author: R.A. RANDALL, Judge. HARTEN, Judge

text:
    DEFENDERS OF WILDLIFE; Sierra Club, North Star Chapter; Humane Society of the United States; Friends of Animals and Their Environment; Help Our Wolves Live; Minnesota Wolf Alliance; and the Animal Protection Institute, Appellants, v. Jesse VENTURA, in his capacity as Governor of the State of Minnesota, Respondent.
    No. C3-01-329.
    Court of Appeals of Minnesota.
    July 31, 2001.
    Review Denied Oct. 24, 2001.

      Brian B. O’Neill, Richard A. Duncan, Elizabeth H. Schmiesing, Chad M. Oldfa-ther, Faegre & Benson, L.L.P., Minneapolis, for appellants.
    Mike Hatch, Attorney General, David P. Iverson, Assistant Attorney General, Joan M. Eichhorst, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, and RANDALL, Judge, and HARTEN, Judge.
   OPINION

R.A. RANDALL, Judge.

Appellants challenge the constitutionality of 2000 Minn. Laws ch. 463, arguing that it violates the single-subject requirement of Minn. Const, art. IV, § 17 and was the product of impermissible legislative logrolling. We find that chapter 463 does not violate the single-subject requirement of the constitution. Affirmed.

FACTS

The gray wolf (timber wolf), once listed as an endangered species by the federal government, was reclassified as a “threatened” species in 1978. As the wolf population continued to increase, the federal government began a process to remove the wolf from its list of protected species. The federal government will turn wolf management over to the state of Minnesota once Minnesota has designed an acceptable wolf-management plan. While not without controversy, a wolf-management plan was eventually enacted in 2000. The federal government has not yet formally passed on Minnesota’s wolf management plan (WMP). At this time the federal government still classifies the wolf as “threatened.”

The history of Minnesota’s WMP is an integral part of appellants’ legal argument. Appellants claim the legislative process is part of the proof that the WMP violates the “single subject” provision. In March 1999, a wolf-management plan was introduced into the Minnesota House of Representatives and assigned to its Agriculture Policy Committee, which then referred the bill to the Environment and Natural Resources Policy Committee. The house later passed a plan, which appellants characterize as “less protective” of the wolves, recommended by the latter committee. The bill then went to the Minnesota Senate where it passed through the Environment and Natural Resources Committee, Rules and Administration Committee, Agriculture and Rural Development Committee, and Crime Prevention Committee, the latter of which restored what appellants characterize as “more-protective” measures for the wolf. But the bill was amended on the senate floor to remove the “protective” measures and consequently tabled by the bill’s sponsor. No standalone, wolf-management plan was passed.

In February 2000, a lottery bill was introduced in the house and assigned to its Environment and Natural Resources Policy Committee and in the senate by the Environment and Natural Resources Committee. It did not pass as a stand-alone bill. Meanwhile, a license bill was introduced in the house and referred to its Environment and Natural Resources Finance Committee and the Ways and Means Committee.

In March 2000, a “less-protective” wolf-management plan was introduced in the house and senate and referred to the house’s Agricultural Policy Committee and the senate’s-Environment and Natural Resources Committee. After much activity, the senate passed a “more-protective” plan, but the house rejected it. The house, in turn, passed a “less-protective” bill. A committee was formed to reconcile the differences, but no compromise was attained and no stand-alone, wolf-management bill was passed. Around this time, an omnibus-supplemental-appropriations bill was making its way through the legislature. The senate’s version contained provisions from the February 2000 lottery bill while the house’s version did not.

In April 2000, the license bill was introduced in the senate after passing through the house. By special order, the senate amended the license bill to include a wolf-management plan, similar to the “less protective” one proposed by the house in earlier sessions, and lottery provisions the senate had placed in its March 2000 omnibus bill. Then, in May 2000, Governor Ventura signed 2000 Minn. Laws ch. 463, entitled:

An act relating to natural resources; requiring certain reports; modifying duties of citizen oversight committees; modifying certain license fees; providing for wolf management; modifying use of lighted fishing lures; modifying disposition of payments in lieu of sales tax for lottery tickets; appropriating money; amending Minnesota Statutes 1998, sections 3.737, subdivision 1; 97A.055, subdivisions 4 and 4a; 97A.331, by adding a subdivision; 97A.475, subdivisions 2, 3, 6, 7, 8, 11, 12, 13, and 20; 97A.485, subdivision 12; 97B.645; 97B.671, subdivision 3, and by adding a subdivision; 97C.335, as amended; and 297A.44; subdivision 1; proposing coding for new law in Minnesota Statutes, Ch. 97B.

Thereafter, appellants filed a complaint in district court challenging the constitutionality of the portion of this act pertaining to wolf management in Minnesota, arguing that it violates the single-subject requirement of Minn. Const. Art. IV, § 17. Appellants claim the WMP was a product of impermissible “logrolling” and that chapter 468 embraces more than a single subject. Appellants moved for summary judgment. Respondent moved to dismiss pursuant to Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted. The district court considered matters outside the bare pleadings, thus converting the proceedings into cross motions for summary judgment. The district court denied appellants’ motion for summary judgment and granted respondent’s. This appeal followed.

ISSUE

Does 2000 Minn. Laws ch. 463 violate the single-subject requirement of Minn. Const. Art. IV, § 17?

ANALYSIS

What is man without the beasts?

If all the beasts were gone,

Men would die from a great loneliness of spirit,

For whatever happens to the beasts,

Soon happens to man.

All things are connected.

Maureen Greeley, Wolf 116 (1996) (quoting Chief Seattle).

Generally, in reviewing cases dismissed pursuant to Minn. R. Civ. P. 12.02(e), the only question before this court is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn.1980). But when the district court considers matters outside the pleadings, “the motion to dismiss shall be treated as one for summary judgment.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citing Minn. R. Civ. P. 12.02). Here, the district court considered matters outside the pleadings in making its decision and thus, the granting of the motion to dismiss shall be treated as a grant of summary judgment.

Appellants challenge the constitutionality of chapter 463 by arguing that it violates Minn. Const. Art. IV § 17, which requires that “no laws shall embrace more than one subject.” “In evaluating challenges to the constitutionality of statutes, this court recognizes that the interpretation of statutes is a question of law.” In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (citation omitted). Accordingly, this court “is not bound by the [district] court’s conclusions.” Id. (quotation omitted). Minnesota statutes are presumed constitutional and are declared unconstitutional only “with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). A necessary prerequisite for a finding of unconstitutionality is the challenging party’s demonstration beyond a reasonable doubt of a violation of some provision of the Minnesota Constitution. Id.

A. Single Subject

Appellants argue that 2000 Minn. Laws ch. 463 impermissibly embraces more than one subject. The purpose of the single-subject provision is to ensure that the legislature separately reviews and considers each law, thereby diminishing the possibility that matters that are wholly unrelated with a law’s subject are not included with the primary law. State v. Cassidy, 22 Minn. 312, 322 (1875). Minnesota courts have traditionally construed the constitutional single-subject provision broadly to afford appropriate deference to the Minnesota legislature. “The common thread which runs through the various sections” need only be a “mere filament.” Blanch v. Suburban Hennepin Reg’l Park Dist., 449 N.W.2d 150, 155 (Minn.1989).

Historically, Minnesota courts have rarely invalidated laws for a violation of the single-subject requirement. Because of the requisite deference each branch of government affords the other in management of its internal affairs, there have been a limited number of challenges to legislation based on a claim of an article IV, § 17 violation. In the past few decades, the Minnesota Supreme Court has been called on to examine this issue only a handful of times. There is only one recent case, Associated Builders and Contractors v. Ventura, 610 N.W.2d 293, 304 (Minn.2000), where the Minnesota Supreme Court threw out legislation based solely on the “single subject” provision. Although violations of the single-subject requirement are rarely found, the supreme court has recognized limitations on the interpretation of the single-subject provision. Id. at 303 (severing wage amendment provision holding that not severing “would push the mere filament to a mere figment”).

The supreme court noted that recent cases prior to Associated took “a different approach” to analyzing challenges to statutes based on section 17. Id. at 301. In State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 778, 783 (Minn.1986), the bill was challenged as separation of powers and single-subject violations. The court invalidated the bill under the separation of powers doctrine and did not reach the single-subject challenge, but Justice Yetka in a concurring opinion

warn[ed] the legislature that if it does hereafter enact legislation similar to [the challenged bill], which clearly violates Minn. Const. Art. IV, § 17, we will not hesitate to strike it down regardless of the consequences to the legislature, the public, or the courts generally.

