author: TERNUS, Justice.

text:
    In the Matter of the ESTATE OF Wilbur Dean THOMANN, Deceased. Lois Williams, Executor of the Estate of JoAnn Elizabeth Thomann, Deceased, Appellee, v. Dennis Thomann, Chris Shepard, Deanna Egbert, Teresa Woods and Beth Luke, Beneficiaries of the Estate of Wilbur Dean Thomann, Appellants.
    No. 01-0664.
    Supreme Court of Iowa.
    July 17, 2002.

      David S. Gorham of Morrison, Lloyd, McConnell, Mullins, Davis & Gorham, L.L.P., Washington, for appellants.
    John N. Moreland and Timothy J. McKay of Harrison, McKay, Moreland & Webber, P.C., Ottumwa, for appellee.
   TERNUS, Justice.

Wilbur (Dean) Thomann murdered his wife, JoAnn Thomann, and then committed suicide. At the time of their deaths, the couple held farmland and some bank accounts in joint tenancy. This case involves a dispute between Dean’s heirs and the executor of JoAnn’s estate with respect to inheritance of this property. The district court ruled that all the joint tenancy property, including the farm, passed to JoAnn’s estate pursuant to Iowa’s felonious death statute, Iowa Code section 633.535 (1999).

Dean’s heirs appeal. Upon our review of the statute, we conclude section 633.535(2) effects a severance of the joint tenancy and creates a tenancy in common. Thus, each tenant’s share passes to that tenant’s heirs. We decline the invitation of JoAnn’s estate to impose a constructive trust on Dean’s share. Accordingly, we reverse the decision of the district court and remand the case for a determination of the extent and value of each tenant’s undivided interest in the property.

I. Background Facts and Proceedings.

Dean and JoAnn Thomann were married in 1982. It was a second marriage for both; each had children from their prior marriages. During their marriage they resided on a farm owned by Dean’s mother. In 1988, Dean’s mother died. Dean then purchased the farm on which he and JoAnn resided with an inheritance he received from his mother’s estate. In 1990, Dean executed a warranty deed that conveyed the property to both of them as joint tenants. The couple also held certain bank accounts in joint tenancy.

On August 14, 2000, Dean murdered JoAnn in their home and then killed himself. They died testate, each having executed a will in 1990. Under Dean’s will, his property passed to JoAnn, if she survived him, and to his five children, if JoAnn did not survive him. JoAnn’s will made a similar disposition of her property. If Dean survived her, he inherited her property; if he did not survive her, her property went to her children and stepchildren. (These stepchildren were not Dean’s children.)

Both wills were admitted to probate. The executor of JoAnn’s estate, appellee, Lois Williams, filed an application in Dean’s estate requesting a determination that all jointly held property of the couple was the property of JoAnn’s estate. Dean’s heirs, appellants, Dennis Thomann, Chris Shepard, Deanna Egbert, Teresa Woods, and Beth Luke, resisted.

After a hearing, the district court found that Dean had intentionally and unjustifiably killed JoAnn. Relying on Iowa Code section 633.535(1), the court held that JoAnn was “to be recognized as the surviving owner of all jointly owned property.” The post-trial motion of Dean’s heirs was overruled and this appeal followed.

On appeal, Dean’s heirs challenge the trial court’s interpretation of the pertinent statute, Iowa Code section 633.535, as well as the constitutionality of the court’s application of the statute, claiming that it worked an unauthorized forfeiture. We find it necessary to address only the issue of statutory interpretation, as our resolution of that issue renders the constitutional challenge moot.

II. Legal Principles Governing Our Review.

A. Standard of review. Because this action was tried in probate as a proceeding in equity, our review is de novo. See In re Estate of Gearhart, 584 N.W.2d 327, 329 (Iowa 1998); Iowa Code § 633.33. Although the trial court’s findings of fact are not binding on us, see In re Estate of Gearhart, 584 N.W.2d at 329, we will not engage in any factual review here because neither party contests the trial court’s factual determinations. Rather, the issue in dispute is one of statutory interpretation. Our review of questions of statutory interpretation is for the correction of legal error. See State v. Hippler, 545 N.W.2d 568, 570 (Iowa 1996). We are not bound by the trial court’s legal conclusions. See State v. Francois, 577 N.W.2d 417, 417 (Iowa 1998).

B. Relevant principles of statutory construction. Our primary goal in interpreting a statute is to give effect to the legislature’s intention. See State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575, 578 (Iowa 2000). We “construe statutes that relate to the same or a closely allied subject together so as to produce a harmonious and consistent body of legislation.” State v. Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998). We presume the legislature intended a reasonable result, not an absurd one. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d at 578.

In the absence of a statutory definition or an established meaning in the law, words in a statute are given their ordinary and common meaning. See Iowa Code § 4.1(38). We also consider the context within which the words are used. See Id; State v. Carter, 582 N.W.2d 164, 166 (Iowa 1998). Moreover, it is presumed that the legislature inserted every part of a statute for a purpose. Miller v. Westfield Ins. Co., 606 N.W.2d 301, 305 (Iowa 2000). Therefore, we avoid interpreting a statute so as to render a portion of it redundant or irrelevant. T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 162-63 (Iowa 1999).

Where a general statute and a special statute are relevant, we attempt to construe them so as to give effect to both. Iowa Code § 4.7; Citizens' Aide/Ombudsman v. Miller, 543 N.W.2d 899, 903 (Iowa 1996). When that is not possible, the provisions of the more specific statute control. Iowa Code § 4.7; Christenson v. Iowa Dist. Ct. for Polk County, 557 N.W.2d 259, 262-63 (Iowa 1996).

III. Felonious Death Statute and Contentions of Parties.

Through 1987, Iowa’s felonious death statute was contained in one paragraph. It stated:

No person who feloniously takes or causes or procures another to take the life of another shall inherit from such person, or receive any interest in the estate of the decedent as surviving spouse, or take by devise or legacy from the decedent, any portion of the decedent’s estate.

Iowa Code § 633.535 (1987). In 1987, the Iowa legislature amended the statute to substantially its current form, significantly broadening its scope. 1987 Iowa Acts ch. 9, § 1. Section 633.535 now provides:

1. A person who intentionally and unjustifiably causes or procures the death of another shall not receive any property, benefit, or other interest by reason of the death as an heir, distribu-tee, beneficiary, appointee, or in any other capacity whether the property, benefit, or other interest passed under any form of title registration, testamentary or nontestamentary instrument, intestacy, renunciation, or any other circumstance. The property, benefit, or other interest shall pass as if the person causing death died before the decedent.
2. A joint tenant who intentionally and unjustifiably causes or procures the death of another joint tenant which affects their interests so that the share of the decedent passes as the decedent’s property has no rights by survivorship. This provision applies to joint tenancies and tenancies by the entireties in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions, and any other form of co-ownership with survivorship rights.
3. A named beneficiary of a bond, life insurance policy, or any other contractual arrangement who intentionally and unjustifiably causes or procures the death of the principal obligee or person upon whose life the policy is issued or whose death generates the benefits under any other contractual arrangement is not entitled to any benefit under the bond, policy, or other contractual arrangement, and the benefits become payable as though the person causing death had predeceased the decedent.

Iowa Code § 633.535 (1999).

Whereas the prior statute applied only to inherited interests and interests passing through the decedent’s estate, the new statute addresses three situations in which a murderer is denied the benefit of his felonious act. Specifically, subsection (1) prevents a murderer from receiving in any capacity “any property, benefit, or other interest by reason of the death” of the victim, regardless of how the property, benefit, or interest passes. Id. § 633.535(1). This subsection further provides that any such property, benefit, or interest passes as though the murderer died first. Id. Subsection (2) addresses joint tenancy property, and, stripped to its essentials, provides that when one joint tenant kills the other joint tenant the murderer “has no rights by survivorship” and the decedent’s share of the joint tenancy property “passes as the decedent’s property.” Id. § 633.535(2). Finally, subsection (3) is concerned with bonds, life insurance policies or other contracts on which the slayer is a designated beneficiary; it prevents the slayer from receiving any benefit under such bonds, policies, or contracts by virtue of the victim’s death.

Dean’s heirs assert that subsection (2) governs the disposition of joint tenancy property, not subsection (1). They argue further that under subsection (2), only Dean’s rights of survivorship are lost, not his undivided interest in the joint tenancy property. The heirs contend subsection (2) has the effect of terminating the joint tenancy, causing each tenant’s undivided interest to pass through that tenant’s estate. They ask this court to remand this case so the district court can determine the extent and value of each tenant’s undivided interest in the joint tenancy property-

The executor of JoAnn’s estate contends the district court correctly interpreted the statute. First, she argues that subsection (2) does not terminate the joint tenancy and that it should be interpreted to divest the murderer of any interest in the joint tenancy property. Alternatively, the executor claims that pursuant to subsection (1) the joint tenancy property should pass as though Dean died before JoAnn, thereby allowing JoAnn’s estate to inherit Dean’s share of the joint tenancy property as the primary beneficiary under Dean's will. Finally, the executor asks that, if section 633.535 does not require Dean’s share of the joint tenancy property to pass to JoAnn, the court should impose a constructive trust on Dean’s share for the benefit of JoAnn’s estate.

