author: STREIT, Justice.

text:
    In re the MARRIAGE OF Deborah A. NEFF and Robert F. Neff. Upon the Petition of Deborah A. Neff, Appellee, and Concerning Robert F. Neff, Appellant.
    No. 03-0379.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Thomas P. Murphy of Hopkins & Hueb-ner, P.C., Des Moines, for appellant.
    J. Terrence Denefe of Kiple, Denefe, Beaver, Gardner & Zingg, L.L.P., Ottum-wa, for appellee.
   STREIT, Justice.

Deborah and Robert Neff, a divorced couple, are fighting over how much the latter ought to pay for two of their children’s college educations. The district court found Robert had agreed to pay one-third but failed to do so, and ordered Robert to reimburse Deborah for money she had paid to compensate for his nonpayment. The court of appeals reversed the district court’s finding, vacated its order for reimbursement, and modified the decree to require Robert to pay each child $225 per year for their college expenses so long as they remained “under the age of twenty-two years.”

• On further review, we find Robert did not agree to pay one-third of his children’s college expenses, and affirm the court of appeals in this respect. Because the court of appeals incorrectly used the children’s financial aid award notifications to determine their expected contributions, however, we recalculate the postsecondary education subsidies Robert owes. We also hold the correct timeframe' for a postsec-ondary education subsidy -is when the child is older than seventeen and less than twenty-three.

I. Facts and Prior Proceedings

Deborah and Robert Neff were divorced in 1998. They have three children: Anthony (born September 1981), Angela (born August 1983), and Alexander (born December 1989). At issue in this appeal is Iowa’s postsecondary education subsidy statute, which allows a court to order a “postsec-ondary education subsidy” if good cause is shown. Iowa Code § 598.21(5A) (2001). In determining whether good cause exists, the court shall consider the child’s financial resources and the financial condition of the parents. Id. § 598.21(5A)(a). If the court determines good cause is shown, the amount of subsidy cannot exceed thirty-three and one-third percent of the total cost of postsecondary education, based upon the cost of attending an in-state public institution. Id. Also at issue is the parties’ divorce decree, which originally incorporated the following stipulation:

In the event that post-secondary education subsidy is required for any of the parties [sic] children, then pursuant, to Chapter 598.1 and . 598.21(5A), the amount paid by each parent should not exceed thirty-three and one-third percent (33 1/3%) of the total cost of post-secondary education and' shall be determined pursuant to the above and foregoing sections of the Code of Iowa.

In June 2000, Deborah filed an “Application for Modification of Decree of Dissolution of Marriage.” In her petition, she informed the court Anthony had graduated from high school in May, and would be attending the University of Iowa in the fall. She asked the court, in part, to modify the decree in order to “set forth the responsibility of the parties with respect to postsecondary education subsidy.... ”

The court entered a “Written Stipulation and Order Modifying Decree of Dissolution of Marriage,” in which it found there had been a substantial change in the circumstances since the divorce. The 2000 order replaced the provision for postsecondary education in the 1998 decree with the following two paragraphs:

The child, Anthony Neff, shall be entitled to a postsecondary education subsidy pursuant to Sections 598.1(8) and 598.21(5A) of the Code of Iowa and the amount paid by each parent shall not exceed thirty-three and one-third percent (33 1/3%) of the total cost of post-secondary education.
In the event that postsecondáry édu-cation subsidy is required for any of the other children of the parties, said post-secondary education subsidy shall be provided as set forth in Section 598.1(8) and Section 598.21(5A) of the Code of Iowa.

Remarkably, nothing in this document ordered Robert to pay a postsecondary education subsidy.

Two years passed. In July 2002, Deborah filed an “Application to Determine Responsibility of the Parties for Postsec-ondary Education Subsidy.” In her application, Deborah requested the court hold a hearing and “enter an Order requiring [Robert] to make appropriate postsecond-ary education subsidy payments” for Anthony and Angela.

After a hearing held in February 2003, the district court ruled

There is no question that [Robert] has on at least two occasions ... agreed to the postsecondary education subsidy set forth in Section 598.21(5A). Pursuant to the decree each parent is clearly required to pay one third of the balance of college expenses after deductions from the total for loans and grants received by the student child. The petitioner has complied with the decree and the respondent has not....
The record establishes that the children have done their part in obtaining loans and grants as well as by working. The record also establishes that [Deborah] is doing her part by providing payments to the children and apparently advancing to them what should be [Robert’s] share....

The district court ordered Robert to reimburse Deborah $3874, begin making payments towards his one-third share, contribute $700 towards Deborah’s attorney fees, and pay court costs.

Before the court of appeals, Robert made three assignments of error: (1) the district court erroneously concluded he had agreed to pay one-third of his children’s postsecondary expenses; (2) even if the district court had properly determined Robert should pay a postsecondary education subsidy, it erred in requiring him to reimburse Deborah directly; and (3) the court abused its discretion in awarding Deborah attorney fees.

The court of appeals determined Robert had not agreed to pay one-third of his children’s postsecondary education expenses. The court therefore concluded Robert need not reimburse Deborah, because he did not presently owe anything. The court calculated the postsecondary education subsidy which Anthony and Angela should henceforth receive from Robert. After determining both children qualified for a postsecondary education subsidy, the court of appeals modified the decree to require Robert to pay each child $25 a month (excluding June, July, and August) as long as each child remained in school and “under the age of twenty-two years.” Lastly, the court of appeals held the district court did not err in awarding attorney fees, but refused to award appellate attorney fees.

On further review, Deborah makes three assignments of error. First, she asks us to circumscribe In re Marriage of Longman, 619 N.W.2d 369 (Iowa 2000), in order to permit reimbursement to a parent who pays for the other parent’s share of a postsecondary education subsidy when the latter (whom Deborah labels the “defaulting” parent) fails to fulfill his obligations. Second, Deborah contends the court of appeals erred in calculating the amount of postsecondary education subsidy Robert owed, because it included a parent loan, which was listed in Anthony’s financial aid award notification, as part of Anthony’s expected contribution. Third, Deborah claims the court of appeals incorrectly stated the timeframe in which Robert' is responsible.

Robert maintains the court of appeals correctly decided the case. We now examine Deborah’s three assignments of error, in turn. Additional facts will be set forth below as needed.

II. Scope of Review

Our scope of review in this equitable action is de novo. Iowa R.App. P. 6.4.

III. The Merits

A. Longman

As previously indicated, Deborah first urges us to overrule or limit Long-man. In Longman, a father paid his son’s college costs for three semesters before the district court ordered the son’s mother to pay a twenty-percent subsidy. 619 N.W.2d at 370. The court, which also determined the father ought to pay a one-third subsidy, ordered the mother to reimburse the father for what he had paid above his one-third subsidy over the previous three semesters. Id. Although we concluded the mother’s financial situation was “not sufficient to warrant the imposition on her of any portion of the college expenses,” in dicta we

express[ed] the view that the district court’s ruling requiring reimbursement by [the mother] was wrong even if she had an obligation to contribute toward [the son’s] college expenses. Any obligation she would have had in that regard under section 598.21(5A) is owed to [the son] and is properly payable only to him or to the educational provider. [The father], in paying more than his one-third, court-ordered subsidy, was a volunteer and is not entitled to reimbursement for the extra amount paid.

Id. at 371 (emphasis added) (citing Iowa Code § 598.21(5A)(&), which states “[a] postsecondary education subsidy shall be payable to the child, the educational institution, or to both, but shall not be payable to the custodial parent”). Deborah maintains this Longman principle is inequitable, because a parent obligated to provide a postsecondary education subsidy can simply refuse to pay, and thereby force the other parent, without any hope of reimbursement, to contribute on the obligated parent’s behalf.

Deborah’s argument, however, incorrectly assumes Robert was in default of his obligations. We quote, with approval, the following passage from the court of appeals’ decision:

[T]he legislature has said that the subsidy shall not exceed thirty-three and one-third percent of the total cost of postsec-ondary education. See Longman, 619 N.W.2d at 370. The thirty-three [and one-third] percent is a cap on each parent’s obligation. The percentage, if any, the parent pays depends on his or her financial situation. Iowa Code § 598.21(5A)(a)(3). While the cap on Robert’s subsidy was set in the [2000] modification order, that order did not determine what if any subsidy each parent was required to make. Consequently we must agree with [Robert’s] argument that at the time' of the hearing from which this appeal was taken there was no order in place requiring him to pay one third of [Anthony’s] and Angela’s costs, and the district court’s order finding there was an agreement was in error.

(Emphasis added.) The only relevant difference between thé 1998 and 2000 stipulations is the fact that in the latter Robert conceded Anthony was entitled to a subsidy. There is a manifest difference in stipulating that a cap and a code section apply, as, opposed to fixing the amount of a post-secondary education subsidy. See In re Marriage of Rosenfeld, 668 N.W.2d 840, 847 (Iowa 2003). For reasons unknown, neither Deborah nor her attorney ensured she received a determination of and order for a subsidy for Anthony and Angela from Robert. Instead, the decree, as modified in 2000, merely states Anthony is entitled to a postsecondary education subsidy, the Iowa Code section 598.21(5A) “cap” applies, and that neither party shall pay more than one-third of either child’s college costs. Prior to the court of appeals’ decision, no subsidy was ever awarded; only a cap was put in place. Therefore Deborah’s first assignment of error, i.e. that we should reconsider Longman to permit reimbursement to a parent who pays for a “defaulting” parent’s share of a postsecondary education subsidy, is based upon a false premise: at the time of the 2003 hearing, Robert was not obligated to pay a postsecondary subsidy. We need not, therefore, consider the merits of her argument. “A question is moot when the issues it presents are merely academic, and any judgment rendered can have no practical legal effect.” State v. Beyer, 258 N.W.2d 353, 355 (Iowa 1977).

