author: DANIEL F. FOLEY, Judge

text:
    MEDTRONIC, INC., Respondent, v. ADVANCED BIONICS CORPORATION, et al., Appellants.
    Nos. C0-00-1461, C8-00-1563.
    Court of Appeals of Minnesota.
    June 26, 2001.

      William Z. Pentelovitch, Richard G. Wilson, Wayne S. Moskowitz, Maslon Edel-man Borman & Brand, LLP, Minneapolis (for respondent).
    Michael A. Lindsay, Mitchell Granberg, Dorsey & Whitney, LLP, Minneapolis, and Michael J. Weber, Feldman, Gale & Weber, P.A., Miami Center, Miami, FL (for appellants).
    Considered and decided by WILLIS, Presiding Judge, ANDERSON and FOLEY, Judges.
   OPINION

DANIEL F. FOLEY, Judge

This case arises out of a noncompete agreement between appellant Mark Stultz and respondent Medtronic, Inc., his former employer. Stultz’s new employer, appellant Advanced Bionics Corporation, and Stultz brought a complaint in California Superior Court challenging the agreement, and Medtronic brought a complaint in Minnesota district court seeking enforcement. This is a consolidated appeal from several orders for temporary injunctions. Advanced Bionics and Stultz challenge the injunction order and the exercise of jurisdiction by Minnesota. Because we agree with the district court’s determination that Minnesota law applies to this dispute and that Minnesota has jurisdiction to issue temporary injunctive relief to enforce the limited noncompete agreement, we affirm.

FACTS

Medtronic is a Minnesota-headquartered medical technology corporation, which currently markets an implantable neurostimu-lator device designed to relieve chronic pain caused by neurological diseases. Advanced Bionics, a California-headquartered corporation, manufactures implantable neurostimulation devices to treat deafness and expects to have a pain neurostimulator, similar to Medtronic’s device, on the market within two years. Both corporations conduct business nationwide.

In 1995, Mark Stultz began working for Medtronic in the management and marketing of spinal-cord stimulation products. Stultz was eventually promoted to product manager of the neurostimulation — pain division. When he began his employment with Medtronic, Stultz signed an employment contract containing a noncompete clause, which states, in part, that

for two (2) years after termination of employment he/she will not directly or indirectly render services (including services in research) to any person or entity in connection with the design, development, manufacture, marketing, or sale of a Competitive Product that is sold or intended for use or sale in any geographic area in which Medtronic actively markets a Medtronic Product or intends to actively market a Medtronic Product of the same general type or function * * *.

The agreement also included a choice-of-laws provision, which stated:

The validity, enforceability, construction and interpretation of this Agreement shall be governed by the laws of the state in which the Employee was last employed by Medtronic.

On June 5, 2000, Stultz signed an offer of employment with Advanced Bionics. Two days later, Stultz resigned from his employment with Medtronic, and Advanced Bionics filed a motion for declaratory and injunctive relief in California Superior Court. The complaint stated: “Stultz is the Director of SCS Business Development at Advanced Bionics, and works at [its] facilities in Sylmar, California.” In fact, Stultz had not yet moved to California.

On June 8, Advanced Bionics filed an ex parte application in California for a temporary restraining order (TRO) to prevent Medtronic from “taking any action, other than in this court, to enforce its non-competition agreement with Mr. Stultz.” In support of the motion, Stultz filed a declaration stating his intent to work and live in California. It was allegedly signed on June 7. A hearing was scheduled for the next day.

On June 9, Medtronic removed the California action to federal court based on diversity. On the same day, Medtronic filed a motion in Hennepin County District Court for a TRO to prevent Advanced Bionics from taking action to interfere with the jurisdiction of the Minnesota court and from employing Stultz. The TRO was granted.

Advanced Bionics filed an amended complaint in California stating that Stultz was a Minnesota resident who intended to relocate to California. Because Stultz and Medtronic both resided in Minnesota, complete diversity was lacking. On June 16, the California federal court remanded the case to California Superior Court for lack of subject matter jurisdiction. The court found that Medtronic knew Stultz was a Minnesota resident and had violated its obligation to “reasonably investigate the facts before filing a notice of removal,” but deleted a reference to “bad faith” removal that Advanced Bionics had included in the proposed order.

The California Superior Court denied Medtronic’s motion to stay or dismiss pending a decision on the merits in Minnesota finding that the “interests of substantial justice will not be served by staying or dismissing this action.” The California court retained jurisdiction over the case and held that Medtronic’s assertion that Stultz’s employment with Advanced Bionics and the use of the experience and the knowledge he gained at Medtronic would violate the noncompete agreement was “insufficient as a matter of [California] law.”

On August 3, the Hennepin County District Court issued a temporary injunction prohibiting Advanced Bionics from interfering with the noncompete agreement between Stultz and Medtronic and barring Stultz from “providing service or assistance” to Advanced Bionics in connection with any spinal-cord stimulation device. The court analyzed the case under the factors set forth in Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965). But the August 3 temporary injunction, unlike the June 9 TRO, did not include language restraining Advanced Bionics from pursuing the litigation pending in California.

On August 8, Advanced Bionics obtained an ex parte TRO in California enjoining Medtronic from participating in or taking any action in any court other than the California Superior Court to enforce the noncompete agreement against Stultz or to otherwise restrain Stultz from working for Advanced Bionics in California. This order prohibited Medtronic from taking any action in the Minnesota case. Medtronic sent a letter to the Minnesota court, informing it of the August 8 California TRO and asking for “guidance” as to how to proceed in view of the restrictions laid down by the California court.

On August 16, the Minnesota court amended its August 3 order nunc pro tunc, enjoining Advanced Bionics from seeking relief from any other court that would “restrict Medtronic from prosecuting its claims.” The order noted that the June 9 TRO issued in Minnesota had contained this prohibition and the “failure to incorporate such language in [the August 3 temporary injunction] was a clerical error.” The court further ordered Advanced Bionics to move to vacate or rescind the August 8 California TRO. In its findings of fact, the court noted that the California court had based its decision to grant relief at least in part on the fact that the California case was filed two days before the Minnesota action. But the district court found that Advanced Bionics had not made the “first-filed” argument in Minnesota. The court held that California does not have a “materially greater interest” in this case and that Minnesota law should apply.

On August 21, Advanced Bionics moved ex parte in California Superior Court to sanction Medtronic for writing the August 11 letter to the Minnesota court and for a permanent injunction against Medtronic. Advanced Bionics orally informed the California court of the Minnesota court’s directive that Advanced Bionics seek to vacate the August 8 TRO. The California court denied the motions in totality.

On August 22, Advanced Bionics appealed to this court from the August 3 and 16 temporary injunction. Advanced Bionics also moved the district court for a stay of the nunc pro tunc order prohibiting Advanced Bionics from seeking relief from any other court or in any way seeking to limit the right of Medtronic to prosecute its claims.

On August 22, the district court in Minnesota held a pretrial conference. The court expressed its displeasure with Advanced Bionics’s counsel, who failed to inform the court until that day that Med-tronic’s counsel had been enjoined by the California court from appearing. The court indicated that although Medtronic had written a letter advising of the August 9 ex parte TRO, the August 16 amendment nunc pro tunc was not in response to that letter, but rather on the court’s own initiative. On August 26, the district court in Minnesota heard arguments from Advanced Bionics on the motion for a stay pending appeal. The court denied a stay pending this appeal and further amended the August 3 temporary injunction to preclude Advanced Bionics from seeking any “permanent” relief in California. Advanced Bionics then filed a second appeal, and we consolidated the appeals. On September 12, the California court amended the August 8 TRO to permit Medtronic to participate in this appeal.

ISSUES

1. Did the district court err in failing to defer any ruling on a temporary injunction motion because related litigation was filed first in California?

2. Based on the doctrine of unclean hands, did the district court err in granting equitable relief to a party that “improperly” sought removal of related litigation in California?

3. Did the district court err in issuing the temporary injunction?

ANALYSIS

As a preliminary matter we address Advanced Bionics’s concerns regarding the Minnesota district court’s nunc pro tunc orders of August 16 and 25. Advanced Bionics argues that the orders are improper sua sponte amendments. But we find the nunc pro tunc orders proper under Minn.R.Civ.P. 60.01.

Minn.R.Civ.P. 60.01 allows clerical errors “arising from oversight or omission” to be corrected “by the court at any time upon its own initiative * * * after such notice, if any, as the court orders.” The Minnesota Supreme Court has described a “clerical mistake” as follows:

Such a mistake ordinarily is apparent upon the face of the record and capable of being corrected by reference to the record only. It is usually a mistake in the clerical work of transcribing the particular record. It is usually one of form. It may be made by a clerk, by counsel, or by the court.

Wilson v. City of Fergus Falls, 181 Minn. 329, 332, 232 N.W. 322, 323 (1930); see also Gould v. Johnson, 379 N.W.2d 643, 646-47 (Minn.App.1986) (applying Wilson definition in construing Minn.R.Civ.P. 60.01), review denied (Minn. Mar. 14, 1986). A nunc pro tunc order is “permitted to correct the record and in furtherance of justice.” Hampshire Arms Hotel Co. v. Wells, 210 Minn. 286, 288, 298 N.W. 452, 453 (1941).

On August 16, the Minnesota court amended the August 3 order nunc pro tunc to include language enjoining Advanced Bionics and Stultz from seeking injunctive relief in the California action. This language had been in the TRO but had not been included in the August 3 temporary injunction. The court emphasized that the failure to include this language was a clerical error. On August 25, the court amended the August 16 order to further enjoin Advanced Bionics and Stultz from seeking any permanent relief in California to restrain Medtronic’s action in Minnesota. Again, this relief was granted in the TRO but omitted from later orders.