IV. Discussion.

A. Joint tenancy. Before considering the application of subsections (1) and (2) to the property at issue here, it is necessary to understand the nature of joint tenancy property under Iowa law. “Joint tenancy property is property held by two or more parties jointly, with equal rights to share in the enjoyment of the whole property during their lives, and a right of survivorship which allows the surviving party to enjoy the entire estate.” In re Estate of Kirk, 591 N.W.2d 630, 634 (Iowa 1999). We have described a joint tenant’s right in joint tenancy property as “ ‘an undivided interest in the entire estate to which is attached the right of survivor-ship.’ ” Anderson v. Iowa Dep’t of Human Servs., 368 N.W.2d 104, 109 (Iowa 1985) (quoting Brown v. Vonnahme, 343 N.W.2d 445, 451 (Iowa 1984)). It is the right of survivorship that is the distinguishing feature of a joint tenancy. See Brown, 343 N.W.2d at 451.

A joint tenant’s survivorship interest is also known as the accretive interest, and the tenant’s undivided interest is also called the proportional interest. In re Estate of Lamoureux, 412 N.W.2d 628, 631 (Iowa 1987).

The proportional interest is the joint tenant’s interest which comes from the creation of the joint tenancy which necessarily occurs before the death of another joint tenant. The accretive interest, on the other hand, is the interest the survivor receives at the death of a joint tenant. Thus, where two joint tenants have an interest in property and one joint tenant dies, the surviving joint tenant has a one-half proportional interest and a one-half accretive interest.

In re Estate of Kirk, 591 N.W.2d at 634-35. Notwithstanding the undivided nature of the tenants’ proportional interests, each tenant’s precise share of the undivided interest may be determined. Anderson, 368 N.W.2d at 109. There is a presumption that joint tenants hold the property in equal shares. Id.; Frederick v. Shorman, 259 Iowa 1050, 1056, 147 N.W.2d 478, 482 (1966). This presumption may, nonetheless, be rebutted. Anderson, 368 N.W.2d at 109; Schroeder v. Todd, 249 Iowa 139, 145, 86 N.W.2d 101, 104 (1957).

Also of significance to the present dispute is the ability of joint tenants to sever a joint tenancy.

“A conversion of the joint tenancy into a tenancy in common may be effected by the concerted action of all joint tenants as well as by the act of one or less than all of them. Conduct or mutual agreement between joint tenants making disposition of the property may convert the joint tenancy into a tenancy in common, even though such conversion was uncon-templated.”

In re Baker’s Estate, 247 Iowa 1380, 1387, 78 N.W.2d 863, 867 (1956) (quoting Note, Legal Consequences of the Séverance of a Joint Tenancy, 32 Iowa L.Rev. 539, 541 (1947)). Thus, a joint tenancy may be terminated by one party’s conveyance of the interest of that joint tenant, as well as by mutual agreement. See In re Estate of Bates, 492 N.W.2d 704, 706 (Iowa Ct.App. 1992). Property held in joint tenancy is not, however, devisable by will. In re Estate of Kokjohn, 531 N.W.2d 99, 102 (Iowa 1995). Any severance of a joint tenancy creates a tenancy in common. See Frederick, 259 Iowa at 1060, 147 N.W.2d at 484.

B. Application of section 633.5S5. We Start with subsection (2), as that provision expressly applies to joint tenancy property. Initially, we observe that this statute is not a model of clarity. The confusion arises from the legislature’s reference to the felonious act of a joint tenant that affects the interests of the joint tenants “so that the share of the decedent passes as the decedent’s property.” Iowa Code § 633.535(2) (emphasis added). Under our joint tenancy law, however, the death of one joint tenant would cause the entire joint tenancy property to pass to the survivor; it would not cause the decedent’s share to pass as the decedent’s property. Only if the joint tenancy were severed would “the share of the decedent pass as the decedent’s property.”

Considering the fact that the legislature also expressly eliminated the murderer’s right of survivorship, the hallmark characteristic of a joint tenancy, we think the legislature must have intended that one joint tenant’s murder of the other joint tenant severs the joint tenancy and creates a tenancy in common. 1 Sheldon F. Kurtz, Kurtz on Iowa Estates § 4.51, at 210 (3d ed.1995) (referring to language of section 633.535(2) as meaning “the joint tenancy is converted -into a tenancy in common”). Termination of the joint tenancy eliminates the murderer’s survivorship or accretive interest, and the creation of a tenancy in common causes the proportional interest “of the decedent” to pass through the decedent’s estate and causes the murderer’s proportional interest to remain the property of the murderer. This result is consistent with the absence of any language in subsection (2) that requires forfeiture of the murderer’s right to his proportional interest.

We hold, therefore, that the effect of section 633.535(2) is a conversion of the joint tenancy into a tenancy in common. As applied here, that means JoAnn’s share of the joint tenancy property passes through her estate and Dean’s share of the joint tenancy property passes through his estate.

Having determined the consequences of applying subsection (2) to the situation before us, we turn to the executor’s contention that subsection (1) requires that Dean’s proportional interest in the joint tenancy property pass as though he predeceased his victim. The executor relies on the final sentence of subsection (1) that provides: “The ... interest shall pass as if the person causing death died before the decedent.” Iowa Code § 633.535(1). She argues that JoAnn should be deemed to have survived Dean and, under this scenario, Dean’s share of the joint tenancy property would pass to JoAnn’s estate since JoAnn was the primary beneficiary under Dean’s will.

Contrary to the executor’s argument, the last sentence of subsection (1) does not require as a general proposition that any and all property of the murderer pass as though the murderer predeceased the victim. Subsection (1), after preventing the murderer from obtaining any property, benefit or interest by reason of the victim’s death, provides for the disposition of such property, benefit or interest: “The property, benefit or other interest shall pass as if the person causing death died before the decedent.” Id. (emphasis added). The “property,” “benefit,” or “interest” referenced in this sentence is the interest that the murderer is prevented from acquiring by reason of the victim’s death. Here, as we have already determined, Dean is not prevented from retaining his share of the joint tenancy property, only JoAnn’s share. Thus, it is JoAnn’s proportional interest that must “pass as if the person causing death died before the decedent,” not Dean’s proportional interest.

To interpret subsection (1) as preventing Dean from retaining his share of the joint tenancy property would result in a direct conflict with subsection (2), as we have interpreted that statute. This result would be contrary to our rules of statutory interpretation that require us to construe a general provision — here subsection (1)— and a special provision-here subsection (2) — so as to give effect to both. See id. § 4.7. In addition, to the extent such statutes are irreconcilably in conflict, the special statute, subsection (2), prevails. See id. Therefore, we conclude subsection (1) does not mandate that Dean’s interest in the joint tenancy property pass to JoAnn’s estate. Instead pursuant to subsection (2), the joint tenancy is severed and the property passes as though Dean and JoAnn held it as tenants in common.

C. Constructive trust. The executor requests, in the event this court holds that JoAnn’s estate is not entitled to all of the joint tenancy property under section 633.535, that the court impose a constructive trust on Dean’s share of the joint tenancy property. “A constructive trust is an equitable remedy courts apply to provide restitution and prevent unjust enrichment.” Berger v. Cas’ Feed Store, Inc., 577 N.W.2d 631, 632 (Iowa 1998) (citation omitted). It is imposed “because the person holding title to the property would profit by a wrong or would be unjustly enriched if he or she were permitted to keep the property.” Cox v. Waudby, 433 N.W.2d 716, 720 (Iowa 1988) (emphasis omitted).

We do not think it is appropriate to apply a constructive trust under the circumstances of this case. A murderer’s rights in joint tenancy property were specifically addressed by the legislature in section 633.535(2). The general assembly decided that property held in joint tenancy by the murderer and the victim should pass as though held as tenants in common. The legislature could arguably have treated joint tenancy property as it did inheritances from the victim under subsection (1); it could have provided that the murderer be deemed to have predeceased the victim. It chose not to do so and there is logic in this decision. Unlike an inheritance that the murderer will not receive until the victim dies, the murderer can obtain his proportional share of joint tenancy property during the victim’s lifetime. In addition, unlike an inheritance in which the prospective beneficiary/murderer has no ownership interest prior to the victim’s death, the murderer owns his proportional interest in joint tenancy property from the moment the joint tenancy is established.

