author: AMUNDSON, Justice. GORS, Acting Justice

text:
    2002 SD 58
    In the Matter of the Medical License of Dr. Reuben SETLIFF, M.D.
    Nos. 21966, 21982.
    Supreme Court of South Dakota.
    Argued on Nov. 14, 2001.
    Decided May 15, 2002.

      Mr. Neil Fulton, Mr. Brent Wilbur of May, Adam, Gerdes and Thompson, Pierre, South Dakota, Attorneys for appellant, SD Board of Medical and Osteopathic Examiners.
    Mr. Jeffrey G. Hurd, Mr. Michael A. Hauck of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorney for appellee, Setliff.
   AMUNDSON, Justice.

[¶ 1.] The South Dakota Board of Medical and Osteopathic Examiners (Board) appeals regarding Dr. Reuben Setliffs (Setliff) medical license. The Board’s decision to revoke Setliffs license was reversed by the circuit court. We affirm.

FACTS

[¶ 2.] In 1999, Setliff testified in a malpractice action involving a Brookings physician, Dr. Robert Rietz. In preparation for trial, Setliff was deposed regarding a review of his practice while he was employed at the Memorial Hospital of Sheridan County in Sheridan, Wyoming. He acknowledged that his practice had been reviewed, and as a result, he was required to obtain a second opinion prior to performing pediatric microantrostomy, but he denied the characterization as a “restriction” on his privileges.

[¶ 3.] The parties disagree as to whether the review was performed as a result of a complaint, or sua sponte by the hospital. Setliff acknowledged, however, that a letter from another physician concerning the treatment of the physician’s son may have prompted the hospital to look into his practice, but testified that the review was not based on this complaint. Following the hospital’s review, Setliff was ordered to obtain a second opinion from a board-certified otolaryngologist prior to performing mircroantrostomy on patients under twelve-years-old.

[¶ 4.] At the trial of the Heiberger malpractice case, Setliff testified on behalf of the plaintiff. During cross-examination by the defense, he again denied that an investigation resulted from a complaint while he was in Sheridan. He did admit that a two-year peer review had occurred. In denying the defense counsel’s interpretation of the peer review during cross-examination, he testified to the following:

Q. Now, was there an investigation done by the Executive Committee at the [Sheridan] hospital which included hiring independent physicians to review your cases when you were at the hospital in Sheridan, Wyoming?
A. With regard to what, ma’am?
Q. Investigation into complaints in regard to your practice of medicine?
A. No.
Q. Was there not an Executive Committee that contracted outside reviewers, three Board certified otolaryngologists, to provide an independent, unbiased review of your hospital records?
A. That took place in the absence of a specific complaint.
Q. And the complaint was in regard to your practice of medicine; is that correct?
A. There was no complaint.
Q. The complaint was in regard to your performing the surgical procedure, microantrostomy?
A. Absolutely not.
Q. Do you agree, Dr. Setliff, that an investigation was done?
A. Absolutely not.
Q. Do you agree that your privileges were restricted ... or limited in any way while you were practicing in the state of Wyoming.
A. Absolutely not.

[¶ 5.] The defense lawyer went on to have Setliff read information from the findings of fact and conclusions of law, In the Matter of the Staff Privileges of Reuben C. Setliff, M.D., from the Sheridan hospital, which stated:

Dr. Setliff shall be required to obtain a preoperative second opinion from a Board Certified Otolaryngologist who has examined his patients before performing microantrostomy on patients 12 years of age and under. The second opinion need not agree with Dr. Setliff s opinion, but the patient’s custodial parents or guardians shall acknowledge in writing that they have received the second opinion, and have made a decision to permit the surgery on the child with full knowledge of any diversity of opinion.

Defense counsel then questioned Setliff about a lawsuit he brought against the Sheridan hospital based on that peer review.

[¶ 6.] After testifying in the trial, Set-liff was notified that the Board was undertaking an investigation regarding his testimony in the Heiberger medical malpractice case. The Board held an informal conference on June 6, 2000. Charvin Dixon, counsel for the Board, told Setliff that Kathryn Hoskins, defense counsel in the malpractice case, had filed a complaint alleging Setliff had testified falsely at trial, when in fact the Board contacted Hoskins of its own volition and requested a transcript from the malpractice case. Setliff also discovered during the informal conference that Dr. Ferrell, who was an expert witness for Reitz at the malpractice case, was on the committee that investigated Setliff s testimony.

[¶ 7.] Setliff claimed the testimony under investigation was based, in part, on the advice of counsel. Before Setliff applied for staff privileges in Sioux Falls, Setliff had hired an attorney who specialized in disputes between physicians and hospitals to determine if the second opinion requirement imposed on him by the Sheridan hospital constituted a restriction on his privileges. The attorney advised him that the second opinion requirement did not equate to a privilege restriction. Therefore, the attorney advised Setliff that he need not disclose this incident in applications for privileges at other hospitals.

[¶ 8.] After the investigation and informal conference, the Board found Setliff had made false statements regarding his history at the Sheridan hospital and that Setliff “knowingly and intentionally testified falsely as an expert witness” in the Heiberger case, which was determined to be a “serious breach of law, ethics, and professional decorum.” It further concluded that this constituted conduct “unbecoming a person licensed to practice medicine ... in violation of SDCL 36-4-29(2).” Importantly, the Board also held that “conduct unbecoming a person licensed to practice medicine does not require proof in strict conformance to any legal standards for perjury or false statement as defined by South Dakota law.” Despite the fact that Setliff was advised by counsel before the malpractice case began that he had not had his privileges restricted, the Board stated that “Dr. Setliffs false testimony in the Heiberger case exposed him to personal discredit and brought dishonor and disrepute to the medical profession and was a serious breach of law and ethics.” Therefore, the Board revoked Setliffs license for six months and assessed him the costs of the proceeding.

[¶ 9.] The circuit court, on the other hand, reversed and acknowledged Setliffs belief that the second opinion requirement did not constitute a restriction on privileges was justifiably based on the advice of a healthcare lawyer. Therefore, the circuit court held that even if Setliffs characterization of the second opinion requirement was wrong, the evidence demonstrates that Setliff had valid reasons to believe his testimony was truthful. The Board appeals and raises the following issue:

[¶ 10.] Whether the Board abused its discretion by revoking Setliffs medical license for six months based on a finding of conduct unbecoming a person licensed to practice medicine.

STANDARD OF REVIEW

[¶ 11.] We have previously acknowledged that SDCL 1-26-36 governs review of agency decisions. SDCL 1-26-36 provides:

The court shall give great weight to the findings made and inferences drawn by an agency on question of fact.... The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusion, or decision are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in light of the entire evidence in the record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion....

[¶ 12.] We review the administrative agency’s decision in the same manner that the circuit court did, with no presumptions of correctness on behalf of the circuit court’s decision. Foley v. State ex rel. S.D. Real Estate Comm’n, 1999 SD 101, ¶ 6, 598 N.W.2d 217, 219 (quoting Cheyenne River Sioux Tribe Tel. Auth. v. Pub. Util. Comm’n, 1999 SD 60, ¶ 12, 595 N.W.2d 604, 608) (other citations omitted). Questions of fact are reviewed under the clearly erroneous standard. Id. (citing Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986)). Questions of law, on the other hand, are fully reviewable. Id. (citing Matter of State & City Sales Tax Liability of Quality Railcar Repair Corp., 437 N.W.2d 209 (S.D.1989)). “Mixed questions of law and fact are also fully reviewable.” Id. (citing Permann v. Dep’t of Labor, Unemp. Ins. Div., 411 N.W.2d 113 (S.D.1987)). See also, Water town Co-op. Elevator Assoc, v. S.D. Dept. of Rev., 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171 (reiterating that the traditional standard of review is applicable as provided herein).

[¶ 13.] The standard of review for the revocation of a professional license is as follows:

The general burden of proof for administrative hearings is preponderance of the evidence. We are inclined to adhere to this general principle with the following exception. In matters concerning the revocation of a professional license, we determine that the appropriate standard of proof to be utilized by an agency is clear and convincing evidence.

Id. The “clear and convincing” standard lies somewhere between “the rule in ordinary civil cases and requirements of our criminal procedure, that is, it must be more than a mere preponderance but not beyond a reasonable doubt.” Id. (citing Kent v. Lyon, 1996 SD 131, ¶ 15, 555 N.W.2d 106, 111 (additional citations and internal quotations omitted)).

DECISION

[¶ 14.] The circuit court determined that the Board should be bound by a criminal standard for perjury pursuant to SDCL 22-29-1 when determining whether Setliff, in fact, testified falsely. Furthermore, it found that Setliffs statement that the review was a peer review rather than an investigation is an opinion, and not the product of false testimony.

[¶ 15.] The Board has been given the authority by the state legislature to determine whether to cancel, revoke, suspend or limit a physician’s license for unprofessional conduct. See SDCL 36-4-29. The unprofessional conduct alleged by the Board against Setliff is “engaging in conduct which is unbecoming to a person licensed to practice medicine.” SDCL 36-4-30(22). There is no definitive description as to what constitutes conduct “unbecoming to a person licensed to practice medicine.” Furthermore, there is little guidance from case law of other jurisdictions for determining what standard a board should use when analyzing the truthfulness of a physician’s testimony at a trial in which he is acting as an expert witness. Courts have analyzed similar questions, but none are directly analogous. See Joseph v. D.C. Bd. of Med., 587 A.2d 1085, 1086 (D.C.App.1991) (giving false testimony regarding one’s credentials while testifying as an expert witness in a medical malpractice case constitutes the practice of medicine and provides grounds for disciplinary action); Missouri Bd. of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 441^42 (Mo.Ct.App.1991) (affirming decision not to discipline non-treating otolaryngology specialist for false testimony regarding the number of times it took to pass his boards because it was not the practice of medicine); Hayes v. State Med. Board of Ohio, 1S8 Ohio App.3d 762, 742 N.E.2d 238, 244 (2000) (holding medical board’s finding that appellant engaged in misrepresentation before a committee and board was supported by “rehable, probative and substantial evidence,” thus no abuse of discretion occurred). Thus, this case presents a unique question.