Advanced Bionics argues that the changes “exacerbated the conflicts” between the Minnesota and California courts and are improper because they affect the California court, a third person not party to the action. But this argument is without merit. Although the restrictions may affect the California court, they are placed on the party to the litigation and not the court. “It has long been the law in Minnesota that a court can enjoin a party over whom it has in personam jurisdiction from proceeding with litigation before another court.” St. Paul Surplus Lines Ins. Co. v. Mentor Corp., 503 N.W.2d 511, 516 (Minn. App.1993) (citing State ex rel. Bossung v. District Court, 140 Minn. 494, 498, 168 N.W. 589, 590-91 (1918)). There is nothing improper about this relief.

Advanced Bionics also argues that the orders do not comport with due process because there was no motion before the court and it was given no notice or opportunity to respond. But the rule renders these arguments inapplicable. Under Minn.R.Civ.P. 60.01, a court may, on “its own initiative” and without notice, correct a clerical error.

Additionally, Advanced Bionics has not explained any reason that the omissions made in the temporary injunction of language that had been part of the TRO were anything other than clerical errors. Moreover, there is nothing in the record demonstrating an intention of the court to grant Medtronic a temporary injunction with relief that differed from the TRO. We conclude that the district court’s clarification of the order was an oversight “apparent on the face of the record,” and, as such, is an error that is correctable by the court nunc pro tunc under rule 60.01. See Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999) (holding that even significant errors, if clerical in nature, may be corrected by the district court nunc pro tunc).

I. First-Filed Rule

Advanced Bionics argues that the district court erred in failing to apply the first-filed rule.

The first-filed rule provides that where two courts have concurrent jurisdiction, the first to acquire jurisdiction generally has priority to decide the case. Minnesota Mut Life Ins. v. Anderson, 410 N.W.2d 80, 82 (Minn.App.1987). This rule “is not intended to be rigid, mechanical, or inflexible, but should be applied in a manner serving sound judicial administration.” Id. (quoting Orthmann v. Apple River Campground, Inc., 765 F.2d 119, 121 (8th Cir.1985)). The first-filed rule is not truly a rule at all, but a principle, a “blend of courtesy and expediency.” Gavle v. Little Six, Inc., 555 N.W.2d 284, 291 (Minn.1996) (quotation omitted). We will reverse a district court’s refusal to apply the first-filed rule only if the district court abused its discretion. Northwest Airlines, Inc. v. American Airlines, Inc., 989 F.2d 1002, 1006 (8th Cir.1993).

At oral arguments before this court, Advanced Bionics’s counsel acknowledged the discretionary nature of the first-filed rule. But counsel continues to advocate for an absolute application of the first-filed principle: the California case was filed first, so the Minnesota court must defer. This approach ignores authorities requiring courts to exercise their discretion in applying the “rule.”

In deciding whether to defer to another court, a district court considers judicial economy, comity between courts, and the cost to and the convenience of the litigants; and must assess the possibility of multiple determinations of the same dispute. Anderson, 410 N.W.2d at 82.

There is a possibility of multiple determinations in this case. In fact, as this case proceeds, parallel litigation is taking place in California. But this fact alone does not convince us that the district court abused its discretion.

The court should also consider judicial comity. Judicial comity is “[t]he respect a court of one state or jurisdiction shows to another state or jurisdiction in giving effect to the other’s laws and judicial decisions.” See Black’s Law Dictionary 262 (7th ed.1999). Comity is not a formal rule but rather an informal policy of deference. In the present case, neither the California nor Minnesota courts have withdrawn from this matter. The California court views the case as between a California employer and a California-based employee, and as implicating California statutes and public policy. But the dispute also involves a Minnesota company, which executed a contract in Minnesota with a Minnesota-based employee and the decisions of this state’s courts are equally entitled to comity. In addition, the parties to this contract included a choice-of-laws provision, agreeing that Minnesota law should govern disputes. Comity does not require that Minnesota defer to the California court in this matter.

The cost to and the convenience of the litigants do not weigh heavily in favor of deference to California. Witnesses for Medtronic likely live and work in Minnesota and witnesses for Advanced Bionics, including Stultz, may live in California. But both parties are large corporations, which have demonstrated the ability to litigate in either state. This factor favors neither party.

Medtronic argues that the first-filed rule should not apply because Advanced Bionics filed the California action solely to obtain a favorable forum. We agree that when an anticipatory declaratory judgment action is brought for the purpose of denying the natural plaintiff of its choice of forum, the court need not and should not blindly defer to the other jurisdiction by applying the first-filed principle. When a party acts “in a calculated and systematic manner * * * to deprive the [Minnesota] court of its jurisdiction,” issuing an injunction to stop the action in another jurisdiction is appropriate. Doerr v. Warner, 247 Minn. 98, 109, 76 N.W.2d 505, 514 (1956). The California courts may-view Medtronic’s attempt to enforce the noncompete agreement in Minnesota as an attempt to evade California law. But it is clear that Advanced Bionics filed suit in California specifically to avoid Minnesota law, which is more likely to result in enforcement of the contract provision. There are compelling reasons for Minnesota courts to interpret and enforce contracts executed in this state, by residents of this state, and we agree that strict application of the first-filed rule is inappropriate. The district court did not err in exercising its discretion in considering the principles underlying the so-called first-filed “rule.”

II. Unclean Hands

Advanced Bionics argues that the district court erred in granting equitable relief to Medtronic after the “wrongful” attempt to remove the California case to federal court. The equitable defense of “unclean hands” is premised on withholding judicial assistance from a party guilty of illegal or unconscionable conduct. Watson Co. v. United States Life Ins. Co., 258 N.W.2d 776, 778 (Minn.1977). The doctrine of unclean hands

will be invoked only against a party whose conduct has been unconscionable by reason of a bad motive, or where the result induced by his conduct will be unconscionable.

Creative Communications Consultants, Inc. v. Gaylord, 403 N.W.2d 654, 658 (Minn.App.1987) (quotation omitted). The granting of equitable relief is within the sound discretion of the district court, and its decision will not be reversed absent a clear abuse of that discretion. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979).

Advanced Bionics argues that in seeking removal, Medtronic engaged in “procedural misconduct” to delay the California proceeding, avoid an unfavorable ruling, and to obtain favorable equitable relief in Minnesota. It is clear that both parties have engaged in procedural maneuvering. But the doctrine of unclean hands requires something more egregious than mere litigation strategy. Compare Hruska v. Chandler Assocs., Inc., 372 N.W.2d 709, 715 (Minn.1985) (employer’s failure to pay discharged employee’s full salary — since recovered — for a brief period in the past did not constitute “unclean hands” rendering noncompete clause unenforceable) with Edin v. Jostens, Inc., 343 N.W.2d 691, 694 (Minn.App.1984) (refusing to enforce a restrictive covenant after employee wrongfully terminated). The federal court found that Medtronic sought removal for “an improper purpose” and that it knew or “recklessly disregarded the facts within its possession which made it clear that” there was not complete diversity. But the federal court declined to label Medtronic’s conduct as “bad faith” despite Advanced Bionics’s urging. Given the district court’s discretion and because Med-tronic’s removal does not rise to the egregious level necessary to support a finding of unclean hands, we conclude that the district court did not err in granting equitable relief to Medtronic.

III. Injunction

Advanced Bionics argues that the district court erred in granting an injunctive relief because Medtronic failed to demonstrate irreparable harm, and it should have applied California law, rather than Minnesota law.

The district court may grant a temporary injunction if affidavits, deposition testimony, or oral testimony demonstrate sufficient grounds. Minn.R.Civ.P. 65.02(b). The party seeking an injunction must demonstrate that there is no adequate legal remedy and that the injunction is necessary to prevent irreparable harm. Cheme Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 92 (Minn.1979). A court may enjoin a party over whom it has in personam jurisdiction from pursuing similar litigation in another court. Hawkins v. Ireland, 64 Minn. 339, 344, 67 N.W. 73, 75 (1896). This court will not reverse a district court’s decision to grant a temporary injunction absent a clear abuse of discretion. Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn.1993); U.S. Bank Nat’l Ass’n v. Angeion Corp., 615 N.W.2d 425, 434 (Minn.App.2000).

There are five factors the court considers when determining whether to issue a temporary injunction:

(1) The nature and background of the relationship between the parties preexisting the dispute giving rise to the request for relief.
(2) The harm to be suffered by plaintiff if the temporary restraint is denied as compared to that inflicted on defendant if the injunction issues pending trial.
(3) The likelihood that one party or the other will prevail on the merits when the fact situation is viewed in light of established precedents fixing the limits of equitable relief.
(4) The aspects of the fact situation, if any, which permit or require consideration of public policy expressed in the statutes, State and Federal.
(5) The administrative burdens involved in judicial supervision and enforcement of the temporary decree.

Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965) (citations omitted). We will address each of the Dahlberg factors in turn.

A. Parties’Prior Relationship

The district court found that because Stultz signed the employment contract “of his own free will” and received both training and customer contacts from his employment with Medtronic, this factor favors granting injunctive relief. We agree with the district court’s straightforward application of this factor.

B. Balance of Harms

This factor focuses on the harm Medtronic may suffer if injunctive relief is denied, as compared to the harm suffered by Advanced Bionics from the grant of injunctive relief. The district court found that the loss to Advanced Bionics of one employee in a certain role is “of far less significance than what is at stake” for Medtronic. We agree.

A party seeking a temporary injunction must show that legal remedies are inadequate and that an injunction is necessary to prevent irreparable injury. Cheme Indus., Inc., 278 N.W.2d at 92. Generally, the failure to show irreparable harm is, by itself, a sufficient ground for denying a temporary injunction. Morse v. City of Waterville, 458 N.W.2d 728, 729 (Minn.App.1990), review denied (Minn. Sept. 28, 1990). Whether a party has an adequate remedy at law is a legal question that an appellate court reviews independently. ServiceMaster v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 305 (Minn.1996).

