a matter of law, based on the circumstances and nature of the insured’s actions. Id.; see also Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 887 (Minn.1978) (stating intent may be established by proof of actual intent to injure or when character of act is such that intent to inflict injury can be inferred).

The inference of intent to injure as a matter of law arises when the insured acted in a calculated manner and without remorse or when the insured’s conduct was such that the insured knew or should have known that a harm was substantially certain to result. Walser, 628 N.W.2d at 613. “The mere fact that the harm was a ‘natural and probable consequence’ of the insured’s actions is not enough to infer intent to injure.” Id. (citing Cont’l Western Ins. Co. v. Toal, 309 Minn. 169, 174, 244 N.W.2d 121, 124 (1976)).

There is no direct evidence in the record that Jessica Ehmke expected or intended to injure Jeffrey Ehmke. Jessica Ehmke testified that she did not intend to injure her father. But the district court concluded that Jessica Ehmke’s act constituted wanton and malicious behavior, based on (1) her testimony that she retaliated for having been struck on the leg by a can of beer thrown by her father by grabbing a magnet and “chucking” it at him; (2) her statement that she threw the magnet because she was concerned that her father might throw something else; and (3) her acknowledgment that she could have left the scene after being hit with the beer can.

There is no bright line rule as to when a court should infer intent to injure as a matter of law; rather, the determination is made through a “case by case factual inquiry”

Walser, 628 N.W.2d at 613 (citing R.W. v. T.F., 528 N.W.2d 869, 873 (Minn.1995)). A review of the case law, however, leads us to conclude that the district court erred by concluding that an angry 17-year-old child’s throwing of a refrigerator magnet at her father constituted wanton and malicious behavior such that an intent to injure may be inferred as a matter of law. The ease law leads to exactly the opposite conclusion: That, as a matter of law, such an act cannot support an inference of intent to injure.

The supreme court recently reviewed applicable case law in Walser, holding that, as a matter of law, intent to injure could not be inferred when a group of teenagers engaged in horseplay pulled a friend’s legs, forcing him to let go of the rim of a basketball hoop. Walser, 628 N.W.2d at 615. The supreme court noted that intent to injure had not been inferred when an insured struck a baggage clerk after an argument and tug-of-war over a piece of luggage, or when an insured pushed a hatcheck girl, causing her to be injured, or when a teenager injured a friend while exploding a device that he had exploded before without causing injuries. Id. at 613-14.

In contrast, the supreme court noted, intent to injure had been inferred when an insured drove to a construction site armed with a high-powered rifle loaded with armor-piercing bullets and fired at a truck that he knew was occupied, and when an insured armed himself with loaded weapons to facilitate a robbery. Id. at 614.

Grinnell attempts to distinguish Walser from the facts of this case by pointing out that the teenagers in Walser were found to have been “goofing around” while Jessica Ehmke acted in anger. But, as demonstrated in the cases reviewed in Walser, acting in anger is not determinative of intent to injure. Additional cases cited by Grinnell in which intent to injure was inferred involve an insured intentionally punching, stabbing, or shooting at another person, conduct that is factually much more extreme than the conduct of Jessica Ehmke.

Based on a review of the cases, we conclude that the district court erred by determining that Jessica Ehmke acted in such a calculated and remorseless manner, or that her act was such that she knew or should have known that a harm was substantially certain to result, such that intent to injure can be inferred as a matter of law. And we further conclude that the undisputed facts, taken as a whole, could not lead a rational trier of fact to find that the acts of Jessica Ehmke support an inference of intent to injure. We therefore reverse the district court’s determination that the intentional-act exclusion applies to preclude coverage for Jessica Ehmke’s actions that resulted in injury to Jeffrey Ehmke.

The district court also concluded that the criminal-act exclusion in Grinnell’s policy applies to exclude coverage for Jessica Ehmke’s act, relying on Liebenstein v. Allstate Ins. Co., for the proposition that intent to injure is immaterial to the applicability of the criminal-act exclusion. Liebenstein v. Allstate Ins. Co., 517 N.W.2d 73, 75 (Minn.App.1994). The insured in Liebenstein, however, was convicted of fifth-degree assault for the incident that gave rise to Liebenstein’s injury and the criminal-act exclusion in Allstate’s policy excluded coverage for injury “resulting from a criminal act or omission.” Id. But Jessica Ehmke was not charged with or convicted of any crime for throwing the magnet, and Grinnell’s policy’s criminal-act exclusion specifically requires an intent to cause loss, making the analysis in Liebenstein irrelevant to this case. Even if the language of Grinnell’s criminal-act exclusion can be said to create ambiguity with regard to intent, that ambiguity is construed against the insurer. Walser, 628 N.W.2d at 613. As discussed above, the facts do not support an inference of intent to injure, therefore, as a matter of law, the criminal-act exclusion in Grinnell’s policy does not bar coverage for Jessica Ehmke’s act.