[¶ 16.] In South Dakota, precedent makes abundantly clear that Setliffs license cannot be revoked unless his misconduct is proven by clear and convincing evidence. See In the Matter of Zar, 434 N.W.2d 598, 602 (S.D.1989). The grounds “unbecoming to the practice of medicine” leaves discretion for the Board in cases involving that issue, which is acceptable. See McDaniel v. N.M. Bd. of Med. Examiners, 86 N.M. 447, 525 P.2d 374, 377 (N.M.1974) (holding “conduct unbecoming in a person licensed to practice medicine” is not unconstitutionally vague); Chastek v. Anderson, 83 Ill.2d 502, 48 Ill.Dec. 216, 416 N.E.2d 247, 249 (1981) (holding broad terms defining unprofessional conduct within state statute were not unconstitutionally vague). “It is unnecessary for a statute to enumerate specific acts which constitute unprofessional conduct.... [Although unprofessional conduct should not be given an overly broad connotation, it must relate to conduct which indicates an unfitness to practice medicine.” Chastek, 48 Ill.Dec. 216, 416 N.E.2d at 250 (internal citation omitted). Because it is “impossible to catalogue all of the types of professional misconduct” the Board is given broad terms under which to analyze each case. Id.

[¶ 17.] As acknowledged in the Zar case, in which a Psychologist’s license was revoked for unprofessional conduct, the high standard of proof is necessary before revoking a license because of the “importance of the interest involved, i.e., a professional’s career.” In re Zar, 434 N.W.2d at 602. Clear and convincing evidence must be presented, which is “so clear, direct ... weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Id. at 602 n. 7. Moreover, “[w]e are acutely aware that a professional license, reputation, and livelihood are at stake whenever suspension is a possibility. Under those circumstances, a professional is due every consideration.” Nelson v. S.D. State Bd. of Dentistry, 464 N.W.2d 621, 625 (1991). For these reasons, we have carefully combed through the evidence upon which the Board has chosen to revoke Setliffs license.

[¶ 18.] The Board’s allegation that no legal standard is applicable when determining if a licensee testified falsely is untrue. Although the Board need not follow this state’s legal definition of perjury under the criminal statutes, as is alleged by the circuit court, the Board must prove its grounds for finding conduct unbecoming to the profession by clear and convincing evidence. See In re Zar, 434 N.W.2d at 602. The grounds alleged here are false testimony; thus, the existence of false testimony must be clearly proven. Setliff acknowledged that a peer review had taken place, resulting in the second opinion requirement. Even if he refused to admit there was an investigation resulting in restricted privileges, he did not hide the fact that the Sheridan hospital looked into his practice. As the circuit court acknowledged, Setliff believed his testimony was accurate and made no attempt to conceal the review in Sheridan. Setliff testified about the second opinion requirement and even read portions of the Findings of Fact and Conclusions of Law produced by the Sheridan Hospital Board of Trustees, which had a description of the review and second opinion requirement.

[¶ 19.] Additionally, Setliff testified at the Medical Board Hearing that his new attorney had advised him that there was no restriction on his privileges in Wyoming. We acknowledge that although reliance oh an attorney’s advice is not always an outright defense to wrongful actions, such reliance may be used to support a person’s testimony under oath. See Han-nahs v. Noah, 83 S.D. 296, 158 N.W.2d 678, 683 (S.D.1968) (stating good faith reliance on counsel’s advice could be considered by the jury on the issue of exemplary damages); Sheetz v. Bowles Rice McDavid Graff & Love, PLLC, 209 W.Va. 318, 547 5.E.2d 256, 263-266 (2001) (acknowledging rebanee on advice of counsel is generally not defense to charges that one acted unlawfully or negbgently); State v. Puckett, 6 Kan.App.2d 688, 634 P.2d 144, 152 (1981) (stating good faith reliance on counsel’s advice could be considered when determining whether there was intent to defraud). See also 21 AmJur2d Criminal Law § 156 (1998) (stating the general rule that reliance on attorney’s advice is not a defense to criminal prosecution, but acknowledging the advice may disprove intent required for offense). Just as in other cases, the advice of Setliffs attorney should have been a factor considered on the issue of whether Setliff intended to be in court. See Puckett, 634 P.2d at 152. Therefore, it is clear that, although Setliff cannot wholly rely on the attorney’s advice to negate responsibibty for his action, the advice should have been considered when looking at his subjective intent to be. There is not clear and convincing evidence of false testimony in this record.

[¶ 20.] Setliffs attorney was not the only source upon which Setliff can rely for supporting his statements that no investigation or restriction occurred. When Set-liff sued the Sheridan hospital for alleged damages based on the two-year peer review, the court denied his claim. While upholding the district court’s grant of summary judgment in favor of the hospital, it stated that “[n]o sanctions were imposed on him during the investigation” and “Set-liffis employment status was never altered during the investigation which he abege[d] harmed his reputation.” See Setliff, 850 F.2d at 1396.

[¶21.] Importantly, Setliff did attempt to explain why he failed to characterize the second opinion requirement as a restriction on his practice. During cross-examination the attorney asked Setliff if he was telhng the jury that the second opinion requirement was in no way a restriction, he stated as follows: “Absolutely, That’s what I am telling you. This was not a limiting factor for the following reason— Before giving his explanation, however, plaintiff’s attorney cut him off by saying, “I didn’t ask you the reason, Dr. Setliff.” This colloquy is yet further evidence to refute the Board’s finding that Setliff in-tentionahy testified falsely.

[¶22.] Setliff may have appeared evasive by characterizing the happenings in the Sheridan matter as a review, not an investigation, and characterizing the result as a second-opinion requirement, not a restriction on privileges. These characterizations obviously can be used to attack Setliffs credibihty, but do not prove by clear and convincing evidence that Setliff testified falsely. Setliff never denied the review, or the second opinion requirement. His play on words may have been unappealing to the Board, but certainly do not rise to the level of false testimony. The advice of counsel and statements by the Tenth Circuit create a reasonable basis for Setliffs belief that no investigation or restrictions occurred. We cannot hold the semantics utilized by Setliff equate to false testimony.

[¶23.] As we have previously stated, “[t]he revocation of a license of a professional ... carries with it dire consequences. It not only involves necessarily disgrace and humiliation, but it may mean the end of a professional career. In a proceeding so serious, due process of law requires a definite charge, adequate notice and a full, fair and impartial hearing.” Bruggeman v. S.D. Chem. Dependency Counselor Certification Bd., 1997 SD 132, ¶ 12, 571 N.W.2d 851, 853 (citation omitted). Here, the defendant in the malpractice case was allowed to use all of the information regarding the second opinion requirement to impeach Setliffs credibility, which was appreciated by a jury who found in favor of the defendant. Merely failing to agree one-hundred-percent with the defendant’s interpretation does not equate false testimony. Based on the gravity of the result and the lack of evidence clearly demonstrating Setliff testified falsely, we agree with the circuit court, and reverse the Board’s decision.

[¶ 24.] Based upon our holding on this issue, we find it unnecessary to address any other issues presented by the appellant.

[¶ 25.] In conclusion, we affirm the circuit court, but for the reasons set forth herein, as it is “a well entrenched rule of this Court” that we affirm correct decisions even when based on “wrong reasons.” Wolff v. Sec’y of S.D. Game Fish and Parks Dep’t, 1996 SD 23, ¶ 32, 544 N.W.2d 531, 536. See also Poindexter v. Hand County Bd. of Equalization, 1997 SD 71, ¶ 16, 565 N.W.2d 86, 91 (stating a correct judgment based on incorrect rationale will be affirmed).

[¶ 26.] Affirmed.

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

[¶ 28.] GORS, Acting Justice, dissents.

[¶ 29.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted, did not participate.

GORS, Acting Justice

(dissenting).

[¶ 30.] I respectfully dissent.

[¶ 31.] Dr. Setliff is a liar. He lied to the court. He lied to the jury. Under oath.

[¶ 32.] In his federal litigation, Dr. Set-liff alleged that a complaint had been filed against him in Wyoming, that there was an investigation, that his privileges had been restricted and that the proceedings were a permanent blotch on his record. By contrast, at the jury trial in Brookings in which Dr. Setliff appeared as an expert, he testified that there had been no complaint in Wyoming, no investigation and no restriction. Which is it?

[¶ 33.] The majority ameliorates Dr. Setliffs lie as evasive, semantics and a “play on words.” To characterize Dr. Set-liffs testimony as evasive is an understatement.

Q: Do you agree, Dr. Setliff, that an investigation was done?
A: Absolutely not.
Q: Do you agree that your privileges were restricted ... or limited in any way while you were practicing in the state of Wyoming.

A: Absolutely not.

Dr. Setliffs response “[a]bsolutely not” was direct, not evasive. If the answer to either question should be “yes,” then “absolutely not” is a lie. Dr. Setliff cannot plead “semantics” or take refuge in a “play on words.” There is no wiggle room in “absolutely not.”

[¶ 34.] Dr. Setliff excuses his lie because an attorney said it was okay. Never mind that the doctor hired the attorney to tell him it was okay to he. Advice of counsel is no excuse for lying. See Evans v. Cameron, 121 Wis.2d 421, 360 N.W.2d 25, 28-29 (1985). See also Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶ 40, 575 N.W.2d 457, 465 (Gilbertson, J., concurring in part and dissenting in part). Dr. Setliff also points out that he was impeached at the trial in Brookings and therefore his he was not important. However, impeachment does not make lying right.

[¶ 35.] Nevertheless, Dr. Setliff is a liar. The board found by clear and convincing evidence that the doctor was a liar. This finding is not clearly erroneous.