In summary, the legislature has made a policy decision to deny a joint tenant who causes the death of his co-tenant only his accretive interest in the joint tenancy property. We think it would be improper for this court to substitute its judgment for that of the legislature by imposing a constructive trust on the murderer’s proportional share, thereby judicially amending section 633.535(2). Accordingly, we reject the executor’s claim that a constructive trust should be imposed on Dean’s share of the joint tenancy property.

V. Summary and Disposition.

Pursuant to Iowa Code section 633.535(2), Dean lost his survivorship rights in property held jointly with JoAnn. In addition, this statute had the effect of converting the joint tenancy property into property held as tenants in common. Therefore, Dean’s share of the property, or proportional interest, passes through his estate and JoAnn’s share, or proportional interest, passes through her estate. The trial court erred in holding that JoAnn’s estate was the owner of all joint tenancy property.

As we noted earlier in this opinion, although there is a presumption that joint tenants hold property in equal shares, that presumption is rebuttable. Therefore, it is necessary to remand this case to the district court for a determination of the extent and value of the respective shares of Dean and JoAnn in the joint tenancy property at issue here.

We reverse the district court’s declaratory ruling that Dean and JoAnn’s joint tenancy property passed to JoAnn. We remand for entry of a declaratory judgment consistent with this opinion and for a determination of the extent and value of each joint tenant’s share.

REVERSED AND REMANDED.

      . The legislature’s decision to treat joint tenancy property as though it were held as tenants in common for purposes of the felonious death statute is also consistent with its treatment of such property for purposes of inheritance tax. Under Iowa Code section 450.3(5) (1999), only a surviving joint tenant’s accre-tive interest is taxable. In re Estate of Kirk, 591 N.W.2d at 635. That “is because the proportional interest belonged to the surviving joint tenant prior to the death of the other joint tenant.” Id. Similarly, Iowa Code section 633.704(1), which permits disclaimer of an interest held in joint tenancy, has been interpreted to allow a joint tenant to disclaim an interest only in that tenant’s accretive interest, not in his or her proportional interest. Id. The rationale for this interpretation is that a disclaimer can only apply "to property which passes upon death to the disclaimant, not to property owned by the disclaimant prior to the death.” Id.

        . We express no opinion on whether the legislature's hypothetical divestiture of a joint tenant's proportional interest would be an unconstitutional forfeiture. Compare In re Estate of Shields, 1 Kan.App.2d 688, 574 P.2d 229, 233 (1977) (indicating murderer's loss of undivided interest would constitute an unconstitutional forfeiture), with In re Estate of Fiore, 16 Ohio App.3d 473, 476 N.E.2d 1093, 1097 (1984) (holding statute requiring that murderer be deemed to have predeceased victim, thereby entitling victim to all joint tenancy property, was not an unconstitutional forfeiture).


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    Steve BAUMAN, et al., Appellants, v. MAPLE VALLEY COMMUNITY SCHOOL DISTRICT, Appellee.
    No. 02-0686.
    Supreme Court of Iowa.
    July 30, 2002.

      Joseph J. Heidenreich of Dresselhuis <& •Heidenreich, Odebolt, for appellants.
    Derrick R. Franck of Mundt, Franck & Schumacher, Denison, for appellee.
   LAVORATO, Chief Justice.

Iowa Code section 62.20 allows a party against whom judgment is rendered in a contested election to appeal within twenty days to the district court. In this contested election proceeding involving a school bond issue, we must decide when the twenty-day time period for appeal began. Under the circumstances of this case, we hold that the time period began when the election contest court orally announced its decision in open court. We therefore affirm the district court’s dismissal of the appeal in this case because the appeal was too late.

I. Background Facts and Proceedings.

On December 11, 2001, voters in the Maple Valley Community School District (School District) cast ballots in a special election to approve or disapprove the issuance of general obligation bonds, in an amount not to exceed $4,650,000, to provide funds to build and furnish a grade nine through twelve high school building and gymnasium in Mapleton, Iowa. The bond proceeds are to be used in conjunction with a Vision Iowa grant. The school district must issue the bonds by September 15, 2002, to receive the grant.

Of the total 1,837 votes cast, 1,111 were in favor of the bond issue and 726 were against. So the bond issue passed with a 60.47 percent “yes” vote. See Iowa Code § 75.1 (2001) (requiring that a school bond issue receive favorable votes of at least sixty percent of total votes cast at special election before bonds can be issued). To change the outcome of the election, at least twenty-three “yes” votes would have to be set aside.

On January 7, 2002, Steve Bauman and a number of others filed a petition with thirty-eight signatures, contesting the school bond election. The contestants challenged approximately ninety of the total votes cast, on claims that the votes were contrary to Iowa Code section 57.1(e) (providing that an election may be contested on the grounds that “illegal votes have been received or legal votes rejected at the polls, sufficient to change the result of the election”) and (g) (providing that an election may be contested on the ground that “[a]ny other cause or allegation, which, if sustained, would show that ... the outcome of the election on the public measure in question was contrary to the result declared by the board of canvassers”).

Before trial, the election contest court disposed of a number of challenges on motions by the School District on a 2-1 vote of the court. See Iowa Code § 57.7 (providing that election contest court for contest of public measure shall consist of three people). Trial on the remaining challenges was held before the election contest court on February 21, 2002. The contestants withdrew challenges to four ballots. The election contest court rejected by a 3-0 vote challenges to four absentee ballots and by a 2-1 vote rejected challenges to four other absentee ballots.

The presiding judge mailed a written judgment to the Monona County Auditor, who served as clerk of the election contest court. See Iowa Code §§ 57.6 (providing that “[a]ll provisions of the chapter in relation to contested elections of county officers [Iowa Code chapter 62] shall be applicable, as near as may be, to contested elections ... for public measures except as herein otherwise provided .... ”)(emphasis added) 62.3 (providing that “county auditor shall be clerk of [election contest] court, and keep all papers, and record the proceedings in the election book, in manner similar to the record of the proceedings of the district court.... ”). The auditor received the written judgment in the mail on February 22, 2002.

The written judgment had signature lines for all three judges, but only the presiding judge had signed the judgment. The auditor file stamped the written judgment the same day she received it. She then called the other judges and asked that they sign the judgment. One of the remaining judges signed the written judgment on February 22, 2002; the third — the dissenting judge — signed it on February 25, 2002.

On March 18, 2002, the contestants filed a notice of appeal to the district court. This was twenty-five days after the February 21 contest trial, twenty-four days after the auditor filed the written judgment on February 22, and twenty days after the dissenting judge signed the written judgment on February 25.

On March 22, the School District filed a motion .to dismiss, alleging that the district court lacked jurisdiction because the appeal was not filed within the twenty-day time period for appealing the judgment of an election contest court, as provided in Iowa Code section 62.20. Following a hearing on the motion, the district court dismissed the appeal. The court held that the time for appeal began “when the election contest court announced its decision on February 21, 2002.” Additionally, the court held that “[t]he time for appeal in this case began, at the very latest, when the 'written judgment was signed by the two concurring judges and filed with the Monona County Auditor on February 22, 2002.” Because the appeal was filed after the expiration of the twenty-day appeal period in section 62.20, the court concluded it had no authority to hear the appeal and ruled the appeal must be dismissed.

The contestants appealed.

II.Issue.

The critical provision here is Iowa Code section 62.20, which provides:

The party against whom judgment is rendered may appeal within twenty days to the district court....

Iowa Code § 62.20 (emphasis added).

Our task is to determine when judgment is “rendered” for purposes of triggering the twenty-day time period within which one must appeal, pursuant to section 62.20. The contestants contend judgment in this case was not “rendered” until February 25, 2002, when all three judges of the election contest court signed the written judgment.

The School District contends judgment was rendered either (1) February 21, 2002, when the election contest court voted and announced its decision in ppen court, or (2) February 22, 2002, when the judgment, signed by the presiding judge, was filed with the county auditor and signed by the concurring judge. The School District concludes that because the appeal was filed later than twenty days after February 22, it was too late and for that reason the district court lacked jurisdiction to hear the appeal.

III. Scope of Review.

We review the district court’s ruling on a motion to dismiss for correction of errors at law. Iowa R.App.P. 6.4; O’Hara v. State, 642 N.W.2d 303, 305 (Iowa 2002).

IV. Statutory Framework.

School elections are either regular or special. See Iowa Code §§ 277.1 (regular election), 277.2 (special election). Special elections may be called irregularly to decide primarily financial and school property issues. Iowa Code § 277.2. Either type of school election may be contested “as provided by law for the contesting of other elections.” Iowa Code § 277.22.

Iowa Code chapter 57 sets out the grounds for contesting an election. Iowa Code chapter 62 sets out the procedure for contesting the election. See Iowa Code § 57.6 (provisions of chapter 62, the chapter in relation to contested elections of county officers, applies to contested elections for public measures).