Advanced Bionics argues that Medtronic failed to show irreparable harm. Moreover, Advanced Bionics contends that there is no risk that trade secrets will be misappropriated, only the bare assertion by Medtronic that if Stultz works for Advanced Bionics, Medtronic would lose business.

But

[ijrreparable injury can be inferred from the breach of a restrictive covenant if the former employee came into contact with the employer’s customers in a way which obtains a personal hold on the good will of the business.

Webb Publ’g. Co. v. Fosshage, 426 N.W.2d 445, 448 (Minn.App.1988) (citing Menter Co. v. Brock, 147 Minn. 407, 410, 180 N.W. 553, 554-55 (1920), and Thermorama, Inc. v. Buckwold, 267 Minn. 551, 552-53, 125 N.W.2d 844, 845 (1964) (systematic solicitation of former employer’s customers supports inference of irreparable harm)).

The district court found that Medtronic demonstrated that it was likely to suffer irreparable harm in the form of loss of customer connections that Stultz developed while working for Medtronic. The court concluded that “any contact Stultz has with those same persons on behalf of Advanced Bionics will amount to a taking of that goodwill.”

In his affidavit Stultz admits that Med-tronic’s success in the neurostimulation-implant market “derives primarily from * ⅜ * relationships that its sales representatives have with the consumers.” He also acknowledges that while employed by Medtronic, he “developed [his] own business contacts and relationships among medical groups and physicians in the pain management field.” Stultz describes the job he obtained with Advanced Bionics as “hiring and developing a sales and marketing organization, to launch the sales of Advanced Bionics’[s] implantable spinal cord stimulator.” Medtronic notes that Stultz’s ability to build Advanced Bionics’s business and business relationships would be the “result of his gaining access to Medtronic’s customers, as [an] employee, which allowed him to develop his relationships with Medtronic’s customers.” The record supports the allegation that the relationships Stultz formed with customers are a direct result of his employment with Medtronic.

Stultz argues that he relies on his “skills, knowledge, business contacts and relations * * * from over fifteen years in the field of pain management,” not just from his experience with Medtronic. In addition, he was told that Advanced Bionics hired him because of his “educational background and strong management, communications, relationship, and marketing skills.” Stultz asserts that if he was previously “successful at developing exceptional relationships * * * it was because of [his] understanding of the medical field.” But along with his skills, the record supports the district court’s inference that Stultz was hired for his contacts and relationships with others in this market. Stultz’s personal qualities likely aided him in developing client relationships, but he was given the opportunity to develop those relationships through his work for Medtronic.

Advanced Bionics’s haste to preempt enforcement of the noncompete agreement immediately after Stultz resigned from Medtronic demonstrates the value placed on his relationships within the industry. The market for the device is finite, and the formation of relationships within this limited market is critical. Here, Stultz has acquired personal influence over customers, an influence that Stultz may take with him in his work with Advanced Bionics. See Thermorama, Inc., 267 Minn, at 553, 125 N.W.2d at 845 (irreparable harm inferred as ground for temporarily enjoining former employee from soliciting former employer’s customers and competing in violation of contract, where employee would suffer little detriment if he was not breaching agreement, but employer might lose customers and forfeit future benefits if injunctive relief denied).

Advanced Bionics argues that any loss claimed by Medtronic could be adequately remedied through monetary damages. Advanced Bionics also contends that because Medtronic is a large corporation, any claim of irreparable loss is “laughable.” But if, as the district court found, there is a significant risk that Medtronic may lose the goodwill of a limited customer base, the total size of the corporation is irrelevant. See Webb Publ’g. Co., 426 N.W.2d at 448-19 (finding irreparable harm where former employee had worked closely with clients and considered them friends, and success in soliciting their business demonstrated the “personal hold” he had on them); Creative Communications Consultants, Inc., 403 N.W.2d at 657 (finding of irreparable harm based on loss of clients and threat that former employee would disclose confidential information).

Advanced Bionics repeatedly asserts that there is no risk of trade secret misuse and that it would respect confidentiality and Medtronic’s trade secrets. Stultz contends that he does “not possess any trade secret information” about Medtronic’s business because he “either returned or left behind in Minnesota all confidential materials.” But even if Stultz did not take documents from Medtronic’s place of business, the knowledge he gained while working with Medtronic’s customers gives him insight into customer preferences, and Advanced Bionics hired him to make use of that insight. The knowledge he acquired at Medtronic may also help him anticipate Medtronic’s marketing plans, business plans, product development, and marketing strategy.

In comparison to the harm claimed by Medtronic, the harm to Advanced Bionics and Stultz from the injunction is limited. The noncompete clause is limited to two years and to products that compete directly with Medtronic’s products. The contract states:

It is expressly understood that the employee is free to work for a competitor * * * provided that such employment does not include any responsibilities for, or in connection with, a Competitive Product as defined in this Agreement for the two year period of this restriction.

Therefore, Stultz is only restricted from working with products that perform similar functions or are used for the same purposes as the products he worked on for Medtronic.

Stultz contends that if the restriction is enforced and he “was unable to work, earn a living, and actively maintain [his] business relationships and involvement in the neurostimulation/pain management field for over two years,” his career would be irreparably harmed. But Stultz voluntarily left Medtronic’s employ, knowing that future employment may be subject to the noncompete agreement, thus creating the current situation. Moreover, the noncom-pete agreement has not prevented him from earning a living, as Stultz is currently living in California and working for Advanced Bionics.

C. Likelihood of Success on Merits

The district court found that Minnesota law applies, the parties’ contractual choice of law provision should be honored, and that Medtronic has shown it is likely to succeed on the merits. Advanced Bionics argues that because California’s public policy generally prohibits restraints on employment and enforcement of noncompete agreements, California law should apply.

In analyzing a choice-of-law question, the first issue is whether there is an actual conflict between the law of two states. Nodak Mut. Ins. Co. v. American Family Mut. Ins. Co., 604 N.W.2d 91, 93-94 (Minn.2000); Jepson v. General Cas. Co., 513 N.W.2d 467, 469 (Minn.1994). “A conflict exists if the choice of one forum’s law over the other will determine the outcome of the case.” Nodak Mut. Ins. Co., 604 N.W.2d at 94 (citation omitted).

Here, although Minnesota law disfavors noncompete agreements, the courts will enforce them under certain circumstances. See, e.g., National Recruiters, Inc. v. Cashman, 323 N.W.2d 736, 740 (Minn.1982). Conversely, California statutes contain prohibitions against restraining a party from engaging in a profession or business unless necessary to protect trade secrets. Cal. Bus. & Prof.Code § 16600 (West 1996). Although the resolution of this issue is uncertain, the California court has repeatedly indicated the noncompete agreement is likely unenforceable under California law. Therefore, a conflict exists, and choice of law will determine the outcome.

The next step in the choice-of-law analysis involves balancing of five factors:

(1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interest; and (5) application of the better rule of law.

Jepson, 513 N.W.2d at 470 (citing Milkovich v. Saari, 295 Minn. 155, 161, 203 N.W.2d 408, 412 (1973)).

1. Predictability of Results

This factor “represents the ideal that litigation on the same facts, regardless of where the litigation occurs, should be decided the same to avoid forum shopping.” Nodak Mut. Ins. Co., 604 N.W.2d at 94 (citation omitted). The factor applies primarily to consensual transactions where the parties desire advance notice of which state law will govern in future disputes. Id. It is intended to protect the “justified expectations of the parties to the transaction.” Richie v. Paramount Pictures Corp., 532 N.W.2d 235, 241 (Minn.App.1995) (quotation omitted), rev’d on other grounds, 544 N.W.2d 21 (Minn.1996). To the extent that the choice-of-law decision results in the parties obtaining the “benefit of their bargain,” it enhances the predictability of contractual arrangements. Jepson, 513 N.W.2d at 470.

Here, the employment contract — • a consensual transaction — included a choice-of-law provision for application of Minnesota law. Advanced Bionics was not a party to that contract and therefore had no “justified expectations.” But Stultz should have reasonably expected that Minnesota law would be applied in resolving any dispute involving the employment contract, and it is clear that Medtronic had a justified expectation that Minnesota law would apply to any such dispute. This factor favors clearly the application of Minnesota law.

2. Maintenance of Interstate Order

The second factor is

primarily concerned with whether the application of Minnesota law would manifest disrespect for [California’s] sovereignty [or vice versa] or impede the interstate movement of people and goods. An aspect of this concern is to maintain a coherent legal system in which the courts of different states strive to sustain, rather than subvert, each other’s interests in areas where their own interests are less strong.

Id. at 471 (citation omitted).

Advanced Bionics relies heavily on this factor and contends that because California has enacted a statute on point, California’s interest in precluding enforcement of noncompete clauses is materially greater than any potential Minnesota interests. Cf. Nodak Mut. Ins. Co., 604 N.W.2d at 95 (finding an equal interest between North Dakota and Minnesota based in part on fact that both states had pertinent laws).

The primary issue under this factor is whether applying Minnesota law would “manifest disrespect” for California’s sovereignty or impede interstate commerce. Jepson, 513 N.W.2d at 471. Evidence of forum shopping, or that application of Minnesota’s law would promote forum shopping, would indicate such disrespect. Id.

Advanced Bionics argues that applying California law is the best means to support California’s public policy of disfavoring noncompete agreements. But as discussed above, Minnesota also has interests in having its contract laws enforced. Moreover, applying Minnesota law does not promote forum shopping any more than applying California law. Both parties filed suit in the state that best fit their desired outcomes. Therefore this factor favors neither state.

3. Simplification of Judicial Task

This third factor is often considered insignificant because courts can as easily apply another state’s laws as their own. Id. at 472. Although Minnesota courts are fully capable of applying the law of another state, the judicial task is “obviously” simplified when a “Minnesota court applies Minnesota law.” Gimmestad. v. Gimmestad, 451 N.W.2d 662, 666 (Minn.App.1990). This factor favors Minnesota.