[¶ 36.] Should lying under oath be grounds for suspension of his medical license? Yes. Why? Some might say that the only harm here is Dr. Setliffs dishonest testimony at trial, and there being no harm to a patient, his he should not affect his medical license to treat patients.

[¶ 37.] If Dr. Setliff would lie to a court and a jury under oath, what might he tell his patients when he is not under oath? Would he tell them they need surgery when they do not? Yes. That is exactly why Dr. Setliff faced discipline in Wyoming. And that is what he lied about in South Dakota. Under oath. To a jury.

      . The malpractice case was entitled Heiberger v. Rietz. Setliff treated Heiberger after Rietz allegedly treated him in. a negligent manner.

      . Microantrostomy is a form of sinus surgery that provides sinus drainage.

      . Setliff sued the Sheridan hospital based on the alleged investigation by the hospital. See Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384 (10thCir.l988). During preparation for this unsuccessful action against the hospital, Setliff had referred to the hospital’s review as an "investigation” in some affidavits. During these federal court proceedings Setliff alleged that his medical privileges had been restricted by the hospital in Wyoming. This, however, Setliff later explained, was the characterization of the attorney who drafted the documents.

      . Ferrell was allegedly put on the investigation committee because he was a direct competitor of Setliff with potential bias. Therefore, he was placed on the committee to investigate and not the adjudication board, which serves as the trier of fact.

      . Counsel for Setliff argues the recent amendment to SDCL 15-6-52(a) alters the traditional standard of review. He argues that we review the trial court's findings, rather than looking at the administrative body's decision. We find that the amendment to SDCL 15 — 6— 52(a) applies only to decisions involving a circuit court as a trial court, not cases first reviewed by the administrative body and appealed to a circuit court. Deference to the administrative body is still in force under the review stated under SDCL 1-26-36.
      We further acknowledge that our statement in Webster Education Association v. Webster School District, 2001 SD 94, ¶ 4, 631 N.W.2d 202, 204, was incorrect. As Justice Konenkamp aptly acknowledged in his concurrence, we should have waited for a more appropriate case, such as the one at hand, to determine the effects of the amendment to SDCL 15-6-52(a). Id. ¶ 16 (Konenkamp J., concurring).

      . Setliff hired attorney Al Augustine to assist him in obtaining privileges at McKennan Hospital in Sioux Falls. Augustine advised Setliff in 1997 that the matter in Wyoming was a peer review rather than a restriction of privileges or an investigation. This opinion from the attorney was received by Setliff prior to his testifying in the malpractice case. The attorney advised Setliff that he need not report the incident on an application for privileges at McKennan Hospital.


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    Kenneth R. SIMONS, Appellee, v. MUNICIPAL FIRE AND POLICE RETIREMENT SYSTEM OF IOWA, Appellant.
    No. 00-1440.
    Supreme Court of Iowa.
    June 12, 2002.
    Alice E. Helle and Douglas E. Gross of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for appellant.
    Thomas M. Walter of Johnson, Hester, Walter & Breckenridge, L.L.P., Ottumwa, for appellee.
   NEUMAN, Justice.

This interlocutory appeal asks whether, in a certiorari action challenging an award of disability benefits under the Municipal Fire and Police Retirement System (System), venue is proper in the officer’s county of residence or in the county where the retirement system adjudicates the controversy and renders its decision. Because the administrative hearing was based on facts arising in the officer’s county of residence, the district court found venue was proper there. For the reasons that follow, we reverse.

I. Background Facts and Proceedings.

The pertinent facts are undisputed. After retiring from the Fairfield, Iowa police force in February 1999, Kenneth Simons applied for accidental disability benefits from the System pursuant to Iowa Code chapter 411 (1999). The System rejected Simons’ claim for accidental disability benefits, awarding him only ordinary disability benefits. Simons then filed an appeal challenging the award. An evidentiary hearing was held in Polk County before the System’s disability appeals committee. Simons as well as other representatives of the City of Fairfield appeared at the hearing. The committee ultimately rejected Simons’ claim, a decision ratified by System board members at a meeting held in Polk County.

Because Iowa Code chapter 411 contains no appellate procedure, a municipal police officer or firefighter who seeks to challenge a pension benefit decision must do so by way of certiorari. Chiafos v. Mun. Fire & Police Ret. Sys., 591 N.W.2d 199, 201 (Iowa 1999); City of Carroll v. Mun. Fire & Police Ret. Sys., 554 N.W.2d 286, 288 (Iowa App. 1996). Si-mons did so here, filing his petition in the Iowa District Court for Jefferson County. He alleged that the System acted illegally or in excess of its authority in determining the proper benefits due. Before answering, the System moved for a change of venue from Jefferson to Polk County. The district court denied the motion, and we granted the System’s application for interlocutory appeal to consider its challenge to the court’s ruling.

II. Analysis.

The System board members, appointed in accordance with Iowa Code section 411.86, are public officers. So, Iowa Code section 616.3 controls the question of venue. The venue statute provides:

Actions for the following causes must be brought in the county where the cause, or some part thereof, arose:
2. Against public officers. Those against a public officer or person specially appointed to execute the public officer’s duties, for an act done by the officer or person in virtue or under color of the public office, or against one who by the officer’s or person’s command or in the officer’s or person’s aid shall do anything touching the duties of such officer, or for neglect of official duty.

The question is where Simons’ certiorari action, “or some part thereof, arose.” The System urged in the district court, and argues on appeal, that venue is proper in Polk County, the only place where the System heard and acted on Simons’ case. Simons counters, and the district court ruled, that “some part of’ the cause of action arose in Jefferson County — the place where he worked as an officer, his claim for benefits arose, and all relevant witnesses reside.

The parties debate the controlling authority, citing two leading cases on the point — College of Physicians & Surgeons of Keokuk v. Guilbert, 100 Iowa 213, 69 N.W. 453 (1896) and State Appeal Board v. District Court of Pottawattamie County, 225 Iowa 296, 280 N.W. 525 (1938). In Guilbert — relied on by the System — this court considered a medical college’s challenge to the acts of the State Medical Board in withholding certificates of graduation. The college, located in Lee County, prevailed at trial on its claim that because a committee of the medical board undertook an investigation there and addressed its concerns via letters to the full board, “some part of this cause of action arose in Lee County.” 100 Iowa at 216, 69 N.W. at 454. On appeal this court disagreed, holding that the “illegal act” about which the college complained was the medical board’s final decision to withhold diplomas — a decision made in Polk County — not the committee’s recommendations flowing from Lee. Id. at 217-18, 69 N.W. at 455. Thus venue was proper in Polk, not Lee County. Id. at 219, 69 N.W. at 455.

Simons relies, conversely, on the decision in State Appeal Board. There, in keeping with what was known as the “Local Budget Law,” hearings to protest municipal tax levies were required to be held “in the county in which such municipality is located.” State Appeal Bd., 225 Iowa at 297, 298, 280 N.W. at 526. Thus the State Appeal Board set the required hearing in Pottawattamie County and assigned a deputy to preside; no member of the Board attended the hearing. Id. at 298-99, 280 N.W. at 526. Later, after the appeal board’s decision was considered and rendered in Polk County, a dispute arose over venue for the certiorari action that followed. Id. at 299, 280 N.W. at 527. In determining which “acts” gave rise to the cause of action, we focused on the location of the appeal proceedings, rather than the location of the Board’s final decision, as we did in Guilbert. We held the “appeal board in fixing the time and place of hearing, serving the notices thereof, and causing its agent to conduct the hearing at Council Bluffs constitutes a very definite act ... in Pottawattamie County.” Id. at 300, 280 N.W. at 527.

Simons argues State Appeal Board dictates that Jefferson County controls venue for this action. However State Appeal Board is factually and proeedurally distinguishable from Guilbert. The action in State Appeal Board was initiated by the filing of a protest with the auditor of Pot-tawattamie County and, by statute, all proceedings were filed there, including the Board’s final decision. By contrast to Guilbert — an action in certiorari challenging the medical board’s conduct in Polk County — clearly “some part of’ the cause of action in State Appeal Board arose in Pottawattamie, justifying venue there.

Here, no proceedings were held, or required to be held, in Jefferson County. Instead, the tribunal was located in Polk, all prior proceedings were held there, and it was in Polk that a final decision was rendered. Plainly the alleged “illegal acts” challenged by Simons occurred in Polk County, not Jefferson County, notwithstanding the fact that Simon’s benefits, if any, were earned there. See Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001) (issue on certiorari is whether decision maker acted illegally); Guilbert, 100 Iowa at 218, 69 N.W. at 455 (cause of action in certiorari arises in location where harm, i.e., alleged illegal action, is done). Thus, under section 616.3, proper venue for this certiorari proceeding is in Polk County, not Jefferson. We therefore reverse the contrary decision of the district court and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except STREIT, J., who takes no part.

      . We noted that, due to the nature of the case, it was not properly brought as a certiorari action so we treated it, instead, as an appeal. State Appeal Bd.., 225 Iowa at 297, 280 N.W. at 525. That procedural detail may further explain the difference in outcome from Guil-bert.


author: LAVORATO, Chief Justice.

text:
    Troy J. MEINDERS, Appellant, v. DUNKERTON COMMUNITY SCHOOL DISTRICT and Richard J. Wede, Appellees.
    No. 00-1867.
    Supreme Court of Iowa.
    June 12, 2002.

      James L. Sayre of James L. Sayre, P.C., Des Moines, for appellant.
    Beth E. Hansen and James DeKoster of Swisher & Cohrt, P.L.C., Waterloo, for appellees.
   LAVORATO, Chief Justice.

Troy J. Meinders appeals from a district court ruling dismissing his action against the Dunkerton Community School District (School District) and Richard J. Wede for their alleged negligence in offering him an unsigned contract for employment as a school teacher and coach in violation of Iowa Code section 279.13 (1999). We affirm the district court ruling on the ground that section 279.13 does not expressly or implicitly create a private cause of action.