B. Determination of the Postsecond-ary Education Subsidies

The court of appeals determined Robert should pay Anthony and Angela postsec-ondary education subsidies of $25 a month, each, excluding the months of June, July, and August. Deborah claims the court of appeals miscalculated these subsidies because it considered a parent loan in Anthony’s financial aid award notification as an expected student contribution. Neither party disputes that Anthony and Angela meet the basic qualifications for a postsec-ondary education subsidy. Both children appear to be full-time college students between the ages of eighteen and twenty-two. Iowa Code § 598.1(8).

In order to determine whether there is “good cause” to award a postsecondary education subsidy in this case, we must first point out the meager means of the parents. See id. § 598.21(5A)(a) (in determining good cause, court must consider, among other factors, the financial conditions of the parents). The court of appeals found

Both Deborah and Robert are of modest means and have modest incomes. Tax returns entered as exhibits show that in 2001 Deborah had an adjusted gross income of $21,381. She had state, social security and self-employment tax liability in that year of $2,816. She owed no federal income tax because she was entitled to education credits in the amount of her tax. She received earned income credit of $1,104 and receives about $3,600 a year in child support. This means Deborah would have had $24,004 of disposable income in 2001. At trial Deborah testified she had earned about $31,800 in 2002. We therefore assume her 2002 financial situation is as good as or better than it was in the previous year. She shows a net worth of $3,227. Deborah has one minor child in her home and she provides the support for the child that is not met by Robert’s contributions.
In 2001 Robert had adjusted gross income of $23,171. In 2001 he paid about $3,954 in federal, state, social security and Medicare taxes. Robert pays $299.85 a month as child support for the parties’ youngest child and pays $264.60 a month to maintain health insurance on all the children, for an annual monetary contribution to the children of $6,720_Robert’s tax and family obligations total about $10,674. This leaves him with disposable income of about $12,497. Deborah testified Robert’s income for 2002 was $21,000. We assume that his financial situation is no better for 2002 than it was for the prior year. Robert is married and lives with his wife, who is employed and shares living expenses. The only assets he shows are a 1989 Chevrolet truck with 174,000 miles, a bank account of $130 and furniture worth $50.

Based upon these findings, which neither party challenges, we conclude that while there is good cause for a modest postsec1 ondary education subsidy, the children will have to pay for substantially all of their college educations. We cannot construe the statute to require these particular parents to pay more than a modest share, even if it means the children will not have sufficient funds to complete college in the traditional four years or without working or borrowing.

Having determined there is “good cause” for a modest postsecondary education subsidy, we employ the following analysis:

[we must] first determine the “cost of postsecondary education based upon the cost of attending an in-state [undergraduate] public institution.” [Iowa Code] § 598.21(5A)(a )(1). The cost must “include the reasonable cost for only necessary postsecondary education expenses.” Id. After this cost component is determined, the court must next determine the amount the child “may reasonably be expected to contribute” to the payment of the costs in light of the child’s financial resources. Id. § 598.21(5A)(a)(2). In determining a child’s financial resources, the court considers “the availability of financial aid whether in the form of scholarships, grants, or student loans,” as well as the “ability of the child to earn income while attending school.” Id.
The subsidized amount subject to apportionment among the parents is then determined by subtracting the amount of the child’s expected contribution from the postsecondary education expenses. Id. § 598.21(5A)(a )(3). However, an amount apportioned to a parent cannot exceed one-third of the total postsecond-ary education cost. Id.

In re Marriage of Vannausdle, 668 N.W.2d 885, 888 (Iowa 2003).

According to two documents, each entitled “2001-02 University of Iowa Revised Award Notification,” the estimated cost of attendance for each child at the University of Iowa during the 2001-2002 school year was a little more than $12,000. This sum included tuition, fees, books and supplies, room - and board, personal expenses, and transportation. See id. at 889 (recognizing “the actual and necessary costs of attending college exceed tuition, books, supplies, and a room and board plan,” and incorporating personal expenses and transportation into those costs). As previously indicated, given the financial conditions of the parents, the children will be expected to pay substantially all of this cost.

In examining sources of funds the children might be expected to contribute, there is no evidence in the record either child received any scholarships, or has sufficient funds saved to cover the costs of their educations. Cf. id. at 887 (scholarships); Rosenfeld, 668 N.W.2d at 846 (funds gifted to student under the Uniform Transfers to Minors Act (UTMA) sufficient to cover costs of her college education). Both children, however, were given over $2200 in federal and state grants. In addition, Anthony was offered a $3500 federally subsidized Stafford loan, while Angela was offered $2625. Again, given the meager financial situations of the parents, it is not unreasonable to expect Anthony and Angela to assume responsibility for repayment of these loans. Cf. Vannausdle, 668 N.W.2d at 890 (“loans should have been excluded from the student contribution component of the formula .... Implicit in the parties’ approach is their mutual understanding ... loans should not be used to reduce their respective subsidy.”).

For similar reasons, Anthony and Angela must be expected to work during the school year and summers to help finance their educations, and it appears both do so. Deborah testified Anthony worked twenty hours a week at the hospital as part of his work-study, and Angela worked full-time, earning $7.50 per hour at Wal-Mart. It is not unreasonable to expect both children to work at least part-time during the school year and full-time during breaks and the summer months. In doing so, both children can be expected to earn a substantial amount of money for college.

In arriving at the expected contributions of the children, we do not consider the University’s “award” of $3398 to Anthony, and $5213 to Angela, of a “PLUS (Parent) Loan.” These “awards” are, in truth, merely offers for Deborah or Robert to assume loans, and therefore are possible •parental, not expected student contributions. In re Williams, 253 B.R. 220, 222 n. 8 (Bkrtcy.W.D.Tenn.2000) (“The Federal PLUS (Parent Loan for Undergraduate Students) program provides a low-cost financing option to help families fund the college education of a dependent student. The program allows parents to borrow up to the total cost to attend school less other financial aid received.” (Emphasis added.)).

Subtracting the children’s expected contributions from the postsecondary education expenses, we determine each child ought to be subsidized $300 per year by Robert. Robert’s obligations to each child shall henceforth be paid in two equal installments of $150. The subsidies shall be payable to the respective child, his or her educational institution, or both, on August 15 and January 15 of each year. See Iowa Code § 598.21(5A)(6); Longman, 619 N.W.2d at 371. Because Deborah is not presently under any legal obligation to pay a subsidy, until her responsibility is determined her contributions are wholly voluntary, and she is not entitled to any reimbursement. Longman, 619 N.W.2d at 371.

The subsidies awarded herein shall begin with the 2002-03 school year. Prior to the filing of this action Robert was under no obligation to subsidize his children’s postsecondary education expenses; the subsidy we award to the children begins with the 2002-03 school year because this action commenced in July 2002. Because two years’ worth of obligations has now accrued, Robert shall pay each child or his or her educational institution $600 within six months of the issuance of procedendo. Payment is conditioned upon the children’s qualification for the subsidy. See, e.g., Iowa Code § 598.21(5A)(d) (subsidy terminates “if the child fails to maintain a cumulative grade point average in the median range or above during [his or her] first calendar year” in school).

C. Timeframe for Postsecondary Education Subsidies

The court of appeals ordered the subsidies should remain in effect as long as the children are under the age of twenty-two years. The statute, however, states that the applicable timeframe is “between the ages of eighteen and twenty-two.” Id. § 598.1(8) (emphasis added). We therefore modify the decree as follows: Robert is responsible for Anthony and Angela’s college expenses so long as each child is between the ages of eighteen and twenty-two. Given the traditional ages at which students attend college, the ages which define this timeframe should be read inclusively, i.e. students qualify so long as they are older than seventeen but less than twenty-three, to effect legislative intent. See State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999) (“The polestar of statutory interpretation is to give effect to the legislative intent of a statute.”).

IV. Conclusion

We find the amended decree did not require Robert to pay one-third of his children’s college expenses, and, as a result, we do not reach Deborah’s first assignment of error, i.e. whether Longman should be circumscribed to permit reimbursement to a parent who pays for a “defaulting” parent’s subsidy. We affirm the court of appeals, with two modifications: Robert should provide Anthony and Angela $800 per child per academic year as a postsecondary education subsidy. Furthermore, each subsidy should apply so long as the child is between the ages of eighteen and twenty-two.

The costs of this action are taxed equally to both parties. We affirm the district court’s award of attorney fees and do not award appellate attorney fees.

DECISION OF COURT OF APPEALS AFFIRMED AS MODIFIED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND MODIFIED IN PART.

      . The district court ruling does not provide this monetary figure, but merely states "Exhibit 'A' attached to the July 30, 2002 application appears to be a correct calculation of the amounts owed by the respondent.” The court of appeals determined the amount awarded by the district court was $5811. In Exhibit A, Deborah demanded Robert reimburse her $1881.50 for Anthony's 2000-01 school year, $1746.00 for Anthony's 2001-02 school year, and $2183.50 for Angela's 2001-02 school year. The sum of these three figures is $5811. The district court's order, however, states "[p]ursuant to the decree each parent is clearly required to pay one third, of the bal-anee of college expenses after deductions fi'om the total for loans and grants received by the student child.” (Emphasis added.) According to Exhibit A, the balance of college expenses after loans and grants received by the children was $11,622. One third of $11,622 is $3874. As we shall see, the district court’s order is mistaken on two levels: (1) the decree does not require Robert to pay a subsidy, and in any event, (2) the statute imposes a one-third cap "on the total cost of postsecond-ary education,” before deductions for loans and grants. Iowa Code § 598.21(5A)(a )(2) (emphasis added).

      . Although her subjective intentions are not relevant to this appeal, it is unclear why, if Deborah truly thought the 2000 stipulation awarded, a one-third subsidy, she waited two years to enforce it.