DECISION

As a matter of law, Jessica Ehmke’s act of throwing a refrigerator magnet at her father during an argument does not give rise to an inference of intent to injure or intent to cause loss necessary to trigger the intentional-act or criminal-act exclusions in Grinnell’s policy covering Jessica Ehmke. Summary judgment granted to Grinnell is reversed, and the case is remanded to district court for entry of summary judgment in favor of Bonnie and Jessica Ehmke. Jeffrey Ehmke’s appeal from confirmation of the arbitration award is dismissed.

Reversed and remanded.

      . It appears from the record that Jeffrey Ehmke’s suit against Bonnie Ehmke was dismissed with prejudice for reasons unrelated to the declaratory judgment action.


author: G. BARRY ANDERSON, Judge.

text:
    James T. HEBRINK, Appellant, v. FARM BUREAU LIFE INSURANCE COMPANY, et al., Respondents.
    No. C9-02-2189.
    Court of Appeals of Minnesota.
    July 8, 2003.

      Brandon Vaughn Lawhead, Lawhead Law Offices, Austin, MN, for appellant.
    Scott B. Lundquist, Minneapolis, MN, for respondents.
    Considered and decided by SHUMAKER, Presiding Judge, ANDERSON, Judge, and HALBROOKS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant challenges the district court’s sua sponte grant of summary judgment in favor of respondent. Appellant argues that the district court erred in (1) granting summary judgment on respondent’s disguised and improperly noticed motion for summary judgment; (2) holding that the policy definition of “physicians” was unambiguous; and (3) barring evidence that the agent negligently assisted appellant in completing the disability insurance application. Because respondent’s motion in li-mine, requesting that the court bar evidence regarding appellant’s treatment by a physician, was actually a motion for summary judgment, and the district court abused its discretion in excluding all evidence regarding the agent’s alleged negligence, we reverse and remand.

FACTS

Appellant James T. Hebrink purchased a disability-insurance policy from Stanley S. Thompson, an insurance agent for respondent Farm Bureau Life Insurance Company, on June 10, 1999. Thompson filled out the application as appellant gave him the information. According to appellant, he informed Thompson that he had received prior chiropractic treatment, but Thompson told him that this information was not sought in the application. Appellant signed the application and Farm Bureau issued the policy.

On August 31, 1999, appellant was injured while working on a cement project on his driveway. Appellant went to see Dr. M.O. Reeve, a chiropractor, on September 3, 1999. Dr. Reeve later referred appellant to the Mayo Clinic, where he was diagnosed as having “a right S-l radiculo-pathy resulting in considerable pain and mild weakness, which did not resolve with an extensive period of maximal conservative therapy.” As a result, appellant underwent surgery on April 5, 2000. Appellant was released the following day and was once again placed in the care of Dr. Reeve.

In March 2000, appellant made a claim under his insurance policy. Appellant’s chiropractor submitted a physician’s statement to Farm Bureau, indicating that appellant had also been treated for back problems in November of 1998, but that his problem had resolved in four treatments. Based on this disclosure, Farm Bureau cancelled appellant’s policy. Specifically, Farm Bureau asserted that appellant failed to disclose his prior back problems, and that had he done so, no policy would have been issued.

On June 25, 2001, appellant served Farm Bureau with a complaint, alleging breach of contract and negligence by its agent. In its answer, Farm Bureau denied all claims. Farm Bureau claimed that there was no breach of contract because appellant made material misrepresentations on the application by failing to reveal a pre-existing condition. The answer did not assert that appellant failed to establish he was “totally disabled” because he was not under the care of a “physician” for 90 days.

A pretrial conference was held on August 7, 2002. On August 12, 2002, Farm Bureau filed a motion in limine, requesting that the district court bar (1) appellant from submitting any testimony relating to “total disability” within the meaning of the policy definition because it was undisputed that appellant had not been under the care of a physician for more that 90 days, and (2) all evidence relating to negligence of the insurance agent because the alleged negligence, if any, did not proximately cause appellant’s damages.

On the scheduled trial date, August 19, 2002, the district court considered and granted Farm Bureau’s motion in limine, barring evidence on “total disability” and negligence of the agent. Ultimately, the district court granted summary judgment, sua sponte, explaining as follows:

Given the clear understanding that chiropractors are not permitted to practice medicine while physicians are in the state of Minnesota, the Court finds as a matter of law no ambiguity exists in the definition “physician” as stated in the Farm Bureau’s Insurance policy issued to [appellant]. Based upon this finding, [appellant] is unable to prove he complied with the 90 and 120 day policy requirement for treatment by a physician. The court’s decision, therefore, becomes a final determination on Plaintiffs cause of action. A judgment of dismissal will be entered.

This appeal followed.