A Advancement of the Forum’s Governmental Interest

The fourth factor involves inquiry into the choice of law that would most effectively advance a “significant interest of the forum” state. Jepson, 513 N.W.2d at 472. This factor assures that “Minnesota courts are not called upon to apply rules of law inconsistent with Minnesota’s concept of fairness and equity.” Board of Regents of Univ. of Minn. v. Royal Ins. Co. of Amer., 503 N.W.2d 486, 490-91 (Minn.App.1993) (citation omitted), aff'd in part, rev’d in part, 517 N.W.2d 888 (Minn.1994). “Minnesota’s governmental interests will most clearly be advanced by application of Minnesota law.” Wille v. Farm Bureau Mut. Ins. Co., 432 N.W.2d 784, 786 (Minn.App.1988) (quotation omitted). Applying California law to this dispute would not advance Minnesota’s interests and would reduce the protection afforded under Minnesota law to employers who enter into legal noncompete contracts. This factor favors applying Minnesota law.

5. Better Rule of Law

We do not reach the fifth factor, which should be applied only when the choice-of-law question remains unresolved after the other factors are considered. Nodak Mut. Ins. Co., 604 N.W.2d at 96 (stating that Minnesota courts have “not placed any emphasis on this factor in nearly 20 years”); Board of Regents, 503 N.W.2d at 491 (finding that this factor is applied “only when the first four factors do not clearly resolve the choice of law issue”).

The choice-of-law analysis favors the application of Minnesota law. The employment contract signed by Stultz is narrowly drawn, and he has obtained employment in his field, albeit not in a directly competitive position. The contract also contains an enforceable choice-of-law provision that results in the application of Minnesota law. Under Minnesota law, Medtronic has a strong likelihood of success on the merits. We therefore affirm the district court’s conclusion that Medtronic prevails on this third Dahlberg factor, which favors granting of an injunction.

D. Public Policy

The fourth Dahlberg factor is the consideration of public policy. “Minnesota courts do not favor noncompet-ition agreements because they are partial restraints on trade.” Midwest Sports Mktg., Inc. v. Hillerich & Bradsby of Canada, Ltd., 552 N.W.2d 254, 265 (Minn.App.1996) (citation omitted), review denied (Minn. Sept. 20, 1996). But restrictive covenants are enforced to the extent reasonably necessary to protect legitimate business interests. Webb Publ’g. Co., 426 N.W.2d at 450. Legitimate interests that may be protected include the company’s goodwill, trade secrets, and confidential information. Roth v. Gamble-Skogmo, Inc., 532 F.Supp. 1029, 1031 (D.Minn.1982). Conversely, California has a statutory prohibition against restraining a party from engaging in a profession or business unless necessary to protect trade secrets. See Cal. Bus. & Prof.Code § 16600 (stating that “[e]xcept as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extend void.”).

We do not disagree that California law expresses a policy disfavoring noncompete clauses in employment contracts. But we conclude that this case is about more than the enforceability of a noncompete clause. The public policy of this state is at issue, and it favors upholding valid contracts. Thus, although California has a public policy against noncompete clauses, Minnesota also has a strong interest in having contracts executed in this state enforced in accordance with the parties’ expectations. Therefore, because this agreement contains a valid choice-of-law provision and falls within the limited circumstances in which Minnesota courts enforce noncom-pete agreements, public policy favors granting the injunction.

E. Administrative Burdens of Judicial Supervision

The district court concluded that this injunction would create no administrative burdens and we agree.

The Dahlberg factors, especially the balance of harm to the parties and the likelihood of success on the merits, favor the grant of temporary injunctive relief.

DECISION

The district court did not err in declining to apply the first-filed rule or in applying Minnesota law. In addition, the district court did not abuse its discretion in granting a defensive temporary injunction nunc pro tunc. The district court properly applied the Dalhberg factors to the facts of this case. Because Minnesota courts rightfully have jurisdiction over this litigation and the noncompete clause is enforceable, we affirm the district court’s grant of a temporary injunction.

Affirmed; motions denied.

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

      . Medtronic complains that Stultz declared that he executed this document on June 7, 2000, the same day he resigned from his position in Minnesota. But he later amended his statement, and moreover, this disagreement is irrelevant to the issues before this court.

      . The parties have made various cross-motions regarding the contents of the record. We have limited our review to the papers actually filed in the district court prior to issuance of the decisions from which these appeals are taken and to relevant rulings and decisions available to the public. The parties’ motions are denied.

      . On March 22, 2001, the California Court of Appeals affirmed the restraining order of the California Superior Court.

      . Advanced Bionics asserts that the district court did not address the first-filed rule, but this assertion is erroneous. Although not included in a written order, the court ruled that the
      "first-filed rule” would not apply to prevent Medtronic from carrying on this action simply because any or all provisions that ordinarily would prevent a second filing from proceeding did not occur in this case.
      The district court both addressed and rejected Advanced Bionics' argument regarding the first-filed rule.

      . Advanced Bionics argues that because it has no competing product now and does not expect to be selling a competing product for two years, there can be no irreparable harm. But the contract Stultz signed limits the noncom-pete clause to work on a “Competitive Product,” defined as
      any product * ⅜ * that is being designed, developed, manufactured, marketed or sold by anyone other than Medtronic and is of the same general type, performs similar functions, or is used for the same purposes as a Medtronic Product on which the employee worked during the last two years of employment * * ⅞.
      The contract definition includes competing products being "developed,” and it clearly applies here.


source: Caselaw Access Project

author: STONEBURNER, Judge

license: Public Domain

text:
    In the Matter of the WELFARE OF R.J.E., child.
    No. C4-00-2189.
    Court of Appeals of Minnesota.
    July 3, 2001.
    Review Granted Sept. 11, 2001.

      John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, Minneapolis (for appellant).
    Mike Hatch, Attorney General, St. Paul,and Roger S. Van Heel, Stearns County Attorney, Suzanne Bollman, Assistant Stearns County Attorney, St. Cloud (for respondent).
    Considered and decided by TOUSSAINT, Chief Judge, STONEBURNER, Judge, and LINDBERG, 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

STONEBURNER, Judge

R.J.E. appeals from adjudication of delinquency based on the district court’s finding that he committed criminal sexual conduct in the fifth degree. R.J.E. argues that the district court erred by denying his motion to suppress a statement that was taken from him by a police officer at his school in violation of his Miranda rights, and that without the statement, there is insufficient evidence to support a finding that he committed the offense. The matter was tried on stipulated facts consisting of pertinent police reports, including the statement of the victim, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court found that R.J.E. committed criminal sexual conduct in the fifth degree and adjudicated R.J.E. delinquent. Because R.J.E. was entitled to a Miranda warning prior to the interrogation, we reverse the district court’s denial of the motion to suppress. Because even without R.J.E.’s statement there is not a reasonable possibility that the fact-finder might have reached a different result, the district court’s failure to suppress the statement was harmless error, and we affirm the adjudication of delinquency.

FACTS

On October 7, 1999, a uniformed St. Cloud police officer, working as a liaison officer at Apollo High School, received a report of inappropriate acts involving a male and female student. The officer had two uniformed Apollo High School security guards escort R.J.E. from his classroom to the 10’ x 10’ office shared by school security and the liaison police officer. "When they arrived at the office, one of the security guards searched R.J.E. The school social worker was also present so that there were four adults in the office with R.J.E., three of whom were in uniform. The door to the office was closed. The police officer started a tape recorder and began an interrogation. The session began with the police officer stating on the tape:

This will be in to case 99034645. The date is 10/07/99. The time is 1503 hours. This is Officer Weleski. This is in reference to a sexual assault that occurred at Apollo High School on this date. I’m in the liaison office at Apollo High School.

The police officer then identified who was present, had R.J.E. state his “full legal name and date of birth for the record,” and then began questioning R.J.E. The police officer did not give R.J.E. a Miranda warning. R.J.E. was 15 years old at the time, and the parties do not dispute that police or school officials had never questioned R.J.E. prior to this incident. The police officer never told R.J.E. that he was free to leave or that he could decline to answer any questions. Although the police officer testified that he would have allowed R.J.E. to leave the room had he asked, R.J.E. testified that he believed that either the police officer or one of the security guards would have prevented him from leaving. The police officer, who had interviewed the victim and a witness prior to questioning R.J.E., testified that R.J.E. was a suspect in a crime at the time of the questioning. R.J.E. was not informed that he could speak with his mother or contact an attorney before answering any questions, and the officer did not notify R.J.E.’s mother before initiating the interrogation. The officer interviewed R.J.E. for approximately 13 minutes (from 3:03 p.m. to 3:16 p.m.), although R.J.E. believed it lasted longer. After the interview, the police officer turned R.J.E. over to the vice-principal because, according to the police officer’s testimony, “there are school sanctions as well.” After the vice-principal questioned R.J.E., he released R.J.E. to his mother.

The victim, A.G., in a statement submitted to the district court as part of the stipulated facts, alleged that she was in the commons area at Apollo High School on October 7, 1999, when R.J.E. came to the area and sat on the chair on which she was seated. A.G. then moved to the other side of the table. When she left to go to class, R.J.E. walked with her and grabbed her chest using his full open hand on her breast, and he asked A.G. if she would kiss him and if she wanted to have sex with him. A.G. told him to “shut up,” and R.J.E. then said she “should give him” 30 minutes in the bathroom with her. A.G. told him to “shut up” again, and R.J.E. reached from behind A.G. and touched her crotch area.

ISSUES

I. Was R.J.E.’s interrogation custodial?

II. If admission of R.J.E.’s statement was error, is the error harmless?

ANALYSIS

Standard of Review

R.J.E. claims that the district court erred by finding that he was not in custody when he was questioned and by failing to suppress his statement. “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (citation omitted).