Id. at 785 (Yetka, J., concurring specially). The challenged bill in Kiedrowski, unlike our bill at issue, included vastly dissimilar provisions ranging from “provisions relating to agricultural land, a council of Asian Pacific Minnesotans and the establishment of a recycling program.” Associated, 610 N.W.2d at 301 (citing Kiedrowski, 391 N.W.2d at 784 (Yetka, J., concurring specially)). In Blanch, the challenged bill provision on obtaining land to develop parks in an act entitled “relating to the organization and operation of the state government” did “indeed [contain] a mere filament” and was upheld. Associated, 610 N.W.2d at 302 (citing Blanch, 449 N.W.2d at 154-55). Justice Yetka again, in Blanch, put the legislature on “full notice of the consequences of overstepping constitutional limitations in its drafting of omnibus bills.” 499 N.W.2d at 155 (Yetka, J., concurring specially).

Next, an omnibus fiscal bill provision that exempted certain Metrodome property from taxation with a title that included the word “taxation” was upheld. Metropolitan Sports Facilities Comm’n v. County of Hennepin, 478 N.W.2d 487, 491 (Minn.1991). But the court in Associated carefully noted “while the bill could have been more consistent with the single subject requirement, it was enacted prior to the Blanch warning.” Associated, 610 N.W.2d at 302 (citing Metropolitan, 478 N.W.2d at 490).

In Masters v. Commissioner, Minnesota Dep’t of Natural Resources, 604 N.W.2d 134 (Minn.App.2000), the 48-page bill covered the areas of environment, natural resources, and agriculture. This court noted:

Unlike the statute involved in Associated Builders, [the challenged bill] is not overbroad. The areas of environment, natural resources, and agriculture are closely related to one another and constitute one subject.

Id. at 138.

In Associated, the cornerstone of appellants’ argument today, the supreme court found that an amendment on prevailing wage law in a bill, which had remaining subjects that included taxation and government operations, was a violation of the single-subject requirement. Associated, 610 N.W.2d at 304. The court noted that if it were to uphold the amendment on wage law, which had no connection to the other subjects and required that the wages be paid regardless of whether the project was publicly funded or not, “would push the mere filament to a mere figment.” Id. at 303.

In examining the facts in Associated, first we note that the struck-down provision of the bill in Associated was merely one section in a total bill spanning 247 pages. That bill included 16 articles; a variety of subjects such as property-tax reform, special taxes, income-tax refunds, waste-management taxes; and was entitled in part “[a]n act relating to the financing and operation of state and local government.” Id. at 297 (quotation omitted). The title contained no reference to labor, wages, or any word that would suggest the presence of the challenged provision.

In contrast, chapter 463, the natural resources bill at issue, spans less than ten pages; the title includes the phrases “natural resources” and “providing for wolf management” by name; and covers only seven topics: the submission of annual reports on revenue from monies spent and credited to the game and fish fund from game license surcharges and waterfowl, salmon, pheasant and turkey stamps; the modification of duties of the oversight committees established to review the aforementioned reports and recommend management and use of the money in the game and fish fund; the modification of certain license fees for various hunting, sporting, and fishing activities; the modification of the use of lighted fishing lures; the deposit of revenues into the game and fish fund and the natural resources fund; a one-time appropriation of money from the general fund to the commissioner of natural resources for fish and wildlife management; and the wolf management plan.

We conclude this is not the type of “garbage” bill Justice Yetka referenced in his warnings. See Kiedrowski, 391 N.W.2d at 785 (Yetka, J., concurring specially) (warning practice of placing wholly unrelated bills into one bill is impermissible logrolling). Chapter 463 does not contain an overly broad range of subjects wholly unrelated to each other. We agree with appellants’ position that the supreme court in Associated warned against stretching the definition of “mere filament.” However, we easily conclude that chapter 463 is not the bill that pushes the definition of a mere filament to a “mere figment.”

B. Impermissible Logrolling

Appellants argue that the addition of the wolf provision to chapter 463 was the product of impermissible logrolling. We disagree. Logrolling is defined as the “combination of different measures, dissimilar in character * * * united together * * * compelling the requisite support to secure their passage.” Cassidy, 22 Minn. at 322. The single-subject provision requires that the legislature not fold into larger, more popular bills, wholly unre lated and potentially unpopular provisions that may not pass as a stand-alone bill. The purpose of preventing logrolling is to preclude unrelated subjects from appearing in a popular bill, not to eliminate unpopular provisions in a bill that genuinely encompasses one general subject.

Associated, 610 N.W.2d at 303 (emphasis added).

To support their argument, appellants detail the bill’s history through the legislature and the different committees responsible for working on the wolf-management plan. Respondent argues that this court need not look at the bill’s legislative history to determine germaneness. We disagree with respondent and acknowledge that legislative history may provide evidentiary support of single-subject violations. Appellants first argue that the wolf-management plan went through policy committees as a policy provision and was passed only after being put through a finance committee to support their argument that the WMP is wholly unrelated to the other provisions of chapter 463. We simply note that the fact that the bill passed through different committees, and eventually went through a finance committee rather than a policy committee before its passage is not determinative. Each branch of the legislature may name its own committees and decide what topics and what bills those committees deal with and discuss. That is their prerogative.

Appellants next argue that the wolf-management provision that was passed was given little consideration. From the record before us, we simply have to find that is not the case. Unlike Associated, 610 N.W.2d at 304, where the bill “had no companion bill in the senate [and] received little consideration in the house committee hearings,” in the present case, there were companion bills in previous sessions detailing different versions of a WMP. As highlighted in appellants’ own index, the WMP received considerable public and legislative attention, including, but not limited to, several major articles in daily newspapers.

Appellants argue that the wolf-management provision was the product of impermissible logrolling, meaning the provision was wholly unrelated to the other provisions of chapter 463. Appellants claim that this contentious and controversial bill went through various policy committees and could not pass as a “standalone” bill. They point out that it passed only when the wolf provision, similar to the one the house had passed in previous sessions, and a lottery provision that failed to pass in the senate’s appropriations bill, were attached to a popular licensing bill. We understand appellants’ argument, but the fact that a controversial bill could not pass as a stand-alone bill, while not irrelevant, is not conclusive proof of impermissible logrolling. If the historical nature of legislation was such that every single provision of a larger bill had to be able to pass both houses of the legislature and obtain the governor’s signature on its own merits, little if any legislation would ever be signed into law. (This is not the forum to debate whether this would be a good thing or a bad thing.) For example, bonding bills, appropriations bills, spending bills, tax bills, and bills affecting policy in sensitive areas of government such as labor, education, health, and welfare often run 50, 100, 200, or more pages, containing dozens to perhaps a few hundred individual provisions, some more popular than others.

The practice of bundling controversial, volatile provisions with germane and less-controversial laws is not impermissible logrolling. Rather, it is the nature of the democratic process where you have major and minor political parties, partisan politics, and an independent executive branch. The negotiations and the constant give and take are historical, purely legal, and purely permissible; there is no impermissible logrolling provided that the independent provisions in a bill ultimately signed into law are not so wholly unrelated to each other that not even a common thread can be found. See Id. at 303 (stating purpose of prohibiting logrolling is to “preclude unrelated subjects from appearing in a popular bill” (emphasis added)).

The WMP may be unpopular with certain members of the public and the legislature. However, popularity is not the test. For instance, in years of projected budget deficits because of declining monetary resources, increases in income, property, and sales taxes are and have been a part of Minnesota’s past, and other states as well. Such bills, even if good public policy, do not rank high in popularity contests.

We conclude that the WMP of chapter 463 is one of seven simple provisions dealing with identifiable aspects of natural resources. Chapter 463 is less than ten pages, contrasted with the 247-page bill in Associated, and chapter 463 is not unclear as to the relationship between its title and its individual provisions.

This case is not about “good wolf’ versus “bad wolf.”

Through the centuries, we have projected onto the wolf the qualities we most despise and fear in ourselves.

Maureen Greeley, Wolf 11 (1996) (quoting Barry Lopez, Of Wolves and Men (1979)). This is not a case where if appellants prevail, an unjustly-maligned animal will now be deemed a courageous and dignified animal. It is not the case where if respondent prevails, a courageous and dignified animal will now be stripped of its nobility. The inherent dignity of all wildlife does not depend on legal rhetoric or the arcane logic of the judiciary. The wolf is, has been, and will continue to be.

Finally, in appellate review, we do not sit as a “super-conference committee” to determine whether the bill passed was questionable legislation. We do not sit as a super-conference committee and rewrite bills or toss them aside. Appellants’ argument that this is questionable legislation remains. Appellants can continue to argue that WMP will not stand federal scrutiny and thus, ultimately, Minnesota may have no wolf-management plan of its own. Appellants can continue to lobby and fight for a better bill or repeal or modification of chapter 463.