ISSUES

I. Did the district court err in granting summary judgment, sua sponte, in favor of respondent?

II. Did the district court abuse its discretion in barring appellant from introducing evidence regarding the insurance agent’s alleged negligence?

.III. Should this court accept appellant’s “offer of proof?”

ANALYSIS

I.

On appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Also, we “view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted).

Farm Bureau submitted a motion in li-mine seeking to bar appellant from submitting any testimony relating to “total disability” within the meaning of the policy, because it was undisputed that appellant had not been under the care of a physician for more than 90 days. The district court found, apparently as a matter of law, that a chiropractor is not a physician, so appellant cannot prove that he was treated by a physician for more than 90 days and ordered summary judgment, suá sponte.

Appellant argues that Farm Bureau’s motion in limine was, in reality, a summary-judgment motion, that he was not given a fair opportunity to oppose the motion, and that the motion improperly raised a new defense.

Farm Bureau moved in limine for an order

barring the plaintiff from submitting any testimony relating to “total disability” within the meaning [of] the policy definition because it is undisputed that plaintiff was not under the care of [a] physician [for] more than 90 days [.]

(Emphasis added.) In its memorandum of law in support of the motion, Farm Bureau supported its request by noting:

[Appellant] does not intend to introduce any evidence from Dr. Lynch regarding disability. The only evidence is limited to the medical records and 'Objective facts themselves. The evidence establishes the entire disability occurred within the ninety day waiting period and thus no benefits would be payable under the policy.

The purpose of a motion in limine is to prevent “injection into trial of matters which are irrelevant, inadmissible and prejudicial.” Black’s Law Dictionary 1013 (6th ed.1991). Here, there is no reference in either the motion in limine or the memorandum in support of the motion to any rules of evidence or other authority that would make the evidence regarding “total disability” inadmissible. Nor did Farm Bureau argue that the evidence would be irrelevant or prejudicial. Instead, the gist of Farm Bureau’s motion was that the evidence regarding “total disability” should be excluded because appellant could not prove that he met the policy condition by relying on evidence then in the record. This was not a proper motion in limine but, rather, was tantamount to a motion for summary judgment. Cf. Fabio, 504 N.W.2d at 761 (stating that a summary-judgment motion must be granted “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issues of material fact and either party is entitled to a judgment as a matter of law”).

Because Farm Bureau’s motion in limine functioned as a motion for summary judgment, compliance with Rule 56.03 of the Minnesota Rules of Civil Procedure and Rule 115.03 of the General Rules of Practice of District Court was required. See Minn. R. Civ. P. 56.03 (stating that summary judgment motions shall comply with the notice requirements of Rule 115.03 of the General Rules of Practice of the District Courts); Minn. R. Gen. Pract. 115.03(a) (setting the notice requirements for dispositive motions). Rule 115.03(a) provides that no dispositive motion shall be heard unless the moving party serves proper notice and the specified documents on opposing party at least 28 days prior to the scheduled hearing. Minn. R. Gen. Pract. 115.03(a). Rule 56.03 of the Minnesota Rules of Civil Procedure provides that summary-judgment motions shall be governed by Minn. R. Gen. Pract. 115.03, but that “in no event shall the motion be served less than 10 days before the time fixed for the hearing.” Minn. R. Civ. P. 56.03. Absent a clear waiver by the adversary, the time-period requirements of rule 56.03 are mandatory. Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 278-79, 230 N.W.2d 588, 591 (1975).

Farm Bureau filed the motion only seven days before the trial date, and there is no evidence in the record indicating that appellant waived the notice requirement. Farm Bureau’s motion was improperly noticed and should not have been considered by the district court.

Notwithstanding this fact, we recognize that there are times when the district court has the authority to grant summary judgment, sua sponte. The district court has the authority to grant summary judgment, sua sponte, when (a) no genuine issues of material fact remain, (b) one of the parties deserves judgment as a matter of law, and (c) the absence of a formal motion creates no prejudice to the party against whom summary judgment is granted. Id. at 280-81, 230 N.W.2d at 591-92; Modern Heating & Air Conditioning, Inc. v. Loop Belden Porter, 493 N.W.2d 296, 299 (Minn.App.1992). The district court, however, must afford the adverse party a meaningful opportunity to oppose such an action. Fed. Land Bank of St. Paul v. Obermoller, 429 N.W.2d 251, 255 (Minn.App.1988), review denied (Minn. Oct. 26, 1988).

This court concluded that an adverse party had a “meaningful opportunity” to oppose summary judgment where

[t]he court gave the parties notice at the motions hearing that it would consider the issue of invalidity of the contract, and gave the parties 18 days to submit briefs on the issue.