I. R.J.E.’s Interrogation was Custodial

The district court held that R.J.E. was not entitled to a Miranda warning because he was not in custody when police questioned him. A Miranda warning is required when a police officer conducts a custodial interrogation of a suspect. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The state concedes that R.J.E. was interrogated, and therefore our task is to determine whether R.J.E. was in custody. See State v. Tibiatowski, 590 N.W.2d 305, 308 (Minn.1999). We consider a suspect to be in custody if a reasonable person under the circumstances would believe that he or she was in police custody to the degree associated with formal arrest. State v. Wiernasz, 584 N.W.2d 1, 2-3 (Minn.1998) (citation omitted); State v. Miller, 573 N.W.2d 661, 670 (Minn.1998) (citation omitted); see In re Welfare of G.S.P., 610 N.W.2d 651, 657 (Minn.App.2000) (“The test is not whether a reasonable person under the circumstances would believe they were not free to leave, but whether a reasonable person under the circumstances would believe they were in police custody of the degree associated with formal arrest.”). In reaching this determination, we look to all of the surrounding circumstances, including the officer’s and the suspect’s behavior during the interrogation. Wiernasz, 584 N.W.2d at 4-5. Although we review the district court’s findings of fact for clear error, we perform a de novo review of the district court’s determination regarding custody and the need for a Miranda warning. Miller, 573 N.W.2d at 670; State v. Hince, 540 N.W.2d 820, 823 (Minn.1995).

In support of his argument that his interrogation was custodial, R.J.E. cites our recent decision in In re Welfare of G.S.P., 610 N.W.2d 651 (Minn.App.2000). In G.S.P., an assistant principal and a school-liaison police officer removed a 12-year-old student from his classroom. Id. at 654. The assistant principal and the police officer questioned G.S.P. in the assistant principal’s office. Id. The officer did not issue a Miranda warning, but he tape-recorded the questioning, which was done in the presence of three school officials. Id. The officer did not tell G.S.P. that he was free to leave or could talk to his parents. Id. Instead, the officer told G.S.P. that he had no choice but to answer the questions. Id. We held that G.S.P. was in custody during his interrogation and was entitled to a Miranda warning. Id. at 659.

Key to our decision in G.S.P. was the fact that the police officer failed to inform G.S.P. that he was not under arrest or that he was free to leave. Id. at 658 (citations omitted); cf. Miller, 573 N.W.2d at 670-71 (reasoning that, among other factors, an individual is not in custody if told that he or she is free to leave and not under arrest). Here, the interrogating officer failed to inform R.J.E. that he was free to leave or that he was not under arrest. The G.S.P. court also determined that the officer’s tape-recording of the interview was “strongly suggestive of a custodial interrogation.” 610 N.W.2d at 658; see State v. Scales, 518 N.W.2d -587, 592 (Minn.1994) (requiring that all custodial interrogations be recorded). Similarly, the recording of the interview with R.J.E. suggests to us that the interrogation was custodial. The state asserts that a general obligation to appear before a police officer and answer questions truthfully does not convert an interview into a custodial interrogation. See Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 1142, 79 L.Ed.2d 409 (1984). Nonetheless, where a “uniformed officer summons a juvenile from the classroom to the office and actively participates in the questioning, the circumstances suggest the coercive influence associated with a formal arrest.” G.S.P., 610 N.W.2d at 658.

R.J.E.⅛ interrogation took place in a small room with the door closed; the police officer conducted the interrogation in the presence of two uniformed school security guards and a social worker; the police officer never informed R.J.E. that he could decline to answer questions or that he was free to leave; R.J.E. believed that he was not free to leave. Cf. State v. Budke, 372 N.W.2d 799, 801-02 (Minn.App.1985) (concluding that where high school student was called to principal’s office to talk to police investigator, and the investigator told the student that he was not under arrest, that he was free to leave at any time, and that he did not have to talk to the investigator, restrictions placed on the student did not amount to restraint equivalent to formal arrest). Although the interrogation lasted only 13 minutes, R.J.E. was 15 years old and had no prior experience with questioning by police, or school officials. R.J.E. reasonably believed that he was restrained to a degree equivalent to formal arrest. We conclude that in light of all the surrounding circumstances, R.J.E. was in custody when the officer interrogated him, and the district court should have suppressed R.J.E.’s incriminating statements.

II. Harmless Error

Our analysis does not end, however, with the determination that the district court erred in admitting R.J.E.’s statement. The state claims that even if R.J.E.’s statement is suppressed, evidence independent of the statement sufficiently supports R.J.E.’s delinquency adjudication. On appeal, the relevant inquiry in a harmless-error analysis is not whether the evidence was sufficient, but whether a reasonable fact-finder would have reached a different result had R.J.E.’s statement not been admitted. See State v. Dillon, 532 N.W.2d 558, 558 (Minn.1995) (“[Tjhe mere fact that the evidence of guilt was ‘sufficient’ means nothing. * * * What is relevant in harmless error impact analysis is how strong the evidence was, not whether it was ‘sufficient,’ ”); see also State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994) (“[W]hen dealing with a claim of erroneous admission of evidence * * * the question is whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict * * *.”). We may uphold R.J.E.’s delinquency adjudication notwithstanding the officer’s violation of his Miranda rights, provided that the admission of his statement was harmless beyond a reasonable doubt. See State v. Jones, 556 N.W.2d 903, 910 (Minn.1996); see also State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997) (stating conviction may stand if erroneously admitted statement was harmless beyond a reasonable doubt). An error is harmless beyond a reasonable doubt “[i]f the verdict actually rendered was surely unattributable to the error.” Jones, 556 N.W.2d at 910; see Juarez, 572 N.W.2d at 291 (determining if evidence is harmless based on whether challenged evidence contributed to defendant’s conviction). Here, after an adverse pretrial ruling, R.J.E. waived his right to trial and submitted the case to the court on stipulated facts. The stipulated facts include a statement made by the victim to the police officer describing R.J.E.’s grabbing her breast and touching her crotch. The complainant also told police that R.J.E. later apologized for the incident. The district court adjudicated R.J.E. delinquent on the charge of fifth-degree criminal sexual conduct, which requires only that R.J.E. “engage[ ] in nonconsensual sexual contact.” Minn.Stat. § 609.3451, subd. 1 (2000); see Minn.Stat. § 609.341, subd. 11(a)(i) and (iv) (2000) (defining “sexual contact” as “the intentional touching by the actor of the complainant’s intimate parts, or * * * the touching of the clothing covering the immediate area of the intimate parts.”). The record does not contain any exculpatory evidence. The victim’s statements demonstrate beyond a reasonable doubt that R.J.E. committed criminal sexual conduct in the fifth degree, which supports R.J.E.’s delinquency adjudication. See In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn.App.1996) (acknowledging that this court must assume that the factfinder believed testimony supporting the determination and disbelieved any contrary evidence) (citing State v. Braylock, 501 N.W.2d 625, 628 (Minn.1993)).

We are mindful of the supreme court’s concern about employing a harmless-error analysis under circumstances where a party stipulates to facts pursuant to a Lothenbach stipulation. See State v. Munson, 594 N.W.2d 128, 143-44 (Minn.1999) (“[U]nder the facts of this case, we are hesitant to apply a harmless error analysis where an appellant has stipulated to the state’s facts only to preserve the evidentia-ry issues for appeal and has not had a chance to challenge the state’s evidence or present evidence of his own.”) (citing Berkemer v. McCarty, 468 U.S. 420, 444, 104 S.Ct. 3138, 3152-53, 82 L.Ed.2d 317 (1984) (recognizing difficulty in determining whether erroneous admission of particular evidence affected outcome of case where appellant pleads no contest in order to preserve issues for appeal)). We note, however, that in Munson the only direct evidence of Munson’s crime was his statement, which the district court erroneously failed to suppress. 594 N.W.2d at 143. Here, the evidence against R.J.E. included statements made by the victim, who identified R.J.E. and detailed the unwanted touching. Counsel for R.J.E. raised for the first time at oral argument that R.J.E. may have a claim of ineffective assistance of counsel. But we do not address issues raised for the first time in oral argument. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). Under the rather unique procedural circumstances of this case, we conclude that the district court’s failure to suppress R.J.E.’s custodial statements, although error, is harmless error.

DECISION

Based on all the surrounding circumstances, we hold that R.J.E. was in custody during his interrogation by a police officer at the school and was entitled to a Miranda warning prior to questioning. We reverse the district court’s denial of R.J.E.’s motion to suppress his statement. Because the evidence submitted to the district court supports a finding beyond a reasonable doubt that R.J.E. committed criminal sexual conduct in the fifth degree, and because commission of that offense supports the adjudication of delinquency, we affirm.

Affirmed in part and reversed in part.

      . R.J.E. challenges only the finding that he committed the charged offense. He does not challenge the adjudication of delinquency based on commission of the offense.

      . In support of its argument, the state relies on our unpublished opinion, In re Welfare of R.L.N., No. C1-98-26, 1998 WL 405026, ⅜2 (Minn.App. July 21, 1998), review denied (Minn. Sept. 22, 1998), in which this court held that under somewhat similar facts, a juvenile was not in custody. R.L.N., however, is unpublished and was decided two years before G.S.P., and therefore is of no prece-dential value. See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.App.1993) (holding that unpublished opinions are of persuasive value "[a]t best” and not precedential); see Minn.Stat. § 480A.08, subd. 3(c) (2000) (providing unpublished decisions of the Minnesota Court of Appeals have no prece-dential value).