      . Although the university did offer the children work-study in specific dollar amounts, work-study is not a grant; work-study is nothing more than governmentally subsidized employment available to students should they find work in a qualifying job. Accord Iowa State Dep't of Health v. Hertko, 282 N.W.2d 744, 750 (Iowa 1979) (recognizing view that work-study is not a grant). Depending on the child, of course, the amount the university awards the student in available work-study funds does not necessarily reflect “the ability of the child to earn income while attending school.” Iowa Code § 598.21(5A)(a)(2). The educational institution's financial aid package, while often relevant, is not in itself determinative of this ability.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    Donna ZEIGLER, Appellant, v. FLEETGUARD, INC. and Travelers Insurance Company, Appellees.
    No. 01-2038.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Mark A. Soldat, Des Moines, for appellant.
    Richard G. Book of Huber, Book, Córtese, Happe & Lanz, P.L.C., Des Moines, for appellees.
   LARSON, Justice.

Donna Zeigler was injured while working for Fleetguard, Inc. and was awarded workers’ compensation benefits by the Workers’ Compensation Commissioner. She converted her compensation award into a district court judgment under Iowa Code section 86.42 (2001) and attempted to collect on the judgment. Fleetguard and its insurer Travelers Insurance Company (collectively Fleetguard) eventually obtained a stay of execution. Zeigler applied to the district court under Iowa Rule of Appellate Procedure 6.8 to lift the stay. The court refused, and Zeigler appealed. We reverse and remand.

I. Facts and Prior Proceedings.

Zeigler obtained a final workers’ compensation award on January 29, 2001. Both parties petitioned for judicial review — Zeigler on February 27, 2001, and Fleetguard on February 28. On March 8, 2001, well before the conclusion of the judicial-review proceeding, Zeigler attempted to collect her benefits by converting the workers’ compensation award into a district court judgment as provided in Iowa Code section 86.42. The district court entered a judgment against Fleet-guard on March 27, 2001, for compensation benefits, interest, and penalties.

Fleetguard did not appeal the March 27 judgment, but on March 80 it petitioned the district court for a stay of execution under Iowa Code section 17A.19(5)(6) (providing authority in the district court to stay an agency’s action). The district court denied the stay, based on its application of the four-factor test of section 17A.19(5)(c): (1) the likelihood of Fleet-guard’s success in the judicial-review case; (2) whether Fleetguard would suffer irreparable injury if the stay were denied; (3) the extent to which a stay would “substantially harm” Zeigler; and (4) the public’s interest in the decision.

The district court’s order denying the stay reflected the general solicitude of our law for timely receipt of workers’ compensation benefits. It concluded:

[Tjhese factors weigh heavily against the entry of a stay. Obviously, the withholding of benefits will have a direct effect on Zeigler [third factor] and the court believes that there is a public interest in paying workers’ compensation benefits awarded by the [workers’ compensation] commissioner until such time as the award may be found invalid [fourth factor].

While Fleetguard lost in its bid to stay execution under this statute, it eventually was successful in staying execution on the March 27 judgment by waiting until the judicial-review proceeding was concluded on September 19, 2001, then filing an appeal from that ruling as well as from the March 27 judgment. Fleetguard obtained a stay of execution by posting a supersede-as bond under Iowa Rule of Appellate Procedure 6.7(4). Zeigler attempted to get the stay lifted under appellate rule 6.8, contending the “appeal” of the March 27 judgment was too late. The court refused to lift the stay, raising the sole issue in this appeal.

II. Analysis.

Section 86.42 provides for transforming a workers’ compensation award into an enforceable judgment:

Any party in interest may present a certified copy of an order or decision of the [workers’ compensation] commissioner, [with exceptions not applicable here], and all papers in connection therewith, to the district court where judicial review of the agency action may be commenced. The court shall render a decree or judgment and cause the clerk to notify the parties. The decree or judgment ... has the same effect and in all proceedings in relation thereto is the same as though rendered in a suit duly heard and determined by the court.

(Emphasis added.)

This section does not expressly provide for enforcement by execution, but it creates a judgment just like any other because the italicized language says it does. Judgments for money are enforced by execution. Iowa Code § 626.1. Allowing execution on a section 86.42 judgment is also consistent with the general rule:

The court’s award of compensation under the Workers’ Compensation Act is a judgment that may be enforced by execution. The judgment must be entered before it can be enforced by execution. After an award has been filed in the proper court and given the force and effect of a judgment therein, it is enforceable by execution, and supplementary proceedings in aid of execution may be resorted to as in other cases.

101 C.J.S. Workers’ Compensation § 1484, at 318 (2000) (footnotes omitted).

When the court entered the judgment on March 27, 2001, that started the appeal time running on it. See Iowa R.App. P. 6.5(1) (providing appeals must be taken within thirty days of judgment). Fleetguard failed to appeal within that time, so any right to stay the execution as an incident to an appeal was lost. See 4 C.J.S. Appeal & Error § 412, at 455-56 (1990) (“In order to operate as a superse-deas or stay ... an appeal must generally be taken ... and it must be done in the manner and within the time prescribed by statute or court rule.”).

Fleetguard, however, argues that it could not have appealed the March 27 judgment because, as of that time, the workers’ compensation award was still in a state of flux, subject to modification by the district court in the pending judicial-review proceeding. Its argument is that

the March 27, 2001 judgment is only as good as the court’s determination of the merits following review of the agency action. It is subject to modification by the court pending judicial review and, therefore, cannot be a final judgment from which a notice of appeal must be filed.

Fleetguard’s argument is, essentially, that the judgment of March 27 was interlocutory and could not have been appealed until the conclusion of the judicial-review proceeding. We disagree; this is a case in which two final orders may exist in the same case — the first when the judgment was entered pursuant to Iowa Code section 86.42 and the second when the district court entered its decision on judicial review. See Lyon v. Willie, 288 N.W.2d 884, 887 (Iowa 1980) (“Two final orders are possible in a single case, one putting it beyond the power of the court to put the parties in their original positions in relation to a specific issue, and the other adjudicating remaining issues in the case.” (Citations omitted.)); Iowa Pub. Serv. Co. v. Sioux City, 254 Iowa 22, 28, 116 N.W.2d 466, 469 (1962) (“ ‘[Tjhere may be and often are ... two final decrees in the same cause, the one settling the substantial merits of the case, and the other based upon further necessary proceedings, from each of which an appeal will lie.’ ” (quoting 4 C.J.S. Appeal & Error § 101, at 283 (1957))).

As applied to the present case, the judgment entered on March 27, 2001, was final because section 86.42 provides it is a judgment to be given the force and effect of a judgment in district court. The second judgment, which “adjudicat[ed the] remaining issues in the case,” was the judicial-review decision that determined whether the arbitration decision was correct.

Fleetguard’s argument that the March 27 judgment could not be appealed prior to the final ruling on judicial review is further rebutted by section 86.43. That section anticipates that any revision in a workers’ compensation award after the entry of a judgment under section 86.42 must be by modification of the judgment under section 86.43, which provides:

Upon the presentation to the court of a certified copy of a decision of the workers’ compensation commissioner ending, diminishing, or increasing the compensation under the provisions of this chapter, the court shall revoke or modify the decree or judgment to conform to such decision.

Because a party may not delay an appeal from a judgment under section 86.42 past the time for appeal, we hold that the stay entered by the court in connection with the March 27 judgment was invalid. While a party may, following completion of the judicial-review proceeding, seek to have the award modified, the party may not wait for a later judicial-review ruling before appealing the prior judgment. The district court erred in refusing to terminate the stay. We therefore reverse and remand for an order dissolving it.

REVERSED AND REMANDED.


author: TERNUS, Justice.

text:
    Jan R. MLYNARIK, Appellant, v. Terri BERGANTZEL, Appellee.
    No. 02-1348.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Randall J. Shanks of Shanks Law Firm, Council Bluffs, for appellant.
    Joseph J. Hrvol of Joseph J. Hrvol, P.C., Council Bluffs, for appellee.
   TERNUS, Justice.

The plaintiff, Jan Mlynarik, filed suit to recover a contingency fee paid to the defendant, Terri Bergantzel, a nonlawyer, for services rendered by Bergantzel to Mly-narik in the negotiation of a settlement of Mlynarik’s personal injury claim. The district court dismissed Mlynarik’s suit on the defendant’s motion to dismiss, ruling there was no legal basis for the plaintiff to recover fees already paid notwithstanding the fact the contract between the parties was against public policy and unenforceable.

We conclude Mlynarik has pled facts that would permit him to recover the sums paid pursuant to the illegal contract between him and Bergantzel. We also reject Bergantzel’s fallback argument that Mly-narik’s claim is barred because he failed to assert it as a compulsory counterclaim in prior litigation between these parties. Finding no basis for affirmance of the district court’s dismissal of Mlynarik’s petition, we reverse the district court’s decision and remand for further proceedings.

I. Principles Governing Our Review.

This case was dismissed upon motion made pursuant to Iowa Rule of Civil Procedure 1.421(1)(/"), providing for dismissal of a petition that fails to state a claim upon which relief may be granted. We review a district court ruling on such a motion for the correction of errors at law. Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 89 (Iowa 2002). “ ‘A motion to dismiss is sustainable only when it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claims asserted.’ ” Id. (citation omitted). Thus, a dismissal at this stage must rest on legal grounds. Trobaugh v. Sondag, 668 N.W.2d 577, 580 (Iowa 2003). For this reason, motions to dismiss for failure to state a claim upon which relief may be granted are rarely an appropriate vehicle for disposing of actions without trial. Am. Nat’l Bank v. Sivers, 387 N.W.2d 138, 140 (Iowa 1986).

In determining whether the plaintiff has stated a claim upon which relief may be granted, we consider only the facts alleged in the petition or those of which judicial notice may be taken. Tate v. Derifield, 510 N.W.2d 885, 887 (Iowa 1994). But see Grimm v. U.S. West Communications, Inc., 644 N.W.2d 8, 12 (Iowa 2002) (considering facts conceded by the plaintiff). In construing the petition, we view the plaintiffs allegations “in the light most favorable to the plaintiff with doubts resolved in that party’s favor.” Haupt v. Miller, 514 N.W.2d 905, 911 (Iowa 1994). Similarly, the facts alleged in the petition are accepted as true. Albrecht, 648 N.W.2d at 89.

