author: HUDSON, Judge.

text:
    NORWEST BANK MINNESOTA NORTH, N.A., as Trustee of the Stephen Lisle Trust, Appellant, v. Reed BECKLER, Respondent.
    No. C7-02-2109.
    Court of Appeals of Minnesota.
    June 24, 2003.

      James A. Wade, Roy J. Christensen, Johnson, Killen & Seiler, P.A., Duluth, MN; and Thomas H. Boyd, Matthew D. Spohn, Winthrop & Weinstine, P.A., St. Paul, MN, for appellant.
    John F. Bonner, III, Robert J. Borhart, Bonner & Borhart LLP, Minneapolis, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge, TOUSSAINT, Chief Judge, and MINGE, Judge.
   OPINION

HUDSON, Judge.

Appellant bank, acting as corporate trustee, sued to enforce obligations to the trust under a note executed in favor of decedent settlor allegedly owed by his former son-in-law. Respondent’s former son-in-law counterclaimed seeking declaratory relief and damages. The jury found, by special verdict, that: (a) the receipt of a future gift of $125,000 under the settlor’s trust formed a condition precedent to the repayment of the note; (b) the surviving spouse of the settlor, in her attempt to exercise a special power of appointment to remove all assets from the trust, lacked capacity and was unduly influenced in her attempt to disinherit the former son-in-law; and (c) the corporate trustee bank breached its fiduciary duty by advising the spouse to disinherit the former son-in-law. Because the evidence sustains the jury’s verdict as to the existence of the condition precedent, undue influence, and lack of capacity, we affirm on those issues. We reverse, however, on the issue of breach of fiduciary duty because we conclude that the bank, which merely advised the spouse on the possibility of exercising the special power of appointment and referred her to independent counsel, did not materially affect her decision to exercise that power in derogation of any legal duty to the former son-in-law as a successor beneficiary.

FACTS

Appellant Norwest Bank brought this action as trustee of a trust created by Stephen Lisle in order to enforce respondent Reed Beekler’s (Beckler) obligations under a promissory note allegedly due and owing to the trust. The promissory note, signed by Beckler on June 1, 1993, evidenced a loan of $150,000 made by Lisle to Beckler to purchase the land on which Beckler’s mobile home sales and finance business operated. At that time Beckler was married to Lisle’s daughter, Cynthia Lisle Beckler. Beckler had a close relationship with his father-in-law, who had previously loaned him money to use in connection with his business.

The parties negotiated a rate of 10.5% interest on the loan, but no date was specified for repayment of the principal of the note. Beckler testified that it was his understanding, from a meeting with Lisle, that the note was to be repaid from a specific gift of $125,000 that Beckler was to receive, along with Cynthia Beckler, on Lisle’s death, pursuant to the terms of a trust created by Lisle. According to Beckler, when he received word of the future gift, he took the note, which had previously listed only Lisle’s name as payee, and added the word “Trust” in blue ink.

Stephen Lisle had executed this revocable trust in June 1993, naming Norwest Bank as corporate trustee. He had also executed a will in February 1993. His wife, Catherine Lisle, had executed a similar trust. The Restatement of Stephen M. Lisle Revocable Trust Agreement, Article 4b.(2) provided a special power of appointment:

[M]y trustee shall pay to or apply directly for the benefit of the group consisting of my children or their issue, such amounts or portions of the FAMILY TRUST as my wife, from time to time, may direct in writing. Her written request for such purpose shall be filed with my trustee, and may be effective immediately or upon the occurrence of a date or event in the future, such as upon her death. The special power of appointment conferred upon my wife under this subparagraph (2) shall not be exercisable in favor of, or for the benefit of herself, her estate, her creditors, or the creditors of her estate, or for the purpose of discharging her legal obligations. Any amount distributed to a beneficiary pursuant to the provisions of this subparagraph (2) shall not be charged against the share of the trust ultimately distributed to such beneficiary, as hereinafter provided, unless my wife shall so direct in the instrument exercising the special power of appointment.

Around the time he executed the trust, Lisle discussed the promissory note with Keir Johnson, the Norwest trust officer assigned to the Lisle accounts. At Lisle’s direction, Johnson was not currently responsible for collecting interest on the note, but if Lisle became incompetent or deceased, Johnson was to treat it as a trust asset and collect the interest and principal when due.

In May 1994, Lisle had a stroke and died shortly thereafter. Upon his death, the trust changed from revocable to irrevocable. During June 1995, Johnson attempted to negotiate with Beckler regarding the terms of the note, seeking security for the note in the form of a mortgage on Beckler’s property. Beckler refused to grant a mortgage and stopped paying interest on the note in March 1996, about the time that he and his wife instituted dissolution-proceedings.

As the dissolution proceedings became more heated, Catherine Lisle contacted Johnson and expressed her wish to disinherit Beckler. In addition, Cynthia Beckler informed Johnson that Catherine Lisle wanted to eliminate the gifts to Beckler from the trust instruments. Johnson initially told Catherine Lisle that she could change the provisions of her trust, but that because Lisle had died, his trust could not be changed. At the time of the Beckler dissolution trial, however, Johnson became aware of a method by which this objective could be accomplished: by exercising her special power of appointment under the Stephen Lisle trust, Catherine Lisle could direct- the trustee to pay out the trust funds among the descendants in any way that she chose, so that, as a result, no money would remain in the trust for payment of the gift to Beckler.

Johnson explained this provision ’to Catherine Lisle. At her request, he then called her attorney, Paul Steil, and conveyed Lisle’s wishes to him. Steil drafted the necessary document for exercising the special power of appointment. He then went to Lisle’s home along with Johnson for her to sign it. Steil reviewed the document, explaining its effect to her. Catherine Lisle signed the special power of appointment pursuant to Article 4b.(2) in the trust agreement on May 21, 1997. Steil testified that she was “very pleased that she was able to make this change,” which negated the gift of $125,000 to Cynthia and Reed Beckler. Steil also suggested that she might want to revoke a power of attorney that she had given Beckler. She agreed that she wanted to do that, and he prepared that document for her signature. According to Steil, Catherine Lisle appeared, in his professional opinion, to possess testamentary capacity.

Catherine Lisle also made changes in her own revocable trust in favor of her daughter, Cynthia Lisle Beckler, during this time period. For instance, she changed the gift of $125,000 in her trust from Reed and Cynthia Beckler to Cynthia alone, and provided that Cynthia would receive Catherine’s house on her death. She also increased the gift to Cynthia Beckler from her own trust from $125,000 to $250,000.

A caregiver working for Catherine Lisle at this time testified that Cynthia Beckler had a negative relationship with her mother. For instance, Cynthia Beckler frequently asked Catherine Lisle to sign things, she would call her mother ten to fifteen times a day, she took her mother on two- to three-hour walks that her mother did not enjoy, and placed antianxiety medication in her food. The caregiver testified that Catherine Lisle would eventually sign the documents requested by Cynthia Beck-ler. The caregiver also testified that after Cynthia Beckler’s calls, Catherine Lisle was “usually shaky” and often responded “all right,” “I will.” One of the caregivers left the employ of Catherine Lisle because she believed that Cynthia Beckler was turning Catherine Lisle against the caregiver. Another caregiver also spoke of similar incidents and testified that Cynthia Beckler, on one occasion, forced Catherine Lisle to eat. A third caregiver, however, refuted that testimony and spoke of a loving mother-daughter relationship.

Catherine Lisle signed two related documents in the summer of 1997, witnessed by her caregiver. In one document, Lisle stated that if Beckler paid the $150,000 note, plus interest, the repayment would be put into Cynthia Beckler’s portion of the family trust. The other document stated that the $150,000 note was not an obligation of Cynthia Beckler. On the advice of her attorney, Lisle rescinded these directives in December 1997.

Norwest filed this lawsuit in November 1997 to collect on the promissory note signed by Beckler. Beckler alleged as affirmative defenses (a) that his receipt of the $125,000 gift was a condition precedent to his obligation to pay on the note, and (b) that Catherine Lisle lacked testamentary capacity to exercise the special power of appointment to pay out all of the trust assets and her decision to do so was the product of undue influence by Cynthia Beckler. Beckler also filed a counterclaim for breach of fiduciary duty against Nor-west, claiming that it owed a fiduciary duty to him as a beneficiary under the trust and breached that duty by advising Catherine Lisle how to remove the gift to him under the trust.

Also in November 1997, Catherine Lisle’s two sons, Michael and Stephen Lisle, supported a petition for general conserva-torship over their mother. Attorney Steil represented Catherine Lisle in the conser-vatorship proceedings, which resulted in an agreement appointing Catherine Lisle’s accountant and administrative assistant as conservator of her person and Johnson as conservator of her financial affairs.