I. Scope of Review.

Iowa Rule of Civil Procedure 1.954 (formerly Iowa Rule of Civil Procedure 222) allows any party, at any time, on motion, to have any judgment to which the party is entitled under the uncontroverted facts stated in all the pleadings. The function of such a motion is to test the sufficiency of the pleadings to present appropriate issues for trial. Roush v. Mahaska State Bank, 605 N.W.2d 6, 8 (Iowa 2000). The district court should only grant the motion if the pleadings, taken alone, entitle a party to judgment. Id. at 8-9. We review a grant of judgment on the pleadings for correction of errors at law. Iowa R.App. P. 6.4 (formerly Iowa R.App. P. 4); Roush, 605 N.W.2d at 8.

II. Facts.

The facts as set forth in the petition are as follows. On May 27, 2000, Meinders had an interview with Wede, superintendent of the School District, concerning employment with the School District as both a teacher and coach. At that time, Wede presented Meinders two separate contracts of employment. One was for employment as a teacher for the 2000-2001 school year, at a salary of $28,196. The other was for employment as assistant volleyball coach for the same period at a salary of $1,507.

Iowa Code section 279.13 requires that such contracts be signed by the president of the board of directors of the school district involved when such contracts are tendered to a prospective employee. Here, the two contracts in question were not signed by the president of the School District’s board of directors when Wede tendered the contracts to Meinders

A short time later, Wede informed Meinders that he had decided not to present the two contracts to the School District’s board and that the School District would not employ him for the 2000-2001 school year.

II. Proceedings.

In July 2000, Meinders sued the School District and Wede. The petition alleged that had the defendants complied with section 279.13, the two contracts would have been legally binding when signed by Mein-ders. The petition further alleged that failure on the part of the defendants to comply with section 279.13 caused Mein-ders damages in the amount of $29,703, the total amount represented by the two contracts.

The defendants’ answer admitted all of the allegations of Meinders’ petition except that the defendants denied that Wede tendered the two contracts to Meinders. Apparently, the reason for this denial is that “tendered” is a legal term of art meaning “an offer put forward for acceptance.” Black’s Law Dictionary 1480 (7th ed.1999).

Meinders moved for judgment on the pleadings on the ground that the admissions in the defendants’ answer conclusively established that the defendants did not comply with Iowa Code section 279.13. Meinders alleged in his motion that under section 279.13 the defendants had a duty to tender him contracts signed by the president of the board of directors of the School District, the defendants breached that duty, and such breach caused him damages as he alleged in his petition.

The defendants filed a resistance to the motion together with a cross-motion for judgment on the pleadings against Mein-ders. In their resistance, the defendants alleged that the unsigned documents that were presented to Meinders could not have constituted tendered contracts under Iowa Code section 279.13. The defendants also alleged that as a matter of law the defendants had no duty to tender a signed contract to Meinders.

In their cross-motion, the defendants alleged that (1) the contracts, which Mein-ders admitted were unsigned, cannot be construed as tendered contracts under section 279.13; (2) the defendants had no legal duty to tender a signed contract to Meinders; and (3) Meinders claimed damages only for economic loss in the amount represented by the contracts, damages that cannot be recovered in a negligence action.

The district court granted no relief on Meinders’ motion, stating that Meinders had presented no brief in support of his motion and no case law to support his theories. The court granted the defendants’ cross-motion for judgment on the pleadings on the ground that the damages Meinders alleged constituted economic loss damages, which as a matter of law are not recoverable in a negligence action.

Meinders appeals.

III. Issues.

Meinders contends the district court erred in granting the defendants’ motion for judgment on the pleadings and dismissing his petition. Specifically, he argues that the economic loss doctrine, relied on by the district court, does not apply in this case.

The defendants argue that the economic loss doctrine applies in this case and precludes recovery. In the alternative, the defendants argue that they had no legal duty to Meinders under section 279.13. Even if section 279.13 imposes a duty, violation of the duty does not give rise to a private cause of action because chapter 279 does not explicitly or implicitly create such an action.

Because we agree there is no express or implied cause of action under chapter 279, we limit our discussion to this issue, which both parties on appeal have addressed. Although the district court did not base its decision on this ground, we think the issue was sufficiently urged by the defendants in their cross-motion for judgment on the pleadings by the defendants’ contention they had no legal duty to Meinders to tender a signed contract under section 279.13. See Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa 1999) (“It is established that a successful party in the district court may, without appealing, save the judgment in whole or in part based on grounds urged in the district court but not included in that court’s ruling.”).

III. Express or Implied Contract.

A. Applicable law. Iowa Code section 279.13 provides in relevant part:

1. Contracts with teachers, which for the purpose of this section means all licensed employees of a school district and nurses employed by the board, excluding superintendents, assistant superintendents, principals, and assistant principals, shall be in writing and shall state the number of contract days, the annual compensation to be paid, and any other matters as may be mutually agreed upon. The contract may include employment for a term not exceeding the ensuing school year, except as otherwise authorized.
The contract is invalid if the teacher is under contract with another board of directors to teach during the same time period until a release from the other contract is achieved. The contract shall be signed by the president of the board when tendered, and after it is signed by the teacher, the contract shall be filed with the secretary of the board before the teacher enters into performance under the contract.

Iowa Code § 279.13 (emphasis added).

B. Analysis. Meinders contends the italicized language imposes a duty on the defendants to refrain from tendering contracts to prospective employees, like him, unless such contracts are first signed by the president of the school board. The statute therefore sets a standard of conduct for the protection of such prospective employees and a breach of that standard is actionable as negligence per se. The purpose of this provision, Meinders points out, is to ensure that the prospective employee is in receipt of a binding offer when the contract is tendered to him.

We have held that a “violation of a statutory duty gives rise to a tort claim only when the statute, explicitly or implicitly, provides for such a cause of action.” Kolbe v. State, 625 N.W.2d 721, 726 (Iowa 2001) (quoting Sanford v. Manternach, 601 N.W.2d 360, 371 (Iowa 1999)). Without such a provision, the violation of a statutory duty does not give rise to a private cause of action. Id.

There is no provision in Iowa Code chapter 279 expressly providing a cause of action for violation of section 279.13. We must therefore employ the following four-factor test to determine whether a private cause of action against the defendants may be implied from section 279.13:

1. Is the plaintiff a member of the class for whose benefit the statute was enacted?
2. Is there any indication of legislative intent, explicit or implicit, to either create or deny such a remedy?
3. Would allowing such a cause of action be consistent with the underlying purpose of the legislation?
4. Would the private cause of action intrude into an area over which the federal government or a state administrative agency holds exclusive jurisdiction?

Id. at 726-27 (citations omitted).

There is no implied cause of action if any one of these factors is not satisfied. Id. at 727. Because the fourth factor is not implicated here, it plays no part in our analysis.

As for the first factor, we can certainly agree that one of the purposes of the statutory requirement — the contract be signed by the board president when tendered to the prospective employee — is for the protection of such employee. The requirement dictates that the board be the offeree. What happened here turns the requirement on its head. Instead of the board being the offeree, Meinders was the offeree. In such circumstances, prospective employees like Meinders would be in danger of precluding themselves from accepting other favorable employment until the board either accepts or rejects the offer. We conclude the first factor is satisfied: Meinders is a member of the class for whose benefit section 279.13 was passed.

As for the second factor, there is no express indication in Iowa Code chapter 279 of legislative intent to create a private cause of action, i.e., recovery of money damages for a violation of section 279.13. We therefore turn to whether there is any indication of legislative intent to implicitly create such an action.

The only remedies chapter 279 provides are those dealing with termination of a teacher’s continuing contract. See Iowa Code §§ 279.13(2) (providing for automatic renewal of teacher’s contract); 279.15 (providing procedure for recommending termination of teacher’s continuing contract); 279.16 (providing for hearing regarding termination recommendation); 279.17 (providing for appeal of decision terminating teacher’s continuing contract to adjudicator who “may affirm board action or remand to the board for further proceedings”; adjudicator “shall reverse, modify, or grant any appropriate relief from the board action if substantial rights of the teacher have been prejudiced” because board action is “[i]n violation of a board rule or policy, or contract ” or “[ujnsup-ported by a preponderance of the competent evidence in the record” before the board or “[ujreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion” (emphasis added)); 279.18 (providing that either party may appeal arbitrator’s decision to district court if such party has rejected arbitrator’s decision; district court “shall reverse, modify, or grant any other appropriate relief from the board decision or the adjudicator’s decision equitable or legal and including declaratory relief if substantial rights of the petitioner have been prejudiced because of’ several enumerated grounds, including, “violation of a board rule, or policy or contract ” (emphasis added)).

There is no mention of a money damage remedy based on tort for a violation of the requirement in section 279.13 regarding a tender of a signed contract to a prospective employee. By not including such a remedy, we think the legislature has signaled its intention not to provide a private cause of action for a violation of section 279.13.

In two of our cases we have similarly concluded that by providing specific remedies for violation of a statute without providing a private 'cause of action for its violation, the legislature intended to exclude such a remedy. See Sanford, 601 N.W.2d at 371 (legislature’s listing of relief in postconviction relief statute that did not include money damage remedy for violation of good-conduct time statute signaled legislature’s intention not to allow a private cause of action for the violation); Marcus v. Young, 538 N.W.2d 285, 289-90 (Iowa 1995) (by providing a number of remedies for violation of Iowa Code chapter 22 — the open records law — the legislature intended not to allow a private cause of action for the violation). In reaching this conclusion in these cases, we relied on the statutory construction rule of “expres-sio unius est exclusio alterious” — expression of one thing is the exclusion of another. Sanford, 601 N.W.2d at 371-72; Marcus, 538 N.W.2d at 289. This rule recognizes that “legislative intent is expressed by omission as well as by inclusion, and the express mention of one thing implies the exclusion of others not so mentioned.” Marcus, 538 N.W.2d at 289.