The election contest court is comprised of three judges:- one ■ designated by the petitioners contesting the election, one designated by the county commissioner of elections, and a third chosen jointly by the first two designees. Iowa Code § 57.7. If the two judges are unable to agree on a third judge, the chief judge of the judicial district appoints a third person to serve. Id. That is what happened here.

Iowa Code section 62.13 outlines the powers of the election contest court:

[The election contest court] shall have all the powers of the district court necessary to the right [of] hearing and determination of the matter, to compel the attendance of witnesses, swear them and direct their examination, to punish for contempt in its presence or by disobedience to its lawful mandate, to adjourn from day to day, to make any order concerning intermediate costs, and to enforce its orders by attachment. It shall be governed by the rules of law and evidence applicable to the case.

Iowa Code § 62.13.

The election contest court determines whether a school bond issue passed, and can set aside the election if it determines the issue failed to pass. Iowa Code § 62.18. As earlier noted, a party against whom judgment is rendered by the contest court may appeal pursuant to section 62.20.

The right to contest an election did not exist at common law. De Koning v. Mellema, 534 N.W.2d 391, 394 (Iowa 1995). Because any right to contest an election is acquired by statute, contestants must strictly comply with the statutory provisions necessary to confer jurisdiction. Id. “[C]ontestants acquire under such statutes only such expressly limited and conditional privileges as the legislature has seen fit to extend.” Id. (citation omitted).

When a statute prescribes a procedure for review, that procedure must be strictly followed to confer jurisdiction. Lau v. City of Oelwein, 336 N.W.2d 202, 203 (Iowa 1983). Therefore, whether an appeal is filed in a timely manner is a jurisdictional question. Id.

V. When is a Judgment Considered Rendered Under Iowa Code Section 62.20?

Here, the district court relied on two cases in reaching its decision: McIntosh v. Livingston, 41 Iowa 219 (1875), and Mentzer v. Davis, 109 Iowa 528, 80 N.W. 557 (1899). In McIntosh, the court was dealing with the sufficiency of the notice under Iowa Code section 716 (1873), a predecessor to section 62.20. Section 716 (1873) was virtually identical to section 62.20 as to the time for appeal: “The party against whom judgment is rendered may appeal within twenty days to the circuit court.” Iowa Code § 716 (1873). Although the issue regarding the timeliness of the notice of appeal was not before the court, the court did make reference to the fact that the notice need not be in writing:

The first question made here is upon the sufficiency of the notice of appeal from the judgment of the court of contest to the Circuit Court. The statute (Code, Sec. 716 [1873]), provides that the party against whom judgment is rendered by the court of contest may appeal within twenty days to the Circuit Court, but does not prescribe how the notice of appeal shall be served. In this case it appears that verbal notice of appeal was given and entered of record by the court of contest before it adjourned; and, acting upon such notice, the parties made an agreement as to the custody of the ballot-box and ballots pending the appeal. Without determining whether a written notice might not be necessary in an ordinary case, it seems to us that the giving of this notice by [the contestant] and the recognition of it, and the agreement upon it by [the incumbent], operated as a waiver of any further notice. By analogy, also, to the regulations for appeals from justices of the peace (see Code, Sec. 3588), such a notice as given in this case would be sufficient. The sections of the Code referred to by counsel for appellant, as requiring notice to be in writing, expressly require that such notice be in writing (see Code, Secs. 469, 1254, 1831, 3178). By the statute providing for appeals from a court of contest, it is not specified that the notice thereof shall be in uniting. There was no error, therefore, in refusing to dismiss the appeal.

McIntosh, 41 Iowa at 222 (emphasis added).

In Mentzer, the court had before it a notice pursuant to Iowa Code section 1222, the 1897 predecessor to section 62.20. It too was identical in language to section 62.20 as to the time for appeal. Unlike McIntosh, the court was dealing with an issue of timeliness of appeal. The losing party served notice of appeal after the election contest court announced its judgment. Mentzer, 109 Iowa at 530, 80 N.W. at 558. Holding that the notice of appeal was sufficient under the circumstances, this court said:

[The appellee] says the notice of appeal was served before the decision of the court of contest was announced. There is no doubt that the notice was served before any formal entry of judgment was made by the court. But we think the trial court was justified in finding that the judges had in fact announced their decision before the notice was served. All that was done after that time was to reduce that decision to writing and file it with the proper authorities. In other words, the decision had been made before the appeal was taken, but the written evidence of that decision had not been made. The appeal was not prematurely taken.

Id. (emphasis added).

For reasons that follow, we conclude the Mentzer decision is still good law.

A. Applicable law. “A judgment is effective between the parties from the time it is rendered.” 46 Am.Jur.2d Judgments § 71, at 428 (1994). Although generally

no particular formal act is necessary to evince the rendition of a judgment, the question of how the expression of its decision by a court should be made before it can be considered the rendition of a judgment has been the subject of many statutes, rules of court, and judicial adjudications. As a general rule, a final judgment is deemed to be rendered, almost as a matter of definition, only when the court has disposed of the entire controversy in question.

Id. § 72, at 429. “Although ... a judgment is rendered and exists as such when it is orally announced from the bench, and before it has been reduced to writing and entered by the clerk, as a general rule a judgment must be reduced to writing.” 49 C.J.S. Judgments § 75, at 150.

Rendition of judgment and entry of judgment are two distinct acts:

The rendition of a judgment is the judicial act of the court, whereas the entry of judgment by the clerk on the records of the court is a ministerial, and not a judicial, act. Hence, the rendition of a judgment is usually distinguished from its filing or entry in the records, which should not be confused with the judgment itself. The judgment itself is not that which may be entered or recorded, but that which is considered and delivered by the court.

46 Am.Jur.2d Judgments § 123, at 469; accord Burke v. Burke, 142 Iowa 206, 210, 119 N.W. 129, 130 (1909) (“The rendition of a judgment is a judicial act, and the entry upon the record is purely ministerial.”).

Several possibilities exist as to when a judgment is deemed to be rendered:

With some exceptions, either at common law or by virtue of statutory provisions, the date of a judgment is the day on which it is actually rendered or entered ....
[A] judgment is deemed to be rendered on the date when it is ordered or pronounced by the court, or when the trial judge in open court declares decision of law on the matters in issue, or when a formal order granting a motion for judgment on the verdict is signed, or, in the absence of contrary indication, when the clerk certifies receipt of the judgment for record, or when the clerk files the judgment.

49 C.J.S. Judgments § 118, at 189-90 (emphasis added).

In some cases, “the validity of a judgment is not affected by the delay of the clerk in entering it in the court records,” ... or by “the fact that the judge made no memorandum or bench note of the judgment before it was pronounced in court and duly entered.” 46 Am.Jur.2d Judgments § 127, at 472. However,

[f]or some purposes, ... some entry or record of a judgment is necessary to its completion, and it has been held that, in order to give validity or vitality to a judgment, some written evidence that it has been rendered, contained in the papers or on the docket, is essential. Indeed, it is sometimes specifically provided by statute or rule of court that a judgment is ineffectual until it is entered.

Id.

In Iowa, a judgment is “every final adjudication of any of the rights of the parties in an action.” Iowa R. Civ. P. 1.951 (formerly rule 219). A judgment is final if it “conclusively determines the rights of the parties and is finally decisive of the controversy.” Waterhouse v. Iowa Dist. Ct., 593 N.W.2d 141, 142 (Iowa 1999). “[A] judgment is rendered when it is announced or when the judge signs an enrolled judgment order but ... there is no competent evidence of such rendition until entry is made upon the court record.” World Teacher Seminar, Inc. v. Iowa Dist. Ct., 406 N.W.2d 173, 177 (Iowa 1987). A judgment is effective “when filed with the clerk, or as provided by rule 1.442(5).” Iowa R. Civ. P. 1.453 (formerly rule 115). All judgments must be entered on the record of the court. Iowa R. Civ. P. 1.959 (formerly rule 227).

We find nothing in chapters 57 or 62 that provides for the application of the Iowa rules of civil procedure relative to when a judgment of the election contest court is effective. Moreover, “[t]he rules [of civil procedure govern] the practice and procedure in all courts of this state, except where they expressly provide otherwise or statutes not affected hereby provide different procedures in particular courts or cases.” Iowa R. Civ. P. 1.101 (emphasis added) (formerly rule 1). The election contest court is not a “state” court. Rather it is a political court established by statute. See Iowa Code § 57.7. Additionally, the contested election statutes provide different procedures governing the operation of election contest courts. See generally Iowa Code ch. 62.