In March 1999, the trial court denied Norwest’s motion for summary judgment on the claim involving the promissory note. The court ruled that, although Beckler could not present parol evidence to establish a modification of the terms of payment for the note, he could present evidence to determine whether Beckler’s receipt of the gift under the trust was a condition precedent to repayment of the loan.

After numerous discussions with Steil over a six-month time span, Catherine Lisle signed another special power of appointment in July 1999. The exercise of this special power of appointment substantially changed the way in which she disposed of not only her own assets, but also the assets in Stephen Lisle’s trust, as distributed between the children and grandchildren. Steil testified that, in his opinion, she had testamentary capacity at that time as well. Moreover, a psychologist evaluated Catherine Lisle before she signed the documents and concluded that she was competent.

In August, 1999, Johnson wrote to Cynthia Beckler in response to her concern that her cash flow (then $5,000 per month, paid from her mother’s revocable trust), would be disrupted by claims that might be raised by her brothers after Catherine Lisle’s death. Johnson indicated that Stephen and Michael Lisle might claim that Cynthia Beckler unduly influenced their mother to make changes to her estate plan that were favorable toward her, Cynthia Beckler, not the sons.

At Catherine Lisle’s deposition during November 1999, her doctor indicated in a letter that she had chronic obstructive lung disease and it took her a long time to answer questions. During the deposition, she appeared confused and did not remember drafting the initial revocable trusts. Catherine Lisle died shortly thereafter.

The court held a jury trial in May 2002, on the issues of whether Beckler’s receipt of the gift pursuant to the trust agreement was a condition precedent to repayment of the note, whether Catherine Lisle lacked testamentary capacity and was unduly influenced in her exercise of the special power of appointment, and whether Norwest breached a fiduciary duty to Beckler by informing Catherine Lisle of her ability to exercise the special power of appointment to remove the gifts to Beckler from the trust. The jury returned a special verdict, finding that, although Beckler owed $150,000 on the note plus accrued interest of $97,992.21, there was a condition precedent to repayment of the loan. The jury found that Norwest, as trustee, owed a fiduciary duty to Beckler, and that the bank breached that duty, causing damages of $88,054.71. Finally, the jury found that the trust document allowed Catherine Lisle to use the special power of appointment under the trust to disinherit Beckler, but that she lacked testamentary capacity and was unduly influenced to disinherit Beckler when she did so. The trial court denied Norwest’s motion for judgment notwithstanding the verdict, or, in the alternative, a new trial on the issues of breach of fiduciary duty, condition precedent, lack of testamentary capacity, and undue influence. This appeal followed.

ISSUES

I. Does the evidence support the jury’s finding that respondent’s future gift constituted a condition precedent with respect to liability on a promissory note?
II. Does the evidence support the jury’s findings that decedent’s spouse lacked testamentary capacity and was unduly influenced in exercising special powers of appointment pursuant to the trust?
III. Did Norwest breach a fiduciary duty to Beckler, a successor beneficiary, by informing Catherine Lisle, the current beneficiary, of her ability to exercise the special power of appointment to prevent Beckler from receiving funds under the trust?

ANALYSIS

We review de novo the denial of a motion for judgment notwithstanding the verdict. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). In this review, we view “the evidence in the light most favorable to the nonmoving party * * Id. (citation omitted). We determine whether the jury’s verdict is “manifestly against the evidence” or whether, despite the jury’s factual findings, the moving party should be awarded judgment as a matter of law. Id. (citation omitted).

The decision to grant a new trial lies within the trial court’s sound discretion, and we will not disturb its decision absent an abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990). We will reverse a jury verdict only if it is “manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.” Roemer v. Martin, 440 N.W.2d 122, 124 (Minn.1989) (quotation omitted).

I

Norwest first argues that the record lacks objective evidence supporting Beckler’s claim that his receipt of the future gift of $125,000 pursuant to the trust was a condition precedent to the repayment of the promissory note. An intent to be contractually bound is determined by the objective manifestations of the parties’ words, conduct, and documents, and not by their subjective intent. Holman Erection Co. v. Orville E. Madsen & Sons, 330 N.W.2d 693, 695 (Minn.1983). But

[wjords are not the only medium of expression. The conduct of the parties is also to be looked to since it often conveys as clearly as words a promise or an assent to a proposed promise.

Cut Price Super Markets v. Kingpin Foods, Inc., 256 Minn. 339, 354, 98 N.W.2d 257, 268 (1959). In this case, the evidence showed that Beckler and Lisle were close as father and son-in-law; Lisle had previously helped Beckler find work and extended smaller business loans to him. In view of Beckler and Lisle’s close relationship, the jury could reasonably find that Beckler’s testimony that Lisle wished to help him purchase the land on which his mobile home business stood was credible, and that it was equally credible that Lisle, in making a larger loan, would provide that Beckler need not repay him until Beckler received the anticipated gift from Lisle’s trust.

Norwest also argues that the trial court erred in admitting evidence of Beck-ler’s understanding of a condition precedent to repayment of the promissory note because any such agreement between Beckler and Lisle constituted a contract to make a will, which is invalid as a matter of law absent a writing signed by the decedent. See MinmStat. § 524.2-514 (2002) (requiring, in order to establish a contract to make a will, “a writing signed by the decedent evidencing the contract”). But in this case, Lisle did not contract to make a future bequest; he had a valid, previously-existing will. Within three days after the note in question was signed, he also executed a trust agreement which provided, at his death, an unequivocal $125,000 gift to Beckler and his then-wife, Cynthia Beck-ler, subject only to the trust’s ability to fund the gift. The understanding between Lisle and Beckler operated only as a collateral agreement to forbear collection of the promissory note until the existing gift would devolve upon Beckler with due operation of law after Lisle’s death. As such, this collateral agreement does not constitute a contract to make a will within the meaning of Minn.Stat. § 524.2-514. Thus, the jury’s verdict that the receipt of the gift was a condition precedent to the repayment of the note was not manifestly against the weight of the evidence.

II

Because the exercise of the special power of appointment under the trust is akin to executing a will, the standard used in evaluating the capacity of Catherine Lisle to execute these powers of appointment is that used in determining testamentary capacity for the execution of a will. See, e.g., Ameson v. Ameson, 372 N.W.2d 20, 21 (Minn.App.1985) (considering issues of lack of testamentary capacity and undue influence in context of trust instrument), review denied (Minn. Oct. 11, 1985). A testator will be found to have testamentary capacity if the testator understands

the nature, situation, and extent of his property and the claims of others on his bounty and * * * [is] able to hold these things in his mind long enough to form a rational judgment concerning them.

In re Estate of Congdon, 309 N.W.2d 261, 266 (Minn.1981) (quotation omitted). Factors to be considered in determining whether testamentary capacity exists include: (1) the reasonableness of the proposed disposition; (2) the testator’s conduct before and after the execution of the document; (3) any prior adjudication regarding the testator’s mental capacity; and (4) any expert testimony concerning the testator’s physical and mental condition. In re Estate of Anderson, 384 N.W.2d 518, 520 (Minn.App.1986). Because testamentary capacity is a less stringent standard than the capacity to contract, an individual subject to conserva-torship may still be found to have testamentary capacity. Congdon, 309 N.W.2d at 267.

In reviewing a trial court’s denial of JNOV, we will not reverse unless the evidence reaches the “practically conclusive” threshold, even if a different jury might have reached another conclusion. Pouliot, 582 N.W.2d at 225. The jury determines the weight and credibility to be given to testimony. SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311 (Minn.1995). In this case, when viewing the evidence in favor of the verdict, we conclude that the jury could reasonably have found that Catherine Lisle lacked testamentary capacity to execute the special power of appointment in 1997 when she attempted to remove funds from the trust so that Beckler’s gift could not be funded. We acknowledge that the testimony of her attorney, Paul Steil, would support a conclusion that Catherine Lisle had the capacity to understand to whom she wanted to leave her money. But the establishment of a general conservatorship approximately seven months later, while not dispositive, reasonably supported an inference that Catherine Lisle needed significant assistance to make financial and personal decisions. The jury’s verdict is similarly supported by evidence that Catherine Lisle was confused about drafting the initial revocable trusts and her later exercise of the special power of appointment when she was deposed. We cannot put ourselves in the place of the jury and must assume that they found the evidence of incapacity more compelling, persuasive, and credible.

The jury also found that Catherine Lisle was unduly influenced in her exercise of the special power of appointment to disinherit Reed Beckler. A showing of undue influence requires that the influence exerted was “so dominant and controlling of the testator’s mind that” the testator “ceased to act of [her] own free volition and became a mere puppet of the wielder of that influence.” In re Estate of Pundt, 280 Minn. 102, 104-05, 157 N.W.2d 889, 841 (1968). Undue influence, by its nature, is often shown only by circumstantial evidence. In re Estate of Peterson, 283 Minn. 446, 449, 168 N.W.2d 502, 504 (1969). Factors indicating undue influence in the context of a will include: (a) an opportunity to exercise such influence; (b) a confidential relationship between the testator and the person purportedly exercising undue influence; (c) active participation in the preparation of the will by person purportedly exercising undue influence; (d) disinheritance of those who would likely have been named in the will; (e) singularity of the will’s provisions; and (f) the use of influence or persuasion to induce the testator to make the will in question. Id. at 449, 168 N.W.2d at 504.