Even were we to say that recognition of a private cause of action would be consistent with section 279.13 — the third factor of the test — the lack of any sign that the legislature intended to create such an action is fatal to Meinders’ case. We therefore conclude the district court correctly granted the defendants’ motion for judgment on the pleadings, although on a ground urged but not decided by the court.

Y. Disposition.

Because the district court was correct in its ruling, we affirm.

AFFIRMED.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Kongsavanh KEOPASAEUTH, Appellant.
    No. 99-1960.
    Supreme Court of Iowa.
    June 12, 2002.

      Christopher A. Kragnes, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael T. Hunter and Michelle Che-noweth, Assistant County Attorneys, for appellee.
   CARTER, Justice.

Defendant appeals from the judgment and sentence entered following his convictions of assault causing serious injury, burglary in the second degree, two counts of assault with intent to cause serious injury, and criminal mischief in the fourth degree. Defendant contends the district court erred in denying his motion for judgment of acquittal, as there was insufficient evidence to support his convictions. Defendant further contends the district court abused its discretion by sentencing him to consecutive terms of imprisonment. The court of appeals disagreed and upheld the convictions and sentence. After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals and the judgment of the district court.

The evidence presented at trial was substantially as follows. On the evening of July 3, 1999, defendant Kongsavanh “Bobby” Keopasaeuth and three friends, Hac Lemvan, Loby Lovan, and Sourisack Pra-seuth, purchased bottled beer from the Oasis Liquor Store in Des Moines. While they were still at the liquor store, the victims, Morgan Wright, Morris Wright, and Michael Smith arrived in a truck to make a purchase. Lovan’s sister and uncle also arrived at the store and parked next to the Wright truck.

While Morgan Wright was making the purchase, Morris Wright and Michael Smith made some sexually degrading comments to Lovan’s sister. She informed her brother, defendant, and their companions about the comments. Lovan jumped on the hood of the truck and smashed the windshield. Defendant and Lemvan also attempted to hit Morris through the vehicle’s open window. Following this altercation, defendant and his companions got into their vehicle and began to drive away. The Wright truck had driven out of the parking lot, but then circled back and rammed their car, breaking a taillight. Defendant and his friends sped away, pursued by the Wright truck.

The two groups eventually met up at a grocery store parking lot. Testimony differs as to which group ran toward the other; however, the two groups were involved in another altercation. Defendant and his companions admitted to throwing beer bottles at the victims. The fight progressed from the street to the sidewalk and finally into the grocery store parking lot. An off-duty policeman was able to break up the fight.

Morgan Wright had been hit in the forehead with a beer bottle, which caused a serious cut requiring twenty-two stitches. Michael Smith’s front teeth had been knocked out by a beer bottle. Morris Wright had been stabbed twice with a broken beer bottle and went into profound shock. By the time he arrived at the hospital, he was at risk of death. The defendant was treated for a laceration on his hand, and Praseuth was treated for a bite wound. Additional facts relevant to the issues on appeal will be discussed in connection with the legal arguments that have been presented.

I. Sufficiency of the Evidence to Support the Convictions.

Challenges to the sufficiency of the evidence are reviewed for errors at law. Iowa R.App. P. 6.4; State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000). The court views the evidence in the light most favorable to the State, including all reasonable inferences that may be fairly drawn from the evidence. Jacobs, 607 N.W.2d at 682. All evidence is considered, not just that of an inculpatory nature. Id. A jury verdict is upheld if it is supported by substantial evidence. Id.

A. Was there sufficient evidence to support the assault convictions? The basis for defendant’s argument is that there is no evidence he personally assaulted, or aided and abetted in the assault against the victims. Defendant further contends that, even if he did participate in the altercation, his actions were justified.

Iowa Code section 708.1(1) defines an assault as:

Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.

Alternatively, an assault can be an act intended to place a person in fear of “immediate physical contact which will be painful, injurious, insulting, or offensive.” Iowa Code § 708.1(2).

At trial the State offered substantial testimony regarding defendant’s participation in the altercation. All of the victims and several bystanders testified that defendant was actively involved in the fighting and throwing of beer bottles. Alternatively, conviction of a crime upon a theory of aiding and abetting requires sufficient evidence to show the person assented to or lent countenance and approval to the act by active participation in it or by encouraging it prior to or at the time of its commission. State v. Doss, 355 N.W.2d 874, 877-78 (Iowa 1984). Defendant’s active participation in the altercations could reasonably be construed as an assault or as assent to the acts committed by his companions.

We further reject defendant’s contention that there was insufficient evidence to prove his actions were unjustified. While there was minimal testimony suggesting the victims provoked the altercations, the jury was free to reject that evidence and give credit to evidence offered by the prosecution to show that defendant and his associates were the aggressors. See State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994) (jury is free to reject certain evidence and credit conflicting evidence). The ultimate issue is whether, in viewing the record as a whole, a rational trier of fact could have found that the elements of the crime were established beyond a reasonable doubt. Id. We conclude that a rational trier of fact could have reached that conclusion.

B. Was there sufficient evidence to support the burglary conviction? The basic burglary statute provides:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public ... commits burglary.

Iowa Code § 713.1. Burglary in the second degree is burglary perpetrated in or upon an occupied structure in which one or more persons are present. Iowa Code § 713.5(2). Two of the victims, Michael Smith and Morris Wright, testified that defendant and one of his companions attempted to hit Morris through the open window of the truck while he was seated in the front seat. This was confirmed by the liquor store clerk who testified that she observed defendant or one of his companions on the driver’s side of the Wright truck punching someone through the driver’s window.

An “entry” has béen defined as “entering a structure with any part of the body, or with an instrument intended to -be used to commit a felony, assault or theft.” State v. Nichols, 572 N.W.2d 163, 164 (Iowa Ct.App.1997) (approving II Iowa Crim. Jury Instructions 1300.12 (1993)). An entry occurs even if a person merely breaks the plane of the threshold of the structure. State v. Pace, 602 N.W.2d 764, 773 (Iowa 1999).

An “occupied structure” includes any building, structure, appurtenances to buildings and structures, land, water, or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value.

Iowa Code § 702.12.

There is agreement among the members of the court that defendant in attempting to hit Morris did so with the intent to commit an assault. Three justices also conclude that in so doing defendant perpetrated an entry of an occupied structure. Three justices conclude that the evidence failed to establish the entry of an occupied structure. One justice takes no part in the decision. Consequently, defendant’s conviction of burglary in the second degree is affirmed by operation of law by an equally divided court. See Iowa Code § 602.4107 (when court is equally divided, judgment of the court below shall stand affirmed).

C. The criminal-mischief conviction. Although defendant asserts that his criminal-mischief conviction was also not supported by substantial evidence, he has made no argument to support that contention. Consequently, we consider his challenge to that conviction as waived. See Hollingsworth v. Schminkey, 553 N.W.2d 591, 596 (Iowa 1996) (failure to argue issue constitutes waiver of same).

II. Sentencing.

Defendant contends that the sentencing judge overly emphasized the nature of the offense and defendant’s prior criminal history and failed to consider other relevant sentencing factors. Defendant’s argument on this point is premised on facts we believe the jury had to reject in order to convict defendant on the charges presented. The sentencing judge acknowledged having received the presen-tence-investigation report, which indicated a prior incarceration for a weapons conviction.

The State requested that consecutive sentences be imposed. The sentencing judge concluded that consecutive sentences were proper, imposed such sentences, and then stated his reasons for so doing on the record. Although the reasons do not need to be detañed, they must be sufficient to allow appellate review of the discretionary action. Jacobs, 607 N.W.2d at 690. The sentencing judge must also give reasons for imposing consecutive sentences. Id. Defendant argues that no reason was given for imposing consecutive sentences. We disagree. The State had argued to the court for consecutive sentences, consecutive sentences were imposed, and thereafter reasons for the sentence that had been pronounced were articulated.

In ordering that the sentences would run consecutively, the sentencing judge stated:

The question of whether you were defending yourself was presented to the jury. The jury disagreed. I do as well, and I believe there were opportunities for you to break this off. There were opportunities for you not to take beer bottles and use them as weapons.
I understand your view, [counsel], concerning the gentlemen that were involved in this incident, but it was precipitated by and accelerated by the conduct of your client. I think, although the prior conviction is an aggravated misdemeanor, it’s a demonstration of willingness to use weapons, to be violent, and that’s wrong, and I think there were adequate opportunities for your client to turn himself away from this, to try and persuade his companions away from this, and he did not.
This sentence is premised upon the Defendant’s past criminal history, the seriousness of this offense, and the opportunity the Court had to listen to this evidence and the defense that Mr. Keo-pasaeuth continues to maintain.

We conclude the district court provided sufficient reasons for imposing sentences of incarceration and ordering the sentences to run consecutively.

We have considered all arguments presented and conclude that the decision of the court of appeals and the judgment of the district court should be affirmed.

DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.

A1Í justices concur except STREIT, J., who takes no part.

      . Justices Larson, Carter, and Ternus would affirm defendant's burglary conviction, while Chief Justice Lavorato, and Justices Neuman and Cady would reverse on that issue.


author: /s/ Paul H. Anderson Associate Justice

text:
    William A. FLANAGAN, Respondent, v. SOUTHERN MINNESOTA CONSTRUCTION CO., and CNA/Transportation Insurance, Respondents, and MN Department of Economic Security, Intervenor, and HMO Minnesota, d/b/a Blue Plus, Relator.
    No. C8-02-546.
    Supreme Court of Minnesota.
    June 19, 2002.
    Ruth M. Harvey, Chesley, Kroon, Chambers & Harvey, Mankato, for employee-respondent.
    Jeffrey A. Magnus, Law Office of Joseph M. Stocco, Minneapolis, for employer/insurer-respondent.
    Mark A. Fredrickson, David M. Bateson, Rider, Bennett, Egan & Arundel, L.L.P., Minneapolis, Michael A. Hatch, MN Atty. Gen., St. Paul, for intervenor-relator.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 8, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ. App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    James C. HARRELL, Respondent, v. Johnny ROHRBOUGH, Respondent, and Employers Insurance of Wausau, Relator, and Consulting Radiologists, Ltd., and Special Compensation Fund, Intervenors.
    No. C0-02-461.
    Supreme Court of Minnesota.
    June 19, 2002.
    Michael G. Schultz, Sommerer & Schultz, P.A., Minneapolis, for employee-respondent.
    Howard Y. Held, Fitch, Johnson, Larson, Walsh & Held, P.A., Minneapolis, for employer-respondent.
    Gay B. Urness, Conley & Borgeson, St. Paul, for insurer — relator.