Septran, Inc. v. Indep. Sch. Dist. No. 271, 555 N.W.2d 915, 921 (Minn.App.1996), review denied (Minn. Feb. 26, 1997). But, here, there is no evidence in the record that indicates appellant knew on the day of trial that he was expected to address a potential summary-judgment motion on the length of time under a physician’s care. While “meaningful opportunity” may vary depending on the circumstances in the individual case, when appellant had only seven-days’ notice of a miscaptioned motion we conclude that appellant was not given a meaningful opportunity to oppose summary judgment. “Prejudice is unavoidable when a trial court denies any opportunity to marshal evidence in opposition to a basis for summary judgment raised sua sponte.” Doe v. Brainerd Int'l. Raceway, Inc., 514 N.W.2d 811, 822 (Minn.App.1994), rev’d on other grounds, 533 N.W.2d 617 (Minn.1995). Therefore, the district court erred in granting summary judgment, even if it is characterized as granted sua sponte, rather than on Farm Bureau’s motion.

We reverse and remand this matter for further proceedings not inconsistent with this opinion. Further, in light of this instruction, we need not address here appellant’s claim that Farm Bureau improperly raised a new defense when it argued that appellant was not treated by a “physician” for the required time under the policy or determine whether the district court erred in concluding that the term “physician” was unambiguous.

II.

Appellant next argues that the district court erred in barring evidence regarding the insurance agent’s negligence. Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997).

The district court granted Farm Bureau’s motion to exclude all evidence regarding the agent’s negligence, concluding that “[m]ere filling in of information prior to [Appellantj’s signature of the application is not an actionable tort.” The court further added that even if a scrivener’s error occurred, it was superseded by appellant’s affirmation of the application by his signature. We disagree.

The district court misconstrued the grounds for appellant’s negligence claim, which is not based on the agent’s role as a mere scrivener. Rather, appellant alleges that the agent negligently misrepresented what must be disclosed in the application. Appellant also alleges that he informed the agent of his prior chiropractic care, but the agent told him that this information was not sought in the application, and that the policy was canceled specifically because this prior care was not disclosed in the application. The question is whether the facts alleged by appellant could, as a matter of law, support a claim of negligent misrepresentation. We conclude that appellant has made a colorable claim of negligent misrepresentation.

“The standard of care for an insurance agent is to perform at the level of skill of a reasonably prudent person in the insurance business.” Gabrielson v. Warnemunde, 443 N.W.2d 540, 545 (Minn.1989). In defining the tort of negligent misrepresentation, the Second Restatement of Torts explains as follows:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Restatement (Second) of Torts § 552(1) (1977); see Bonhiver v. Graff, 311 Minn. 111, 122, 248 N.W.2d 291, 298-99 (1976) (adopting the restatement’s definition of negligent misrepresentation).

Appellant argues, in essence, that a reasonably prudent insurance agent should know what information is required in an application for insurance, especially if that information may affect coverage. It is not the role of this court to determine whether the facts as alleged by appellant are true. See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn.1990) (stating that the role of an appellate court is to correct errors, not find facts). While appellant still bears the burden of proving his claim, based on the very limited record before us, we hold that the facts alleged by appellant support a claim for negligent misrepresentation that, if proven to be true, could result in liability. See Florenzano v. Olson, 387 N.W.2d 168, 174 (Minn.1986) (stating that “[a] misrepresentation is made negligently when the misrepresented has not * * ⅜ communicated certain information that the ordinary person in his or her position would have discovered or communicated”). Therefore, the district court abused its discretion in barring all evidence regarding the insurance agent’s alleged negligence after erroneously concluding that as a matter of law the facts did not give rise to an actionable tort.

III.

As a final matter, we address appellant’s motion to this court. After briefing was completed, appellant filed a motion to accept an “offer of proof,” in the form of a letter, dated February 12, 2003, from Dr. W. Richard Marsh at the Mayo Clinic indicating that appellant “has been under our care ever since surgery on an as-needed basis.”

An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence at the district court. Thiele v. Stick, 425 N.W.2d 580, 582-83 (Minn.1988). Under a limited exception to this rule, however, this court may consider new documentary evidence of a conclusive, uncon-troverted nature, which supports the district court’s decision. In re Livingood, 594 N.W.2d 889, 896 (Minn.1999).

Appellant’s motion does not cite any authority for acceptance of his “offer of proof’ on appeal. In addition, the requirements of the limited exception to the prohibition against appellate admission of new evidence are not met here, because the letter is offered for the purpose of reversing the district court. Finally, appellant has not established that the document is conclusive or uncontroverted. Accordingly, we deny the motion.

DECISION

The district court abused its discretion in granting summary judgment, sua sponte, without providing appellant a “meaningful opportunity” to oppose the summary-judgment motion. Because the facts as alleged by appellant, if proven, support a claim for negligent misrepresentation, the district court erred in precluding all evidence regarding the insurance agent’s alleged negligence on the grounds that the facts would not give rise to an actionable tort.

Reversed and remanded; motion denied.