In this case, the clear weight of the evidence supports the jury’s verdict that Catherine Lisle was unduly influenced when she exercised the special power of appointment in May 1997. The record established that Cynthia Beckler, who was close to her mother, had the opportunity to exercise such influence. In fact, in 1996-97, Catherine Lisle made substantial changes to her own estate in favor of her daughter. In addition, one of the caregivers testified that Cynthia Beckler called her mother ten to fifteen times per day, and that Catherine Lisle was “usually shaky” after those calls and often responded “all right,” “I will.” Another caregiver indicated that Cynthia Beckler would frequently subject her mother to screaming, name calling and physical intimidation. On one occasion, Cynthia Beckler tried to force Catherine Lisle to eat without first allowing her to orient herself by waking up and situating her false teeth in her mouth properly. According to the caregiver, Cynthia Beckler forced food into her mother’s mouth despite protestation. On this record, the jury could reasonably have found that Catherine Lisle was subject to undue influence by Cynthia Beckler in exercising the special power of appointment to disinherit Reed Beckler. Accordingly, we conclude that the trial court did not abuse its discretion in failing to order a new trial, or err in failing to grant JNOV on this issue.

Ill

Lastly, we consider the jury’s finding that Norwest, as trustee, breached a fiduciary duty to Beckler by advising Catherine Lisle that she could exercise the special power of appointment under her husband’s trust to prevent Beckler from receiving funds from that trust. A trustee has the duty to “exercise reasonable care, skill, and caution” in investing and managing trust assets “as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust.” Minn.Stat. § 501B.151, subd. 2(a) (2002). A trustee may not exercise its discretion in a manner that defeats the settlor’s intent or the purposes of the trust. United States v. O’Shaughnessy, 517 N.W.2d 574, 577 (Minn.1994). But “[so] long as the trustees act in good faith, from proper motives, and within the bounds of reasonable judgment, the court will not interfere with their decisions.” Id. (citation omitted).

We must therefore determine whether Norwest acted in good faith and used reasonable judgment in advising Catherine Lisle that she could exercise the special power of appointment. In our review, we recognize that the ultimate purpose of interpreting a trust is to effectuate the intent of the grantor. In re Trust of Tufford, 275 Minn. 66, 71, 145 N.W.2d 59, 64 (1966); see also In re Trusteeship under Agreement with Mayo, 259 Minn. 91, 95, 105 N.W.2d 900, 903 (1960) (stating that “[o]ne of the court’s highest duties is to give effect to the donor’s dominant intention as gathered from the instrument as a whole” (citation and footnote omitted).

The Restatement (Third) of Trusts § 232, at 181 (1992) states:

If a trust is created for beneficiaries in succession, the trustee is under a duty to the successive beneficiaries to act with due regard to their respective interests.
⅜ ⅜
The precise meaning of the trustee’s duty of impartiality and the balancing of competing interests and objectives inevitably are matters of judgment and interpretation. Thus, the duty and balancing are affected by the purposes, terms, distribution requirements, and other circumstances of the trust, not only at the outset but as they may change from time to time.

Id., cmt. c, at 182. A trustee holding for successive beneficiaries owes each a duty to administer the trust impartially for all beneficiaries. George G. Bogert, et al., The Law of Trusts and Trustees, § 541, at 163 (2d ed. rev.1993). But it is also the trustee’s duty to “disclose to the beneficiary fully, frankly, and without reservation all facts pertaining to the trust.” In Re Enger’s Will, 225 Minn. 229, 239, 30 N.W.2d 694, 701 (1948) (citation omitted). In addition,

[i]f under the terms of the trust a person has power to control the action of the trustees in certain respects, the trustee is under a duty to act in accordance with the exercise of such power, unless the attempted exercise of the power violates the terms of the trust or is a violation of a fiduciary duty to which such person is subject in the exercise of the power.

Restatement (Third) of Trusts § 185, at 151 (1992). If control of a trust is conferred on a beneficiary, that power is likely, though not necessarily, to be conferred on that person for his or her own benefit, rather than for the benefit of the other beneficiaries. IIA Austin W. Scott & William F. Fratcher, The Law of Trusts, § 185, at 564 (4th ed., 1987).

The construction of an unambiguous written document is reviewed de novo by this court. In re Trust by Hill, 499 N.W.2d 475, 482 (Minn.App.1993), review denied (Minn. July 15, 1993). When construing a trust instrument, the court must give effect to the trustor’s intent as determined from the document as a whole. Mayo, 259 Minn, at 95, 105 N.W.2d at 903. If the trust instrument is ambiguous, however, extrinsic evidence may be admitted to resolve its ambiguity. Towle v. First Trust, 194 Minn. 520, 522, 261 N.W. 5, 7 (1935).

The special power of appointment in the Stephen Lisle Trust stated that the trustee

shall pay to or apply directly for the benefit of the group consisting of my children or their issue, such amounts or portions of the FAMILY TRUST as my wife, from time to time may direct in writing.

We find it unlikely that Stephen Lisle, in giving Catherine Lisle the special power of appointment in favor of their children and grandchildren, intended to give her that power for the benefit of Reed Beckler, who was not a child or grandchild of the Lisle family. Therefore, we recognize the primacy of Norwest’s fiduciary duty to (a) inform Catherine Lisle of her rights under the special power of appointment and (b) pay out trust funds, in accordance with the terms of the trust, only if she chose to exercise it. We thus conclude that, under these circumstances, Norwest’s duty to allow Catherine Lisle to carry out the terms of the trust and exercise her special power of appointment trumps any fiduciary duty owed to Beckler as a successive beneficiary. See, e.g., O’Shaughnessy, 517 N.W.2d at 577 (noting settlors’ intent reflected in trust provision allowing trustees to “pay out all of the income and principal to [beneficiary’s] father, thereby terminating the Trust and excluding [beneficiary] from the trust assets”).

In so concluding, we note that it was Catherine Lisle who contacted Johnson, the Norwest trust officer, to inquire whether the terms of the trust allowed her to prevent Beckler from receiving funds from the Stephen Lisle trust. Furthermore, Johnson did not act as Catherine Lisle’s attorney in this transaction; he simply informed her, as a beneficiary, of the powers she was able to exercise under her husband’s trust. Johnson was thus exercising his discretion as trustee to carry out the intent of Stephen Lisle, as expressed in the trust agreement, to provide Lisle’s wife with the power, after Lisle’s death, to distribute trust assets to the trust beneficiaries. To carry out this intent, Johnson referred Lisle to attorney Steil, who consulted with her, performed the drafting, explained the documents, and made an independent determination of her testamentary capacity. Thus Johnson avoided a possible conflict of interest with his fiduciary duty as trustee. Notably, at the time the power of appointment was exercised, Norwest, as trustee, was responsible for collecting interest payments on the promissory note owed by Beckler, who was refusing to pay the interest as it became due and was thus acting adverse to the interests of the trust. In sum, Nor-west was attempting to carry out the bank’s fiduciary duty of impartiality, frank disclosure, and due regard for the family’s interest, by providing information to Catherine Lisle regarding the special power of appointment reserved to her under the Stephen Lisle trust.

DECISION

On the record presented, the evidence as a whole supports the jury’s verdict that Reed Beckler’s receipt of his portion of the $125,000 gift from Stephen Lisle’s trust was a condition precedent to the repayment of the promissory note executed by Beckler. In addition, the jury could have reasonably found that Catherine Lisle lacked testamentary capacity and was unduly influenced by Cynthia Lisle Beckler to exercise the special power of appointment contained in Stephen Lisle’s trust. We conclude, however, as a matter of law, that Norwest did not breach its fiduciary duty by informing Catherine Lisle of her right to exercise a special power of appointment under Stephen Lisle’s trust, when the special power was designated for the benefit of Lisle’s children and grandchildren and when Norwest referred Catherine Lisle directly to independent counsel, who drafted the necessary documents and represented her interests in the transaction. We therefore reverse the trial court’s denial of JNOV on that issue.

Affirmed in part, reversed in part.

      . Appellant Norwest Bank is now Wells Fargo Bank Minnesota, N.A., but is referred to as Norwest in this opinion for the sake of clarity.


source: Caselaw Access Project

author: STONEBURNER, Judge MINGE, Judge

license: Public Domain

text:
    Patricia E. MIRLAS, as trustee for the Next-of-Kin of Kathleen Rose Fields and Daniel Joseph Fields, Deceased, Respondent, v. Stephen Travis PARROTT, et al., Defendants, Illinois Farmers Insurance Company, Appellant.
    No. C4-02-2021.
    Court of Appeals of Minnesota.
    June 24, 2003.