      Karen Swanton, St. Paul, for respondent-special compensation fund.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed February 21, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ. App. P. 136.01, subd. 1(b).

BY THE COURT:

/s/ Edward C. Stringer Associate Justice


author: HUSPENI, Judge.

text:
    In re the WILL and appointment of Estate OF Thomas J. KIPKE, deceased, Respondent, and Conservatorship of Carol Kipke and Life Insurance Company of the Southwest, Respondent, v. John G. KIPKA, Appellant, and Terrance J. Kipke, et al., Intervenors.
    No. C5-01-1966.
    Court of Appeals of Minnesota.
    June 4, 2002.

      James B. Gasperini, Afton Law Office, P.A., Afton, for respondent Estate of Thomas Kipke.
    David T. Magnuson, Margaret M. Murphy, Magnuson Law Firm, Stillwater, for appellant.
    George L. May, May & O’Brien Law Offices, Hastings, MN, for intervenors.
    Considered and decided by HALBROOKS, Presiding Judge, PETERSON, Judge, and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

In challenging the district court’s grant of summary judgment to intervenors and respondent estate, appellant argues that the district court erred in determining that (1) the Minnesota Durable Power of Attorney Act prohibits appellant from receiving benefits of a decedent’s non-probate assets because decedent designated appellant as his attorney-in-fact prior to naming him a beneficiary of those assets, (2) the decedent’s change of beneficiary on annuity life insurance policies was invalid, and (3) appellant was not the rightful owner of a checking account in his name and an IRA on which he was a beneficiary. We affirm in part and reverse in part.

FACTS

On May 17, 1999, decedent Thomas Kip-ke executed a statutory Short Form Power of Attorney designating his grandson, appellant John G. Kipka, attorney-in-fact. Shortly thereafter, decedent revoked a previously executed power of attorney under which his son, intervenor Terrence Kipke, had been designated attorney-in-fact. After appellant became attorney-in-fact, decedent established an IRA account naming appellant as beneficiary and a checking account in appellant’s name.

Subsequent to appellant becoming attorney-in-fact, decedent also changed the beneficiary on three of his annuity life insurance policies, naming appellant as beneficiary. Decedent’s sons, intervenors Terrence K. Kipke and John K. Kipke, had previously been beneficiaries under the policies. When decedent completed the change of beneficiary forms, he neglected to have his signature witnessed. He sent the forms to his insurance agent’s office. An employee there, Andrea Gagne, signed her name on the witness line and submitted the forms to the insurers. The insurers accepted the forms and sent letters acknowledging that the changes in beneficiary had been made.

Subsequent to decedent’s death, respondent Estate of Thomas Kipke brought an action to declare that the checking account and the IRA were estate assets. Interve-nors brought an action to set aside the beneficiary changes in the three annuity policies. Appellant brought an action seeking to declare the beneficiary changes valid and seeking ownership of the IRA, the checking account, and the three annuity policies. Pursuant to stipulation of the parties and order of the court, the insurance companies deposited their respective annuity sums in escrow, and were dismissed from this action.

On the day of trial, the parties stipulated that there were no factual disputes, and agreed to submit all issues by means of summary judgment motions. The district court concluded that Minn.Stat. § 523.24 (2000) of the Minnesota Durable Power of Attorney Act prohibited appellant from receiving any of the annuity life insurance proceeds because he had been named an attorney-in-fact by decedent before the beneficiary changes were made on the annuity policies. The court also concluded that because the insurance companies processed the change in beneficiary forms without requiring that the forms be properly witnessed, the beneficiary changes were invalid. Finally, the court determined that the checking account and the IRA were assets of the estate because decedent did not intend that these accounts be transferred to appellant upon decedent’s death.

ISSUES

1. Did the district court err in concluding that Minnesota’s Durable Power of Attorney Act, Minn.Stat. § 523.24, subd. 6(3) (2000), prohibited a principal from designating an attorney-in-fact as the beneficiary of insurance?
2. Did the district court err in rescinding insurance policy beneficiary changes that were made prior to death partly on the basis that the changes were made without being properly witnessed?
3. Did the district court err in concluding that the decedent did not intend that a checking account and an IRA would pass to appellant?

ANALYSIS

In an appeal from a summary judgment where the parties agree that the material facts are not in dispute, our review is limited to determining whether the district court erred in its application of the law. Reads Landing Campers Ass’n v. Township of Pepin, 546 N.W.2d 10, 13 (Minn.1996). Where the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 856 (Minn.1998).

Durable Power of Attorney Act

Minn.Stat. § 523.24, subd. 6(3) (2000), a provision of the Minnesota Durable Power of Attorney Act (act), governs the authority of an attorney-in-fact to make decisions regarding the insurance policies of the principal. It reads, in pertinent part:

In a statutory short form power of attorney, the language conferring general authority with respect to insurance transactions, means that the principal authorizes the attorney-in-fact * * * to change the beneficiary of the contract of insurance, provided, however, that the attorney-in-fact cannot be a new beneficiary except, if permitted under subdivision 8, the attorney-in-fact can be the beneficiary of death benefit proceeds under an insurance contract, or, if the attorney-in-fact was named as a beneficiary under the contract which was procured by the principal prior to the granting of the power of attorney, then the attorney-in-fact can continue to be named as the beneficiary under the contract or under any extension or renewal of or substitute for the contract.

Minn.Stat. § 523.24, subd. 6(3).

Respondent estate and intervenors argue that the statute limits the ability of both the principal and the attorney-in-fact to name the attorney-in-fact as a beneficiary. Appellant, to the contrary, argues that the clear language of the statute limits only the ability of the attorney-in-fact to make beneficiary designations, and that the statute does not address any powers of the principal. We find the argument of appellant to be the more persuasive one.

When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.

Am. Fam. Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation omitted). Here, because the statute is not particularly clear and the parties provide reasonable but opposing interpretations, we conclude that the statute is ambiguous. Arguably, the ambiguity lies in the “passive” voice in which the statute declares that “the attorney-in-fact cannot be a new beneficiary.” Where a statute is ambiguous, a court applies established canons of construction and must presume that the legislature did not intend absurd and unreasonable results. Minn.Stat. § 645.17(1) (2000).

Respondent estate and intervenors urge that “statutory enactments * * * are to be read in harmony with the existing body of law * * * unless an intention to change or repeal * * * is apparent.” Swogger v. Taylor, 243 Minn. 458, 465, 68 N.W.2d 376, 382 (1955). There is a presumption against a change in the common law that is especially strong where the change would be contrary to public policy. Kelly v. First Minneapolis Trust Co., 178 Minn. 215, 218, 226 N.W. 696, 697 (1929). Thus, argue respondent estate and interve-nors, the statute prohibits attorneys-in-fact from being named beneficiaries in order to foster public policy concerns and to enforce common-law agency duties that prohibit attorneys-in-fact from self-dealing. While we do not disagree with the argument raised in reference to attorneys-in-fact, we fail to see how prohibiting a principal from designating his attorney-in-fact as a beneficiary counters the wisdom of the common-law duty prohibiting attorneys-in-fact from self-dealing.

We agree with appellant’s observation that interpreting the statute as a limitation on a principal’s power to act would prohibit a spouse who was a principal, from naming the other spouse a beneficiary on any insurance policy, once that other spouse is named an attorney-in-fact. In-tervenors attempt to weaken this observation by noting that powers of attorney are usually not given unless the principal is in poor health; a time at which life insurance beneficiaries have long since been designated. We cannot read into the statute, however, a legislative intent that powers of attorney are to be executed only by those in ill-health. Indeed, the “Short Form Power of Attorney” document itself contains a provision for automatic termination of the powers granted upon commencement of dissolution, legal separation, or annulment of marriage. Minn.Stat. § 523.23, subd. 1 (2000). This language, it seems to us, indicates that the legislature contemplated use of the creation of the durable power of attorney long before ill health plagued the principal.

Intervenors also argue that persons could avoid the limitations contained in the statute by granting power of attorney under a common-law power of attorney, rather than utilizing the statutory Short Form Power of Attorney. This argument, however, appears to contradict intervenors’ earlier argument: that common-law duties prohibit self-dealing by attorneys-in-fact.

Respondent estate argues that appellant’s interpretation of Minn.Stat. § 523.24, subd. 6(3), would render meaningless the provisions of Minn.Stat. § 523.24, subd. 8 (2000), which limits the attorney-in-fact’s ability to make gift transactions. Subdivision 8 reads, in pertinent part:

notwithstanding that the principal * * * may have authorized the attorney-in-fact to transfer the principal’s property to the attorney-in-fact, no attorney-in-fact * * * may be the recipient of any gifts in any one calendar year which, in the aggregate, exceed $10,000 in value to each recipient.

Minn.Stat. § 523.24, subd. 8(2).

We note initially that the Short Form Power of Attorney requires the principal to elect whether the attorney-in-fact is authorized to transfer the principal’s property to the attorney-in-fact. Minn.Stat. § 523.23, subd. 1 (2000). Here, decedent elected not to provide this power to appellant. Respondent estate argues that inasmuch as subdivision 8(2) applies in cases where an attorney-in-fact is authorized to transfer the principal’s property to the attorney-in-fact, it follows that subdivision 6(3) must apply only to those instances, such as exists here, where the attorney-in-fact is not so authorized to transfer the principal’s property. Therefore, respondent estate concludes that subdivision 6(3) functions to limit the ability of an attorney-in-fact to benefit from an act by the principal. To the extent that we are able to follow the logic of this argument, both the logic and the argument fail. Subdivision 8 in no way limits the authority of a principal to act, nor does the subdivision reference any authority of the principal to act under subdivision 6(3).