The only reference to the rules of civil procedure is found in Iowa Code section 57.6, providing that “in all cases process and papers may be issued to and served in the manner provided by the rules of civil procedure for service of an original notice by the sheriff of any county.” Iowa Code § 57.6. The legislature therefore knew how to make the rules of civil procedure applicable to contested elections. The fact that it specifically did so as to one area of contested elections (service of process) meant it did not mean to do so in all other areas. Meinders v. Dunkerton Cmty. Sch. Dist., 645 N.W.2d 632, 637 (Iowa 2002) (recognizing the rule of “expressio unius est exclusio alterius,” expression of one thing is the exclusion of another). We therefore conclude rule 1.453 — providing that a judgment is effective when filed with the clerk — and rule 1.959 — providing that all judgments must be entered on the record of the court— have no application here. Because there are no Iowa rules or statutes that dictate a contrary result, we hold that where the election contest court announces its decision orally in open court, that announcement is a rendition of the court’s judgment and triggers the section 62.20 twenty-day period for appeal. Cf. Iowa R.Crim. P. 2.73(1) (formerly rule 54) (allowing defendant convicted of a simple misdemeanor to appeal “by giving notice orally to the magistrate at the time judgment is rendered .... ”).

At first blush, this holding may seem to invite uncertainty. However, we think for reasons that follow the opposite is true. Iowa Code section 62.18, pertaining to judgment, provides that “the court shall adjudge” the issue submitted to it. As the district court noted, there is no express requirement that the election contest court file a written judgment. In these circumstances, it would not be unusual for the election contest judges to simply announce their decision in open court without reducing it to writing. The parties hear the decision and therefore need no further proof that a decision has been reached. In these circumstances, certainty that the judges have “adjudged” the issue is therefore achieved, thereby triggering the twenty-day time period for appeal.

B. Analysis. Here, the parties were certainly aware of the election contest court’s decision by the end of the hearing on February 21, 2002. The public knew, too, .because the proceedings were recorded. The three election contest court judges voted on each challenge as it was presented, and announced their votes in open court. At the end of the hearing, the School District’s attorney asked the election contest court to clarify:

School District’s Attorney: “Your honor, so that the record is clear, every non-withdrawn challenge has now been voted on [by] the election contest court, is that correct? Presiding Judge: “Yes.”
School District’s Attorney: “Would you agree with that Mr. [Attorney for Contestants]? Attorney for Contestants: “That’s a fact.”
School District’s Attorney: “Ok, thank you, your honor.” Presiding Judge: “This contest is closed.”

At the end of the hearing, the contestants knew the court’s decision, and could have appealed. The contestants’ notice of appeal, filed twenty-five days later, was too late. The district court therefore lacked jurisdiction to hear the appeal and for that reason properly dismissed it.

AFFIRMED.


author: PER CURIAM.

text:
    In the Interest of R.K., Minor Child, J.S., Mother, Appellant.
    No. 02-0359.
    Court of Appeals of Iowa.
    May 31, 2002.

      Stephanie Hassler of the Hassler Law Office, Manchester, for appellant.
    Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Bernau, County Attorney, and Richard Feeney, Assistant County Attorney, for appellee-State.
    John Carr of Carr & Carr, Manchester, guardian ad litem for minor child.
   PER CURIAM.

Regina K. was born to Jean S. and Kevin K. on May 27, 2001. She was removed from the custody of her parents while still in the hospital due to concerns that Jean and Kevin, who both suffer from a schizophrenic disorder, were not able to adequately care for her. On May 31, 2001, the State filed a Child in Need of Assistance (CINA) petition and the parents were subsequently provided with numerous services including mental health treatment and parent skill development. On October 28, 2001, the court adjudicated Regina in need of assistance pursuant to Iowa Code sections 232.2(6)(b), 232.2(6)(c)(l), 232.2(6)(c)(2), and 232.2(6)(n) (2001). The court subsequently terminated Jean’s parental rights pursuant to sections 232.116(l)(c), 232.116(l)(d), 232.116(l)(f), 232.116(l)(g), and 232.116(1)(j) . Jean appeals this February 21, 2002 order, contending the juvenile court should have entered a permanency order and extended the placement for an additional six months.

Termination. The juvenile court did not address permanency, but rather terminated under multiple code sections. We only need to find grounds to terminate parental rights under one of the sections cited by the district court in order to affirm its ruling. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App.1996). We conclude the court properly terminated Jean’s parental rights as opposed to entering a permanency order and granting the parties additional time before terminating parental rights. Jean’s rights were terminated under section 232.116(l)(g) which requires that (1) the child is three or younger, (2) the child has been adjudicated in need of assistance, (3) the child has been removed from the parent’s custody for the last six consecutive months, and (4) there is clear and convincing evidence the child cannot be returned to the parent’s custody.

Jean’s mental illness seriously impacts her ability to parent this child, making termination the only workable solution for Regina. The record is replete with failed services, inability to learn proper parenting skills, and recommendations from service providers and psychological evaluators noting Jean’s inability to effectively care for Regina. Jean clearly fails to understand the very basics of parenting a child as young as Regina and is prone to volatility and neglect. During visits with Regina, Jean had trouble simply holding her, feeding her, and providing her with a comfortable environment. In 1996, Jean’s parental rights to another child, Leann, were also terminated, illustrating that her mental health issues have impacted her ability to effectively parent for a considerable length of time. There is no indication Jean’s skills, knowledge, or willingness to learn improved throughout the pendency of this case.

Due Process. Jean also argues Iowa’s new rules for appeals in termination cases violate her rights to due process as guaranteed by the Fourteenth Amendment. We begin with the basic premise that a parent has a fundamental liberty interest in the care, custody, and control of his or her child, Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56-57 (2000), and a child has a reciprocal interest in the relationship. F.K. v. Iowa Dist. Ct., 630 N.W.2d 801, 808 (Iowa 2001). When the State seeks to terminate the relationship between a parent and child, it must comply with the requisites, of the Due Process Clause. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 37, 101 S.Ct. 2153, 2165, 68 L.Ed.2d 640, 656 (1981); In re D.D., 476 N.W.2d 737, 739 (Iowa Ct.App.1991). The nature of the process due in a parental rights termination proceeding turns on a balancing of the three distinct factors as specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976); the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. Lassiter, 452 U.S. at 27-31, 101 S.Ct. at 2159-62, 68 L.Ed.2d at 650-52. Generally, the process that is due ⅛ flexible and requires only the “procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972).

Jean’s interests in the care, custody, and control of her child were fully litigated at the termination hearing, and she makes no claim her due process rights were violated at that hearing. Instead she claims the reduced time from when she received the transcript of the trial court proceedings to the time the petition was due prevented her counsel from thoroughly reviewing the transcript, fully researching the issues, and adequately drafting the petition for appeal, thereby depriving her of a fundamentally fair appellate review.

Both parties acknowledge there is no federal constitutional basis for the right of appeal. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651, 657-58 (1977); State v. Hinners, 471 N.W.2d 841, 843 (Iowa 1991). However, once the right of appeal has been established, “these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.” Hinners, 471 N.W.2d at 843. The right to appeal an order entered in a termination of parental rights case is found in Iowa Code section 232.133, which also grants our supreme court the authority to prescribe rules to expedite the appellate process. See Iowa Civil Liberties Union v. Critelli, 244 N.W.2d 564, 568 (Iowa 1976) (recognizing the inherent common law authority of courts to promulgate rules of practice and procedure). Accordingly, rules were prescribed and made effective for termination of parental rights orders entered after December 31, 2001.

We acknowledge the rules limit the time for counsel to closely review the transcript. However, Iowa Rule of Appellate Procedure 6.6(4) dispenses with the requirements of filing a traditional proof brief, brief, and appendix, all of which are dependent on having a transcript in hand to tie alleged legal and factual error to the record. Rather, under the new rules, the appellant prepares a petition, following a format provided in the forms sections of the rules. Iowa R.App. P. 6.751, Form 4. The petition is limited in content and directs the appellant to raise issues for appeal rather than arguing issues in a full appellate brief. Iowa RApp. P. 6.151. Reliance on a transcript is further minimized by the requirement that trial counsel bring the petition for appeal, rather than having appellate counsel appointed for that task. Iowa R.App. P. 6.6(4). Trial counsel’s presence and participation at the termination hearing facilitates counsel’s ability to identify and raise issues on appeal. In addition, trial counsel has a copy of all exhibits introduced at trial as available resources when preparing the petition on appeal. While full briefing requires counsel to scour the transcript for factual inconsistencies and legal error, the new rules do not require citation to the record. Rather, a brief recitation of the material facts is set forth, and legal issues are raised with supporting authority. Iowa RApp. P. 6.151(2). The appellate court then proceeds to conduct its de novo review of the trial court’s ruling, using the record and transcript provided to it. Iowa R.App. P 6.154(1). As a protection to the parties, should the appellate court determine an issue requires expanded argument, the rules allow it to order full briefing. Iowa R.App. P. 6.154(1).

Utilizing the petition format serves to bring the termination of parental rights proceedings to a more timely resolution, by either affirming the order of termination, thus freeing the child for adoption, or reversing the order and allowing the parent to regain custody. The expedited procedure thus can serve to benefit both the parents and the child by moving to permanency in a more timely fashion, reducing the time all must wait in litigation limbo until their case is finally resolved.