      John E. Vukelich, Edina, MN, for respondent.
    Daniel A. Beckman, Kathleen M. Loucks, Gislason & Hunter, L.L.P., Minne-tonka, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge, STONEBÚRNER, Judge, and MINGE, Judge.
   OPINION

STONEBURNER, Judge

Appellant Illinois Farmers Insurance Company challenges the district court’s denial of its motion to vacate an order appointing respondent Patricia E. Miklas trustee of the next-of-kin of Kathleen Rose Fields and Daniel Josephs Fields and approving settlement of a lawsuit brought by Miklas as trustee of the next-of-kin of Kathleen Rose Fields, a minor. During settlement negotiations and in her complaint against the uninsured driver, the vehicle’s owner, and Illinois Farmers, Mik-las represented herself as the trastee for the next-of-kin to Kathleen Fields and Daniel Fields. But Miklas was not appointed as trustee until the day of the settlement-approval hearing, which occurred more than three' years after the deaths of Kathleen and Daniel Fields. Because the district court abused its discretion by denying Illinois Farmers’ motion to vacate appointment and approval of the settlement, we reverse that portion of the judgment. Because Illinois Farmers is no longer liable for uninsured-motorist benefits claimed as a result of the' accident that killed Kathleen and Daniel Fields, we affirm the district court’s dismissal of Mik-las’s claims arising out of the death of Daniel Joseph Fields.

FACTS

Kathleen Rose Fields and her brother, Daniel Joseph Fields, were killed in a one-car accident on May 29, 1997. The Fields siblings were passengers. Neither the driver nor the owner of the involved automobile was insured. But the decedents, and their mother, respondent Patricia E. Miklas, were insured as members of the household of Miklas’s surviving son, under a policy issued to him by appellant Illinois Farmers Insurance Company.

In January 1999, Miklas brought a wrongful-death action against the driver and the owner of the vehicle involved in the accident. In the same action, Miklas sued Illinois Farmers for uninsured-motorist benefits. Miklas brought the lawsuit as trustee for the next-of-kin of both Kathleen and Daniel Fields. Miklas asserted in the complaint that the court had appointed her as trustee of the next-of-kin of both children on September 29,1997.

Illinois Farmers entered into settlement negotiations with Miklas, as trustee of the next-of-kin of Kathleen Fields, and agreed to settle claims asserted on behalf of Kathleen Fields’s next-of-kin for $30,000, payable to Miklas “as trustee for the next-of-kin of Kathleen Rose Fields.” Miklas petitioned the district court for approval of the settlement. Believing this to be a routine hearing to approve a minor settlement, Illinois Farmers did not attend.

For reasons that are not clear on the record provided to this court, Miklas had not actually been appointed as trustee for the next-of-kin for either child, so at the January 17, 2002, settlement-approval hearing, counsel for Miklas apparently requested that the court appoint Miklas as trustee. The district court appointed Mik-las trustee for the next-of-kin of both decedents and, in the same order, approved the settlement. Illinois Farmers first learned that Miklas was not the appointed trustee, as she had alleged in her complaint and during settlement negotiations, when it received the district court order. Illinois Farmers immediately moved under Minn. R. Civ. P. 60.02 to vacate the order that appointed Miklas as trustee and approved the settlement on the ground that the settlement was void because it had been entered into under mistake and misrepresentation. Illinois Farmers also moved to dismiss the remaining claims asserted by Miklas on behalf of the next-of-kin of Daniel Fields on the ground that Miklas had no standing to assert the claims, and Illinois Farmers had no liability for the claims because Miklas had not been appointed as trustee prior to the expiration of the statute of limitations for wrongful-death claims.

The district court denied Illinois Farmers’ motion to vacate the order appointing Miklas as trustee and approving the settlement, but dismissed all of Miklas’s remaining claims because the statute of limitations for wrongful-death actions had expired. Illinois Farmers appeals the denial of its motion to vacate the order, and Miklas filed a notice of review challenging the dismissal of her claim for uninsured-motorist coverage asserted due to the death of Daniel Fields.

ISSUES

1. Did the district court abuse its discretion by denying Illinois Farmers’ motion to vacate the appointment of Miklas as trustee of the next-of-kin of Kathleen Fields made more than three years after Kathleen Field’s death and by denying the motion to vacate approval of the settlement that was entered into under the mistaken belief that Miklas had been appointed trustee within three years of death?

2. When an insured’s death is caused by an uninsured driver, does expiration of the statute of limitations for a wrongful-death action before an action is commenced against the uninsured driver terminate the liability of the uninsured-motorist-coverage carrier?

ANALYSIS

1. Motion to vacate

Vacating a stipulation of settlement rests largely within the discretion of the district court, and “the court’s action in that regard will not be reversed unless it be shown that the court acted in such an arbitrary manner as to frustrate justice.” Johnson v. St. Paul Ins., Co., 306 N.W.2d 571, 573 (Minn.1981) (quoting Myers v. Pecker Co., 312 Minn. 469, 474, 252 N.W.2d 595, 599 (1977)). Settlement of disputes without litigation is highly favored and will not be lightly set aside by a court. Id. “The party seeking to avoid a settlement has the burden of showing sufficient grounds for its vacation.” Id. (citation omitted). A district court may set aside a settlement made on behalf of a minor if the settlement was based on a mutual mistake of fact. Snesrud v. Elbers, 374 N.W.2d 830, 832 (Minn.App.1985), review denied (Minn. Dec. 19, 1985); Eliseuson v. Frayseth, 290 Minn. 282, 284, 187 N.W.2d 685, 686 (1971).

Miklas argues that her mistaken assertion that she was appointed as trustee for the next-of-kin of Kathleen and Daniel Fields in 1997 is immaterial to the validity of the settlement because appointment as trustee “is in no way a prerequisite for the settlement of an uninsured motorist claim.” Miklas supports this claim with citations to State Farm Ins. Co. v. Galajda, 316 N.W.2d 564 (Minn.1982), and Wacker v. Allstate Ins. Co., 312 Minn. 242, 251 N.W.2d 346 (1977), both of which involve widows who settled uninsured-motorist claims arising out of the death of their husbands. Whether the widows had been appointed trustee for the next-of-kin of their deceased husbands was not an issue in either case, and these cases do not stand for the proposition asserted. Furthermore, whether an insurer can settle a claim for uninsured benefits for wrongful death with someone other than the trustee of the deceased’s next-of-kin is not relevant to Miklas’s claims because she never asserted an individual claim against Illinois Farmers. Miklas only asserted claims as trustee of the next-of-kin of Kathleen and Daniel Fields, and that is the only capacity in which she dealt with Illinois Farmers, as all of the settlement documents clearly indicate. Miklas’s assertion that she had been appointed trustee is therefore a material fact to the settlement in this case.

The district court denied Illinois Farmers’ motion to vacate the order on the basis that settlements are favored and that Illinois Farmers chose to settle without confirming Miklas’s assertion that she had been appointed trustee for the next-of-kin of Kathleen Fields. We have affirmed a district court’s refusal to vacate approval of settlement of a wrongful-death claim for the limits of deceased’s uninsured-motorist coverage when the insurer discovered, after approval of the settlement, that the responsible driver was, in fact, insured. Snesrud, 374 N.W.2d at 831. But the parties to the settlement in Snesrud both relied on the representations of All Nation Insurance Company, the responsible driver’s insurer, that the driver had allowed coverage to lapse prior to the accident. Id. We affirmed the district court’s exercise of discretion, declining to vacate the settlement because we concluded that public policy dictates that the court not reward an insurance company’s lack of diligence in making the necessary investigation of the claims against its insured. Id.

The policy considerations in this case are not the same as in Snesrud because in this case Miklas was responsible for obtaining appointment as trustee of the next-of-kin of Kathleen and Daniel Fields before initiating a lawsuit to recover claims on behalf of their next-of-kin. See Minn.Stat. § 573.02., subds. 1, 3 (stating that the district court has jurisdiction to appoint a trustee to represent the deceased in a wrongful-death action only if the petition for appointment as trustee is brought within three years after the decedent’s death). The appointment was within Mik-las’s control, and knowledge of the non-appointment was readily available to her and her attorneys, but her appointment was asserted in the complaint.