Our decision today has nothing to do with the merits of chapter 463; we speak simply to the method of its passage. Whether the WMP is good public policy does not frame our review. Rather, our review, under the four corners of Minn. Const. Art. IV, § 17, is limited to whether the Minnesota House of Representatives, the Minnesota Senate, and Governor Ven-tura passed and signed this bill in such a fashion that it is now the law. We conclude that they did, and it is. Appellants have not met their burden of demonstrating beyond a reasonable doubt that 2000 Minn. Laws ch. 463 violates the single-subject requirement of Minn. Const, art. IV § 17.

DECISION

The district court properly held that chapter 463 does not violate the single-subject requirement of Minn. Const. Art. IV, § 17.

Affirmed.

HARTEN, Judge

(concurring specially)

I concur in the result.

      . Appellants are not alleging a violation of the title requirement in chapter 463. We mention the title because it presents words and phrases suggesting the common thread among the provisions.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    David F. BRAITH, Petitioner, Respondent, v. Laure Jean FISCHER, Appellant.
    No. CX-00-1967.
    Court of Appeals of Minnesota.
    Aug. 7, 2001.
    Review Denied Oct. 24, 2001.

      Timothy L. Warnemunde, Attorney at Law, Montgomery, for respondent.
    Dale C. Nathan, Nathan & Associates, Eagan, for appellant.
    Considered and decided by ROBERT SCHUMACHER, Presiding Judge, and R.A. RANDALL, Judge and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

This is an appeal from an award of permanent unsupervised visitation. Appellant argues that the district court (1) erred by failing to comply with statutory requirements in conducting the evidentiary hearing; (2) abused its discretion in awarding unsupervised visitation; (3) erred by failing to comply with statutory requirements in appointing a parenting time expeditor; (4) abused its discretion in issuing a bench warrant for appellant’s arrest due to her failure to appear in response to an order to show cause; and (5) was biased in favor of respondent. We affirm.

FACTS

M.L.F. is the minor child of appellant Laure Fisher and respondent David Braith and was conceived during appellant’s separation from her husband. But shortly after becoming pregnant she terminated the relationship with respondent and reconciled with her husband. She terminated the relationship with respondent and falsely told him that she had suffered a miscarriage; respondent didn’t become aware of the child until one month after the birth of M.L.F.

Respondent was adjudicated the father of minor child M.L.F. by court order dated June 18, 1997. In the same order, appellant received sole legal and physical custody subject to supervised visitation by respondent, as scheduled by the guardian ad litem. The supervised visitation was ordered in light of respondent’s limited contact with M.L.F., and limited experience as a parent, and was viewed as a way of establishing a parent-child bond. Christine M. Davis was appointed as the guardian ad litem.

Appellant did not cooperate with the visitation schedule and in August 1997, respondent brought a motion for contempt subsequently denied by the district court. During this same period, respondent also repeatedly contacted the guardian ad litem to express his frustration with the lack of cooperation and to protect his visitation rights.

At a July 8, 1998 hearing, respondent again sought district court involvement with the visitation issue. He also requested removal of Davis as guardian ad litem. By order dated July 24, 1998, the district court removed Davis and also modified the existing visitation schedule, increasing the frequency of supervised visitation, and adopted an unsupervised visitation schedule beginning October 1, 1998, subject to approval by the new guardian ad litem.

Appellant again failed to cooperate with visitation from September 11, 1998, through December 16, 1998. The new guardian ad litem, Lori Ann Harold, brought a motion to show cause why appellant should not be held in contempt for failing to comply with the visitation schedule. By order dated December 16, 1998, the court found appellant in contempt of court, and ordered her to comply with the existing visitation schedule or face jail time. The new guardian ad litem recommended continued supervised visitation so that she could observe more visits before making a final recommendation on unsupervised visitation.

During the period between December 1998 and February 2000, supervised visitation appears to have gone fairly well, with respondent and M.L.F. developing a good relationship. But during this period, appellant again interfered with respondent’s supervised visitation on numerous occasions. Appellant also accused respondent of inappropriately touching M.L.F. on September 27, 1999. This allegation was fully investigated and determined to be unfounded.

In February and March 2000, appellant brought motions for, among other things, reconsideration of the visitation issue. Respondent brought a counter-motion in April 2000, to have the court set a visitation schedule and find appellant in contempt for interfering with court-ordered visitation. The district court held a May 24, 2000 evidentiary hearing.

Both parties offered witness testimony and submitted documentary evidence. The district court concluded that respondent was entitled to unsupervised visitation and ordered unsupervised visitation to commence August 6, 2000. The court concluded there was no evidence of abuse or improper parenting on the part of respondent.

By motion dated June 30, 2000, appellant requested that the district court amend its findings and conclusions regarding unsupervised visitation, and requesting that the district court appoint a psychologist to evaluate the impact of unsupervised visitation by respondent on M.L.F. By order dated July 19, 2000, the district court granted appellant’s motion for reconsideration, suspended unsupervised visitation but continued supervised visitation, and ordered Dr. Susan Nordin to evaluate M.L.F.

By order dated July 28, 2000, the district court also appointed attorney R. Kathleen Morris to conduct a visitation investigation pending the district court’s reconsideration of its order granting unsupervised visitation. By amended order dated August 1, 2000, the district court appointed Morris as parenting time expeditor and charged Morris with the duty of completing a thorough investigation into the visitation issue and ordered her to make recommendations to the court.

Dr. Nordin apparently concluded there was no need for further evaluation to prepare M.L.F. for unsupervised visits with respondent and declined to proceed with an evaluation. Following her investigation, Morris submitted her report and recommendations to the court by letter dated August 31, 2000. Morris recommended a visitation schedule that included unsupervised visitation. Morris also concluded that M.L.F. was being hurt by appellant’s attempts to alienate her from respondent.

Following the visitation investigation, the district court issued findings of fact and conclusions of law in an order dated October 2, 2000. The district court incorporated Morris’ report, as well as the reports of the guardian ad litem and the visitation reports of the visitation center where the supervised visitation occurred. The court found that

[n]o persuasive evidence has been presented to the court that visitation with [respondent is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.

The court further found that appellant had

chronically and unreasonably failed to comply with court-ordered visitation, to such a degree that both the [g]uardian ad litem and the [visitation [investigator have recommended that [appellant] be sentenced to serve time in jail, for contempt of court as ordered previously 'Jfi * ⅜

The court also found that

[appellant’s] repeated allegations regarding [respondent’s inappropriate behavior and inappropriate touching of the child are unfounded and based on [appellant’s] wish to keep [respondent away from the child.

The court ordered that the interim parenting time schedule recommended by the visitation investigator be implemented immediately, effective October 6, 2000. The court issued a second order dated October 2, 2000, scheduling a final fact hearing on the matter for October 23, 2000.

On October 6, 2000, appellant failed to produce the child for supervised visitation with respondent pursuant to the October 2, 2000 order. As a result, in an order dated October 10, 2000, the district court ordered appellant to show cause on October 23, 2000, why she should not be found in contempt for disobeying its October 2, 2000 visitation order. The order stated that failure to appear could result in the issuance of a bench warrant.

On October 23, 2000,’ the district court held the final evidentiary hearing on the court’s October 2, 2000 interim visitation order. Appellant failed to appear. Appellant’s counsel acknowledged that appellant had intentionally failed to appear. Appellant’s counsel offered the testimony of four witnesses present for the hearing, but candidly acknowledged to the- district court that the testimony would be repetitive. The district court declined to hear the testimony, ruling that it would be cumulative. Appellant’s counsel also requested that the district court hear testimony by phone of a psychologist from the Christian Recovery Center and Christine M. Davis, the former guardian ad litem. -The district court declined to hear this testimony in part because appellant’s counsel neglected to file the proper motion prior to the hearing. The court further ruled that appellant’s intentional failure to appear constituted a waiver of her appearance and issued a bench warrant for her arrest. Finally, respondent sought to call Morris to testify about Dr. Nordin’s conclusion that the child needed no further psychological evaluation before experiencing unsupervised visitation. The district court concluded that such testimony would be hearsay and did not allow it.

The district court concluded, in an order dated October 25, 2000, that it was in the best interests of M.L.F. for visitation to be transferred from supervised to unsupervised visitation, as previously recommended by the guardian ad litem and the visitation investigator. The district court ordered that the October 2, 2000 order would remain in effect by default as the final order regarding visitation issues.

This is an appeal from the portion of the October 2, 2000 order establishing permanent visitation/parenting time between respondent and M.L.F., as well as the October 25, 2000 order, setting a permanent parenting-time schedule. ■

ISSUES

I. Did the district court abuse its discretion by awarding respondent unsupervised visitation with M.L.F. following the October 23, 2000 hearing?

II. Did the district court abuse its discretion by issuing a bench warrant for appellant’s failure to appear in response to an order to show cause?