While both the parents’ and child’s interests in the parent-child relationship are great, so is the State’s interest in resolving matters on appeal that have already been fully litigated. The combination of trial counsel’s opportunity to raise possible issues for appeal and the appellate court’s ability to review the full record and transcript of the underlying proceeding protects both the parents and child against the risk of erroneous deprivation. See Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 34; see also United States v. Marines, 535 F.2d 552, 556 (10th Cir.1976) (holding a summary calendar does not violate due process as long as defendant is able to properly present issues on appeal); State v. Ibarra, 116 N.M. 486, 864 P.2d 302, 304 (1993) (stating summary procedure for criminal appeals “must provide a fair opportunity for erimi-nal defendants to present their contentions within the context of those state procedures”).

We conclude the process provided by the expedited rules sufficiently safeguards Jean’s constitutional due process rights. The challenged rules provide equal and open access to the appellate courts and an opportunity to raise issues for appellate review. Accordingly, we affirm the order terminating Jean’s parental rights.

AFFIRMED.

      . Now codified at Iowa Code sections 232.116(l)(d), (e), (g), (h), and (k) (Supp. 2001).

      . Iowa R.App. P. 6.5, 6.6, 6.10, 6.151, 6.152, 6.153, 6.154.

      . Counsel claims to have received the trial transcript on March 18, 2001. The petition on appeal was due March 21, 2001.

      .Except for appeals from an order entered pursuant to section, 232.117, appellate procedures shall be governed by the same provisions applicable to appeals from the district court. The supreme court may prescribe rules to expedite the resolution of appeals from final orders entered pursuant to sections 232.117. Iowa Code § 232.133(2).

      . Iowa Rule of Appellate Procedure 6.154 provides the court may affirm, reverse, remand or set the case for full briefing.

      . Adoption and Safe Families Act of 1997, Pub.L. No. 105-89. The National Council of Juvenile and Family Court Judges' recommended time from termination order until procedendo issue is 150 days. (Adoption and Permanency Guidelines: Improving Court Practice in Child Abuse and Neglect Cases, published by the National Council of Juvenile and Family Court Judges, Reno, Nevada, July 2000.)


text:
    Earl Lawrence SANDERS, Respondent, v. STATE of Minnesota, Petitioner.
    No. C0-01-725.
    Supreme Court of Minnesota.
    July 3, 2002.
    Opinion on Rehearing July 16, 2002.
   ORDER

On December 19, 2001, this court granted the State of Minnesota’s petition for review of the decision of the court of appeals remanding the case to the district court for that court to provide written reasons for an upward departure from the Minnesota Sentencing Guidelines. As part of his plea agreement, respondent had agreed to a departure from the sentencing guidelines. Further consideration in this court was stayed pending final disposition in State v. Misquadace, 644 N.W.2d 65 (Minn.2002). In Misquadace, this court held that all departures from the sentencing guidelines must be supported by substantial and compelling circumstances, and that a plea agreement standing alone is not a sufficient basis to depart from the sentencing guidelines. Id. at 72. Thus, the court of appeals’ disposition in this case is consistent with this court’s ruling in Misquadace and further review of the departure based only on the plea agreement is not necessary.

At the court of appeals respondent raised a second argument — whether he was entitled to the presumptive sentence because he understood at the time he entered his plea that he would be allowed to participate in a Department of Corrections boot camp program to reduce his sentence. The court of appeals declined to address this argument because the court remanded on the basis of his first argument, however the court held that respondent was not automatically entitled to a reduction of his sentence to the presumptive sentence. In response to the state’s petition for review in this court, respondent reserved the argument that he did not knowingly and intelligently waive his right to be sentenced to the presumptive sentence, “an issue that was raised but not reached by the court of appeals.” (PFR Response). See Minn. R.Crim. P. 29.04, subd. 6.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the stay of this appeal is vacated.

IT IS FURTHER ORDERED that the order granting the state’s petition for review of the issue whether a plea agreement is sufficient to support a departure from the sentencing guidelines is vacated and the petition for review of that issue is denied. See State v. Misquadace, 644 N.W.2d 65 (Minn.2002).

IT IS FURTHER ORDERED that this matter is remanded to the court of appeals for consideration of whether the postcon-viction court erred in concluding that respondent’s plea was knowing, voluntary and intelligent in light of his alleged understanding regarding his participation in the Department of Corrections -boot camp program.

BY THE COURT

Kathleen A. Blatz

Kathleen A. Blatz

Chief Justice

ORDER

On June 26, 2002, after issuing a decision in State v. Misquadace, 644 N.W.2d 65 (Minn.2002), this court vacated a December 19, 2001 order in this case that granted review of the state’s petition for review but stayed further proceedings pending Misquadace. In the June 26, 2002, order, this court denied review of the Misquadace issue but remanded the case to the court of appeals for consideration of an issue respondent Sanders raised there and expressly reserved in his response to the state’s petition for review, whether the plea agreement was unenforceable because it was allegedly not intelligently made. This court remanded for the court of appeals to consider whether the postconviction court erred in concluding that respondent’s plea was knowing, voluntary and intelligent in light of his alleged understanding regarding his participation in a Department of Corrections boot camp program.

Respondent subsequently filed a petition for rehearing, requesting the court to reconsider that portion of the June 26 order remanding the case to the court of appeals. Respondent asserts that his argument on whether his plea was intelligently made was preserved only as an alternative basis to affirm the court of appeals and further asserts that he does not want the court of appeals to consider his argument that the plea agreement was unenforceable.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the portion of the June 26, 2002 order remanding this case to the court of appeals for consideration of whether the postconviction court erred in concluding that respondent’s plea was knowing, voluntary and intelligent is vacated. In all other respects the June 26, 2002 order remains in effect.

BY THE COURT

Kathleen A. Blatz Kathleen A. Blatz Chief Justice


text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Scott Kevin BAILEY, an Attorney at Law of the State of Minnesota.
    No. C4-02-1113.
    Supreme Court of Minnesota.
    July 31, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Scott Kevin Bailey committed unprofessional conduct warranting public discipline, namely, respondent failed to timely file federal and state individual income tax returns for a three-year period and was convicted of failure to timely file a federal individual income tax return with the Internal Revenue Service (IRS) in violation of 26 U.S.C. § 7203 (2000) after entering a guilty plea.

Respondent admits his conduct violated Minn. R. Prof. Conduct 8.4(b) and (d), waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that:

a. The appropriate discipline is a 90-day suspension of [respondent’s] license to practice law [under] Rule 15, RLPR.
b. The reinstatement hearing provided for in Rule 18(a) through (d), RLPR, be waived.
c. Respondent be required to successfully complete the professional responsibility portion of the state bar examination within one year of the date of this [c]ourt’s order.
d. Respondent [shall] comply with Rule 26, RLPR.
e. Respondent [shall] pay $900 in costs [under] Rule 24(a), RLPR.
f. Respondent be reinstated following the expiration of the suspension upon filing an affidavit with the Clerk of Appellate Courts and the Director’s Office establishing that respondent is current with Continuing Legal Education, has fully complied with Rules 24 and 26, RLPR, has successfully completed his criminal probation, and has satisfactorily completed all other conditions imposed.
g.Upon reinstatement, respondent [shall] be placed on * ⅜ * unsupervised probation [for two years] with the following conditions:
i. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct [that] may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
ii. Respondent shall abide by the Minnesota Rules of Professional Conduct.
iii. Respondent shall timely file all required state and federal tax returns, including individual and employer withholding returns, and timely pay the taxes due thereon. Respondent shall affirmatively report to the Director, on or before the due date of the required returns, his compliance with filing and payment requirements. Such reports shall include copies of the required returns. On or before the filing deadline, respondent shall provide the Director with copies of all applications for filing extension and proof of approval of such applications. Respondent shall provide all of the documents and information required herein without specific reminder or request.
iv. Within [60] days from reinstatement, respondent shall enter into agreements satisfactory to the [IRS] and the Minnesota Department of Revenue (DOR) for the payment of all unpaid taxes. Respondent shall provide the Director with copies of the payment agreements and proof of currency on payments required by the agreements. If after [60] days, agreement with the IRS and/or DOR has not been reached despite diligent effort by respondent, respondent shall report monthly to the Director concerning his progress in reaching agreement. Such reports shall continue until written agreements have been signed by both the IRS and DOR.

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

IT IS HEREBY ORDERED that respondent Scott Kevin Bailey is suspended for 90 days from the practice of law subject to the agreed-upon conditions set forth above. Respondent may petition for reinstatement by affidavit as provided in Rule 18(f) and, upon reinstatement, he shall be placed on unsupervised probation for two years subject to the agreed-upon conditions of probation set forth above. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT

Paul H. Anderson

Paul H. Anderson

Associate Justice


author: STRINGER, Justice.

text:
    Jeffrey A.Z. HILLIGOSS, Respondent, v. CARGILL, INCORPORATED, et al., Petitioners, Appellants.
    Nos. C4-01-632, C6-01-227.
    Supreme Court of Minnesota.
    Aug. 1, 2002.