The district court did not address Illinois Farmers’ motion requesting vacation of Miklas’s appointment as trustee. But without such appointment, Miklas had no authority to enter into a settlement as trustee of the next-of-kin of Kathleen Fields and no authority to pursue claims as trustee of the next-of-kin of Daniel Fields. The district court intervened, without the knowledge of Illinois Farmers, to appoint Miklas as trustee in an attempt to save the settlement, but had no authority to do so. “[L]imitation provisions in a statutorily created cause of action are jurisdictional.” See Ortiz v. Gavenda, 590 N.W.2d 119, 122 (Minn.1999). Minn.Stat. § 573.02, subd. 3, provides that, on written petition

the court having jurisdiction of an action falling within the provisions of subdivisions 1 or 2, shall appoint a suitable and competent person as trustee to commence or continue such action.

The statute of limitations for a wrongful-death action on behalf of Kathleen or Daniel Fields had expired before the district court appointed Miklas as trustee; therefore, the appointment of Miklas as trustee is void because the district court no longer had jurisdiction to appoint a trustee in the matter. See Ortiz, 590 N.W.2d at 123 (holding that Minn.Stat. § 573.02, subd. 3, requires the appointment of a trustee prior to the expiration of the three-year statute of limitations within the statutory period). The entity with whom Illinois Farmers settled did not exist, and the district court erred by trying to “breathe life into a claim that has never been anything more than a ‘nullity.’ ” Id. Because the district court’s action in appointing Miklas as trustee to the next-of-kin for Kathleen and Daniel Fields was contrary to law, the district court abused its discretion by denying Illinois Farmers’ motion to vacate the order appointing Miklas as trustee and approving the settlement.

2. Dismissal of claims on behalf of next-of-kin of Daniel Fields

Miklas has filed a notice of review challenging dismissal of her remaining claims, including her claims against Illinois Farmers for uninsured motorist benefits for the death of Daniel Fields. Miklas argues that her claims against Illinois Farmers are not wrongful-death claims but are contract claims that are still viable because they were asserted within the contract six-year statute of limitations.

Miklas’s position is that the district court wrongly applied the three-year statute of limitations for wrongful-death actions to this contract action, which has a six-year statute of limitations. But Miklas confuses application of the statute of limitations to bar her contract claim with the legal effect of the expiration of the limitations period on the claim underlying her contract claim.

The law is well established that the statute of limitations on a claim for uninsured motorist benefits begins to run on the date of the accident and is subject to the six-year limitation applicable to contract actions. Hughes v. Lund, 603 N.W.2d 674, 677 (Minn.App.1999) (stating that in Minnesota a claim for uninsured-motorist coverage is governed by six-year statute of limitations contained in Minn.Stat. § 541.05, subd. 1(1)); Edwards v. State Farm Mut. Auto. Ins. Co., 399 N.W.2d 95, 97 (Minn.App.1986) (stating that six-year statute of limitations for contract actions applies to uninsured-motorist-coverage claim because the liability arose from contract), review denied (Minn. Mar. 13, 1987).

As the district court correctly noted, uninsured-motorist coverage is designed to place an injured party in the same position they would have occupied if the tortfeasor had been insured. Dairyland Ins. Co. v. Starkey, 535 N.W.2d 363, 365 (Minn.1995).

Uninsured motorist coverage is purchased to protect against the risk that the motorist who injures the purchaser is uninsured * * ⅜ and unable to pay the damages the purchaser is entitled to recover under tort law. The victim, in other words, collects under her own policy the compensation that the liability carrier would have paid if the uninsured motorist had been insured.

McIntosh v. State Farm Mut. Ins. Co., 488 N.W.2d 476, 479 (Minn.1992) (citation omitted) (holding that uninsured-motorist-coverage provider is not true first party to a liability claim and that whether an event is an “accident” triggering liability is viewed from perspective of the tortfeasor). Miklas does not dispute that if the driver in this case had been insured, a failure to bring an action against the driver within three years would preclude any recovery from the driver’s liability insurer. And the supreme court has stated:

We do not think those who pay premiums into a pool for uninsured motorist coverage reasonably expect those funds to be available to pay compensation for injuries for which, if the uninsured motorist were insured, his insurance company would not have to pay. * * * Uninsured motorist coverage is not no-fault coverage; fault on the part of the uninsured motorist must be proven under tort law. In other words, under uninsured motorist coverage, the distinction between coverage and liability under that coverage is radically different than it is under first party coverage.

Id.

Illinois Farmers’ liability for uninsured-motorist benefits depends on the insured’s legal entitlement to recover from the uninsured driver, which no longer exists in this case because the statute of limitations has expired for all claims against the driver arising out of the deaths of Kathleen Fields and Daniel Fields. The basis of dismissal is not that a three-year statute of limitations for wrongful-death claims applies to the claim for uninsured-motorist benefits, but that the expiration of the three-year statute of limitations for bringing claims against the driver extinguishes the insured’s legal right to recover from the driver, a condition precedent to Illinois Farmers’ obligation to pay uninsured motorist benefits.

The district court did not err in dismissing all of'Miklas’s remaining claims, including those claims for uninsured-motorist benefits arising from the death of Daniel Fields.

DECISION

The district court abused its discretion by denying Illinois Farmers’ motion to vacate the judgment appointing Miklas as trustee for the next-of-kin of Kathleen and Daniel Fields and approving the minor settlement that was based on Illinois Farmers’ reliance on Miklas’s representation that she was the duly appointed trustee. The district court did not err by dismissing Miklas’s claims against Illinois Farmers for uninsured-motorist benefits when expiration of the statute of limitations for a wrongful-death action against the uninsured driver extinguished Illinois Farmers’ liability for such benefits.

Affirmed in part and reversed in part.

MINGE, Judge

(concurring in part, dissenting in part).

I concur in the majority’s resolution of the issue concerning the dismissal of the wrongful-death action on behalf of Daniel Fields. I respectfully dissent, however, from the majority’s resolution of the other issue in this case, and I would affirm the district court’s decision upholding the settlement with Illinois Farmers Insurance Company. Settlements are favored. See Johnson v. St. Paul Ins. Cos., 305 N.W.2d 571, 573 (Minn.1981); Gould v. Johnson, 379 N.W.2d 643, 646 (Minn.App.1986); Snesrud v. Elbers, 374 N.W.2d 830 (Minn.App.1985), review denied (Minn. Dec. 19, 1985). The settlement in this proceeding was entered into by all parties in good faith and represents the basis for the appellant’s obligation.

      . As noted above, because Miklas does not have a valid appointment as trustee for the next-of-kin of Daniel Fields she cannot assert claims on behalf of his next-of-kin.


author: G. BARRY ANDERSON, Judge.

text:
    Duane LECY, Appellant, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY CO., Respondent.
    No. C9-02-2015.
    Court of Appeals of Minnesota.
    June 24, 2003.

      Charles T. Hvass, Jr., Russell Ingebrit-son, John C. Boylan, Ingebritson & Associates, L.L.P., Minneapolis, MN, for appellant.
    Patrick J. Sweeney, JoAnn C. Toth, Spence, Ricke, Sweeney & Gernes, P.A., St. Paul, MN, for respondent.
    Considered and decided by ANDERSON, Presiding Judge, SCHUMACHER, Judge, and WILLIS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

This appeal arises out of an action brought under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 (2002). The district court granted summary judgment in favor of respondent Burlington Northern and Santa Fe Railway Company, concluding that appellant’s claims for damages associated with knee injuries are barred by the FELA three-year statute of limitation. Appellant argues that summary judgment was granted in error, because his cause of action arose within the three-year statute of limitations and respondent’s continuing negligence tolled the statute of limitations.

Because we conclude that there are material issues of fact regarding notice to appellant of the left-knee injury and the actual cause of that injury, summary judgment as to the left-knee claim is not appropriate. But because there are no disputed issues of material fact regarding notice to appellant of the injury to his right knee, and because the statute of limitations was not tolled, we affirm in part, reverse in part, and remand.

FACTS

Appellant Duane Lecy has worked as a laborer with physically demanding job responsibilities for Burlington Northern and Santa Fe Railway Company since 1966. He alleges that he was regularly required to work while kneeling, without the aid of proper kneepads, and it is undisputed that his work as a laborer required the lifting of heavy objects and significant use of ladders. Appellant asserts that this work environment, combined with inadequate tools to complete his work assignments, caused permanently disabling injuries to his knees.

Appellant has a long history of knee problems. Doctor S.H. Lovold testified during his deposition that he treated appellant for bilateral knee complaints on several occasions between throughout the 1980s and 1990s, beginning in 1982. Based in part on appellant’s statements to Lovold that appellant suspected his knee troubles were work related, Lovold formed the opinion that appellant’s knee problems were indeed caused by his job.