      . Although only of persuasive value, we find a decision by the Washington Court of Appeals instructive. See Washington v. D.R., 84 Wash. App. 832, 930 P.2d 350 (1997). In Washington v. D.R., a 14-year-old boy was found to be in custody when he was interviewed by a police officer in the presence of the assistant principal and a school social worker. Id. at 353. The interview took place in the assistant principal's office, and the boy was told that he did not have to answer questions, but he was not otherwise given Miranda warnings. Id. at 352. The boy did not believe that he was free to leave. Id. Over the course of the' interview, the officer indicated that he knew the boy had committed a sexual offense. Id. The Washington court framed the inquiry as "whether a 14-year-old in D.R.'s position would have 'reasonably supposed his freedom of action was curtailed’ ” and concluded that D.R. was in custody during his interview "in light of [the officer's] failure to inform him he was free to leave, D.R.'s youth, the naturally coercive nature of the school and principal's office environment for children of his age, and the obviously accusatory nature of the interrogation.” Id. at 353 (citation omitted).


author: WILLIS, Judge

text:
    In re the Matter of Kathryn RAMIREZ, et al., Petitioners, Respondents, v. Julie RAMIREZ, Appellant.
    No. C8-00-2115.
    Court of Appeals of Minnesota.
    July 24, 2001.

      Lome S. Knutson, Knutson & Darling, P.A., St. Paul (for respondents).
    Eric J. Braaten, Nicklaus, Braaten & Hollenhorst, PLLC, Chaska (for appellant).
    Considered and decided by WILLIS, Presiding Judge, HANSON and FOLEY, Judges.

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

   OPINION

WILLIS, Judge

Appellant challenges the district court’s grant to her parents of permanent custody of her minor child. We affirm because the district court did not err in concluding that: (1) the requirements for an ex parte temporary-custody order under Minn.Stat. § 518.158, subd. 1 (2000), are inapplicable to a permanent-custody order under Minn. Stat. § 518.156 (2000); and (2) the requirement under Minn.Stat. § 518.158, subd. 4 (2000), that the court “set conditions the parent must meet in order to obtain custody” is inapplicable where the district court exercises its discretion to protect the safety of a child by granting temporary custody to the child’s grandparents in an ex parte proceeding, ex parte relief would not have been available under Minn.Stat. § 518.158, and the court subsequently grants permanent custody under Minn. Stat. § 518.156.

FACTS

Respondents Manuel and Kathryn Ramirez are the parents of appellant Julie Ramirez. Appellant is the mother of the minor child J.R. In November 1999, respondents petitioned the court for permanent custody of J.R. under Minn.Stat. § 518.156 (2000). At the same time, citing “immediate and present danger to [J.R.’s] physical safety,” they moved for an ex parte order for temporary custody under Minn. R. Gen. Pract. 303.04. The district court awarded emergency custody to respondents based on its finding of immediate and present physical danger to J.R. if he stayed in appellant’s home. The court also ordered an expedited hearing.

At the expedited hearing, appellant “did not object to [respondents] having custody of the minor child on a temporary basis.” The court, therefore, awarded temporary sole legal and physical custody to respondents. It also ordered appellant to submit to a chemical and psychological evaluation and ordered the county to conduct a child-custody evaluation. The custody evaluation recommended that respondents be awarded permanent custody of J.R.

Following a contested custody hearing, the district court granted respondents permanent sole legal and physical custody of J.R. Appellant challenges that determination.

ISSUES

1. Did the district court err by concluding that the requirements for an ex parte temporary-custody order under Minn.Stat. § 518.158, subd. 1 (2000), are inapplicable to a permanent-custody order under Minn. Stat. § 518.156 (2000)?

2. Did the district court err by not setting “conditions the parent must meet in order to obtain custody,” as required by Minn.Stat. § 518.158, subd. 4 (2000)?

ANALYSIS

Appellate review of child-custody determinations “is limited to whether the [district] court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). Appellant argues that the district court improperly applied the law by concluding that Minn.Stat. § 518.158 (2000), which creates a procedure under which the relatives of a minor child can apply for an ex parte temporary-custody order, was inapplicable here. The applicability of a statute is an issue of statutory interpretation, which appellate courts review de novo. Dabrowski v. Dabrowski, 477 N.W.2d 761, 764 (Minn.App.1991).

I.

Section 518.158 describes two sets of circumstances where it is presumed to be in a child’s best interests for the court to grant temporary custody to a relative of the child. The first is where the minor child has been residing with a relative for at least 12 months and either of the following circumstances exist:

(1) the parent has had no contact with the child on a regular basis and no demonstrated, consistent participation in the child’s well-being for six months; or
(2) the parent, during the time the child resided with the relative, has refused or neglected to comply with the duties imposed upon the parent by the parent and child relationship, including but not limited to providing the child necessary food, clothing, shelter, health care, education, and other care and control necessary for the child’s physical, mental, or emotional health and development.

Minn.Stat. § 518.158, subd. 1(a). The second set of circumstances is where the relative has permanent custody of a sibling of the child and either (1) the child is currently residing with the relative and one of the factors listed above is present, regardless of duration or (2) “the application alleges an immediate and present danger to the physical safety of the child in the home of the parent.” Id., subd. 1(b).

Appellant argues that the district court erred in granting permanent custody because respondents did not allege that J.R. had been living with them for 12 months or that a sibling of J.R. lived with them. But respondents did not seek permanent custody under section 518.158. Rather, they petitioned for permanent custody under Minn.Stat. § 518.156 (2000), which allows any person other than a parent to commence a custody proceeding, allows the parent to be heard at such a proceeding and file responsive pleadings, and requires the court to award custody based on the best interests of the child. See In re Custody of M.A.L., 457 N.W.2d 723, 726 (Minn.App.1990). Appellant argues that the circumstances required by section 518.158 must be present in all custody proceedings commenced by a non-parent relative, including proceedings for permanent custody under section 518.156.

We find this argument to be without merit. Section 518.158 does not apply to permanent-custody proceedings; it merely establishes presumptions in actions for emergency, temporary relief of limited duration. See Minn.Stat. § 518.158, subd. 2 (providing that order issued under that section “is effective for a fixed period not to exceed 14 days.”). In addition, adopting appellant’s reasoning would achieve the absurd result that, to be granted permanent custody, a non-parent relative seeking custody under section 518.156 would be required to establish one of the sets of circumstances outlined in section 518.158, while a non-relative would not. See Deal v. Northwood Children’s Home Society, Inc., 608 N.W.2d 922, 924 (Minn.App.2000) (noting that courts should not construe statute to lead to absurd result if the language will reasonably permit another construction), review denied (Minn. June 13, 2000). We find nothing in section 518.156 suggesting that it requires different procedures for relatives and non-relatives or in section 518.158 suggesting that it was intended to alter the procedures created by section 518.156.

Respondents petitioned for permanent custody under section 518.156; as required by that section, the district court held a contested custody hearing and granted _ custody based on its conclusions regarding the best interests of the child. The court’s decision not to import the requirements of another statutory provision into its analysis was not in error.

II.

Appellant also argues that the district court erred by failing to set conditions under which she could regain custody, as required by section 518.158, subd. 4, which provides:

If the court orders permanent custody to a relative under this section, the court shall set conditions the parent must meet in order to obtain custody. The court may notify the parent that the parent may request assistance from the local social service agency in order to meet the conditions set by the court.

We agree with the district court that it is unclear what effect the legislature intended this provision to have because it refers to an order for permanent custody “under this section,” while section 518.158 allows only for temporary ex parte orders. But we need not address this apparent inconsistency.

Respondents’ motion for an ex parte temporary-custody order did not state the authority under which they sought that order, nor did the court’s ex parte order refer to the authority on which it was based. But both referred to the “immediate and present danger to [J.R.’s] physical safety.” Section 518.158 allows the court to issue an ex parte order granting temporary custody to a relative on a finding of “immediate and present danger to the physical safety of the child in the home of the parent” but only if “the relative has permanent custody of a sibling of the child.” Minn.Stat. § 518.158, subd. 1(b)(2). Here, respondents did not allege, and the court did not find, that they have permanent custody of a sibling; the court, therefore, had no authority under section 518.158 to grant an ex parte temporary-custody order.

Although respondents’ motion for an ex parte temporary-custody order did not refer to any statutory authority, on appeal they contend that they sought ex parte relief “as allowed under Minn.Stat. § 518.131, subd. 3(b).” Under section 518.131(2000), courts have the authority “[i]n a proceeding brought for custody” to grant “[tjemporary custody * * * regarding the minor children of the parties,” and may grant such an order ex parte “upon a finding by the court of immediate danger of physical harm to the minor children of the parties.” Minn.Stat. § 518.131, subds. 1(a), 3(b) (emphasis added). Section 518.131does not appear to contemplate the granting of temporary custody to someone other than a parent. Further, because respondents did not refer to section 518.131in their motion and the district court did not refer to it in its ex parte temporary-custody order, we will not presume that the court relied on this provision in granting that order.

In Kimmel v. Kimmel, this court affirmed the district court’s grant of an ex parte order awarding temporary custody to the Ramsey County Department of Human Services. Kimmel v. Kimmel, 392 N.W.2d 904, 908 (Minn.App.1986), review denied (Minn. Oct. 29, 1986). While noting that section 518.131 was inapplicable because Ramsey County was not a party to the proceeding, this court concluded that

[w]hile the [district] court may not have strictly adhered to the statutory procedure, this was an emergency situation which compelled the court to apply its broad equitable powers. * ⅝ * [The child’s] health, safety and welfare was in jeopardy. We cannot say it was an abuse of discretion for the court to act quickly to protect this child.

Id. at 908. Similarly, here the court found that there was immediate and present danger to J.R.’s physical safety; it was within the court’s broad equitable powers to act quickly to protect his safety. See also Sweep v. Sweep, 358 N.W.2d 451, 453 (Minn.App.1984) (affirming ex parte custody award to child’s grandparents because the “focus in any custody determination is, and must be, on the best interest of the child. Were we to do other than affirm the court’s exercise of its discretion, we would be introducing more instability into [the child’s] life * * *.”). We conclude that when (1) the district court exercises its broad equitable powers to protect the safety of a child by granting temporary custody to the child’s grandparents in an ex parte proceeding, and (2) ex parte relief would not have been available under Minn. Stat. § 518.158, and (3) the court subsequently grants permanent custody to the grandparents in a contested proceeding under Minn.Stat. § 518.156, the court is not required to set conditions under which the child’s parent could regain custody, as would be required in a proceeding under section 518.158, subdivision 4.