      Dorsey & Whitney LLP, George G. Eck, David J. Lauth, Holly S.A. Eng, Minneapolis, MN, for appellant.
    Sprenger & Lang PLLC, Lawrence P. Schaefer, Sara L. Madsen, Minneapolis, MN, for respondent.
   OPINION

STRINGER, Justice.

Jeffrey A.Z. Hilligoss (respondent), a former employee of appellant Cargill Financial Services Corporation (CFSC), was terminated in September 1997 based on Cargill’s determination that he was responsible for significant investment losses to the company and that he failed to meet performance expectations. Respondent sued Cargill seeking, among other things, the unpaid portion of his 1996 deferred bonus payment which Cargill claimed was forfeited because respondent was terminated for cause. Following a six-day trial, a jury found that Cargill did not have cause to terminate respondent. The court entered judgment in favor of respondent for $506,956.22, and Cargill’s motion for judgment notwithstanding the verdict was denied. The court of appeals affirmed, rejecting claims of error in jury instructions and evidentiary rulings, but remanded for clarification the issue of the damage amount. We affirm.

Respondent became an employee of Car-gill in July 1991 as a Trader/Analyst in Cargill’s Corporate Capital Group (CCG), focusing on finding, analyzing and developing investment opportunities for Cargill. Respondent received generally favorable performance ratings in 1992 and was promoted to the position of assistant vice president of CFSC in 1993; and then to vice president two years later.

In 1994, Cargill learned of an investment opportunity with Granite Financial (Granite), a consumer finance company involved primarily in the subprime automobile loan market, a segment of automobile financing focused on sales to high credit risk automobile purchasers. After initial due diligence was completed by respondent and his colleagues, respondent recommended that Cargill invest in Granite and reportedly indicated to management that a worst-case scenario would be a loss in the range of $5-10 million., The investment was made and was initially profitable. In hindsight however, Cargill contends that these “profits” were illusory because, among other things, they included $2.9 million in fees that were supposed to be paid to Cargill by Granite but in fact never were paid. Nevertheless, respondent earned a bonus of $130,000 in 1995, and in 1996, respondent’s bonus increased to $900,000. In addition, he was awarded an option to purchase 1000 shares of Cargill stock. Under Cargill’s Annual Discretionary Bonus Outline (“Bonus Plan”), one-half of respondent’s- 1996 bonus was deferred to be paid in equal amounts over the next several years. . , ■

It became apparent in 1996 that there were problems with the Granite investment, and Cargill claims respondent should have recommended a reserve be taken against losses in that year. A reserve of $43 million was taken in 1997 and shortly thereafter, Cargill formed a new subsidiary called Maxim Financial Services Corporation (Maxim) to foreclose on its interest in Granite. Respondent was appointed Maxim’s President and CEO and given the responsibility for trying to stop the losses and to turn the investment around.

In April 1997 respondent was provided with a list ..of performance objectives known as Key Results Areas (KRAs) including: “Be present in Milwaukee at least 3 days per week thru mid December 97” and “Assure highest quality servicing of the Granite portfolio; no additional wri-teoffs.” Respondent recalls discussing these goals with the new head of CCG, explaining that he would do the best he could but that this amount of travel might interfere with his childcare obligations and that ensuring “no additional writeoffs” was problematic given the uncertain performance capability of the Granite portfolio.

In a later meeting with a superior in June 1997 respondent acknowledged that he received some “constructive criticism” regarding the Granite investment — specifically that he had “missed the downside analysis” and may have over-delegated to his subordinates. No threat of job security was suggested at this meeting however, nor did he believe he was being held individually responsible for the Maxim or Granite losses. There was no discussion of the amount of time respondent was or was not spending in Milwaukee, and respondent felt the tone of the review was generally positive. Cargill characterized the meeting quite differently however, indicating that it was “inconceivable” that respondent could have left believing his Cargill future was secure.

In any event, at the end of June 1997 respondent received his first yearly installment of the deferred bonus from the 1996 award and was later granted a stock option accompanied by a letter from Cargill’s chairman and CEO stating that the grant “recognizes [respondent’s] contribution to Cargill’s success and [Cargill’s] expectation of the important role [respondent] will play in Cargill’s future.”

Cargill informed respondent on September 25, 1997, that his employment was being terminated, an announcement that he testified left him “stunned.” He claims he was given no warning nor was he provided an opportunity to respond to the reasons for his termination as cited by upper management, a step referenced in Cargill's policies and procedures for terminating employees for cause.

Several reasons were given for the termination including the substantial losses Cargill experienced as a result of the Granite/Maxim investment, respondent’s lack of leadership evidenced by a trip to Hawaii and upcoming trip to Bermuda at a time when Granite was experiencing serious problems, failure to follow instructions to be in Milwaukee at least three days per week, and engaging in conduct that created a conflict of interest based on communications respondent was having with an outside entity regarding the potential sale of Maxim. A subsequent letter from Car-gill’s legal counsel reiterated Cargill’s reasons for the termination and also indicated that because respondent was terminated for cause, his right to the remaining $337,000 unpaid portion of his 1996 deferred bonus under the terms of the Bonus Plan was forfeited.

Following his Cargill termination respondent did some consulting work, and then in February 1998 he accepted a position as Chief Financial Officer of Freedom Nation, Inc. (formerly known as Emerald First Financial), a company engaged in the business of processing and servicing loans for purchasers of recreational products such as boats and recreational vehicles. Cargill claims respondent’s employment with Freedom Nation constituted employment with a competitor and was an independent basis for forfeiture of the deferred portion of his 1996 bonus. Respondent was competing, so Cargill claims, because of the similarity between the recreational vehicle loan business and the sub-prime automobile loan business, and because he hired some employees away from Cargill to work for him at Freedom Nation.

Respondent sued Cargill asserting eight separate claims seeking compensatory and punitive damages, among other things. In addition to raising several defenses, Car-gill filed a counterclaim against respondent alleging fraud and misrepresentation claiming respondent failed to sufficiently advise Cargill of the risks associated with the Granite investment and failed to take appropriate reserves to protect Cargill. Five of respondent’s eight claims were later withdrawn, and on cross-motions for summary judgment, the court ruled that Cargill had failed to demonstrate that respondent’s post-termination employment contravened the noncompete provision of the Bonus Plan, and that the language of the provision was overly broad. The district court also dismissed Cargill’s counterclaim and respondent’s remaining claims, leaving only the breach of contract claim for adjudication.

Following opening arguments at trial, the court ruled that evidence of respondent competing with Cargill would not be admissible, a reversal of an earlier ruling admitting evidence of competition on the basis that it was a question of fact for the jury.

At the close of the trial, the jury was instructed on a number of points relevant to the breach of contract issue, including the definition of termination for cause:

The term “cause” generally means a real cause or basis for dismissal as distinguished from an arbitrary whim or caprice. That is, some cause or ground that a reasonable employer, acting in good faith in similar circumstances would regard as a good and sufficient basis for terminating the services of an employee. A termination is for cause if Plaintiff breached the — the standards of job performance that the Defendant established and uniformly applied. It is up to you to decide whether Jeffrey Hilligoss’ employment with Cargill was terminated for cause.

Cargill objected to the language “standards of job performance that the Defendant established and uniformly applied,” on the basis that it was appropriate for labor law cases but not here because it could require Cargill to prove through individual employee records the uniformity of application.

The jury returned a special verdict in favor of respondent concluding that he had proved by a preponderance of the evidence that Cargill did not have cause to terminate his employment. Cargill’s post-trial motion for JNOV or alternatively a new trial was denied and judgment was entered awarding respondent a stipulated damage amount of $506,956.22.

On Cargill’s appeal to the court of appeals, it argued that a new trial was required for several reasons, among them that the district court erred in its instructions to the jury as to “for cause” termination and by excluding evidence that respondent competed against Cargill after his termination. The court of appeals affirmed on both grounds. The court concluded that the district court acted within its discretion in charging the jury on “for cause” noting that the portion of the instruction challenged by Cargill came directly from CIVJIG 55.50, the civil jury instruction on termination for “good cause,” and that “good cause” was interchangeable with “cause” in the context of employment terminations.

The court further concluded that evidence as to whether respondent competed with Cargill was irrelevant because Cargill had already declared in 1997 that it was withholding respondent’s unpaid bonus because he was terminated for cause, not because he competed with Cargill. The court further noted that there was evidence Cargill interpreted its Bonus Plan to limit the noncompete restriction to instances where the employee voluntarily resigned. The court also determined that the district court did not err in finding the noncompete restriction overly broad, nor did it abuse its discretion by declining to apply the blue-pencil doctrine. The court affirmed the district court order dismissing the parties’ claims on summary judgment but remanded for clarification the issue whether the damage award included unexercised stock options. We granted review on two issues: whether the “for cause” jury instruction was error and whether the district court erred in excluding evidence of competition.