Lovold’s records are not complete and contain only two entries, both in July 1988, pertaining to treatment of appellant’s left knee. Appellant argues that the 1988 left-knee treatment was a result of a specific injury appellant suffered when his left knee was struck by machinery. Further, appellant notes that Lovold’s records contain only sparse mention of appellant’s right knee. Although these records are incomplete, they do indicate that in 1995 appellant had received treatment for “knee problem for years.” During his deposition, Lovold testified that he treated both appellant’s knees on several occasions

Doctor Jonathan Bieble’s records and affidavit present a different picture of appellant’s medical history. Appellant first saw Bieble after an on-the-job injury in 1986. At that time Bieble felt that appellant “really had a stable [left] knee.” Bie-ble next saw appellant on May 5, 1997. Appellant came to Bieble about constant pain in his knees that was so severe that it prevented him from sleeping. In his notes, Bieble wrote:

This is a 57 year old male I saw ten years ago for his left knee. Now he is here for his right knee. He has severe pain in the medial side. He can’t sleep at night. He is getting 4 hours of sleep.

Bieble diagnosed appellant with degenerative arthritis of the right knee. In August 1998, Bieble began treating appellant’s left knee. Both knees were eventually replaced. In his affidavit, Bieble stated that he had reviewed Lovold’s deposition testimony and records and it was Bieble’s opinion that he and Lovold were treating different knee problems.

In 2000 appellant brought a claim under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60, alleging that the damage to his knees was caused by respondent’s negligence. The district court granted summary judgment in favor of respondent, stating that appellant’s 20-year history of knee problems and medical treatment should have alerted him much sooner than 1997 to the injuries and his claims were therefore barred by the statute of limitations.

ISSUES

I. Did the district court err in granting summary judgment on the basis that appellant’s action was commenced after the applicable three-year statute of limitations had expired?
II. Was the applicable statute of limitations tolled by appellant’s continuing work assignments?

ANALYSIS

I

The Federal Employers’ Liability Act imposes liability for work-related injuries while working for a common carrier engaging in interstate or international commerce if those injuries were caused by the carrier’s negligence. 45 U.S.C. § 51 (2002). A claim may be brought in either federal or state district court. Id. at § 56. The act requires a claim to be brought “within three years from the day the cause of action accrued.” Id.

Summary judgment is properly granted if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.

Minn. R. Civ. P. 56.03. On appeal from a summary judgment, this court determines whether there are genuine issues of material fact and whether the district court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence is viewed in the light most favorable to the party against whom the motion was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

A railroad has a duty to provide its employees with a reasonably safe workplace. Ackley v. Chicago & N.W. Transp. Co., 820 F.2d 263, 267 (8th Cir.1987). FELA allows injured railroad workers to recover for the negligence of their employer. Id. at 266.

Where, as here, the date of the injury is not ascertainable, the three-year statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury that is the basis of the claim. U.S. v. Kubrick, 444 U.S. Ill, 122, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979). Thus, the plaintiff is required to use “reasonable diligence and investigate the cause of a known injury.” Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir. 2001).

Those injured on the job have a responsibility to protect themselves by seeking medical and legal advice within a reasonable period of time. Kubrick, 444 U.S. at 123, 100 S.Ct. at 360. But for purposes of starting the clock on the statute of limitations, knowledge of a specific injury is not required; it is sufficient if the plaintiff knows that he or she is injured and the injury is work related. Matson, 240 F.3d at 1236. Therefore, the appropriate inquiry here is when appellant should have realized a causal relationship between his knee injuries and his employment with respondent.

For example, in Matson, a federal appeals court held that a plaintiffs claim was untimely because the plaintiff had known about his back injury more than three years before he filed the claim. Id. The plaintiff in Matson first saw a doctor about back pain that he reported was caused by “his work” in early April 1995, yet did not file a claim until May of 1998. Id. at 1284. The Tenth Circuit Court of Appeals held that because the plaintiff was on notice in April 1995 that his back pain was work related, his May 1998 complaint was too late. Id. at 1236.

Conversely, in Fonseca v. Consol. Rail Corp., 246 F.3d 585, 591-92 (6th Cir.2001), the Sixth Circuit held that it was an issue of material fact as to whether the appellant’s present injuries were the same as his previous injuries and summary judgment was therefore inappropriate. Fonseca, 246 F.3d at 591-92. In that case, the plaintiff suffered temporary pain in his hands after working with hand and power tools from the late 1960s to the early 1990s. Id. at 587. In the mid 1990s, the plaintiff began to experience persistent pain in his hands and sought treatment, in March 1996. Id. The plaintiff filed a FELA claim against his employer in March 1999. Id. In allowing the plaintiffs suit to survive a motion for summary judgment, the Fonseca court noted that there was evidence to suggest that the plaintiffs frequent on-the-job discomfort differed from the cumulative injuries alleged in his complaint. Id. at 591. Further, the court noted that had the plaintiff brought his claim in the early 1970s, when he first began to experience pain in his hands, his case would surely have been dismissed for lack of evidence. Id. at 592.

The Minnesota Federal District Court has held that because the record did not clearly reveal when a plaintiff knew he had contracted a debilitating skin condition summary judgment was inappropriate. Corrigan v. Burlington N.R.R., Inc., 612 F.Supp. 665, 668 (D.Minn.1985). The plaintiff in Corrigan began suffering from eczema in 1965. Id. at 666. In 1976, the plaintiff was transferred and his new job duties required him to come into contact with grease and solvents. Id. at 666-67. After six months at this position, he broke out in a rash. Id. at 667. The plaintiff then sought treatment for a severe rash on his hand, feet, and legs in 1982, caused by a reaction to chemicals. Id. In 1984, the plaintiff brought his claim. Id. The court denied the defendant’s summary judgment motion, noting that although the plaintiff had suffered skin problems for more than 20 years, because the record did not show that the plaintiff should have known the early rash was caused by the same condition that was the basis of his 1984 claim, determining when he should have become aware of his work-related injury presented a genuine issue of material fact. Id. at 668.

Appellant argues that the district court erred by ruling his claim was time-barred. Like the plaintiff in Corrigan, appellant claims that the problems for which he sought help from Lovold were temporary and abated with treatment and were therefore different from the degenerative arthritis that is the basis of the present complaint.

The district court did not err in concluding that appellant’s claim regarding to his right knee was time-barred. Appellant began his action against respondent by filing his complaint on May 2, 2000. On May 5, 1997, appellant went to see Bieble for serious pain in his right knee. The pain was so severe that appellant was unable to sleep. It requires a suspension of disbelief to accept appellant’s argument that the degenerative arthritis in his right knee occurred on or about May 5, sufficient to bring his claim within the three-year statute of limitations. Lovold’s testimony, as well as his medical records, indicate that in 1995 appellant had pain in his right knee “for years” and received treatment for this pain in the mid-1990s.

But the medical evidence relative to appellant’s left knee is far less clear. Lovold’s records do not contain much information about appellant’s left knee. Lo-vold testified that he treated pain in both knees as early as 1982, but there is no indication that this treatment was for the degenerative arthritis diagnosis appellant received in 1997.

Further, after treatment for appellant’s 1986 work-place accident to his left knee concluded in 1988, Lovold’s records make no mention of treating the left knee. Significantly, appellant testified that he had no problems with his left knee until he began walking differently to compensate for the pain in his right knee. And finally, after reviewing Lovold’s deposition transcripts and medical records, Bieble opined that the problems Lovold treated were not related to appellant’s degenerative arthritis.

Because there are material issues of fact relative to appellant’s left knee injuries, we reverse the district court’s grant of summary judgment as to appellant’s left-knee injuries and remand for further proceedings. See Corrigan, 612 F.Supp. at 668.

II

Appellant argues that the statute of limitations should be tolled because respondent negligently required appellant to perform work harmful to his knees. He contends that under the “continuing-torts doctrine,” the FELA statute of limitations is tolled so long as the plaintiff is still exposed to the conditions that gave rise to his or her injuries. Id. at 668.

Respondent argues incorrectly that Minnesota has not recognized the continuing-torts doctrine. See Davies v. West Publ’g Co., 622 N.W.2d 886, 841 (Minn. App.2001) (stating that the continuing-torts doctrine has been recognized in employment discrimination, trespass, and workers’ compensation suits). But there are no Minnesota decisions applying the continuing-torts doctrine in a FELA context. And respondent correctly notes that federal courts have limited the application of this doctrine to situations where “the harm is definite and discoverable, and nothing prevented the plaintiff from coming forward to seek redress.” Wilson v. Giesen, 956 F.2d 738, 743 (7th Cir.1992).

We find no error in the granting of summary judgment to of respondent on this issue. It is undisputed that appellant had work-related medical concerns relative to his knees, particularly his right knee. A plaintiff who was aware of his injuries is responsible to protect himself by seeking legal as well as medical advice or at least request an alternative work assignment before the statute of limitations expired. Kubrick, 444 U.S. at 123, 100 S.Ct. at 360. While appellant sought medical treatment for these problems, there is nothing in the record to indicate he ever sought a different work assignment or took other steps to ameliorate his condition. The district court did not err in rejecting appellant’s argument that the statute of limitations was tolled.