II, Background Facts and Proceedings.

The petition filed by Mlynarik stated he sought “to recover monies that the defendant charged him for her representation of the plaintiff in a personal injury claim.” Mlynarik alleged the following facts in support of his claim.

Mlynarik entered into a written contingency fee agreement with Bergantzel, his sister-in-law, to “negotiate with insurance companies and attorneys” to settle Mly-narik’s claims arising out of an automobile accident. Bergantzel, who was not a licensed attorney, located witnesses, prepared affidavits, made phone calls, obtained copies of Mlynarik’s medical records, and obtained a physician’s opinion letter on his behalf. After Bergantzel negotiated a $100,000 settlement with the tortfeasor’s insurance carrier, Mlynarik paid her $12,288.60, the contingency fee required by their agreement.

Subsequent negotiations with Mylnarik’s underinsured motorist carrier were not so fruitful, so Mlynarik then retained an attorney who took over the negotiations. This attorney was successful in obtaining an acceptable offer from the UIM carrier and that claim was then settled.

Mlynarik alleged in his petition that Bergantzel acted as an attorney, and that because she engaged in the unauthorized practice of law, she was not entitled to the fee she collected. He sought recovery of the $12,288.60 he had paid to her for her representation in negotiating a settlement with the tortfeasor’s insurance company.

Although not alleged in the petition, we take judicial notice of a prior lawsuit arising out of these events that resulted in a published opinion, Bergantzel v. Mlynarik, 619 N.W.2d 309 (Iowa 2000). See In re Estate of Ditz, 255 Iowa 1272, 1281-82, 125 N.W.2d 814, 820 (1964) (taking judicial notice of prior proceeding, including published opinion by this court). In the case giving rise to that appeal, Bergantzel sued Mlynarik for fees she claimed he owed her for her efforts to settle Mlynarik’s UIM claim. Bergantzel, 619 N.W.2d at 311. This court held “Bergantzel’s negotiation of a settlement of Mlynarik’s UIM claim constituted the unauthorized practice of law.” Id. at 318. We concluded “[t]he public policy underlying the attorney licen-sure requirement dictate[d] that the contract obligating Bergantzel to perform the unauthorized acts [was] unenforceable.” Id. Therefore, we reversed a judgment that had been entered in favor of Bergantzel. Id. at 318-19.

In the present lawsuit, Bergantzel made an oral motion to dismiss. The district court sustained this motion, noting our prior decision. The court concluded that if Bergantzel’s effort to settle Mlynarik’s claim against the UIM carrier was the unauthorized practice of law, so were her efforts to settle Mlynarik’s claim against the tortfeasor. Notwithstanding this conclusion, the court found “no law supporting [Mlynarik’s] right to recovery of the monies already paid on the contract later found to be unenforceable as against public policy.” Mlynarik appealed the dismissal of his petition.

III. Recovery of Monies Paid Under Illegal Contract.

In arguing that Mlynarik is not entitled to recover the fees paid to Ber-gantzel, Bergantzel relies on a long-standing rule against enforcement of an illegal contract. See Rogers v. Webb, 558 N.W.2d 155, 156 (Iowa 1997); Des Moines City Ry. v. Amalgamated Ass’n of Street & Elec. Ry. Employees, 204 Iowa 1195, 1207, 213 N.W. 264, 269 (1927); Allison v. Hess, 28 Iowa 388, 390 (1870). In Allison, this court held “that where a contract is illegal, ... the law will not afford affirmative relief to either, but will leave the parties as it found them.” 28 Iowa at 390. This rule has its basis in the in pari delicto doctrine:

[Wjhere parties to an illegal contract are in pari delicto, a court will ordinarily leave them where it finds them, whether the contract is executory or executed, refusing relief to both. Thus, where money has been paid on an illegal agreement, it is a general rule that if the agreement is executed and the parties are in pari delicto, neither of them can recover from the other the money so paid.

17A Am.Jur.2d Contracts § 322, at 324-25 (1991). We have noted the purpose of this doctrine “is to deter future misconduct by denying relief to one whose losses were substantially caused by his own fraud or illegal conduct.” Gen. Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 279 (Iowa 1996).

The rule against providing judicial relief to parties in pari delicto with respect to an illegal contract is not, however, without exception. See In re Sylvester’s Estate, 195 Iowa 1329, 192 N.W. 442 (1923) (recognizing two exceptions to rule). In Sylvester, the decedent had engaged a law firm to assist her in obtaining a divorce. Id. at 1330-31, 192 N.W. at 442. The firm was paid a percentage of the money and property received by the decedent in the divorce settlement, pursuant to the parties’ written fee agreement. Id. at 1331-32, 192 N.W. at 442-43. After the client died, her estate sought to recover this fee. Id. at 1332, 192 N.W. at 443. The trial court denied the requested relief.

In considering the case on appeal, our court held that the contract, which provided for a contingent fee in a divorce action, was “against public policy[,] illegal and void.” Id. at 1333, 192 N.W. at 443. In arguing that it should not be required to refund its fee, the law firm relied on the doctrine of in pari delicto. Id. at 1334, 192 N.W. at 444. It claimed that the parties were equally at fault and therefore the court should leave the parties where it found them. Id. We noted there were exceptions to this general rule:

“Even where the contracting parties are in pari delicto, the courts may interfere from motives of public policy. Whenever public policy is considered as advanced by allowing either party to sue for relief against the transaction, then relief is given to him. In pursuance of this principle, and in compliance with the demands of high public policy, equity may aid a party equally guilty with his opponent not only by canceling and ordering the surrender of an executory agreement, but even by setting aside an executed contract ... and decreeing the recovery back of money paid ... in performance of the agreement. The cases in which this limitation may apply and the affirmative relief may thus be granted include the class of contracts which are intrinsically contrary to public policy, — -contracts in which the illegality itself consists in their opposition to public policy, and any other species of illegal contracts in which, from their particular circumstances, incidental and collateral motives of public policy require relief.”

Id. at 1334-35, 192 N.W. at 444 (citation omitted).

We held this exception applied to the contingent fee contract at issue in Sylvester. Id. at 1336, 192 N.W. at 445. We noted the contract was “illegal because public policy demands that such a contract shall not be made.” Id. Because the contract was “intrinsically against public policy and [was] illegal for this reason alone,” we held the in pari delicto doctrine did not prevent the court from awarding the plaintiff affirmative relief. Id.

We think the same reasoning applies here. The contingent fee agreement between Mlynarik and Bergantzel is unenforceable solely because it is against public policy. Bergantzel, 619 N.W.2d at 318. “[Pjublic policy demands that such a contract shall not be made.” Sylvester, 195 Iowa at 1336, 192 N.W. at 445. Thus, like the agreement at issue in Sylvester, the contract here is intrinsically contrary to public policy. In addition, the public policy against the unauthorized practice of law is advanced by allowing the “client” to recover fees paid pursuant to the illegal contract. See generally Gen. Car & Truck Leasing Sys., Inc., 557 N.W.2d at 279 n. 2 (noting court need not apply in pari delicto doctrine if “the court believes the public interest is best served by awarding relief to the wrongdoer”). Therefore, we think this agreement falls within that class of contracts where affirmative relief may be granted in order to advance public policy notwithstanding that the parties are in pari delicto.

IV. Failure to File Counterclaim in Prior Litigation.

Bergantzel claims that even if the in pari delicto doctrine does not preclude recovery, Mlynarik cannot maintain this action because the claim he asserts was a compulsory counterclaim in the first lawsuit between these parties. Bergantzel contends that as a consequence of Mlynar-ik’s failure to assert his claim there, he is barred from asserting it here. Upon our consideration of this issue, we conclude there is no merit to Bergantzel’s defense.

Iowa Rule of Civil Procedure 29 provides:

A pleading must contain a counterclaim for every claim then matured, and not the subject of a pending action, held by the pleader against any opposing party and arising out of the transaction or occurrence that is the basis of such opposing party’s claim, unless its adjudication would require the presence of indispensable parties of whom jurisdiction cannot be acquired. A final judgment on the merits shall bar such a counterclaim, although not pleaded.

Iowa R. Civ. P. 29 (now renumbered as Iowa Rule of Civil Procedure 1.241). Also highly relevant to the issue before us is Iowa Code section 631.7(4), which states in relevant part:

The rules of civil procedure pertaining to actions, joinder of actions, parties and intervention shall apply to small claims actions, except that rule 29 shall not apply. No counterclaim is necessary to assert an offset arising out of the subject matter of the plaintiffs claim. A counterclaim ... against an existing party is deemed denied and no responsive pleading by such party is required.

Iowa Code § 631.7(4) (2001) (emphasis added).

The prior action between these parties was commenced as a small claims action by Bergantzel. Bergantzel, 619 N.W.2d at 310. Consequently, rule 29 (now rule 1.241) does not apply, including the provision that an unasserted compulsory counterclaim is barred by a final judgment on the merits. Harris v. Jones, 476 N.W.2d 54, 54 (Iowa 1991) (holding rule that compulsory counterclaim is barred by final judgment in first action does not apply to small claims actions, and allowing such a claim to be asserted in a later lawsuit).

V. Conclusion and Disposition.

We hold the in pari delicto doctrine does not preclude Mlynarik’s recovery of the fees he paid to Bergantzel under their illegal and unenforceable contract. Nor does his failure to assert this claim in the prior small claims action filed by Bergant-zel bar the present suit. The district court erred in ruling that Mlynarik had failed to state a claim upon which relief may be granted. Therefore, we reverse the district court’s judgment and remand for further proceedings.