III. Did the district court err by failing to comply with statutory requirements governing the appointment of a parenting time expeditor?

IV. Did the district court demonstrate a bias in favor of respondent?

ANALYSIS

I.

Appellant argues that the district court failed to hold a meaningful hearing in response to her allegations of potential child endangerment. Appellant further contends that the district court abused its discretion and failed to make particularized findings regarding the child’s best interests when it granted respondent unsupervised visitation.

The district court is granted broad discretion to determine what is in the best interests of the child when it comes to visitation and we will not overturn its determination absent an abuse of discretion. Toughill v. Toughill, 609 N.W.2d 634, 641 (Minn.App.2000) (citing Olson v. Olson, 534 N.W.2d 547, 550 (Minn.1995)). Procedural and evidentiary rulings are within the district court’s discretion and are also reviewed under an abuse-of-discretion standard. Lines v. Ryan, 272 N.W.2d 896, 902 (Minn.1978).

Substantial modifications of visitation rights require an evidentiary hearing when, by affidavit, the moving party makes a prima facie showing that visitation is likely to endanger the child’s physical or emotional well being. See Minn. Stat. § 518.175, subd. 5 (2000) (requiring evidentiary hearing if custodial parent makes specific allegations that visitation places custodial parent or child in danger of harm); Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn.App.1992) (concluding custody modification standard governs substantial modifications of visitation rights). Insubstantial modifications or adjustments of visitation, on the other hand, do not require an evidentiary hearing and are appropriate if they serve the child’s best interests. Id. at 316-17. “It is well established that the ultimate question in all disputes over visitation is what is in the best interest of the child.” Clark v. Clark, 346 N.W.2d 383, 385 (Minn.App.1984), review denied (Minn. June 12, 1984).

Here, the record indicates that the district court, in a July 24, 1998 order, provided for unsupervised visitation to begin October 1, 1998, following a course of supervised visitation to be observed by the guardian ad litem. Appellant disobeyed this court order by failing to produce the child for visitation from September 11, 1998, through mid December 1998. For this she was found in contempt of court and incarcerated for less than a day. Because of appellant’s refusal to produce the child for even supervised visitation after September 11, 1998, the guardian ad litem at the time informed the district court that she needed to observe additional supervised visitation before recommending unsupervised visitation. In essence, appellant’s failure to comply with the July 24, 1998 order delayed the entire process and did so to her benefit. Further delay occurred in late 1999, when a new guardian ad litem was appointed. The new guardian ad litem reviewed the file and conducted her own investigation and testified at the May 24, 2000 hearing that unsupervised visitation could begin in the near future.

In the district court’s order, which followed the May 24, 2000 evidentiary hearing, the court again concluded that respondent was entitled to unsupervised visitation. This time, the unsupervised visitation was set to begin on August 6, 2000. Appellant’s subsequent motion to reconsider again,delayed the pending unsupervised visitation. The district court, in its July 28, 2000 order, stayed its June 16, 2000 order granting unsupervised visitation pending its decision on appellant’s June 30, 2000 motion.

Thus, the record contains two prior visitation orders granting unsupervised visitation to respondent. The unsupervised visitation detailed in these prior orders, as the record indicates, were either delayed or thwarted through the efforts of appellant and her attorney. We conclude that the district court’s orders of October 2 and 25, 2000, as they apply to respondent’s entitlement to unsupervised visitation, do not substantially modify the prior visitation orders. Appellant’s challenge to the sufficiency of the October 23, 2000 eviden-tiary hearing is therefore moot because the record clearly indicates, and the district court has repeatedly found, that unsupervised visitation with respondent is in the best interests of M.L.F. An evidentiary hearing was not mandated under these circumstances. See Lutzi, 485 N.W.2d at 316 (no evidentiary hearing required where there is no substantial modification of visitation rights and modification serves child’s best interests).

We will nevertheless address appellant’s arguments regarding the sufficiency of the October 23, 2000 hearing. The statute does not specify what type of hearing is required. The Minnesota Rules of Civil Procedure allow a court to take evidence either by the submission of written documents, through oral testimony, or both. Minn. R. Civ. P. 43.05.

In its October 2, 2000 order, the district court made specific findings of fact and conclusions of law regarding the best interests of the child. The order incorporated by reference the report of the visitation investigator, and the reports of the guardian ad litem, the observation reports of the visitation center where the supervised visitation had occurred. The court had at its disposal significant documentary evidence establishing that appellant’s failure to comply with previous court-ordered visitation was injurious to the child’s emotional health and development. Both the visitation investigator and the guardian ad litem recommended that respondent have unsupervised visitation, and that appellant’s persistent attempts to interfere with visitation must stop. Interim supervised visitation was ordered to begin on October 6, 2000.

In a separate October 2, 2000 order, the district court scheduled a final fact hearing to be held October 23, 2000. This order also stated that a failure to comply with the October 2, 2000 visitation order, discussed above, may constitute contempt of court.

On October 6, 2000, appellant failed to produce the child for supervised visitation with respondent as ordered October 2, 2000. By order dated October 10, 2000, the district court ordered appellant to show cause on October 23, 2000, why she should not be found in contempt for disobeying its October 2, 2000 visitation order.

Appellant intentionally failed to appear on October 23, 2000, as she had been ordered to do. Appellant contends that she was “frightened” into not attending the October 23, 2000 hearing. But it was appellant who chose not to comply with the October 2, 2000 order resulting in the order to show cause. This was not the first time that appellant disobeyed a legitimate court order; the contention that she was “afraid” simply has no merit.

Appellant argues that the district court failed to make particularized findings regarding the child’s best interests. This is incorrect. The district court made detailed findings in its October 2, 2000 order, incorporated this order in its October 25, 2000 order, and again concluded that the visitation recommended by the guardian ad litem and the visitation investigator was in the child’s best interests. The court stated on the record that the “interim order in all respects remains in effect, and [appellant] is duty bound to comply with that order in all respects.”

Appellant argues that the district court failed to hold a meaningful hearing on October 28, 2000, because it failed to receive evidence concerning the best interests of the child. This is also incorrect. As stated, the court received and incorporated significant documentary evidence into its October 2, 2000 order. The guardian ad litem and the visitation investigator were also represented at the October 23, 2000 hearing.

Appellant was afforded the opportunity to present evidence and testimony at the October 23, 2000 hearing. Appellant mischaracterizes the district court’s actions by arguing that the court refused to accept appellant’s evidence and merely entered a default judgment. Appellant complains that four of her witnesses were not allowed to testify at the October 23, 2000 hearing. But the transcript reveals that the court was told by appellant’s counsel that these witnesses would be cumulative and the court so ruled. The testimony of a witness for respondent was excluded as hearsay. Appellant’s counsel offered the testimony of two other witnesses by telephone, but the court concluded that this would be inappropriate. It was appellant’s decision not to subpoena the psychologist from the Christian Recovery Center and the former guardian ad litem to permit testimony in person. Again, evidentia-ry issues are reviewed under an abuse-of-discretion standard. Lines, 272 N.W.2d at 902. Appellant’s failure to properly submit evidence or testimony does not constitute a refusal to accept evidence on the court’s part.

The court had the extensive record and documentary submissions to consider in making its decision. See Minn. R. Civ. P. 43.05 (allows court to hear matter on affidavits and wholly, or in part, on oral testimony as court may so direct); Savoren v. Savoren, 386 N.W.2d 288, 291 (Minn.App.1986) (holding no abuse of discretion when court declined to allow oral testimony). The district court’s findings are supported by competent evidence in the record, and the district court appropriately considered the best interests of the child. We conclude that the district court’s October 2, 2000 and October 25, 2000 rulings are in conformance with the procedural safeguards set out in MinmStat. § 518.175, subd. 5, and therefore, the district court did not abuse its discretion.

II.

The district court issued a bench warrant for appellant’s failure to appear in response to its order that appellant show cause for failing to abide by a court-ordered visitation schedule. A finding of contempt was reserved pending a hearing. The district court determined, and appellant’s counsel admitted, that appellant had proper notice of the order to show cause and the visitation proceedings scheduled for October 23, 2000, but intentionally chose not to attend. Appellant challenges the court’s actions as an abuse of discretion.

Appellant’s argument is without merit. The district court is empowered to order appellant’s arrest for her failure to appear. Minn.Stat. § 588.04 (2000); Westgor v. Grimm, 381 N.W.2d 877, 880 (Minn.App.1986). There is nothing in the record that would indicate any abuse of this discretion.

III.

Appellant challenges the district court’s appointment of R. Kathleen Morris as parenting time expeditor, arguing it failed to comply with the appointment procedures set out in Minn.Stat. § 518.1751 (2000). We review questions of law and statutory interpretation de novo. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

Minn.Stat. § 518.1751, subd. 1 (2000) provides that

upon the court’s own motion, the court may appoint a parenting time expeditor to resolve parenting time disputes that occur under a parenting time order ***.