DECISION

The requirements for an ex parte temporary-custody order under Minn.Stat. § 518.158, subd. 1 (2000), are inapplicable to a permanent-custody order under Minn. Stat. § 518.156 (2000). Similarly, the requirement under Minn.Stat. § 518.158, subd. 4, that the court “set conditions the parent must meet in order to obtain custody” is inapplicable where (1) the district court exercises its discretion to protect the safety of a child by granting temporary custody to the child’s grandparents in an ex parte proceeding, (2) ex parte relief would not have been available under Minn. Stat. § 518.158, and (3) the court subsequently grants permanent custody to the grandparents in a contested proceeding under Minn.Stat. § 518.156.

Affirmed.


author: KAPSNER, Justice.

text:
    2001 ND 120
    STATE of North Dakota, Plaintiff and Appellee, v. Eugene SCHNEEWEISS, Defendant and Appellant.
    No. 20000295.
    Supreme Court of North Dakota.
    July 10, 2001.
    Rehearing Denied Aug. 30, 2001.

      Allen M. Koppy (argued), State’s Attorney, and Ladd R. Erickson (on brief), Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Wayne D. Goter, Goter Law Office, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Eugene Schneeweiss appeals from the judgment of conviction based on a jury verdict of guilty for driving a vehicle while under the influence of intoxicating liquor. Schneeweiss claims the trial court improperly denied him assistance of counsel in his defense. We affirm.

I

[¶ 2] On December 17, 1999, Schneew-eiss was arrested for driving a motor vehicle while under the influence of intoxicating liquor. At his initial appearance, the trial court advised Schneeweiss of his right to court-appointed counsel if Schneeweiss was indigent and asked if Schneeweiss was going to hire his own attorney. Schneew-eiss replied that he already had talked to an attorney and was going to hire his own. However, on January 18, 2000, Schneew-eiss submitted an application for a court-appointed attorney. The trial court denied the request because Schneeweiss was not indigent, as he had no dependents and was earning $1,200 per month, which exceeds the guideline requirement for appointed counsel. Schneeweiss appeared pro se at his pretrial conference and requested a jury trial.

[¶ 3] On March 13, 2000, Schneeweiss reapplied for a court-appointed attorney, this time claiming no income. The trial court appointed an attorney and continued the trial date. One day before the rescheduled trial, Schneeweiss requested a new court-appointed attorney after threatening a malpractice suit and demanding the attorney to withdraw for allegedly failing to conduct sufficient discovery, failing to call requested witnesses, and refusing to file perjury charges against the arresting officer. The attorney filed a motion to withdraw, stating much of the requested discovery was irrelevant and undiscovera-ble, the requested witnesses were in jail and had never been arrested by the officer so would not be able to prove the officer improperly arrested Schneeweiss, and the attorney refused to be “a tool for [Schneeweiss] to exact his retribution” against the arresting officer. At a hearing on the motion to withdraw, the State requested placing conditions on Schneew-eiss’s request for a court-appointed attorney as sanctions for harassing attorneys and delaying process. The trial court granted the motion to withdraw, stating Schneeweiss would be allowed one additional appointed counsel, and rescheduled the trial a second time.

[¶ 4] Subsequently, the newly appointed counsel asked the trial court why Schneeweiss, who was working, qualified for appointed counsel. Schneeweiss had not notified the trial court he was working, although the application for court-appointed counsel required notifying the judge of any changes occurring after filing the application. The trial court scheduled an Order to Show Cause to determine if Schneeweiss was still eligible for court-appointed counsel. At a hearing on October 9, 2000, which was 10 days before trial, the trial court determined Schneeweiss’s income exceeded the amount allowed by the guidelines for appointed counsel. The trial court vacated the appointment of counsel and affirmed the trial date of October 19, 2000.

[¶ 5] On October 10, 2000, the trial court administrator received a letter from Schneeweiss, dated September 6, 2000, alleging harassment by the state’s attorney to “stall this case beyond the limits set do[wn] for a speedy trial.” Schneeweiss stated he had a right to a speedy trial, but the court-appointed attorneys did not file requested papers so as “to stall this case to continue to terrorize me.” The court administrator immediately replied that the trial would take place as scheduled on October 19, 2000, and suggested Schneew-eiss take the necessary steps to prepare his case. On October 13, 2000, Schneew-eiss again applied for appointed counsel, claiming he was temporarily unemployed and reporting no monthly income. The trial court indicated Schneeweiss was not indigent and did not approve his application. Schneeweiss defended his case pro se; the jury found him guilty. Schneew-eiss appeals, arguing he improperly was denied assistance of counsel in his defense.

II

[¶ 6] The right to counsel in a criminal case is mandated both by the North Dakota Constitution and the Sixth Amendment of the United States Constitution. State v. DuPaul, 527 N.W.2d 238, 240 (N.D.1995); N.D. Const. art. I, § 12 (“In criminal prosecutions in any court whatever, the party accused shall have the right to ... appear and defend in person and with counsel.”); U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defense.”).

[¶ 7] Indigent defendants have the right to counsel appointed by the court, under N.D.R.Crim.P. 44(a), which provides:

Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through appeal in the courts of this state in all felony cases ... [and] in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall appoint counsel to represent a defendant at the defendant’s expense if the defendant is unable to secure the assistance of counsel and is not indigent.

The right to appointed counsel is a limited right, not an absolute right. DuPaul, 527 N.W.2d at 240-41. We have cautioned there is no legal reason to appoint counsel for defendants who can afford to obtain their own counsel. Id at 241. On review of a trial court’s denial of a request for appointed counsel, we inquire whether the trial court acted arbitrarily, unconscionably, or unreasonably. Id at 240.

Ill

[¶ 8] Schneeweiss argues because the trial court vacated the appointment of his second appointed counsel just 10 days before trial, the trial court improperly denied Schneeweiss the assistance of counsel in his defense. The trial court vacated the appointment of counsel due to Schneew-eiss’s reported monthly income, yet Schneeweiss asserts the trial court (1) failed to consider whether he had the present assets to retain an attorney, (2) refused to appoint substitute counsel, (3) refused to continue the trial to allow Schneeweiss additional time to prepare his defense, and (4) should have allowed the second appointed counsel to continue and ordered Schneeweiss to pay for counsel after determining Schneeweiss was not indigent.

1

[¶ 9] Schneeweiss contends the trial court improperly made no inquiry into whether he had the present resources to pay the retainer necessary to hire an attorney to represent him at a jury trial, notwithstanding his reported monthly income.

[¶ 10] The guidelines establish eligibility for indigent defense services for an individual with no dependents at a maximum annual gross income of $10,438. N.D. Legal Counsel for Indigents Comm’n, N.D. Sup.Ct., Indigent Defense Procedures and Guidelines, Dec. 1995, at 1.4 (rev.Apr. 2000). Defendants bear the burden of proving they are indigent and qualify for appointed counsel. State v. DuPaul, 527 N.W.2d 238, 242 (N.D.1995). In DuPaul, we concluded the trial court did not arbitrarily or unreasonably deny counsel to the defendant when he failed to prove his indi-gency. Id. We reasoned, “Without adequate proof of indigency, the court did not act unreasonably in denying appointed counsel even if DuPaul truly believed he was too poor to hire his own lawyer.” Id.

[¶ 11] Similarly, we affirmed a trial court’s revocation of a defendant’s indigen-cy status after first determining him to be indigent and appointing counsel for representation in all matters pertaining to the case. State v. Fontaine, 382 N.W.2d 374, 375-76 (N.D.1986). Three months after appointment of counsel, the defendant received social security benefits which elevated his income above the guideline amount required to qualify for public-paid defense services. Id. We concluded the defendant was not prejudiced by the revocation of his indigency status, as he did not show he was unduly burdened by the revocation or that the flow of court proceedings was disrupted. Id. at 376.

[¶ 12] On January 18, 2000, Schneeweiss submitted his first application for appointed defense services, indicating he had no dependents and reporting a monthly income of $1,200. This monthly income results in an annual income of $14,400, which is $4,000 over the guideline amount required for indigent defense services eligibility. Thus, the trial court properly disapproved of Schneeweiss’s application on the basis that he was not indigent. Two months later, on March 13, 2000, Schneeweiss again applied for appointed counsel, this time reporting no income. The trial court approved his application and appointed counsel. However, the trial court later issued an Order to Show Cause, as Schneeweiss informed counsel he was now gainfully employed and failed to respond to the court’s request for disclosure of current financial information regarding such employment. After a hearing, the trial court found Schneew-eiss’s earned income exceeded the guideline requirements and vacated the appointment of counsel. A mere three days later, Schneeweiss again reapplied for appointed counsel, stating he was temporarily unemployed and reporting no income. The trial court denied his application, indicating Schneeweiss was not indigent.

[¶ 13] Our review of the record demonstrates the trial court did not act arbitrarily, unconscionably, or unreasonably when determining Schneeweiss was not indigent. Schneeweiss failed to carry his burden of proving his indigency to the trial court. We conclude the trial court did not abuse its discretion by denying Schneeweiss’s application for appointed counsel.

2

[¶ 14] Schneeweiss claims because the trial court vacated the appointment of his second appointed counsel just 10 days before trial, without appointing a substitute counsel, Schneeweiss was improperly denied the assistance of counsel in his defense.

[¶ 15] Substitution of appointed counsel is committed to the trial court’s sound discretion. State v. Harmon, 1997 ND 233, ¶ 12, 575 N.W.2d 635. A trial court does not abuse its discretion by refusing to substitute appointed counsel, unless there is a showing of good cause for the substitution. Id. And a trial court has no duty to appoint specific counsel or to continually seek new substitute counsel for a capricious and difficult defendant. Id.