REVERSED AND REMANDED.

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

      . For purposes of our discussion, we have assumed Bergantzel and Mlynarik are in pari delicto. See Black’s Law Dictionary 794 (7th ed.1999) (defining "in pari delicto” as "[ejqually at fault”). Due to our conclusion that the general rule barring relief to a party in pari delicto does not apply, whether Ber-gantzel and Mlynarik are, in fact, in pari delicto is immaterial. Therefore, we do not consider whether the petition contains facts conclusively establishing that Bergantzel and Mlynarik were equally at fault. See Gen. Car & Truck Leasing Sys., Inc., 557 N.W.2d at 279 (staling "the doctrine applies only where the plaintiff was equally or more culpable than the defendant or acted with the same or greater knowledge as to the illegality or wrongfulness of the transaction”); In re Sylvester’s Estate, 195 Iowa at 1336, 192 N.W. at 445 (noting exception to in pari delicto rules where "the position of one party is essentially less illegal and blameworthy than that of the other”).


author: PAGE, Justice. HANSON, Justice GILBERT, Justice MEYER, Justice

text:
    STATE of Minnesota, Respondent, v. Gregory Alexander WELCH, Petitioner, Appellant.
    No. C9-01-1095.
    Supreme Court of Minnesota.
    Feb. 5, 2004.
    Rehearing Denied March 16, 2004.

      John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

PAGE, Justice.

After a bench trial, appellant Gregory Alexander Welch was convicted of kidnapping and attempted second-degree criminal sexual conduct in connection with events that occurred in Battle Creek Regional Park in St. Paul on August 31, 2000. He was sentenced to the statutory maximum of 150 months for attempted second-degree criminal sexual conduct and to a consecutive 45 months for kidnapping. The court of appeals affirmed the convictions, but remanded for reconsideration of a sentencing issue that is not before us. State v. Welch, No. C9-01-1095, 2002 WL 1013152, at ⅜2-⅜5 (Minn.App. May 21, 2002). Welch petitioned for further review of three issues: (1) whether the evidence was sufficient to support either conviction; (2) whether it was error to make the two sentences consecutive; and (3) whether the combined sentence unduly exaggerated the criminality of Welch’s conduct. We affirm the convictions for attempted criminal sexual conduct, but reverse the conviction and sentence for kidnapping.

Shortly before 5 p.m. on August 31, 2000, a 29-year-old woman, identified in this appeal as “S.V.,” was walking in Battle Creek Park, pushing her six-month-old daughter in a stroller. While she was walking in a secluded area of the park, she noticed that she was being followed by a man she did not know. She sped up to avoid the man, but he sped up as well. She “veered” toward an area of the park where she saw other people around. She then stopped, hoping the man would pass her, but instead he “tried to make conversation” with her. The man asked S.V. for her name, her baby’s name, and her baby’s sex. S.V. testified:

Then [the man] got closer to me, started looking at me and kind of looking at me up and down and asked me how old I was. I told him I was 30, I wanted to appear older. And he said, “No way, you’re not 30”. And he asked me where my boyfriend was, and I told him that my husband was right across the street. He got closer again and was looking at me and he said, “And he lets you out walking like this by yourself?” I said, “Oh, yeah, we’re just going over to the water park”. He knew the name of the water park, he said, “Oh, yeah, Water Works”. And that’s when I said, you know, ‘Tes, we’re going to go over there and look at the water park, we have to go”. And that’s when I was thrown on the ground.

The district court also found that the man had asked S.V. “how it was that her boy friend [sic] allowed her to walk in the park dressed as she was.”

After their dialogue, the man threw S.V. to the ground, and she responded by spraying him in the face with a can of Mace she carried on her key chain. With S.V. lying face-up on the ground and the man straddling her, the man took her hand and “slamm[ed]” it against the ground in an attempt to force her to drop the Mace. He then grabbed her hair with his other hand and “slamm[ed]” her head against the concrete sidewalk several times. Next, he started to choke her. S.V. “g[ave] him a Mck[,] and then he stood up all of a sudden.” She got to her feet and, noticing bystander Benjamin Steinmeyer in a nearby picnic area, she ran toward him while calling for help. After S.V. reached Steinmeyer, the assailant ran off. Steinmeyer called 911 from a pay phone in the park. S.V. and Steinmeyer gave descriptions of the assailant to the police officers who responded to the call. The police searched the park for the assailant, but did not find him.

The next day, September 1, 2000, S.V. identified Welch as her assailant from a photo lineup. Welch was charged with kidnapping under Minn.Stat. § 609.25, subds. 1(2) and 2(1) (2002), and attempted second-degree criminal sexual conduct under Minn.Stat. §§ 609.17, subd. 1, and 609.343, subd. l(e)(i) (2002). He waived his right to a jury trial. At trial, S.V. identified Welch as the assailant; Stein-meyer testified that Welch’s physical size and characteristics were “consistent” with those of the assailant; and both witnesses identified clothing obtained from Welch as the clothing the assailant had been wearing.

The prosecution introduced evidence of three prior incidents in which Welch approached women in Battle Creek Park under circumstances similar to this case. Much of this evidence came from an audio-taped September 20, 1996, police interview with Welch that was admitted as an exhibit. Welch does not now question the introduction of this evidence under State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), though he and the state disagree about the extent to which it supports his convictions.

1. Unnamed Woman # 1

In the taped interview, Welch told police interrogators that he was jogging one day while wearing only shoes and a scarf. He admitted that he had talked to a woman and “touched her” and that she had “started walking away.” Welch told police he masturbated as the woman was leaving and then put his clothes back on and continued jogging. There is no information on the record indicating whether Welch was ever charged, or the woman ever identified, in this incident.

2. Unnamed Woman # 2

In the audiotape, Welch admitted that he attacked an unidentified woman in Battle Creek Park on September 3, 1996. Welch agreed that he had dragged the woman into the bushes, choked her, and partially exposed her torso by pulling up her clothes. The woman lost consciousness briefly during this incident and, “[w]hen she regained consciousness, she found that her sports shirt had been pulled up to expose her breasts and Welch was several yards away masturbating.” Welch pleaded guilty to false imprisonment.

3. M.P.

At Welch’s trial, a woman identified by the initials M.P. testified that on September 18, 1996, she was walking on a paved trail in a wooded area of the park when she saw a man standing in her path. The man took M.P. by the shoulders, forced her off the pavement, and pushed her to the ground. The man pinned her to the ground with his arms and legs. M.P. noticed that the man’s zipper was open; his “intent seemed clear enough to” her. She testified that she stabbed him in the chest with her key and bit one of his fingers. After she “bit for awhile [sic], he just got up and left.” Police subsequently apprehended Welch, who was found walking several blocks from the scene of the attack. In the taped interview, Welch confessed to attacking M.P. Ultimately, he pleaded guilty to false imprisonment.

Based on the evidence presented, the court found Welch guilty of both kidnapping and attempted second-degree criminal sexual conduct. With respect to the attempted second-degree criminal sexual conduct offense, the court found that Welch’s “motivation was to obtain sexual gratification by exposing one or more of the [c]omplainant’s intimate parts and masturbating while looking at her. In order to fulfill this objective, he intended to remove, or touch, the clothing covering the immediate area of one or more of Complainant’s intimate parts.” Buttressing this finding, the court also found that (1) Welch’s “initial conversation with [c]om-plainant had a discernable sexual overtone” and (2) the “positioning of Complainant [during the attack] has sexual overtones.”

After a sentencing hearing, the court sentenced Welch to 45 months in prison for kidnapping. The court then made three findings: (1) that Welch was a patterned sex offender as defined by Minn. Stat. § 609.108 (2002); (2) that there were aggravating circumstances “in that the attempted criminal sexual conduct did occur in the presence of a child”; and (3) that Welch was a dangerous offender under Minn.Stat. § 609.1095 (2002). Based on these findings, the court sentenced Welch to the statutory maximum of 150 months for attempted second-degree criminal sexual conduct and made the two sentences consecutive.

The court of appeals upheld the convictions. Welch, 2002 WL 1013152, at *2 *5. It also rejected most of Welch’s arguments regarding sentencing, holding that “[o]ver-all, appellant’s 195-month sentence is fair,” but reversed in part and remanded “for the limited purpose of having the sentence reconsidered in light of’ Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and State v. Grossman, 622 N.W.2d 394 (Minn.App.), aff'd, 636 N.W.2d 545 (Minn.2001). Welch, 2002 WL 1013152, at *4. The state did not seek review of the remanded issue.

I.

Welch argues that the evidence adduced at trial was insufficient to convict him of attempted second-degree criminal sexual conduct because the state failed to prove that he intended to accomplish sexual contact with S.V.

When reviewing a claim of insufficient evidence, this court’s inquiry is limited to whether the fact finder could have reasonably concluded that defendant was guilty beyond a reasonable doubt. State v. Huss, 506 N.W.2d 290, 292 (Minn.1993). The court views the evidence in the light most favorable to the verdict and assumes that the fact finder believed the state’s witnesses and disbelieved any contrary evidence. Id.

The district court found that Welch “intended to remove, or touch, the clothing covering the immediate area of one or more of [c]omplainant’s intimate parts.” The court based this finding upon Welch’s past actions, as revealed in the Spreigl evidence, the “discernable sexual overtone” of Welch’s initial conversation with S.V., and the position of Welch’s body on top of S.V. during the attack.

Welch argues that the state “failed to prove that [he] intended to accomplish sexual contact.” He disputes the court’s findings regarding any “sexual overtone” and argues that the Spreigl evidence actually supports his claim because he was not convicted of a sex crime in the prior incidents and because there is no evidence that he ever touched the “intimate parts” of the victims of the incidents. The evidence of the prior attacks, Welch argues, supports his assertions that he has never intended to rape or have sexual contact with the women he “confronts.”