Id. The court appointed Morris as expeditor on August 1, 2000, pending its decision on appellant’s June 30, 2000 motion.

The statute provides that, in appointing an expeditor, the parties may stipulate to the expeditor. Id., subd. 2(a). If after exchanging names from the court administrator’s roster, “the parties are unable to agree upon a parenting time expeditor, the court shall select” the expeditor. Id., subd. 2(b) (emphasis added).

There is nothing in the record to indicate that a roster of potential expeditors was provided to the parties. But while the district court apparently omitted a required step, appellant bears the burden of demonstrating that this error was prejudicial. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal a party must show error and that error caused prejudice); see also Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

While appellant did object to Morris’s recommendations, no objection was made by appellant to the appointment of Morris. Additionally, appellant has not demonstrated that she was prejudiced by the appointment of Morris, other than to disagree with Morris’s recommendations. Finally, we find no evidence of prejudice in the record. Appellant has not shown the district court’s error was prejudicial, and we conclude that any error in the process of appointing Morris was harmless.

In her reply brief, appellant attacks the expeditor’s credibility. This alternative argument fails because appellant’s attack on Morris’s credibility appears for the first time in her reply brief, and is therefore not properly before us. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn.1987) (stating issues not briefed are waived); McIntire v. State, 458 N.W.2d 714, 717 n. 2 (Minn.App.1990) (stating arguments not made in appellant’s brief may not be revived in a reply brief), review denied (Minn. Sept. 28, 1990). Moreover, even if the argument were properly before us, we would reject it because the district court is in the best position to judge the credibility of the witnesses and make determinations in the face of conflicting testimony and must be given due deference. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988).

IV.

Finally, appellant alleges that the district court acted in a biased manner in favor of respondent. Appellant’s argument appears to be essentially dissatisfaction with the district court’s rulings and a repackaging of her earlier arguments. First, appellant offers no evidence, other than dissatisfaction with the outcome, of any bias nor any authority for the claim of bias. Second, the issue of bias was not presented to the district court and we decline to address the issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating appellate courts do not address issues or theories not raised in district court); Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 183, 135 (1971) (stating assignment of error based on mere assertion and unsupported by argument or authority waived unless error is obvious).

DECISION

We conclude that the modification of respondent’s visitation rights was made after a consideration of the appropriate factors and that no evidentiary hearing was required. Therefore, the district court did not abuse its discretion. We affirm the merits of the district court’s visitation-modification ruling because the record supports the district court’s modification of visitation. The district court thoroughly considered the best interests of M.L.F. in reaching its decision. The district court did not abuse its broad discretion in excluding cumulative evidence, hearsay testimony, and telephone testimony. The district court did not abuse its discretion by issuing a bench warrant for appellant’s arrest for her failure to appear in response to an order to show cause. While the district court failed to follow statutory procedure in appointing the parenting time expeditor, that error was harmless. Finally, we decline to address the issue of judicial bias because the matter was not properly raised before the district court.

Affirmed.


author: G. BARRY ANDERSON, Judge

text:
    STATE of Minnesota, Respondent, v. Juan NMN MARCHBANKS, aka Rahsaah NMN Smith, Appellant.
    No. C8-00-1823.
    Court of Appeals of Minnesota.
    Aug. 7, 2001.

      Mike Hatch, Minnesota Attorney General, St. Paul, and Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant Hennepin County Attorney, Minneapolis, for respondent.
    John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by R.A. RANDALL, Presiding Judge, and ROBERT SCHUMACHER and G. BARRY ANDERSON, Judges.
   OPINION

G. BARRY ANDERSON, Judge

Appellant Juan Marchbanks (aka Rahs-aah Smith), convicted of unlawful possession of a firearm and second-degree controlled substance possession, argues that the district court abused its discretion by (1) failing to grant his motion for mistrial after a prospective juror asked whether appellant was a felon and (2) admitting a police officer’s testimony that the amount of cocaine recovered was consistent with sale. Appellant also argues that the district court abused its discretion by ordering separate sentences for the two convictions. We affirm.

FACTS

On April 17, 2000, Minneapolis Police Officer Jeffrey Werner received a radio dispatch reporting a shot fired in the area of 24th Street and 10th Avenue South. Werner, approximately two blocks away at the time, drove to the address and observed a man walking down the street. Werner asked the man, later identified as appellant, whether he had heard any shots. Appellant answered “no,” but immediately “took off running northbound on 10th Avenue.”

Werner chased appellant and saw him “throw two plastic bags from his hand.” Werner continued to chase appellant and saw appellant “reaching into his pocket again and [throw] what [Werner] immediately knew was a gun. It hit [a house] and then fell down into the flower bed.” Wer-ner ran up behind appellant and pushed him to the ground. Another officer, Charles Storlie, arrived at the scene and he and Werner attempted to handcuff appellant. When appellant failed to respond to Storlie’s commands, a struggle ensued. During the struggle, appellant told officers to be careful because appellant’s jaw was broken; this proved untrue.

After the officers handcuffed appellant, Werner retraced the chase route and recovered the plastic bags and the gun. The .22 caliber Derringer pistol was loaded with three rounds; one round had been fired and two live rounds remained. The bags contained 54 individually-wrapped rocks of crack cocaine, as determined by subsequent testing.

The state charged appellant with felon in possession of a firearm, a violation of Minn.Stat. § 624.713, subds. 1(b) and 2 (2000), second-degree controlled substance sale, a violation of Minn.Stat. § 152.022, subd. 1(1) (2000), and second-degree controlled substance possession, a violation of Minn.Stat. § 152.022, subd. 2(1) (2000).

At trial, appellant stipulated that he was ineligible to possess a firearm. During jury selection, a juror asked the prosecutor whether appellant was ineligible to possess a firearm because appellant was a felon. The prosecutor replied, “I cannot answer the question,” and at the close of jury selection, the defense attorney moved for mistrial. The district court denied the motion. During trial, the prosecutor asked Werner about the crack cocaine. Over defense counsel’s objection, the district court allowed testimony that the amount recovered was greater than for personal use. At the close of the trial, the state amended the complaint and dismissed the controlled-substance sale charge.

The jury found appellant guilty of the remaining charges. The district court imposed separate sentences for the two convictions, and ordered concurrent, presumptive prison terms of 60 months for the firearm conviction and 98 months for the controlled substance conviction. Appellant challenges both his convictions and his sentences.

ISSUES

I. Did the district court abuse its discretion by (1) denying appellant’s motion for mistrial when a prospective juror asked whether he was a felon and (2) admitting the arresting officer’s testimony that the .amount of cocaine recovered was consistent with sale?

II. Did the district court abuse its discretion by ordering separate sentences?

ARGUMENT

I.

Appellant first argues that the district court deprived him of a fair trial because (1) during jury selection, a prospective juror asked whether appellant was ineligible to possess a firearm because he was a felon, and the district court denied appellant’s motion for mistrial and (2) the prosecutor elicited testimony from Werner that suggested appellant sold crack cocaine.

The United States and Minnesota Constitutions provide criminal defendants with the right to a fair trial. See U.S. Const, amend. VI (granting right to a fair trial); Minn. Const, art. I, § 6 (same). The constitutional guarantee of a fair trial does not require a perfect trial, but rather one that is fair and does not prejudice the substantial rights of the accused. State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 392-93 (1954).

A. Motion for Mistrial

Appellant contends that the district court violated his right to a fair trial by denying his motion for mistrial. When reviewing a denial of a motion for a mistrial, this court applies an abuse-of-discretion standard. State v. Long, 562 N.W.2d 292, 296 (Minn.1997).

During jury selection, the prosecutor asked each prospective juror if he or she agreed that some people should not be able to possess firearms. In response to this question, one prospective juror asked the prosecutor whether appellant could not possess a firearm because appellant was a felon. The prosecutor answered, “I cannot answer the question.” Appellant objected, and the prosecutor moved on to other questions. Appellant struck the juror, and, after jury selection was completed, moved for mistrial. Defense counsel argued that the reason appellant had stipulated to the fact that appellant had a prior felony conviction was to keep that fact from the jury. The prospective juror’s question tainted the other jurors because, argued defense counsel, it let “the cat out of the bag.” The district court denied the motion.