[¶ 16] The trial court issued an Order to Show Cause because Schneeweiss failed to respond to requests for disclosure of his financial information regarding his current employment. At the hearing, Schneeweiss affirmed under oath his employment and earning capacity of $1,200 per month and indicated he supported no one other than himself. Thus, we conclude Schneeweiss failed to show good cause for substitution of appointed counsel, and the trial court did not abuse its discretion by refusing to substitute counsel.

3

[¶ 17] Schneeweiss argues he asked for a continuance of trial, after his appointed counsel was terminated, so Schneeweiss could prepare his own defense. Schneew-eiss contends the trial court denied his request for a continuance.

[¶ 18] When a defendant seeks a continuance to change lawyers, this right must be carefully balanced against the public interest in the orderly administration of justice. State v. Wicks, 1998 ND 76, ¶ 26, 576 N.W.2d 518. In such cases, the trial court has the discretion to determine whether to grant a continuance. Id. In exercising its discretion, the trial court may consider the time required for trial preparation and the diligence of the moving party. Id. at ¶ 27. In Wicks, we concluded the trial court denied the defendant’s right to counsel by allowing appointed counsel to withdraw on the very day of trial, thus forcing the defendant to proceed pro se. Id. at ¶¶ 28-29.

[¶ 19] A close reading of the record indicates Schneeweiss did not request a continuance of the trial to prepare his own defense. In fact, just the opposite occurred, as Schneeweiss asserted his right to a speedy trial in his letter received by the trial court on October 10, 2000. The letter claimed appointed counsel and the state’s attorney conspired to terrorize Schneeweiss and “to stall this case beyond the limits set do[wn] for a speedy trial.” The district court administrator replied immediately, indicating the trial “will take place as scheduled” on October 19, 2000. The court administrator further admonished Schneeweiss to “take the necessary steps to prepare your case.” The trial court’s Order to Show Cause affirmed the trial date would “not be continued for substitution of legal counsel.” Moreover, the transcript of the hearing to vacate appointed counsel indicates the trial court informed Schneeweiss of the trial date and stated: “That grants you ten days to secure counsel or in the alternative represent yourself.” This situation is a far cry from that of the defendant whose counsel was excused on the very day of trial. Wicks, 1998 ND 76, ¶ 28, 576 N.W.2d 518.

[¶ 20] We conclude the trial court did not abuse its discretion in failing to continue the trial date, as Schneeweiss did not request a continuance and had 10 days to either hire an attorney or prepare his own defense.

4

[¶ 21] Schneeweiss asserts after the trial court found he was not indigent, the court should have allowed the second appointed counsel to continue his representation and ordered Schneeweiss to pay for the attorney at private expense.

[¶ 22] Under N.D.R.Crim.P. 44(a), provisions are made for appointment of counsel at the private expense of the defendant, with two conditions: “The court shall appoint counsel to represent a defendant at the defendant’s expense if the defendant is unable to secure the assistance of counsel and is not indigent.” Thus, even someone who is not indigent is entitled to appointed counsel, if unable to find an attorney; but such appointment must be at the party’s own expense, not the expense of the public. State v. DuPaul, 527 N.W.2d 238, 242 (N.D.1995). In Du-Paul, we suggested that while the defendant was not entitled to publically funded appointed counsel, because he did not prove his indigency, yet he may have been entitled to court-appointed counsel at his own expense, only “if he was otherwise unable to locate [counsel] to assist him.” Id.

[¶ 23] Schneeweiss contradicts himself, first by stating he had no assets available to retain an attorney, notwithstanding his monthly income, and then by stating the trial court should have required him to privately pay for an appointed counsel. Moreover, our review of the record does not disclose any unsuccessful efforts of Schneeweiss to obtain private counsel. See DuPaul, 527 N.W.2d at 242 (refusing to appoint counsel at the defendant’s own expense because he wanted a “free” attorney without any effort to prove he needed one).

[¶ 24] We conclude the trial court did not err in failing to allow appointed counsel to continue representation and to order Schneeweiss to privately pay, after determining he was not indigent, because Schneeweiss did not demonstrate he was otherwise unable to secure the assistance of counsel.

IV

[¶ 25] Although Schneeweiss ultimately proceeded pro se, he argues he desired the assistance of counsel at trial, or he would not have made his last application for court-appointed counsel three days before the trial. Schneeweiss insists the trial court was “grossly unfair” in demanding him to acquire complete mastery of the rules of evidence and procedure in 10 days and in threatening him with contempt of court if he attempted to introduce evidence the trial court found to be irrelevant. The State resists this argument and argues Schneeweiss’s conduct constituted a knowing and intelligent functional waiver of counsel. We agree.

[¶ 26] Criminal defendants who proceed pro se must voluntarily, knowingly, and intelligently relinquish the benefits of counsel. State v. Dvorak, 2000 ND 6, ¶ 10, 604 N.W.2d 445. In order to competently and intelligently choose self-representation, defendants need not have the skill and experience of counsel but should be aware of the dangers and disadvantages of appearing pro se, so the record establishes the choice is made “with eyes open.” Id. (citing Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). To ensure the defendant’s eyes were open when choosing self-representation, we have applied a two-part test to analyze the defendant’s waiver of the right to counsel: (1) whether the waiver was voluntary, and (2) whether the waiver was knowing and intelligent. Dvorak, at ¶ 12.

1

[¶ 27] Under the first part of the test for waiver of the right to counsel, we have recognized a defendant need not make unequivocal statements indicating a voluntary desire to proceed pro se; rather, the defendant’s conduct may be the functional equivalent of a voluntary waiver of the right to counsel. State v. Harmon, 1997 ND 233, ¶¶ 15, 21, 575 N.W.2d 635. We have concluded conduct such as continued requests by a defendant for a new appointed counsel, after the trial court clearly denied an initial request, was the functional equivalent of a voluntary waiver of right to counsel. See, e.g., City of Fargo v. Rockwell, 1999 ND 125, ¶ 14, 597 N.W.2d 406; Harmon, at ¶ 21. We have also determined a manipulative pattern of obstructing the legal process is the functional equivalent of a voluntary waiver of right to counsel. State v. Dvorak, 2000 ND 6, ¶ 15, 604 N.W.2d 445.

[¶ 28] Here, Schneeweiss indicated at his initial appearance that he had already talked to an attorney and was going to hire his own. Schneeweiss later requested appointed counsel, but the trial court denied his request because Schneew-eiss reported a monthly income of $1,200, which exceeded the guidelines. Schneew-eiss appeared pro se at his pretrial conference, but later reapplied for appointed counsel, claiming no income. The trial court appointed counsel and continued the trial date. However, one day before the rescheduled trial, Schneeweiss requested a new appointed counsel, which the trial court granted, admonishing Schneeweiss that he would be allowed only one additional appointed counsel. The court rescheduled the trial a second time. Because Schneeweiss failed to report his changed employment status and current financial information to the court, the trial court vacated the appointment of counsel 10 days before the trial. The court stated the trial would not be continued for substitution of counsel, and once again turned down Schneeweiss’s third application for indigent services which he submitted three days after he informed the trial court he was employed again.

[¶ 29] The record provides evidence of Schneeweiss’s pattern of obstructing the legal process by his conduct: repeatedly requesting appointed counsel after his request was denied, manipulating his income when applying for indigent services, failing to report his changed employment status to the court, and refusing to respond to the trial court’s request for current financial information from his gainful employment. Although Schneeweiss claims he desired the assistance of counsel, or he would not have made his last application for court-appointed counsel, we conclude Schneew-eiss’s conduct constitutes the functional equivalent of a voluntary waiver of his right to counsel.

2

[¶ 30] Under the second part of the test for waiver of the right to counsel, we analyze the record and the facts and circumstances of each case to determine whether the functional waiver was knowing and intelligent. State v. Dvorak, 2000 ND 6, ¶ 16, 604 N.W.2d 445. For a defendant to knowingly and intelligently waive the right to counsel and opt to proceed pro se, the defendant must be aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows the choice is made with eyes open. Id.

[¶ 31] Early in the proceedings, when Schneeweiss appeared without counsel at his pretrial conference, the trial court admonished him: “Do you understand in a course of trial by jury that I’ll hold you to the Rules of Criminal Procedure and Rules of Evidence, and I’ll expect that you be conversant with the same?” Again at the hearing vacating court-appointed counsel, the trial court affirmed the trial date and informed Schneeweiss:

That grants you ten days to secure counsel or in the alternative represent yourself.
Let me assure you if you choose to represent yourself, I’ll hold you to the North Dakota Rules of Criminal Procedure, including all rules applicable to jury selection. Do you understand?

When Schneeweiss answered in the affirmative and asked the court if he could subpoena witnesses, the trial court stated:

You are entitled to that process. I caution you, however, that anyone who is subpoenaed must have factual information that is relevant to your case; and if you exercise it towards anyone who does not, as someone who is exercising that authority I reserve the contempt powers of the court. And I don’t mean that as an intimidation. All I’m saying, I don’t want some citizen to be subpoenaed to sit in the courtroom to find out that they have no factual information to offer at the time of trial. Do you understand?

[¶ 32] Our review of the record indicates Schneeweiss understood the dangers and disadvantages of self-representation and proceeded with eyes open. We conclude Schneeweiss knowingly and intelligently waived his right to counsel.

V

[¶ 33] In summary, Schneeweiss was, not denied assistance of counsel, but rather he failed to prove his indigency, failed to request a continuance of trial, and failed to show, he was unable to obtain his own attorney in the 10 days before trial. Schneeweiss voluntarily proceeded pro se, functionally waiving his right to counsel, fully aware of the dangers and disadvantages of self-representation. The judgment of conviction is affirmed.

[¶ 34] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.