Criminal sexual conduct in the second degree is defined as follows:

A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exists:
(e) the actor causes personal injury to the complainant, and
⅜ ⅝ * :H
(i) the actor uses force or coercion to accomplish the sexual contact * * *.

Minn.Stat. § 609.343, subd. 1. For these purposes, “sexual contact” is defined as follows:

any of the following acts committed without the complainant’s consent, * ⅜ ⅜ and committed with sexual or aggressive intent:
(i) the intentional touching by the actor of the complainant’s intimate parts, or
* * * *
(iv) in any of the cases above, the touching of the clothing covering the immediate area of the intimate parts.

Minn.Stat. § 609.341, subd. 11(a) (2002).

“Attempt” is defined as follows:

Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime * * *.

Minn.Stat. § 609.17, subd. 1. Interpreting the intent prong of “attempt,” this court has stated that “ ‘an attempt to commit any crime requires a specific intent to commit that particular offense.’ ” State v. Zupetz, 322 N.W.2d 730, 734 (Minn.1982) (quoting Rollin M. Perkins, Criminal Law at 573-74 (2d ed.1969)). “Intent is an inference drawn by the [finder of fact] from the totality of circumstances.” State v. Raymond, 440 N.W.2d 425, 426 (1989).

Viewing the evidence in the light most favorable to the verdict, Welch’s arguments are not persuasive. The district court’s finding that the initial conversation between S.V. and Welch contained a “sexual overtone” is supported by the evidence. Second-degree criminal sexual conduct does not require an intent to commit rape. Under Minn.Stat. § 609.341, subd. 11(a), “sexual contact” includes the intentional “touching of the clothing covering the immediate area of the intimate parts” when that touching is “committed with sexual * * * intent.” In light of the “sexual overtone” of Welch’s statements to S.Y., the Spreigl evidence concerning Unnamed Woman #2 (where Welch partially exposed the torso of his victim by pulling up her clothes before masturbating near her), and the positioning of Welch on top of S.V., it was not error for the district court to find both sexual intent and intent to engage in sexual contact.

II.

Welch argues that the failure to prove the underlying felony of attempted second-degree criminal sexual conduct eliminated a necessary element of his kidnapping conviction, that it be done to facilitate a felony. “Kidnapping” is defined as follows:

Whoever, for any of the following purposes, confines or removes from one place to another, any person without the person’s consent or, if the person is under the age of 16 years, without the consent of the person’s parents or other legal custodian, is guilty of kidnapping and may be sentenced as provided in subdivision 2:
* * * *
(2) To facilitate commission of any felony or flight thereafter; or
(3) To commit great bodily harm or to terrorize the victim or another * * *.

Minn.Stat. § 609.25, subd. 1. Because we hold that there was sufficient evidence to justify the criminal sexual conduct conviction, Welch’s challenge to the underlying felony element of his kidnapping conviction also fails.

Welch does not argue that his actions were too minimal to constitute confinement or removal for purposes of the crime of kidnapping. But, while Welch’s appeal was pending, this court decided State v. Smith, 669 N.W.2d 19 (Minn.2003), which held as follows:

We believe that confinement or removal must be criminally significant in the sense of being more than merely incidental to the underlying crime, in order to justify a separate criminal sentence. Under our current sentencing scheme, convictions that solely rely on acts incidental to the commission of one crime— here confining Holder in the course of murder — to constitute the elements of kidnapping (confinement) unduly exaggerate the criminality of the conduct. We conclude that where the confinement or removal of the victim is completely incidental to the perpetration of a separate felony, it does not constitute kidnapping.

Id. at 32 (footnote omitted).

In this case, the facts clearly do not support a conviction for kidnapping. No removal — let alone nonincidental removal' — -is even alleged. Further, the confinement that forms the basis of the kidnapping is the very force and coercion that supports the attempted second-degree criminal sexual conduct conviction. If such incidental conduct can support a kidnapping conviction, it is difficult to hypothesize about any sexual assault or attempted sexual assault that would not also constitute a kidnapping. Indeed, the state seemed to concede as much at oral argument.

Because the evidence here shows no removal and less confinement than was present in Smith, the application of our holding in Smith requires that the conviction for kidnapping be reversed and the sentence for kidnapping be vacated. This conclusion also embraces the reasoning and concerns set forth in our established precedent that kidnapping convictions may unfairly exaggerate “the criminality of a defendant’s conduct in those cases where the confinement was completely incidental to the crime committed during the course of kidnapping.” State v. Crocker, 409 N.W.2d 840, 845 (1987); see also State v. Morris, 281 Minn. 119, 128-24, 160 N.W.2d 715, 718 (1968).

Affirmed in part and reversed in part.

HANSON, Justice

(concurring in part, dissenting in part).

Although I concur in the affirmance of Welch’s conviction for attempted second-degree criminal sexual conduct, I dissent on the reversal of Welch’s conviction for kidnapping. I would not reach the issue of the sufficiency of the evidence to support the kidnapping conviction because Welch did not argue that issue on appeal and the state has been given no opportunity to address it.

Welch did challenge the imposition of consecutive sentences for kidnapping and attempted second-degree criminal sexual conduct. I would conclude that such sentencing unduly exaggerates the criminality of Welch’s conduct because the kidnapping conviction was based on minimal confinement and the sentence for criminal sexual conduct reflected an upward departure more than six times the presumptive sentence. I would modify Welch’s sentences of 150 months for attempted criminal sexual conduct and 45 months for kidnapping to run concurrently.

GILBERT, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice HANSON.

MEYER, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice HANSON.

      . The sentencing transcript indicates that the court imposed a 54-month sentence for kidnapping. However, the parties and the court of appeals agree that a 45-month sentence was imposed instead. The list of documents accompanying the record suggests that an amended warrant of commitment was filed to correct the sentence to 45 months.

      . Section 609.108, subdivision 1(a)(3), defines a “patterned sex offender” as “one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls.” The statute sets forth procedural requirements for finding a convict to be a patterned sex offender, id. at subd. l(a)(l)-(3), and thereupon allows a court to impose a sentence "not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum, or if the statutory maximum is less than double the presumptive sentence, for a period of time that is equal to the statutory maximum.” Id. at subd. 1. Welch does not contest the trial court's finding that he qualified as a patterned sex offender under the statute.

      . Before the court of appeals, the parties stipulated that the district court's finding that Welch was a dangerous offender under Minn. Stat. § 609.1095 was error.

      . During oral argument, the following questioning occurred:
      [Court]: I want you to give me an example of when you can rape somebody and not kidnap them.

        [State]: Well, I suppose the easiest one would be when you rape a sleeping woman. You can accomplish a—
      [Court]: Is that the only — okay, I mean, you could dispute that, but is there anything else besides a sleeping woman, or a woman in a coma.
      [State]: It would perhaps be difficult to separate them out, yes.
      [Court]: So every rape is an automatic kidnapping, basically, if I agree with you that a sleeping woman would not be confined.
      [State]: Well, if you take away that example, and you say that any physical restraint on a woman during a rape is a kidnapping, I would probably agree that it does fit the elements of kidnapping as this court has set them out.

      . Beyond our concern that the criminality of a defendant's conduct may be unfairly exaggerated when the confinement justifying the kidnapping charge is completely incidental to the underlying criminal sexual conduct offense, we note that if every sexual assault or attempted sexual assault also constitutes a kidnapping, the attendant fiscal ramifications could be overwhelming given that the maximum possible sentence for kidnapping under Minn.Stat. § 609.25, subd. 2(2), is "imprisonment for not more than 40 years.”


author: GILBERT, Justice.

text:
    Judd TURNER, et al., Appellants, v. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Appellant, Liberty Mutual Fire Insurance Company, Respondent.
    No. C9-02-2029.
    Supreme Court of Minnesota.
    March 4, 2004.
    Donald R. McNeil, Jr., Stephen F. Bute-rin, Coleman, Hull & Van Vliet, P.L.L.P, Fredrick C. Brown, Jr., Smith Parker, P.L.L.P., Minneapolis,-for Appellants Turners.
    Jack D. Moore, Moore, Warner & Kruger, St. Paul, for Appellant Mut. Service Ins. Co.
    Nancy L. Gores, Conley & Borgeson, St. Paul, Theodore J. Smetak, Douglas D. McGhee, Arthur, Chapman, Kettering, Smetak & Pikala, P.A, Minneapolis, for Respondent.
    Paul D. Peterson, Harper & Peterson, P.L.L.C., Woodbury, for Amicus MTLA.
   OPINION

GILBERT, Justice.

This is a case of first impression involving a question of whether the Minnesota No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41-.71 (2002), requires commercial automobile policies to provide uninsured or underinsured motorist coverage (“UM/UIM”) to occupants of an out-of-state rental vehicle. The court of appeals held that MinmStat. § 60A.08, subd. 12 (2002) requires commercial policies to provide only for damage and loss of use to rental vehicles pursuant to Minn.Stat. § 65B.49, subd. 5a (2002). Turner v. Mutual Serv. Cas. Ins. Co., 663 N.W.2d 36, 41 (Minn.App.2003). We affirm.

In November 1999, Judd and Terese Turner traveled to New Orleans to attend a conference on behalf of Judd Turner’s employer, Express Scripts. . Express Scripts’ corporate travel agency arranged the trip itinerary, air travel, hotel and a car rental from Budget Rent-A-Car. The company travel policy directed the Turners to decline additional insurance from Budget Rent-A-Car. Costs associated with the Turners’ travel, including the car rental, were charged through a corporate credit card and later paid by Express Scripts.