Appellant correctly points out that informing the jury that a defendant is a convicted felon may prejudice that defendant. See State v. Davidson, 351 N.W.2d 8, 11 (Minn.1984) (discussing the prejudice and the circumstances warranting admission of prior felony evidence). In this case, however, the jury was not so informed. When asked whether appellant was a felon, the prosecutor stated . she could not answer the juror’s question, and it remained unanswered. Cf. McDonald v. State, 351 N.W.2d 658, 660-61 (Minn.App.1984) (no prejudice where statement about guilt or innocence is equivocal), review denied (Minn. Oct. 16, 1984). Rather than highlight the issue, the prosecutor moved on to other questions, minimizing any impact of the question. See State v. Graham, 371 N.W.2d 204, 207 (Minn.1985) (no abuse of discretion for failing to grant mistrial where prosecutor minimized any prejudice from emotional statement by asking for recess).

In addition, defense counsel struck the questioning juror, and the district court instructed the selected jurors that they were not to speculate when answers to questions were not allowed by the court, further minimizing any prejudicial effect of the question. See State v. Miller, 573 N.W.2d 661, 675-76 (Minn.1998) (no abuse of discretion where counsel and court minimized potential harm from witness’ unexpected reference to defendant’s past felonies through jury and witness instructions).

Finally, the district court did not believe that the remark was “going to have any kind of a taint really of a serious nature on the jury,” and was left with the impression that the parties “skated past [the juror’s question] pretty smoothly, in terms of minimizing [the question].” We defer to such observations because the district court is in the best position to evaluate whether prejudice, if any, warrants a mistrial. Graham, 371 N.W.2d at 207. We therefore conclude that the district court did not abuse its discretion by denying appellant’s motion for mistrial.

B. Cocaine Sale Testimony

Appellant next contends that the district court denied him a fair trial by permitting the state to elicit testimony from Werner concerning the amount and packaging of the cocaine allegedly possessed by appellant because the state had dismissed the sale charge. We treat this contention as a challenge to the admission of evidence. The district court has broad discretion in evidentiary matters and its rulings mil not be disturbed absent a clear abuse of discretion. State v. Shannon, 583 N.W.2d 579, 583 (Minn.1998); State v. Johnson, 568 N.W.2d 426, 432 (Minn.1997).

A defendant claiming error in the district court’s admission of evidence bears the burden of showing that the district court erred and that prejudice resulted. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998). Even if an evidentiary ruling is in error, a reversal is warranted only when the error substantially influences the jury to convict. State v. Loebach, 310 N.W.2d 58, 64 (Minn.1981). The following is the relevant exchange:

[Prosecutor]: What was significant based on your experience that there were 54 individually wrapped rocks of crack cocaine in one of the plastic baggies? What did that indicate to you? [Appellant’s counsel]: Objection, conclusion.
The Court: I’ll allow it. Go ahead.
[Prosecutor]: I’m sorry, Your Honor?
The Court: I’m going to allow it. Go ahead.
The Witness: Having 54 individually wrapped rocks of crack cocaine would indicate to me that the person is selling the rocks. That’s how crack cocaine is typically sold, in rocks. They are little small pills that sell for 20 bucks apiece.

Appellant’s counsel unsuccessfully objected to the prosecutor’s question on the basis that it called for a “conclusion.” Respondent argues that the objection challenges the form of the question, not the substance, and that because appellant failed to raise any other objection, he has waived his right to challenge the officer’s testimony. Failure to object at trial to the admission of prejudicial evidence constitutes a waiver of the right to have the issue considered on appeal. State v. Moorman, 505 N.W.2d 593, 602 (Minn.1993).

But an objection based on “conclusion” does not challenge the form of the question. The objection challenges anticipated testimony that involves an improper conclusion. Testimony contains conclusions when the witness draws inferences that may lead a jury to an improper conclusion. See generally James P. Fleiss-ner, Mastering Trial Objections: The Spin Control Method, 20 Am. J. Trial Advoc. 591 (1997) (explaining the objection to a question calling for an impermissible conclusion). By objecting, appellant’s counsel challenged the admission of the evidence that would allow the jury to reach the conclusion that appellant engaged in drug sales. Thus, the objection preserved appellant’s right to challenge the admission of Werner’s testimony on appeal.

It is difficult for us to evaluate the relevancy of the testimony, however, because the record is not clear as to precisely when the state dismissed the controlled-substance sale charge. The transcript shows that the state orally amended the complaint after Werner’s testimony. Appellant points out, however, that the elements of controlled-substance sale were not part of either party’s opening statements, suggesting that, as a practical matter, the amendment occurred before trial.

If the state amended the complaint before Werner’s testimony, the district court abused its discretion by permitting the testimony because it was irrelevant. The basic requisite for the admissibility of any evidence is that it be relevant. Minn. R. Evid. 402. If the state dismissed the controlled substance sale charge at the beginning of trial, Werner’s testimony concerning drug amounts consistent with sale had no bearing on the elements of the remaining charged offenses: felon in possession of a firearm and controlled substance possession.

We need not resolve this question, however, because the record demonstrates that the error, if any, did not substantially influence the jury to convict appellant. The fact that police recovered 54 individually wrapped rocks of crack cocaine was already properly before the jury before appellant’s objection, and, as respondent points out, the jury could hardly have been startled to learn that the amount recovered is greater than for personal use. The other evidence against appellant is overwhelming: Werner encountered appellant within minutes of receiving a shot-fired dispatch and saw him discard the plastic bags and the gun as he fled. Only one round had been fired from the gun, matching the number of shots reported. Appellant resisted arrest and lied to officers, falsely telling them his jaw was broken. Moreover, the prosecutor argued that appellant possessed the gun because he was protecting his “product,” and appellant did not object nor seek a curative instruction, which suggests there is no prejudice. See State v. Ives, 568 N.W.2d 710, 713 (Minn.1997) (stating that the failure to object or seek a curative instruction “weighs heavily” against reversal and it implies that the prosecutor’s comments were not prejudicial). We conclude that, even if the state dismissed the sale charge before Werner’s testimony concerning the sale amounts of cocaine, and even if the district court erred by admitting the testimony, that error does not warrant reversal.

II.

Appellant next argues that the district court erred by ordering separate sentences for his two convictions because they arose from the same behavioral incident. A district court has great discretion in sentencing, and we may not substitute our own judgment for that of the district court. McLaughlin v. State, 291 Minn. 277, 284, 190 N.W.2d 867, 872 (1971). Whether multiple offenses form part of a single behavioral act is a question of fact. See Effinger v. State, 380 N.W.2d 483, 489 (Minn.1986) (reviewing district court’s finding of two separate behavioral acts under clearly erroneous standard). But where the facts are established, the determination is a question of law subject to de novo review. See State v. Reimer, 625 N.W.2d 175, 176 (Minn.App.2001) (reviewing district court’s separate-incident determination de novo where the facts were undisputed).

Under Minn.Stat. § 609.035, subd. 1 (2000), a person who commits multiple offenses against the same victim during a “single behavioral incident” may be punished for only one offense. Id.; see also State v. Herberg, 324 N.W.2d 346, 348 (Minn.1982) (explaining the rule). In determining whether a series of offenses constitutes a single behavioral incident, the relevant factors are (1) unity of time and place and (2) whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective. State v. Bookwalter, 541 N.W.2d 290, 295 (Minn.1995); see State v. Eaton, 292 N.W.2d 260, 266 (Minn.1980) (noting single behavioral incident is result of single motivation directed toward single criminal goal).

We have explained that where offenses are committed and proven independently of the others, they are not part of a single behavioral incident. State v. Butcher, 563 N.W.2d 776, 784 (Minn.App.1997), review denied (Minn. Aug. 5, 1997). The Minnesota Supreme Court has held that, where nothing in the record shows unlawful possession of a firearm furthers the crime of controlled substance possession, the crimes are separate behavioral incidents even though police may discover the offenses at the same time. Mercer v. State, 290 N.W.2d 623, 626 (Minn.1980).

Appellant contends that, under the state’s theory of the case, he possessed the gun only to further the sale of the cocaine found in his possession, and therefore his crimes are part of a single behavioral incident. We disagree. Appellant’s conduct is divisible. Appellant could unlawfully possess a firearm without possessing any crack cocaine, and conversely, he could possess crack cocaine without possessing a firearm. See, e.g., Butcher, 563 N.W.2d at 784 (offense of possessing uncased firearm separate from illegal taking of deer because, although committed in same time frame, were independent of each other); State v. Thomas, 352 N.W.2d 526, 529 (Minn.App.1984) (assault, although occurring within a minute of cocaine sale, did not further the sale and was therefore a separate crime), review denied (Minn. Oct. 11, 1984). Cf. State v. Reese, 446 N.W.2d 173, 180 (Minn.App.1989) (possession of two controlled substances at the same time and place, for personal use, constitutes a single behavioral incident), review denied (Minn. Nov. 15, 1989).