Further, respondent claims that appellant did not file his brief on time. We do not agree. Appellant’s notice of appeal was filed on November 18, 2002, and his brief was submitted on December 17. Appellant filed his brief within 30 days after filing his notice of appeal as required by Minn. R. Civ.App. 131.01. Respondent’s challenge to appellant’s brief on timeliness grounds is without merit.

Additionally, during oral arguments, respondent’s counsel argued that some of the material appellant relied on in his brief was not presented to the district court and is thus not properly before this court. Although there is no indication that respondent actually filed a motion to strike with this court, we note that the allegedly offending material was properly submitted to the district court.

DECISION

Because appellant had notice of the injury to his right knee more than three years before commencing this action, that claim is barred by FELA’s three-year statute of limitation. Because appellant was not prevented from seeking alternative work assignments or taking other steps to protect himself, the continuing-torts doctrine does not apply, and the statute of limitations was not tolled. Because the record is unclear as to when appellant’s left knee became symptomatic of degenerative arthritis or even what, in fact, caused the injuries to the left knee, there are genuine issues of material fact in dispute and that claim is not time-barred.

Affirmed in part, reversed in part and remanded.


author: KALITOWSKI, Judge. RANDALL, Judge

text:
    Donald Peter MAIETTA, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C2-02-2261.
    Court of Appeals of Minnesota.
    June 24, 2003.

      Andrew S. Birrell, R. Travis Snider, Bir-rell <& Newmark, Ltd., Minneapolis, for appellant.
    Mike Hatch, Attorney General, Jeffrey F. Lebowski, David L. Ramp, Assistant Attorneys General, St. Paul, for respondent.
    Considered and decided by RANDALL, Presiding Judge, KALITOWSKI, Judge, and SCHUMACHER, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant Donald Peter Maietta challenges the decision by the district court sustaining the revocation of appellant’s driver’s license, arguing that (1) his refusal to submit to testing was reasonable; and (2) he was denied his right to effective assistance of counsel.

FACTS

The parties stipulated to the following facts: Appellant was arrested on April 26, 2002, for DWI, and an officer read appellant the implied consent advisory. The completed implied consent advisory stated that appellant understood that refusal to take a test was a crime. Appellant then told the officer that he wanted to speak to an attorney. After speaking to the attorney, appellant refused to submit to testing and gave as his reason the advice of his attorney. Appellant expressed confusion and no further conversation occurred between appellant and the officer. Appellant was deemed to have refused testing.

Based on these limited facts, the district court sustained the revocation of appellant’s driver’s license.

ISSUES

1. Was appellant’s refusal to submit to testing in this case reasonable?

2. Was appellant denied the right to effective assistance of counsel when appellant refused to submit to testing based on the advice of the attorney?

ANALYSIS

I.

At the time an officer requests that an individual take a chemical test to determine the presence of alcohol or controlled substances, the person must be informed that refusal to take a test is a crime. Minn.Stat. § 169A.51, subd. 2(2) (2002). If a person refuses to permit a test, then a test must not be given. Minn. Stat. § 169A.52, subd. 1 (2002). Under the implied-consent statute, it is an affirmative defense for appellant to prove that his refusal to permit the test was based on reasonable grounds. Minn.Stat. § 169A.53, subd. 3(c) (2002). Whether a refusal is reasonable is generally characterized as a question of fact for the district court that will be reversed only if clearly erroneous. State, Dep’t of Highways v. Beckey, 291 Minn. 483, 486-87, 192 N.W.2d 441, 444-45 (1971). But where there is no dispute as to facts, the legal significance of the facts may be a question of law. See Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985). We overturn conclusions of law “only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case.” Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App.1986) (citation omitted).

Appellant contends that his refusal to take the test was reasonable. He argues that the supreme court has held that refusal to take the test on the advice of counsel is a reasonable refusal that excuses the driver from license revocation where an officer “made no attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license.” State, Dep’t of Pub. Safety v. Lauzon, 302 Minn. 276, 277, 224 N.W.2d 156, 157 (1974). Based on this language from Lauzon and the stipulated facts, appellant argues that his refusal was reasonable because he was confused, and the police officer did not attempt to clear up his confusion. We disagree.

First, we note that the complete holding in Lauzon is that for a refusal to be reasonable based on the advice of counsel,

it would have to appear that the police misled the driver into believing that somehow a refusal of this sort was reasonable or that police made no attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license.

Id. It is not disputed that a police officer may not mislead a driver into believing that refusal to submit to testing based on the advise of counsel is reasonable. See, e.g., McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 854 (Minn.1991) (noting that the court takes notice of whether drivers were actively misled by police regarding their statutory obligation to undergo testing). But here appellant is not claiming that an officer misled him. Nor is appellant contending that the officer refused to answer any of his questions. Rather, appellant relies on Lauzon to argue that the officer had an independent duty to clear up appellant’s confusion and failed to do so. We disagree.

Decisions since Lauzon indicate that it is the responsibility of the attorney, not a police officer, to clear up any confusion on the part of a driver concerning the' legal ramifications of test refusal. And Lauzon was decided before the Minnesota Supreme Court’s decision in Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828 (Minn.1991). In Friedman, the driver was arrested by a Minneapolis police officer for DWI, but the driver was not allowed to talk to an attorney about her rights before submitting to an Intoxilyzer test. Id. at 829. The driver was' read the implied consent advisory, and after she told the officer that she did not understand the advisory, the officer took that response as a refusal to be tested. Id. Prior to Friedman, the right to counsel did not attach at the chemical testing stage. But in Fried man, the supreme court held that a driver’s right to counsel is triggered under Article I, Section 6, of the Minnesota Constitution when a driver is stopped for a possible DWI violation and asked to submit to a chemical test. Id. at 833-34. The court concluded that the right to counsel is critical at this stage because in these situations, drivers often look to the police for guidance to clear up confusion. Id. at 833. But the court noted that an attorney, not a police officer, is the appropriate source of legal advice to clear up confusion because an attorney functions as an objective advis- or who could explain the alternative choices to the confused driver. Id.

In addition, in Fehler v. Comm’r of Pub. Safety, 591 N.W.2d 752, 754 (Minn.App.1999), this court noted that an accurate assessment of the precise consequences of alcohol-concentration test refusal involves a degree of legal analysis that is the domain of the attorney and is beyond the scope of the law enforcement officer’s function. And in Haug v. Comm’r of Pub. Safety, 473 N.W.2d 900, 901 (Minn.App.1991), a driver refused testing based on the advice of counsel. This court concluded that the refusal was not reasonable because an attorney is the appropriate source of legal advice and while the fact that the driver received bad advice from his attorney was unfortunate, it did not excuse a refusal to submit to testing. Id. at 902. Moreover, post-Friedman statutory changes have specifically delineated the obligations of a police officer concerning informing a driver of his rights. See Minn. Stat. § 169A.51, subd. 2.

It is the responsibility of attorneys to answer questions, give advice, and attempt to clear up their client’s confusion. Once a person has exercised his or her limited right to consult with an attorney before testing it is not the responsibility of a police officer to question or second-guess the advice given by the attorney. Thus, we conclude that the police officer here did not have a duty to advise appellant regarding his alleged confusion.

But even if, based on Lauzon, there can be such a duty in some cases, we conclude that the district court did not err in finding that on these facts it was not reasonable for appellant to refuse to submit to testing. Under Lauzon, appellant has the burden of showing that he was confused with respect to his rights or the consequences of his decision not to submit to testing when he refused testing. See State v. Webster, 642 N.W.2d 488, 492 (Minn.App.2002) (noting that the record did not reasonably support claims that the parties were confused by the advisory about the relationship between the preliminary breath test and the Intoxilyzer test). But appellant did not testify at the revocation hearing. Moreover, the completed implied consent advisory, which the parties agreed was part of the record before the district court, indicates that appellant was not confused about his rights. See Gunderson v. Comm’r of Pub. Safety, 351 N.W.2d 6, 7 (Minn.1984) (noting that driver did not testify and there was no other evidence to support driver’s claim of confusion as to his obligation to submit to another test when the breath test machine malfunctioned). Thus, while the stipulated facts stated that appellant was confused, there was no evidence before the district court indicating the specific source of appellant’s confusion. And we note that it is not unusual that a driver who is arrested for DWI may be in a state of confusion about a number of things. Importantly, Lauzon does not impose an affirmative duty on the part of the police officer to clear up any and all confusion on the part of a driver. Given the limited stipulated facts that the parties presented to the district court, we cannot conclude that the district court erred in finding that there was no evidence that appellant “was confused with respect to his rights or the consequences of his decision not to submit to testing * * *.”

II.

An ineffective assistance of counsel claim is an alleged violation of the right to reasonably effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution.

State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003). Appellant argues that he was denied his right to effective assistance of counsel because the attorney advised him to refuse testing, which is a crime.