Finally, in our effort to determine whether Minn.Stat. § 523.24, subd. 6(3), limits in any way the authority of a principal to act, we find particularly persuasive the following language appearing at the top of the “Short Form Power of Attorney” document: “[t]his power of attorney authorizes but does not require, the attorney-in-fact to act for you.” Minn.Stat. § 523.23, subd. 1. If, because of this language, an attorney-in-fact chose not to act, and if we were to decide that because of the language of Minn.Stat. § 523.24, subd. 6(3), a principal was prohibited from acting, not only would the purpose of appointing an attorney-in-fact in the first place largely be frustrated, but the assets of a principal likely would be under the control of no one. Instead, we believe, the document language implicitly recognizes that the principal retains the right to act with regard to the principal’s property, notwithstanding the statutory limitations placed upon the attorney-in-fact. If we were to read subdivision 6(3) so as to limit the power of a principal to act, we believe we would render the statute unreasonable and absurd. See Minn.Stat. § 645.17 (2000) (when a statute is ambiguous, this court must presume legislature did not intend an absurd and unreasonable result).

Therefore, we conclude that the statute does not limit the principal’s ability to control his property, including making beneficiary changes. Accordingly, appellant is not precluded by the act from receiving benefits as a beneficiary of decedent’s annuity policies.

Change of Beneficiary to Insurance Annuity Contracts

Having concluded that Minn.Stat. § 523.23, subd. 6(3), permits a principal to name his attorney-in-fact as a beneficiary, we must determine whether the district court erred in invalidating the change of beneficiary forms executed by decedent. We note initially that the change of beneficiary forms were accepted by the insurance companies, and that the changes were actually made to the policies. While there is no dispute that decedent had authority under the policies to change beneficiaries, the policies required that the change of beneficiary form be completed and signed by the insured and by a witness.

The district court concluded that decedent’s non-compliance with the witness requirement on the change of beneficiary forms invalidated the changes he requested. In reaching this conclusion, the court relied on Bhd. of R.R. Trainmen v. Benson, 45 F.2d 421 (D.Minn.1930). In Benson, the court stated the rule that an insured must change a beneficiary designation in a manner pointed out by contract and any material deviation will ordinarily invalidate the transfer. Id. at 424. Benson also listed exceptions to that rule, however, and ultimately upheld the change in beneficiary despite deviation from the policy provisions regarding a change in beneficiary. Id. at 425. We find reliance on Benson to be misplaced.

Moreover, the supreme court has made clear that “a change of beneficiary may properly be effected in spite of the failure of the insured to comply with each and every policy requirement.” Lemke v. Schwarz, 286 N.W.2d 693, 695 (Minn.1979) (citations omitted). This is because

[s]uch provisions are for the protection of the insurer, and where, as here, the insurance company has deposited the proceeds of the policy to be paid in accordance with the order of the court, it has waived any defense it might have to the claim of either party.

Id. (quoting Brown v. Agin, 260 Minn. 104, 109, 109 N.W.2d 147, 150 (1961)). In this case, the insurers processed the change of beneficiary forms and, in fact, changed the beneficiary to reflect the decedent’s request. The insurers have raised no objection to payment, and all proceeds have been deposited in the court. Therefore, pursuant to Lemke, we are required to apply a two-part test asking:

(1) whether the insured intended to change the beneficiary and (2) whether [the insured] took affirmative action or otherwise did substantially all that he could do to demonstrate that intention without regard to whether he complied with the change-of-policy beneficiary provision in the policy.

Id. (citing Brown, 260 Minn, at 109, 109 N.W.2d at 151).

Here, based on the undisputed facts, decedent called his agent’s office, requested the change in beneficiary forms and an employee, Andrea Gagne, completed the top portion of the forms and sent them to decedent for his completion and signature. He then completed and signed the forms and returned them to the agent’s office, whereupon Gagne signed her name, as a witness rather than returning the form to decedent to procure a witness to his own signature. Gagne then sent the forms to the respective insurance companies who accepted them and effected the changes. Decedent was never told that the forms were improperly completed; his intention was clearly to change beneficiaries. He took affirmative action to do so. Under the circumstances, decedent did everything practicable to effect the change.

Respondent estate and interve-nors argue on appeal that Gagne had no authority to bind the insurance companies because no agency relationship existed between her and the insurance companies. The existence of an agency relationship is a question of fact. White v. Boucher, 822 N.W.2d 560, 566 (Minn.1982). We note again, however, that the parties agreed that there was no dispute as to any facts in this case and submitted all issues for resolution by summary judgment. The question of agency, therefore, was not addressed by the district court.

A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.

Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). Therefore, we do not address the question of agency.

The record reveals that decedent substantially complied with the provisions of the annuity life insurance policies in making a change of beneficiary. We, therefore, reverse the district court’s determination that the change of beneficiary was invalid.

Checking Account and IRA Account

The district court concluded with respect to the IRA and checking accounts that first, these accounts were assets of decedent’s estate because they were intended for use by him when he was alive and that appellant never considered these funds to be his. Second, the court concluded that Minn.Stat. § 528.24, subd. 6(3), precluded appellant’s receipt of these assets.

Because of our determination that the act does not limit the ability of the principal to name his attorney-in-fact as a beneficiary, the district court’s conclusion that appellant was prohibited by Minn.Stat. § 523.24, subd. 6(3), from receiving the IRA and checking account proceeds is erroneous. Moreover, subdivision 6(3) addresses only insurance transactions, not IRAs or checking accounts.

With respect to the court’s conclusion that the checking account was an asset of decedent’s estate, appellant argues that he has a right of survivorship and cites as support Minn.Stat. § 524.6-204 (2000), which states:

[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention.

The checking account established in appellant’s name was not a joint account, however. Therefore, there is no right of sur-vivorship under the statute. Respondent estate argues (and the district court agreed) that because appellant admits that the checking account assets were decedent’s for use to pay bills while he was alive, there is no evidence that decedent intended them to pass to appellant after death. We agree. We, therefore, conclude that the district court correctly determined that the checking account was an asset of decedent’s estate.

We reach the opposite conclusion with regard to the IRA, however. Decedent’s intentions regarding that account were clear. He named appellant the beneficiary of that account. Because we have determined that a principal retains the right to make beneficiary changes under the act, including the right to designate his or her attorney-in-fact a beneficiary, and we are directed to no other statutory authority under which a principal’s power over an IRA would be limited, the IRA is rightly appellant’s.

DECISION

We reverse the district court’s determination that appellant was prohibited by statute from receiving benefits of the decedent’s annuity policies and IRA account. We reverse the district court’s determination that the change of beneficiary on decedent’s annuity insurance policies was invalid. We affirm the district court’s award of decedent’s checking account to respondent estate.

Affirmed in part and reversed in part.

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

      . Intervenors suggest that the standard of review is abuse of discretion because summary judgment was rendered in an interpleader action. Interpleader actions are generally governed by equitable principles and rules. Metro. Life Ins. Co. v. Belland, 583 N.W.2d 592, 593 (Minn.App.1998) (citing Brajovich v. Metro. Life Ins. Co., 189 Minn. 123, 129, 248 N.W. 711, 714 (1933)). However, the summary judgment on appeal here resulted from the parties' agreement that there was no factual dispute, and that the decision was one of law. Both awards of summary judgment and questions of statutory interpretation are reviewed de novo.

      . To the extent the parties attempt to raise questions of fact in their appellate briefs, those questions were not litigated in district court; the parties agreed there that the relevant facts were not in dispute. A reviewing court will not address an issue raised in the district court if the district court did not rule on the issue. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988).

      . While respondent argues no agency relationship exists, it concedes the issue is not properly before this court. As to intervenors, who were the prior beneficiaries under the policies, Benson, 45 F.2d at 424, states:
      Where the [insurance company] has waived strict compliance with its own rules, and in pursuance of a request of the insured has issued to him a new certificate in which the beneficiary is changed, the original beneficiary cannot complain that the course indicated by the regulations was not pursued.

      . Decedent’s IRA was a self-directed rollover plan funded by proceeds from a 401(k) employee benefit plan. Minn.Stat. § 523.24, subd. 7 (2000), addresses beneficiary transactions, including trusts, guardianship, escrow, qualified and nonqualified benefits plans, and individual retirement assets. Minn.Stat. § 523.24, subd. 4 (2000), addresses banking transactions. Neither of these subdivisions contains any language limiting the ability of an attorney-in-fact to be a beneficiary of a checking account or an IRA asset. See id., subds. 4, 7 (2000).


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Jesse Salvidor ROSILLO, Defendant, Interstate Bonding, Inc., et al., Appellants.
    No. C3-01-1979.
    Court of Appeals of Minnesota.
    June 18, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Susan J. Hudson, Assistant County Attorney, St. Paul, MN, for respondent.
    Frank A. Arend Schulte, St. Paul, MN; and Peter D. Plunkett, Austin, MN, for appellants.
    Considered and decided by LANSING, Presiding Judge, and G. BARRY ANDERSON, Judge, and PORITSKY, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

Interstate Bonding, Inc., and Minnesota Surety & Trust Co. (appellants) issued a $50,000 bail bond to guarantee defendant Jesse Rosillo’s appearance. After defendant failed to appear at a trial-management conference, the district court forfeited the bond, but never notified appellants of the forfeiture. Defendant was arrested and brought before the district court, which reinstated the $50,000 bond without notification to appellants and increased defendant’s bail to $75,000. Defendant obtained a second bail bond from appellants for $25,000 without advising appellants of the forfeiture and reinstatement. After several months, defendant again failed to appear, this time for his trial date. The district court forfeited both bail bonds, and appellants moved for reinstatement and discharge of the bonds. Because we conclude the district court abused its discretion by denying appellants’ motion, we reverse and remand.