Police found appellant in possession of both a firearm and crack cocaine. Although the facts permit the inference that appellant used the gun to protect his “product,” appellant ultimately was not charged with, nor convicted of, selling cocaine. The “sale” aspect of his conduct, if any, was not conclusively determined by the jury. There is insufficient evidence in the record to establish that appellant’s two offenses “arose out of a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.” State v. Gibson, 478 N.W.2d 496, 497 (Minn.1991) (citation omitted). This record, as in Mercer, lacks the required facts to support the contention that the firearm possession furthered appellant’s possession of cocaine, or the converse. We conclude that the district court acted within its discretion by concluding that the crimes were not part of a single behavioral incident and ordering separate sentences.

DECISION

The district court did not abuse its discretion by denying appellant’s motion for mistrial because the parties and the court took steps that minimized any prejudicial effect of a prospective juror’s remark. Any district court error in admitting into evidence testimony that the amount of cocaine recovered was consistent with sale does not warrant reversal because that testimony did not substantially influence the jury to convict appellant. The district court did not abuse its discretion by ordering separate sentences because appellant’s crimes were not part of a single behavioral incident.

Affirmed.


text:
    Thomas BEBO, Appellant, v. Gordon DELANDER, et al., Respondents.
    No. C5-01-199.
    Court of Appeals of Minnesota.
    Aug. 7, 2001.
    Review Denied Oct. 16, 2001.

      Robert A. Nicklaus, Nicklaus, Braaten & Hollenhorst, PLLC, Chaska, for appellant.
    Richard A. Beens, Felhaber, Larson, Fenlon & Vogt, P.A., Minneapolis, and Bernard J. Bobber, Foley & Lardner, Milwaukee, WI for respondents.
    Considered and decided by R.A. RANDALL, Presiding Judge, and ROBERT SCHUMACHER and G. BARRY ANDERSON, Judges.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant argues that the district court erred by granting summary judgment to respondents on - appellant’s tortious-inter-ference-with-contract and defamation claims. Appellant contends that (1) the question of whether his employer suspended his employment creates a genuine issue of material fact; (2) the district court erred by determining that appellant’s claims failed as a matter of law; and (3) the district court abused its discretion by failing to grant his motion to amend the complaint.

We conclude that there is no genuine issue of material fact as to whether appellant had been suspended, and further conclude that appellant faded to establish the essential elements of his claims. Moreover, the district court acted within its broad discretion by denying appellant’s motion to amend the complaint. Accordingly, we affirm.

FACTS

Since 1980, appellant Thomas Bebo has been a truck driver employed by K-Way Express (K-Way). K-Way assigned appellant, an at-will employee, to transport freight to the warehouses of respondent Silgan Containers Manufacturing Corporation (Silgan) from 1993 until 1998. In the course of completing his deliveries, appellant worked with respondents Gordon De-lander and Thomas Morrison, employees of Silgan. Delander and Morrison are shipping clerks in Silgan’s warehouse facilities.

The working relationship between appellant and the shipping clerks became acrimonious in 1998. Disputes between appellant and the shipping clerks concerning paperwork, blocked trucks, and unloading schedules at times escalated into name-calling. As a result, in July or August 1998, Delander telephoned K-Way dispatcher Barbara Jones and stated that appellant was “banned” from delivering goods to Silgan.

Silgan manager Jack Bohnert learned of the ban in August or September, and told Delander that the ban was outside Delan-der’s authority. In September 1998, however, Bohnert telephoned K-Way president Jim Koch and the two agreed that appellant would be temporarily banned from making deliveries to Silgan until the problems between appellant and the shipping clerks could be resolved. In late September, K-Way reassigned appellant from the Silgan routes to other routes.

Appellant complained to Silgan’s California corporate headquarters. Silgan’s Human Relations Director, David Rubardt, came to Minnesota in November 1998 to investigate. Rubardt recommended that appellant meet with Bohnert. The meeting took place in January 1999, and each left the meeting believing the other would reinitiate discussions. In the meantime, appellant continued to make deliveries elsewhere.

In February 2000, appellant filed a complaint alleging that Morrison, Delander, and Silgan tortiously interfered with appellant’s K-Way employment contract. Appellant also alleged that Morrison and De-lander made slanderous statements that damaged appellant’s character by calling him an “a — hole” and “c— sucker,” by stating, in the presence of others, “Watch the guy. He’s going to f— you over,” and represented to others that appellant was “blocking the other drivers.” Several months of discovery followed.

On October 17, 2000, respondents filed a motion for summary judgment, arguing that (1) appellant had not shown any breach of his at-will K-Way employment contract or any material loss of pay or benefits and (2) appellant’s defamation claim failed because the statements made by Morrison and Delander were not defamatory and did not cause any loss of reputation or corresponding monetary damage. On October 31, 2000, appellant filed a motion to amend the complaint to add, among other things, the allegation that: “Delander and Morrison made derogatory remarks about [appellant’s] reputation as a truck driver * * * ” to four of appellant’s fellow employees.

The district court granted respondents’ motion for summary judgment, concluding that, as a matter of law, respondents’ alleged actions did not cause a breach of appellant’s at-will employment contract and that respondents’ alleged statements did not constitute defamation. The district court denied appellant’s motion to amend the complaint. This appeal follows.

ISSUES

I. Did the district court err by concluding that there were no material facts in dispute and that appellant’s tortious-interferenee-with-contract and defamation claims failed as a matter of law?

II. Did the district court abuse its discretion by denying appellant’s motion to amend the complaint?

ANALYSIS

I.

On appeal from summary judgment, we determine whether there are genuine issues of material fact, and whether the district court erred in its application of law. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Even so, summary judgment

is mandatory against a party who fails to establish an essential element of [the] claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn.App.1994). Once the moving party has made a prima facie case that entitles it to summary judgment, the burden shifts to the nonmoving party to produce specific facts that raise a genuine issue for trial. Minn. R. Civ. P. 56.05; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn.1988). The nonmoving party may not rely upon mere averments in the pleadings or unsupported allegations but must come forward with specific facts to satisfy its burden of production. Musicland Group, Inc. v. Ceridian Corp., 508 N.W.2d 524, 530-31 (Minn.App.1993), review denied (Minn. Jan. 27,1994).

A. Tortious Interference with Contract

1. Fact Issue

Appellant first argues that the question of whether he was suspended is material to whether a breach of contract occurred and creates a fact issue for trial.

“A fact is material if its resolution will affect the outcome of the case.” O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996) (citation omitted). A genuine issue of material fact “must be established by ‘substantial evidence.’ ” Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976) (citations omitted). There is no genuine issue of material fact if

the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997).

Appellant, in his own deposition testimony, admitted that he was not suspended or otherwise disciplined:

Q: Okay. In your employment with K-Way, Mr. Bebo, have you ever been terminated by K-Way? Have you ever been fired?
A. No, sir.
Q. Have you ever been suspended by K-Way?
A. No, sir.
Q. Have you ever been disciplined by K-Way in some manner that was less severe than a suspension, for example, a written warning, that kind of thing?
A. No, sir.
Q. You have a clean disciplinary record with K-Way?
A. Yes, sir.
Q. Has K-Way ever demoted you in some way?
A. No, sir.

In addition, K-Way gave appellant an annual performance bonus in each year that it gave bonuses.

Appellant argues that, in spite of his deposition testimony, his reassignment from Silgan routes to other routes constitutes a suspension. But an employment suspension “implies a temporary separation from * * * service.” Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 174, 84 N.W.2d 593, 598 (Minn.1957) (citation and quotation omitted). K-Way did not separate appellant from service, but instead assigned him elsewhere, a right clearly held by the employer. Accordingly, we conclude that appellant has not presented “substantial evidence” that the question of whether an employment suspension occurred created a material fact issue for trial.

2. Legal Merits

Appellant next argues that the district court erred by granting summary judgment to respondents on the basis that appellant had not established a prima facie case of tortious interference with contract. To establish a claim for tortious interference of contract, a plaintiff must show: (1) the existence of a contract; (2) knowledge of the contract; (3) intentional procurement of the contract’s breach; (4) absence of justification; and (5) damages caused by the breach. Furlev Sales & Assoc., Inc. v. North Am. Auto. Warehouse, Inc., 325 N.W.2d 20, 25 (Minn.1982). A successful claim requires proof of all five elements. St. Jude Med., Inc. v. Medtronic, Inc., 536 N.W.2d 24, 30 n. 6 (Minn.App.1995), review denied (Minn. Oct. 27, 1995).

The district court determined that (1) the contract between K-Way and appellant was at-will; (2) under the terms of the at-will contract, K-Way had the discretion to reassign appellant to other routes; and (3) the reassignment to other routes did not breach the contract. Having found no breach of the at-will contract, the district court concluded, as a matter of law, that appellant’s tortious-interference-with-contract claim failed and did not address the remaining elements.