Whether a claim of ineffective assistance of counsel may be brought in an implied consent revocation proceeding is an issue of first impression in Minnesota. But in State v. Clark, 164 Vt. 626, 671 A.2d 1276 (1995), the Vermont Supreme Court noted that the nature of a license-suspension proceeding is civil, not criminal. Id. at 1277. The court then held that a claim of ineffective assistance of counsel may not be advanced in a license-suspension proceeding because the constitutional protections available in criminal proceedings did not attach to such a civil proceeding. Id.

As in Vermont, implied consent revocation proceedings in Minnesota have been held to be civil in nature. See, e.g., State, Dep’t of Highways v. Normandin, 284 Minn. 24, 26, 169 N.W.2d 222, 224 (1969); Szczech v. Comm’r of Pub. Safety, 343 N.W.2d 305, 306 (Minn.App.1984). And generally, the right to legal representation under the federal and state constitutions attaches only at or after a formal charge, preliminary hearing, indictment, information, or arraignment. U.S. v. Gouveia, 467 U.S. 180, 187-89, 104 S.Ct. 2292, 2297-98, 81 L.Ed.2d 146 (1984) (Sixth Amendment right to counsel attaches only “at or after the initiation of adversary judicial proceedings against the defendant”); State v. Willis, 559 N.W.2d 693, 697 (Minn.1997) (both United States and Minnesota constitutions guarantee right of legal representation that attaches in a criminal proceeding when the state initiates adversary judicial proceeding); see also McDonnell, 473 N.W.2d at 853 (“Without question, the right to counsel guaranteed by the sixth amendment * * ⅜ does not attach until formal charges are initiated”).

While the supreme court in Friedman recognized that the request of testing is a “critical stage” of the DWI proceeding, giving the driver a right to counsel, “that holding does not make the implied consent proceeding ‘criminal’ in nature ⅜ ⅜ *.” Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 392 (Minn.App. 1993), aff'd, 517 N.W.2d 901, 905 (Minn. 1994). The issue in this implied consent proceeding is whether a driver refused to submit to chemical testing, which is decided by a preponderance of the evidence standard. Eckstein v. Comm’r of Pub. Safety, 471 N.W.2d 114, 116 (Minn.App.1991), review denied (Minn. Aug. 1, 1991). If the court finds that the driver refused testing, the driver’s license revocation is upheld. MinmStat. § 169A.52, subd. 3. In no case does incarceration result from these proceedings. “While the act of test refusal is itself a crime, it must be prosecuted in a separate action.” State v. Dumas, 587 N.W.2d 299, 303 (Minn.App.1998) (emphasis in original). Therefore, given the civil nature of the implied consent proceeding, appellant may not bring a claim of ineffective assistance of counsel.

Finally, even if we were to conclude that an ineffective assistance of counsel claim could properly be brought in an implied consent revocation proceeding, appellant’s claim fails on the merits. The United States Supreme Court has articulated a two-prong test to determine whether a party should be granted a new trial because of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A party must affirmatively prove both prongs. Id. To prevail on such a claim, an appellant must demonstrate that counsel’s performance “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998) (citations omitted). A “reasonable probability” means “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Appellant bases his claim entirely on the ground that his attorney advised him to refuse to take a test. But appellant concedes that there may be circumstances where it would be in a driver’s best interests to refuse testing. Therefore, the attorney’s advice here may have been reasonable given the particular situation appellant was in. And while, as appellant argues, advising a driver to refuse testing violates an attorney’s rules of professional conduct, appellant cites no authority for the proposition that giving advice that violates the rules of professional conduct is per se ineffective assistance that falls below the standards established in Strickland.

DECISION

The district court properly sustained the revocation of appellant’s driver’s license because the stipulated facts did not establish that appellant’s refusal to submit to testing was reasonable. Because an implied consent revocation proceeding is civil in nature, a claim of ineffective assistance of counsel may not be advanced in such a proceeding.

Affirmed.

RANDALL, Judge

(dissenting).

I respectfully dissent. The supreme court’s reasoning in State, Dep’t of Pub. Safety v. Lauzon, 302 Minn. 276, 224 N.W.2d 156 (1974) is persuasive. I recognize the majority’s argument that Lauzon is a 1974 case, and I recognize that in the last 29 years there has been an expansion of DUI and implied consent cases (and their interpretation), and their progeny, perhaps in a volume equaling the stars in the heaven on a clear summer night. But notwithstanding that, I suggest the Minnesota Supreme Court would have to either overrule Lauzon or so narrow the facts that this case would not come under its umbrella. I do not see that either has been done.

In Lauzon, the court held that the driver’s refusal to submit to testing was not reasonable, on the theory that the driver was following the advice of counsel, where

the police clearly informed defendant, both before and after he talked with counsel, that if he did not permit chemical testing, he would lose his driver’s license.

Lauzon, 302 Minn, at 277, 224 N.W.2d at 157 (emphasis added). The court went on to state that once appellant expressed confusion, an officer must “attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license.” Id. This language indicates that confusion, after being told by your attorney not to take the test, is not a reasonable reason to refuse the test unless (a) you express confusion to law enforcement, and (b) they did nothing to clear up your confusion. Id. (emphasis added).

The same reasoning was noted in Thurman v. Comm’r of Pub. Safety, No. C1-96-1107, 1996 WL 745323 (Minn.App. Dec.31, 1996) (unpublished opinion). In Thurman, the appellant appealed the district court’s order sustaining the revocation of his driver’s license pursuant to the implied consent law. The appellant argued his refusal to submit to chemical testing was reasonable because the officer made no attempt to clear up his confusion regarding his testing obligations and because the officer failed to inform him that despite the advice of counsel, he was obligated to take a test at the chemical testing unit or lose his license. The court recognized that a driver’s claim that a refusal was reasonable because he was merely following the advice of counsel

will succeed only if the police misled a driver to believe the refusal was reasonable or if police made no attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license.

Id. at *2 (emphasis added)

Here, the officer’s duty to explain arose after appellant talked with counsel and expressed confusion. Counsel for the parties stipulated to the following facts:

1. Petitioner was arrested on April 26, 2002.
2. The police read Petitioner the Implied Consent Advisory beginning at about 12:24 a.m.
3. Petitioner told the Police Officer he wished to speak to a Lawyer.
4. Petitioner then called a friend who in turn called Attorney Paul Ro-gosheske.
5. Attorney Rogosheske then telephoned the police station where Petitioner was being detained and spoke with Petitioner.
6. Attorney Rogosheske advised Petitioner to refuse testing.
7. Petitioner then told the Police Officer who had invoked the Implied Consent that he had been advised to refuse testing by Attorney Rogosh-eske. Exhibit B is the Implied Consent Advisory and is received in evidence.
8. Petitioner expressed confusion.
9. There was no further conversation.
10. The Petitioner was deemed to have refused testing at 12:52 a.m.

The stipulation specifically states in item number 8 that appellant expressed confusion following his conversation with an attorney. Item number 9 means the officer made no attempt to clear up that confusion. The record shows the officer did not talk to appellant any more, but instead, completed the implied consent advisory.

I specifically disagree with that part of the majority’s decision, which states that even if the cited language in Lauzon created a duty to clear up confusion in some cases, the district court can be affirmed because appellant has the burden of showing that he was confused with respect to rights or consequences and did not bear that burden. The majority states in pertinent part:

But appellant did not testify at the revocation hearing, and the completed implied consent advisory indicates that appellant was not confused about his rights.

First, appellant did “testify” because the stipulation agreed to by the parties is evidence that the court must receive and the court must then assign a value to it. Secondly, the completed implied consent advisory, taken well before the stipulation and the court hearing, has no value because item number 8 of the stipulation supersedes it, trumps it, and it cannot be used to impeach the later stipulation.

Even respondent concedes that a stipulation between attorneys is a stipulation and cannot be looked at with hindsight, and that a party signing the stipulation cannot later say, “Gee, I wish now I hadn’t said that.”

Then, after conceding at oral argument that a stipulation is a stipulation, and does not have to be looked behind, respondent argues that item number 8 of the stipulation, “express confusion,” does not indicate confusion about what! I could not disagree more. From looking at the stipulation as a whole, I will take judicial notice that item number 8 means it was stipulated that the petitioner was confused by being told in exhibit B, the implied consent advisory, that refusal to take the test is a crime in and of itself, and then next, being told by his attorney not to take the test. I cannot believe in good conscience that the attorneys who wrote this stipulation meant anything other than that clear and precise meaning for item number 8 of the stipulation.

I find these facts squarely under Lau-zon and Thurman, meaning: (1) confusion is not a defense unless it is expressed; (2) confusion was expressed here; (3) the expressed confusion was- not cleared up; (4) the driver’s refusal was, therefore, reasonable.

I respectfully dissent and would have reversed the district court.