I.

The district court has broad discretion in determining jury instructions and we will not reverse in the absence of abuse of discretion. See State Farm, Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn.1990); Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). An instruction that is so misleading that it renders incorrect the instruction as a whole will be reversible error, but “a jury instruction may not be attacked successfully by lifting a single sentence or word from its context.” Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974). Where instructions overall fairly and correctly state the applicable law, appellant is not entitled to a new trial. Kohoutek v. Hafner, 383 N.W.2d 295, 300 (Minn.1986).

Cargill argues that the Bonus Plan sufficiently defines termination for cause and that the district court erred by substituting “good cause” in CIVJIG 55.50 for the term “cause” in the Bonus Plan, focusing specific criticism on the “uniformly applied” language found in the instruction. Cargill further argues that the word “cause” in its Bonus Plan is not interchangeable with the heightened standard of “good cause” or “just cause” traditionally found in the labor context. Rather, Cargill argues, termination “for cause” under its Bonus Plan, resulting in forfeiture of the unpaid portion of an employee’s deferred bonus, is, by implication, termination for any reason other than those not resulting in forfeiture. Cargill thus contends that its Bonus Plan defines “cause” by expressly stating what it is not — that is, termination “through no fault or impetus of [an employee’s] own due to a RIF, or job elimination,” and “[r]etirement, disability leave or death” — and emphasizes that the court was obligated to respect this definition. The termination of respondent was for cause, Cargill argues, because his job performance was insufficient to warrant further employment.

Respondent argues that the instruction correctly stated the law and that even if the instruction was erroneous, Cargill was not prejudiced. Respondent contends that the Bonus Plan did not define termination for cause, and that Cargill’s attempt to differentiate “termination for cause” from “termination for good cause” is mere word-games. In any event, respondent asserts, in challenging only a portion of the jury instruction, Cargill ignores the applicable standard of review requiring jury instructions to be reviewed as a whole to determine whether the instruction constitutes reversible error, and that here the instruction, taken as a whole, correctly stated the law as to respondent’s breach of contract claim.

A fundamental principle of contract law is that when contract language is reasonably susceptible of more than one interpretation it is ambiguous, and ambiguous contract terms must be construed against the drafter — here, Cargill. Current Tech. Concepts, Inc. v. Irie Enter., Inc., 530 N.W.2d 539, 543 (Minn.1995); Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn.1979). The Bonus Plan at issue here is, at best, ambiguous as to whether termination by RIF, job elimination, retirement, disability, or death are merely examples of when a deferred bonus will not be forfeited, or whether they constitute an exhaustive list and termination for any other reason is for cause, as Cargill argues. The Bonus Plan does not clearly define termination for cause, and considering the wide variety of reasons why employment might be terminated, to define “for cause” as any termination not fitting into one of the narrow categories prominently lacks specificity, particularly when forfeiture of an earned bonus is at stake.

In the absence of a clear definition of termination for cause in the Bonus Plan, the district court did not abuse its discretion in instructing the jury on CIVJIG 55.50. The court considered and ultimately incorporated elements of the instructions proposed by both parties. The first portion of Cargill’s requested instruction was given word-for-word, defining “cause” as “a real cause or basis for dismissal as distinguished from an arbitrary whim or caprice; that is, some cause or ground that a reasonable employer, acting in good faith in similar circumstances would regard as a good and sufficient basis for terminating the services of an employee.” The instruction Cargill claims was error was what followed: “A termination is for cause if Plaintiff breached the standards of job performance that the Defendant established and uniformly applied.”

We fail to see how the instructions Car-gill requested differ, in any significant manner, from those it now challenges. Termination for cause where the employee fails to meet a performance standard uniformly applied by the employer incorporates the same notion of even-handed consistency as does Cargill’s requested instruction that termination is for cause where it is not based on arbitrary whim or caprice. Nor is it substantially different from the proposition that termination for cause is termination based on grounds that a reasonable employer acting in good faith would find to be good and sufficient. Accordingly, evaluating the district court’s instruction as a whole, we conclude that the court’s instructions did not constitute error, and we further conclude that the court of appeals did not err in ruling that in the context of employment terminations, “good cause,” “just cause,” and “cause” are interchangeable, and none carries any higher level of proof than another. See Black’s Law Dictionary 213 (7th ed.1999) (defining “cause”). We affirm the court of appeals decision on this issue.

As to Cargill’s contention that the “uniformly applied” language misstated the law in the context of respondent’s claim, it is true that his claim is not based on discriminate enforcement of the forfeiture provision, but that is not the point. The “uniformly applied” language relates not to respondent’s claim, but rather to the enforceability of standards of employment that are not uniformly applied. In any event, we do not believe the “uniformly applied” language necessarily requires a burdensome review of Cargill’s employment files and termination records, as Car-gill contends. Evidence of uniform application of standards could, for instance, be addressed by reference to a company’s manuals and published guidelines and testimony that they are uniformly enforced. We affirm the court of appeals on this issue.

II.

Cargill also contends that the district court erred in excluding evidence of post-termination competition by respondent. We again turn to the well-established principle of contract law requiring ambiguities be interpreted against the drafter. Turner, 276 N.W.2d at 66. The Bonus Plan states:

“Termination for cause or continuance of a career within the financial industry outside of Cargill [i.e., competing with Cargill as defined in the Bonus Plan] will result in forfeiture of the deferral portion of the bonus which has not been paid out.”

(emphasis added). Since “or” may denote that one of two or more alternatives will apply to the exclusion of the other, this provision could be understood to mean that the noncompete restriction applies only where termination is voluntary, or at least not “for cause.” This interpretation is consistent with the next paragraph of the Bonus Plan which lists, as one of three circumstances not triggering forfeiture of deferred incentive payments: “An employee voluntarily terminates employment and does not compete with [Cargill].” Read obversely, if the employee does not voluntarily terminate, i.e., he is terminated for cause, then the noncompete restriction does not apply. In any event, the ambiguity in the plan is to be resolved against Cargill, there is no dispute that respondent’s termination was not voluntary, and when Cargill informed respondent that he was not entitled to the unpaid portion of his 1996 deferred bonus as a result of his termination for cause, whether respondent competed with Cargill following his termination became irrelevant. We affirm the court of appeals in its ruling that the district court did not err in excluding evidence of respondent’s post-termination competition.

Affirmed.

GILBERT, J., took no part in the consideration or decision of this case.

      . CFSC is also known as the Financial Markets Group or Division and is a wholly owned subsidiary of appellant Cargill, Incorporated, a privately held corporation headquartered in Wayzata, Minnesota. Appellants will be referred to collectively as "Cargill.”

      . According to trial testimony, this group has also been known as the Special Products Group and the Structured Finance Group.

      . Cargill notes that respondent's 1996 bonus would have been much less if the reserve had been taken in that year.

      . According to respondent, the purpose of these trips was to attend conferences where he was a featured speaker.

      . As to termination, the Bonus Plan states:
      Termination for cause or continuance of a career within the financial industry outside of Cargill will result in forfeiture of the deferral portion of the bonus which has not been paid out. Continuance of a career within the financial industry is defined as employment hy, consulting with, establishing or a substantial ownership interest in any organization which competes with FMG for employees, customers, clients, market share, financial resources or deals.

      The deferred incentive payment will not be forfeited under the following circumstances:
      / If an employee is terminated through no fault or impetus of his own due to a RIF, or job elimination;
      /An employee voluntarily terminates employment and does not compete with FMG;
      / Retirement, disability leave or death. Payout of the deferral portion of the bonus will occur after a two year non-compete agreement has been observed. After termination, deferral accounts will not be paid until said two year period expires and will grow at Cargill’s corporate-wide return on investment as determined from year to year.

      . Cargill claims that the timing of the district court's ruling was particularly prejudicial because it addressed the issue of competition in its opening statement and then was deprived of the opportunity to support it with evidence. The district court recognized this at the time of its ruling and indicated that it would give an instruction to the jury on this point if Cargill deemed it was necessary. Apparently no instruction was requested.

      . This language is taken nearly verbatim from 4 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Civil, CIVJIG 55.50 (4th ed.1999).

      . Cargill argued to the district court that if the noncompete language in the Bonus Plan was overly broad, it should employ the “blue-pencil doctrine.” This doctrine, which has been adopted in Minnesota, allows a court at its discretion to modify unreasonable reslric-tions on competition in employment agreements by enforcing them to the extent reasonable. See Davies & Davies Agency, Inc. v. Davies, 298 N.W.2d 127, 131 n. 1 (Minn.1980).