FACTS

On April 10, 2000, defendant posted a bail bond, issued through appellants, after police arrested him for a drug-related offense. Defendant’s bond was originally set at $50,000 because of his criminal record.

On May 16, 2000, defendant failed to appear for a trial-management conference; the district court found that defendant was “thumbing his nose” at the district court and ordered the $50,000 bond forfeited. The district court issued a bench warrant stating that the bond was forfeited. But appellants were never notified that the bond was forfeited.

On May 18, 2000, defendant was arrested and brought before a different district court judge who reinstated the $50,000 bond issued by appellants and increased defendant’s bail to $75,000, even though, as the prosecution argued, the rules of general practice required the reinstatement to be handled by the first district court judge. Appellants were neither present nor represented by counsel at the second district court proceeding, and appellants were never notified that the bond was reinstated.

Defendant contacted appellants and secured an additional $25,000 bond, without notifying appellants about the forfeiture; defendant also lied regarding the circumstances of the increase. Appellants authorized the additional $25,000 bond without knowing that the original $50,000 bond had been forfeited and reinstated by the district court during the second district court proceeding.

On May 24, 2000, the district court judge who first heard the matter refused to participate in any further proceedings, concluding that he could no longer be impartial.

On October 30, 2000, defendant failed to appear for a scheduled jury trial. On October 31, the district court judge then presiding over defendant’s case forfeited both bonds ($50,000 and $25,000 respectively). Appellants first became aware of any forfeiture on November 16, when they learned of the results of the October 31 proceeding. After unsuccessfully attempting to locate defendant, appellants brought a motion to reinstate and discharge both bonds.

An exchange of correspondence then ensued concerning the proper venue of the petition to reinstate and discharge both bonds. Finally, in August 2001, the district court judge who had forfeited both bonds heard appellants’ motion. Appellants’ motion for reinstatement and discharge was denied, and this appeal followed.

ISSUES

I. Does Minn. R. Gen. Prac. 702(e) require the court administrator to notify a surety and bonding company of the forfeiture of a bail bond even if the bond is reinstated only 3 days after forfeiture?

II. Did the district court abuse its discretion by forfeiting both bail bonds?

ANALYSIS

I.

Appellants claim that the failure on the part of the court administrator to provide notification that the bond had been forfeited deprived appellants of the right to procedural due process.

Construction of a court rule presents a question of law, which this court reviews de novo. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn.1996) (examining rule of civil procedure under de novo standard).

Minn. R. Gen. Prac. 702(e) states: “[w Whenever a bail bond is forfeited by a judge, the surety and bondsman shall be notified by the court administrator in writing * * (Emphasis added.) In an email from an accounting manager for the Ramsey County District Court to the district court, the accounting manager stated, “In my opinion, it does not seem efficient that the clerk’s office needs to send a forfeiture notice to an agent after it has already been reinstated.”

Whether efficient or not, the rule makes no exception allowing court administrators to ignore the requirement of notice of forfeiture merely because the bond was quickly reinstated. The rule clearly states that the court administrator “shall” notify the surety and the bondsman. This court has already made clear that use of the word “shall” in another subsection of Minn. R. Gen. Prac. 702 is a mandatory instruction. See State v. Williams, 568 N.W.2d 885, 888 (Minn.App.1997) (holding that “shall” language in rule 702(h) conveys a mandatory act), review denied (Minn. Nov. 18, 1997); see also Minn.Stat. § 645.44, subd. 16 (2000) (stating “shall” is mandatory).

In the order that is the subject of this appeal, the district court stated,

As against a surety, a bond is not effectively forfeited until the surety receives written notice as required by the rule within a reasonable time after an order of forfeiture.

This statement is incorrect; a bond is effectively forfeited when the district court orders forfeiture, which is what happened here. Written notice is a procedural requirement to allow the surety to petition the court for reinstatement and discharge of this forfeited bond or to take other actions to preserve its rights.

We interpret rule 702 according to its plain meaning. See Minn.Stat. § 645.08(1) (2000). By doing so, we conclude that the Ramsey County district court administrator was, and is, mandated by Minn. R. Gen. Prac. 702(e) to notify the surety and bondsman in writing whenever a bond is forfeited.

When procedural due process is at issue, this court applies a three-part balancing test. In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn.1996). We weigh (1) the private interest at stake, (2) the risk that the process provided will result in erroneous deprivation of the private interest at stake and the value and availability of additional procedural safeguards; and (3) the governmental interest, including the administrative burden and the expense that additional safeguards would require. Id.

There is little question that a significant private interest exists here; the surety has a $75,000 financial obligation composed of two separate bail bonds. And there is also little question that there is a significant governmental interest here: the efficient operation of judicial and bail-bond systems and the need to ensure the attendance of defendants at court proceedings.

We conclude that there was a complete failure to provide procedural safeguards to protect appellants’ interests in this case because of the failure of the administrator to provide any notice to appellants that the bond was initially forfeited. This failure to follow rule 702(e) meant that appellants never knew that defendant had absconded and issued a second bond without notice of the first forfeiture. Cf. McElwain v. Van Beek, 447 N.W.2d 442, 447 (Minn.App.1989) (recognizing, in summary-judgment context, that party must show he was prejudiced by lack of notice or other procedural irregularities to prove he is entitled to relief from district court’s ruling), review denied (Minn. Dec. 20, 1989). Therefore, because appellants never received notice, we review the district court’s order denying reinstatement and discharge of the bonds in light of that lack of notice.

II.

Appellants argue that the district court abused its discretion when it refused to reinstate and discharge both bonds because of the lack of notice. “In reviewing a [district] court’s order concerning [reinstatement and] discharge of a bail bond, we determine whether the [district] court abused its discretion.” Williams, 568 N.W.2d at 887 (citations omitted).

When a bond-underwriting company agrees to act as a surety for a defendant, the company assures the district court that the defendant will personally appear and answer the charges against him. State v. Due, 427 N.W.2d 276, 278 (Minn.App.1988), review denied (Minn. Sept. 28, 1988).

Minn.Stat. § 629.59 (2000) allows a district court to

forgive or reduce the [forfeiture of the bond if the defendant fails to appear] according to the circumstances of the case and the situation of the party on any terms and conditions it considers just and reasonable.

Several factors are considered in determining whether the district court abused its discretion in its bail-forfeiture decision, including

the purpose of bail and the civil nature of the proceedings and the burden of proof as well as the cause, purpose, and length of defendant’s absence; the good faith of the surety as measured by the fault or wilfulness of the defendant; the good faith efforts of the surety — if any— to apprehend and produce the defendant; and the prejudice — by way of delay or otherwise — to the state, in its administration of justice.

In re Application of Shetsky, 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953). The surety bears “the burden of proof to establish a justification for a mitigation of forfeited bail.” Id. at 472, 60 N.W.2d at 46.

But the Shetsky factors, considered by a district court in reviewing a motion for reinstatement and discharge of a bond, are not yet ripe for review in this case because of the lack of notice to appellants.

Here, the district court abused its discretion when it denied appellants’ motion because the district court failed to adequately consider the lack of notice to appellants and what effect, if any, the lack of notice had on appellants. Appellants were unaware that defendant had absconded when they issued the additional $25,000 bond and had no reason to know of the forfeiture and reinstatement that occurred in May 2000 until November 2000, when they learned that defendant had absconded again in October 2000.

The district court’s reliance on Due, 427 N.W.2d at 278, is misplaced because the issue in that case was a claim by the bonding company that it was entitled to notice of the defendant’s failure to appear. Here, the issue is the administrator’s failure to notify the surety of the forfeiture of the bond as required by rule, something far different from the failure of a defendant to appear at a scheduled court hearing.

Because the district court inadequately considered the lack of notice to appellants, the district court abused its discretion. We therefore reverse and remand to the chief judge of the district court for reconsideration of appellants’ motion for reinstatement and discharge in light of our decision. The chief judge shall consider the prejudice suffered by appellants, if any, that resulted from the lack of notice when reassessing appellants’ motion for reinstatement and discharge of the $25,000 bond and shall consider the Shetsky factors when considering reinstatement and discharge of the $50,000 bond.

DECISION

The district court administrator was required by Minn. R. Gen. Prac. 702(e) to notify appellants when their bail bond was forfeited by the district court, although the bond was reinstated shortly after forfeiture.

The district court abused its discretion when it denied appellants’ motion for reinstatement and discharge of their bonds because it faded to adequately consider the lack of notice to appellants and any prejudice that resulted from that lack of notice. Therefore, we reverse and remand appellants’ motion to the chief judge of the district court for further proceedings consistent with this opinion.

Reversed and remanded.

      . Appellants also claim that the second district court, which reinstated the $50,000 bond and imposed an additional $25,000 bail, was without the authority to reinstate the original $50,000 bail bond. Appellants rely on Minn. R. Gen. Prac. 702(f), which states:
      Any motion for reinstatement of a forfeited bond or cash bail shall be supported by a petition and affidavit and shall be filed with the court administrator. * * * A petition for reinstatement filed within ninety (90) days of the date of the order of forfeiture shall be heard and determined by the judge who ordered forfeiture, or the chief judge.

      (Emphasis added.)
      While the reinstating judge was not the same judge who originally forfeited the first $50,000 bond, because we reverse and remand the district court’s order denying appellants' motion for reinstatement, it is unnecessary to address the interim bond reinstatement and we do not reach this issue.

      . Remand to the chief judge of the district court is required because rule 702(f) mandates that bond-reinstatement issues may be heard only by the judge who forfeited the original bond or by the chief judge. Here, the district court judge originally assigned to the matter cannot hear it because he has recused himself from this matter.