On November 7, 1999, while driving towards Baton Rouge, the Turners were involved in a serious car accident with another car that was in the wrong lane. The head-on collision killed the driver and a passenger in the other car and injured the Turners. State Farm Insurance insured the other car, with policy limits of $25,000 per person and $50,000 per accident. State Farm Insurance settled the death claim of the estate of the other driver’s passenger for $25,000, and the bodily injury claims of the Turners for all remaining liability coverage of $25,000. Costs associated with the Turners’ injuries exceeded the State Farm Insurance payment. Mutual Service Casualty Insurance Company (MSI) insured the Turners with personal coverage and provided UM/UIM coverage with a limit of $250,000 per person and $500,000 per accident. Respondent Liberty Mutual Fire Insurance Company provided commercial coverage to Express Scripts that carried $1,000,000 in UM/UIM coverage.

Respondent’s commercial policy provided coverage for an “insured,” that was defined as anyone who uses, with the policyholders permission, “a covered ‘auto’ you own, hire or borrow * * UM/UIM coverage was restricted to persons occupying a “covered auto,” that was defined as “[ojnly those ‘autos’ you own that because of the law in the state where they, are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage.” Under the policy terms, Express Scripts had only one commercial vehicle, a Dodge Caravan, that was subject to a long-term lease and that vehicle was used and garaged in Minnesota.

A declaratory judgment action was filed by the Turners to resolve a dispute regarding the UM/UIM coverage. Respondent denied that it should have provided UM/UIM coverage for this accident. MSI denied that it had primary UM/UIM coverage. The district court found that respondent’s commercial insurance policy was required to provide UM/UIM coverage per Minn.Stat. § 60A.08, subd. 12. The district court then applied the $1,000,000 UM/UIM coverage that had been designated to Express Scripts’ company vehicle.. It designated respondent’s coverage as primary, and the Turners’ personal coverage as secondary.

The court of appeals reversed, holding that Minn.Stat. § 60A.08, subd. 12 requires commercial policies to provide only for damage and loss of use to rental vehicles pursuant to Minn.Stat. § 65B.49, subd. 5a. Turner, 663 N.W.2d at 41. The court noted that the Turners have access to UM/UIM coverage under their personal insurance policy. Id. at 42 n. 1. We granted review on the statutory question.

I.

The interpretation of a statute is a question of law that we review de novo. Hertz Corp. v. State Farm Mut. Ins. Co., 573 N.W.2d 686, 688 (Minn.1998). The Minnesota No-Fault Automobile Insurance Act requires every motor vehicle owner to maintain a certain amount of UM/UIM coverage. Minn.Stat. § 65B.49, subd. 3a(2) (2002). The purpose of UM/ UIM coverage is to protect named insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile. Myers v. State Farm Mut. Auto. Ins. Co., 336 N.W.2d 288, 291 (Minn.1983). In 1985, the legislature adopted several amendments to the No-Fault Act, including a new section governing UM/UIM coverage. Act of June 27, 1985, ch. 10, § 68, 1985 Minn. Laws, 1st Spec. Sess. 1781, 1840-41 (codified at Minn.Stat. § 65B.49, subd. 3(a)). One of the updated provisions provides:

The uninsured and underinsured motorist coverages required by this subsection do not apply to bodily injury of the insured while occupying a motor vehicle owned by the insured, unless the occupied vehicle is an insured motor vehicle.

Minn.Stat. § 65B.49, subd. 3a(7) (2002). We have interpreted that provision as moving UM/UIM coverage away from coverage that follows the individual policyholder and instead ties it to the particular vehicle specified in the insurance policy. Hanson v. Am. Family Mut. Ins. Co., 417 N.W.2d 94, 96 (Minn.1987). Before the 1985 amendment, we considered UM/UIM insurance to be coverage tied to the individual. Id. at 95. We noted that the legislature passed this amendment “to stem rising insurance costs, which it traced in part to prior law requiring expansive interpretation of vehicle insurance coverage.” Id. (citing Hearing on H.F. 345, before the Sen. Com. Econ. Dev. and Comm., 74th Minn. Leg., April 16, 1985 (comments of Senator Petty, senate sponsor of the 1985 amendments)).

The current statute requiring UM/UIM coverage is Minn.Stat. § 65B.49, subd. 3a(2), which provides that “[ejvery owner of a motor vehicle registered or principally garaged in this state shall maintain uninsured and underinsured motorist coverages as provided in this subdivision.” The minimum UM/UIM coverage is detailed in Minn.Stat. § 65B.49, subd. 3a(l) (2002), providing that “[ejach coverage, at a minimum, must provide limits of $25,000 because of injury to or the death of one person in any accident and $50,000 because of injury to or the death of two or more persons in any accident.” Individuals may select and purchase the amount of UM/ UIM coverage they desire on their own automobile insurance policy up to the bodily injury liability limits of that policy, as long as the coverage at least meets the statutory minimum. See Minn.Stat. § 65B.49, subd. 3a(3) (2002).

Minnesota also requires commercial insurance policies to contain a certain amount of insurance coverage for rental vehicles. Minn.Stat. § 60A.08, subd. 12, provides that “[a]ll commercial automobile liability policies must provide coverage for rented vehicles as required in chapter 65B. This coverage can be excess over any and all specific motor vehicle coverage that is applicable.” The phrase “as required in chapter 65B” is not further clarified, and constitutes the crux of the current dispute. Appellants argue, and the district court agreed, that all the requirements of chapter 65B should apply to rental cars per Minn.Stat. § 60A.08, subd. 12. Respondent argues, and the court of appeals agreed, that only Minn.Stat. § 65B.49, subd. 5a, a subdivision concerning “rental vehicles,” should apply to Minn.Stat. § 60A.08, subd. 12.

Chapter 65B of the Minnesota Statutes details an extensive list of requirements for automobile insurance, including UM7 UIM coverage. One subdivision of chapter 65B specifically concerns rental cars. See Minn.Stat. § 65B.49, subd. 5a. The rental car provision does not contain a reference to UM/UIM coverage. See id. According to the pertinent section of Minn. Stat. § 65B.49, subd. 5a:

(a) Every plan of reparation security insuring a natural person as named insured * * * must provide that all of the obligation for damage and loss of use to a rented private passenger vehicle, including pickup trucks and vans as defined under section 168.011, and rented trucks with a registered gross vehicle weight of 26,000 pounds or less would be covered by the property damage liability portion of the plan. * * * The obligation of the plan must not be contingent on fault or negligence. In all cases where the plans property damage liability coverage is less than $35,000, the coverage available under the subdivision must be $35,000.

Minn.Stat. § 65B.49, subd. 5a(a) (emphasis added). Another subdivision within chapter 65B requires UM/UIM coverage, but makes no mention of rental vehicles. See Minn.Stat. § 65B.49, subd. 3a (2002).

Respondent argues that only subdivision 5a of chapter 65B.49, the rental vehicle subdivision, should apply where Minn.Stat. § 60A.08, subd. 12 requires coverage for “rented vehicles as required in chapter 65B,” because that subdivision is the only section of the chapter that specifically refers to rental cars. Appellants argue that all of chapter 65B should apply to rental cars per Minn.Stat. § 60A.08, subd. 12, because had the legislature intended to limit coverage to a single subdivision concerning “rental vehicles,” it would have specified the requirement as such, instead of broadly pointing to “chapter 65B.”

Appellants further argue that public policy dictates a UM/UIM requirement for rental cars. According to appellants, the court of appeals’ interpretation of the act would cause a “gap” to occur in no-fault insurance coverage for those business travelers who do not have personal coverage, leaving those travelers without coverage, a result presumably contrary to the purpose of the act.

According to rules of statutory interpretation, when the words of a law in their application to an existing situation are clear, the letter of the law shall not be disregarded under the pretext of pursuing the spirit. Minn.Stat. § 645.16 (2002). A plain reading of the statute supports the interpretation utilized by the court of appeals. Where Minn.Stat. § 60A.08, subd. 12, points to “rented vehicles as required in chapter 65B,” it makes logical sense,, as the court of appeals held, to strictly associate the subdivision regarding “rental vehicles” with the statutory requirement concerning “coverage for rented vehicles.” This rationale would be different if, for example, the subdivision regarding UM/ UIM coverage was more expansive.

We have recognized that the legislature, in 1985, narrowed the UM/UIM statute “to stem rising insurance costs, which it traced in part to prior law requiring expansive interpretation of vehicle insurance coverage.” Hanson, 417 N.W.2d at 96. The district court’s interpretation, that the “rental vehicle” subdivision was simply one of many requirements for commercially rented vehicles within chapter 65B, appears to be overly broad and contrary to the legislatures attempt'to stem rising insurance coverage. This interpretation would require Minnesota corporations to provide UM/UIM coverage to employees regardless of whether the employee is occupying a covered auto, has residency, or any other personal association with Minnesota. Such a result contradicts the legislature’s intention in 1985, when the UM/UIM subdivision was narrowed. As we have noted, following the 1985 amendments, UM7 UIM coverage moved away from coverage that follows an individual policyholder, and now is tied to the particular vehicle involved in the accident. Hanson, 417 N.W.2d at 96. The UM/UIM endorsement in respondent’s policy provided coverage for persons occupying a “covered auto,” in this case, a Dodge Caravan.

After limiting the “rented vehicle” requirement to the “rental vehicle” subdivision, a plain reading of that subdivision supports the court of appeals’ conclusion that Minn.Stat. § 65B.49, subd. 5a(a) (dealing with rental vehicles) was clearly meant to protect only the vehicle from damage where it states that every plan “insuring a natural person as named insured, covering private passenger vehicles * ⅜ * must provide that all of the obligation for damage and loss of use to a rented private passenger vehicle, * * * would be covered by the property damage liability portion of the plan.” Turner, 663 N.W.2d at 41 (quoting Minn.Stat. § 65B.49, subd. 5a(a)). A close reading of the subdivision supports the court of appeals’ interpretation, as the statute specifically points to “damage and loss of use to a rented private passenger vehicle,” and does not indicate additional, broader coverage. Minn.Stat. 60A.08, subd. 12, would not, as appellants assert, create UM/UIM commercial policy coverage of rental vehicles unless the commercial policy itself provides such coverage.