“At-will” employment agreements may serve as the underlying contracts in a tortious-interference-with-con-tract claim. Nordling v. Northern States Power Co., 478 N.W.2d 498, 504 (Minn.1991). “The at-will employment subsists at the will of the employer and employee * * *.” Id. at 505. There is no evidence of an agreement between appellant and K-Way concerning route assignments. Appellant testified, by deposition, that both dispatchers and Koch decided how to assign drivers to the delivery routes. Appellant explained, “if something needs to be changed around, you know, they will change accordingly to make it work.”

Thus, under the terms of appellant’s at-will employment agreement, K-Way president Koch and the dispatchers had the discretion to reassign appellant to different routes. It follows that Koch did not breach any contract provision by reassigning appellant to different routes pending resolution of the Silgan difficulties because appellant had no contractual right to be assigned to the Silgan route. See Michaelson v. Minnesota Min. & Mfg. Co., 474 N.W.2d 174, 181 (Minn.App.1991) (reassignment does not constitute interference with at-will contract), aff'd 479 N.W.2d 58 (Minn.1992). A district court does not err by concluding a tortious-inter-ference-with-contract claim fails when the plaintiff has not shown breach of contract. See, e.g., Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 127 (Minn.App.1998) (holding summary judgment proper where appellant had not shown breach of contract between shareholders and broker); R.A., Inc. v. Anheuser-Busch, Inc., 556 N.W.2d 567, 570 (Minn.App.1996) (summary judgment fpr respondent upheld where unenforceable contract could not be breached and thus caused plaintiffs tor-tious interference with contract claim to fail), review denied (Minn. Jan. 29, 1997); Hansen v. Phillips Beverage Co., 487 N.W.2d 925, 927-28 (Minn.App.1992) (letter to negotiate in good faith did not create an enforceable contract and, consequently, the district court properly dismissed claim for tortious interference with contract).

Because there was no breach of appellant’s “at-will” employment agreement, we conclude that the district court did not err as a matter of law by granting summary judgment to respondents on the basis that appellant had not proven an essential element of his tortious-interference-with-con-tract claim.

B. Defamation

Appellant next claims that the district court erred as a matter of law by determining that the statements made by Morrison and Delander to appellant and others were not defamatory. The elements of defamation require the plaintiff to prove that (1) the statement was false; (2) it was communicated to someone other than the plaintiff; and that (3) it tended to harm the plaintiffs reputation and lower him or her in the estimation of the community. Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn.1994). Imputations concerning one’s business, trade, or profession are actionable per se, without proof of actual damages. Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn.1977). But a plaintiff must prove the remaining elements to succeed in a defamation action. Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn.App.1989), review denied (Minn. Feb. 9, 1990).

Allegedly defamatory statements must be included in a plaintiffs complaint. Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 538 (Minn.App.1997), review denied (Minn. June 11, 1997). Appellant’s complaint alleges that, in the presence of others, (1) Morrison called appellant an “a — hole”; (2) Morrison called appellant a “c— sucker”; (3) Delander, speaking to another driver and referring to appellant, said, “Watch the guy. He’s going to f— you over”; and (4) Delander said appellant was “blocking the other drivers.” The district court determined that these statements were not, as a matter of law, defamatory.

“[Statements which cannot be reasonably interpreted as stating actual facts, are absolutely protected by the First Amendment.” Hunt v. University of Minn., 465 N.W.2d 88, 94 (Minn.App.1991) (citation omitted). “Expressions of opinion, rhetoric, and figurative language are generally not actionable if, in context, the audience would understand the statement is not a representation of fact.” Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn.App.1986).

For this reason, even vulgar language or name-calling is not necessarily defamation. See Beatty v. Ellings, 285 Minn. 293, 300, 173 N.W.2d 12, 16-17 (Minn.1969) (“Not all abusive or vulgar epithets * * * are inherently defamatory.”); Lund v. Chicago & N.W. Transp. Co., 467 N.W.2d 366, 370 (Minn.App.1991) (vulgarity is not actionable unless “especially shocking or egregious”), review denied (Minn. June 19, 1991); Lee v. Metropolitan Airport Comm’n, 428 N.W.2d 815, 821, 823 (Minn.App.1988) (comments regarding personal characteristics or social life not defamatory, even if more extreme than that usually encountered). For example, as a matter of law, “troublemaker” is not actionable because of its indefinite character. McGrath v. TCF Bank Savs., FSB, 502 N.W.2d 801, 808 (Minn.App.1993), modified on other grounds, 509 N.W.2d 365 (Minn.1993). Similarly, “b~ ch” is not actionable. Lee, 428 N.W.2d at 821.

Courts consider four factors when determining whether a statement is one of fact or opinion: (1) the precision and specificity of the statement; (2) the statement’s verifiability; (3) the social and literary context of the statement; and (4) the public context in which the statement was made. Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn.App.1991), review denied (Minn. Feb. 10, 1992); Lund, 467 N.W.2d at 368-69.

Application of this test shows that appellant has failed to allege actionable defamatory statements. The first two statements, “a — hole” and “c — sucker” are pure vulgarity and have no basis , in fact. The statements are not precise, specific, verifiable, and they were made in the context of truck deliveries at the Silgan loading docks. Although offensive, the statements are clearly statements of opinion and do not rise to the level of “especially shocking or egregious” conduct given the context in which they were made.

The third statement, Delander’s remark that appellant was going to “f— [other drivers] over” is a prediction of a future event and is not a fact capable of verification. Again, although vulgar, the statement is one of opinion.

The fourth statement, Delan-der’s assertion that appellant was “blocking the other drivers,” is also imprecise and vague. The complaint fails to explain the statement’s context. Even if viewed as a precise statement of fact, appellant bears the burden of showing the statement was false. See Rouse, 520 N.W.2d at 410 (plaintiff must show statement’s falsity).

[A] plaintiff cannot succeed in meeting the burden of proving falsity by showing only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial.

Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn.App.1986).

According to appellant’s deposition testimony, he sometimes parked his truck in a manner that blocked other drivers but remained in the truck to move it if necessary. Because that testimony shows that Delander’s alleged statement was true in substance, it is not defamatory.

Because the statements contained in appellant’s complaint are not, as a matter of law, defamatory, the district court did not err by granting summary judgment to respondents on the basis that appellant failed to prove the essential elements of his defamation claim.

II.

Appellant argues that the district court abused its discretion by failing to allow him to amend his complaint. The decision whether to permit a party to amend the pleadings is within the district court’s discretion, and we will not disturb that decision absent a clear abuse of that discretion. Warrick v. Giron, 290 N.W.2d 166, 169 (Minn.1980).

A party may amend a pleading by leave of court. Minn. R. Civ. P. 15.01. A motion to amend a complaint is properly denied when the additional claim could not survive summary judgment. See M.H. v. Caritas Family Servs., 488 N.W.2d 282, 290 (Minn.1992) (upholding denial of motion to add tort claim when no facts supported claim). In addition, the liberality to be shown in the allowance of amendments to pleadings depends in part upon the stage of the action and in a great measure upon the facts and circumstance of the particular case. Dale v. Pushor, 246 Minn. 254, 262, 75 N.W.2d 595, 601 (1956).

This action commenced in September 1999. Appellant filed his motion to amend the complaint on October 27, 2000, one week after respondents filed their motion for summary judgment. Appellant sought to add the following allegations:

(1) Delander and Morrison told their supervisor that appellant had a “habit of cutting in front of people,” was “impatient,” and had “cut off other drivers.”

(2) Delander and Morrison made “derogatory remarks” about appellant’s reputation as a truck driver to Silgan employees.

(3) Delander and Morrison made “derogatory remarks” about appellant’s reputation to appellant’s fellow employees.

The district court concluded that these new allegations did not identify specific statements alleged to be defamatory, rather, they referred generally to “derogatory remarks,” and therefore added nothing to the original complaint. Less than two months before trial, the proposed amendment at issue offered only general, nonspecific, criticisms of appellant not anchored to time, place or detail.

We believe that the district court acted within its discretion. The additional allegations are vague. Moreover, granting the motion to amend the complaint, brought less than two months before the December 19, 2000 trial date, would have prejudiced respondent because additional discovery would have been necessary. We conclude that the district court did not clearly abuse its discretion by denying appellant’s motion.

DECISION

Appellant failed to show that a genuine issue of material fact exists as to whether his employer suspended his employment. The district court did not err by granting summary judgment to respondents on appellant’s tortious-interference-with-con-tract claim because appellant failed to establish (1) there was a genuine issue of material fact concerning suspension and (2) breach of his at-will employment contract. The district court did not err by granting summary judgment to respondents on appellant’s defamation claims because respondents’ alleged statements were not defamatory. Finally, the district court acted within its broad discretion by denying appellant’s motion to amend the complaint because the proposed amendment added nothing to the original complaint would have prejudiced respondents.

Affirmed.