Affirmed.'


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Kenneth F. JOHANNSON, a Minnesota Attorney, Registration No. 5043X.
    No. A04-246.
    Supreme Court of Minnesota.
    March 9, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Kenneth F. Johannson has committed professional misconduct warranting public discipline, namely, that respondent engaged in a sexual relationship with a client in 1998 and 1999 in violation of Minn. R. Prof. Conduct 1.8(k).

Respondent admits his conduct violated the Rules of Professional Conduct, 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 the appropriate discipline is a 90-day suspension and payment of $900 in costs under Rule 24, RLPR.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Kenneth F. Johannson is suspended from the practice of law for 90 days effective 14 days from the date of this order. Respondent may be reinstated under Rule 18(f), RLPR, by filing an affidavit with the Clerk of Appellate Courts and the Director of the Office of Lawyers Professional Responsibility 15 days prior to the expiration of the 90-day suspension establishing that he is current with continuing legal education requirements and has fully complied with Rules 24 and 26, RLPR. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Paul H. Anderson Associate Justice

ANDERSON, Russell A., took no part in the consideration or decision of this case.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael Terry FLODINE, a Minnesota Attorney, Registration No. 283964.
    No. A04-248.
    Supreme Court of Minnesota.
    March 9, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Michael Terry Flodine has committed professional misconduct warranting public discipline; namely (1) he engaged in a pattern of neglect, noncom-munication, failure to make court appearances, failure to safeguard client property and failure to properly withdraw from representation in violation of Minn. R. Prof. Conduct 1.3, 1.4, 1.5, 1.15(a), 1.16(d), and 8.4(d); (2) he failed to appear for a hearing on charges of second-degree assault, burglary and malicious damage to property filed against him and was convicted of second-degree assault in Maryland in violation of Minn. R. Prof. Conduct 8.4(d); and (3) he failed to timely respond to notices of investigation in violation of Minn. R. Prof. Conduct 8.1(a) and 8.4(b) and (d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is indefinite suspension for a minimum of six months followed by supervised probation subject to terms and conditions to be determined at the time of reinstatement and payment of $900 in costs under Rule 24, RLPR.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Michael Terry Flodine is indefinitely suspended from the practice of law effective 14 days from the date of this order with no right to apply for reinstatement for at least six months from the date of this order. Upon reinstatement respondent shall be placed on probation subject to the terms and conditions determined by the court at the time of reinstatement. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


text:
    David Wayne WASHINGTON, Appellant, v. STATE of Minnesota, Respondent.
    No. A03-1633.
    Supreme Court of Minnesota.
    March 11, 2004.

      David Wayne Washington, Minnesota Correctional Facility, Bayport, for Appellant.
    Mike A. Hatch, Minnesota Attorney General, St. Paul, James. C. Backstrom, Dakota County Attorney, and Kathryn M. Keena, Assistant Dakota County Attorney, Dakota County Judicial- Center, Hastings, for Respondent.
   OPINION

GILBERT, Justice.

A jury convicted appellant, David Wayne Washington, of first-degree premeditated murder, conspiracy to commit first-degree premeditated murder, and two counts of second-degree murder. Appellant appeals from the postconviction court’s summary denial of his petition for postconviction relief. Appellant argues that the post-conviction court abused its discretion by refusing to grant a hearing and denying his petition. We affirm the postconviction court.

On November 6, 1992, Edward ODneal’s body was found in Lilydale Park in St. Paul. State v. Washington, 521 N.W.2d 35, 37 (Minn.1994). A jury convicted appellant of ODneal’s murder. Id. On direct appeal, we addressed two issues in affirming appellant’s conviction. First, we held that the prosecutor’s improper references to appellant’s character during closing argument did not substantially influence the jury to convict. Id. at 41. Second, we held that the admission of a witness’s statements constituted harmless error because other evidence overwhelmingly showed appellant’s guilt. Id. at 42.

Appellant petitioned the district court for postconviction relief on five occasions. All five petitions, which appellant undertook pro se, were denied summarily. Appellant’s first, fourth, and fifth petitions were denied by Judge Thomas R. Lacy, while petitions two and three were denied by then First District Chief Judge Leslie M. Metzen. Appellant refrained from appealing the denial of relief in his first four petitions, but now chooses to appeal the denial of his fifth petition asserting that: (1) the trial court erroneously admitted the statements of codefendant Michael Word-low into evidence while Wordlow was under psychological evaluation; (2) the trial court erroneously entered appellant’s admission to police into evidence; (3) Judge Lacy impermissibly ruled on a motion to remove himself .from postconviction proceedings; (4) the- trial court erroneously omitted CRIMJIG 3.18, a cautionary jury instruction regarding accomplice testimony; and (5) appellant received ineffective assistance of counsel due to counsel’s failure to object to the omission of CRIMJIG 3.18. CRIMJIG 3.18, 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, § 3.18 (4th ed.1999) (hereinafter “CRIMJIG 3.18”),

Minnesota Statutes § 590.04, subd. 1 requires the postconviction court to schedule a hearing on a petition for post-conviction relief, unless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief. Minn.Stat. § 590.04, subd. 1 (2002). “On appeal from a summary denial of post-conviction relief, we examine whether sufficient evidence exists to support the post-conviction court’s findings and will reverse those findings only upon proof that the postconviction court abused its discretion.” Ives v. State, 655 N.W.2d 633, 635 (Minn.2003) (citing Roby v. State, 547 N.W.2d 354, 356 (Minn.1996)).

In State v. Knaffla, we held that any issues raised on direct appeal, or known by the defendant but not raised on direct appeal, are not considered in a subsequent petition for postconviction relief. 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). There are two exceptions to the Knaffla rule relevant to the present case: (1) where a novel legal issue is presented; or (2) where the interests of fairness require relief. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001).

First, appellant argues that the trial court erred by admitting the witness testimony of Michael Wordlow into evidence. Appellant contends that during the trial Wordlov/s mental state was under evaluation and admitting his statements violated Minn. R.Crim. P. 20.01, subd. 2. It is evident from the trial transcript that the trial court addressed the issue of Word-low’s testimony and heard arguments from both parties prior to finding Wordlow’s testimony admissible. Clearly, appellant was aware of this issue before his direct appeal, yet chose not to raise the issue at that time. Therefore, appellant’s claim with respect to the testimony of Michael Wordlow is procedurally barred by Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

Second, appellant argues that the trial court should have suppressed a written statement he gave to the Dakota County police on November 6, 1992. Appellant contends that the statements were obtained during a custodial interrogation and that admitting them into evidence denied him his privilege against self-incrimination. In appellant’s view this error warranted a postconviction hearing, which was denied to him by the postconviction court. At appellant’s omnibus hearing, he moved the trial court to suppress all statements and admissions he had given to police. The trial court considered arguments from both parties, made findings of fact, and denied appellant’s motion. Appellant’s motion on this specific issue unequivocally demonstrates that he knew of the suppression issue before direct appeal but elected not to raise it. Therefore, appellant’s claim with respect to suppression of his statements to police is procedurally barred by Knaffla. Id.

Third, appellant appeals the postconviction court’s denial of his motion to remove Judge Lacy. It appears from the record that appellant raised the identical motion for removal of postconviction Judge Lacy on three occasions. In each motion to remove Judge Lacy appellant contended that Judge Lacy, motivated by bias, issued an adverse ruling regarding the testimony of Michael Wordlow and omitted the accomplice testimony jury instruction. See CRIMJIG 3.18.

In August 2000 and March 2001, Chief Judge Metzen denied appellant’s first two motions to remove Judge Lacy. Appellant did not seek appellate review of either of Chief Judge Metzen’s rulings. Instead, in appellant’s fifth petition for postconviction relief, he reiterated his motion to remove Judge Lacy. Judge Lacy denied the petition, including the motion to remove himself from the proceedings, summarily. Thereafter, appellant appealed to this court citing Minn. R.Crim. P. 26.03, subd. 13(3), which states, “A request to disqualify a judge for cause shall be heard and determined by the chief judge of the judicial district * *

On appeal, appellant asserts that, although his first two motions were ruled upon by the chief judge of the district, Judge Lacy was prohibited from ruling upon a motion to remove himself. Minn. R.Crim. P. 26.03, subd. 13(3). Appellant did not raise the issue of judicial bias on direct appeal nor did he appeal previous failed motions to remove Judge Lacy. Given appellant’s basis for alleging judicial bias, it is clear that he knew of the issue prior to direct appeal. In a successive petition for postconviction relief, “we will not consider claims which appellant raised or knew of and could have raised in earlier review.” Wayne v. State, 601 N.W.2d 440, 441 (Minn.1999) (citing Knaffla, 309 Minn. at 252, 243 N.W.2d at 741 (1976)). We therefore conclude that appellant’s motion is procedurally barred.

Finally, appellant argues that the trial court omitted CRIMJIG 3.18, a cautionary jury instruction regarding accomplice testimony. Appellant’s claim is frivolous and without merit because, as the transcript plainly demonstrates, CRIMJIG 3.18 was in fact provided to the jury. Consequently, appellant’s claim that he received ineffective assistance of trial counsel due to counsel’s failure to object to the omission of CRIMJIG 3.18 is also frivolous and without merit.

We therefore hold that the posteon-viction court did not abuse its discretion in denying appellant’s petition without a hearing.

Affirmed.

      . Although unnecessary to our decision, it is important to note that, in accord with Rule 26.03, Chief Judge Metzen ruled on appellant’s first and second motions to remove Judge Lacy before Judge Lacy ruled on the motion himself. Further, the extensive trial court record and transcript lack any indication that Judge Lacy acted with bias. Appellant has failed to identify any ground to support his assertion of bias. A single adverse evidentiary finding by itself does not demonstrate a lack of impartiality or support a claim of bias. McKenzie v. State, 583 N.W.2d 744, 747 (Minn.1998).