text:
    2003 ND 88
    K.L.B., Plaintiff, and Daniel P. Richter, Director of Ward County Social Service Board, Plaintiff and Appellant, v. S.B., Defendant and Appellee.
    No. 20030034.
    Supreme Court of North Dakota.
    June 3, 2003.

      Leah Jo Viste (argued) and Tina M. Heinrich (appeared), Assistant State’s Attorneys, Minot, N.D., for plaintiff and appellant.
    S.B. (argued), pro se, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] The Ward County Social Service Board (“Ward County”) appealed from an order directing Ward County, through the office of child support enforcement, to conduct paternity testing for K.L.B. (“Kathy”), S.B. (“Scott”), and D.F. (“Dan”). We vacate the order and remand with directions the court hold a hearing for purposes of determining whether the court should vacate a December 11, 2001, judgment under N.D.R.Civ.P. 60(b) and entertain proceedings to determine Dan’s paternity.

I

[¶ 2] Kathy and Scott were married on September 4, 1993, and they separated in 1996. Dan was born on July 8, 2001. Kathy received financial assistance from Ward County and assigned to it her support rights against the child’s father. In October 2001, Ward County filed a complaint seeking child support from Scott. He did not make an appearance for the child support proceedings. Kathy appeared at the hearing and testified Scott was likely not the father of Dan. Ward County indicated it would not resist blood tests if the court ordered them but recommended the court enter a default judgment against Scott, relying on the statutory presumption of paternity. The court entered judgment ordering Scott to pay child support of $168 per month, plus an additional $20 per month towards $840 of child support arrearages. Judgment was entered on December 11, 2001. No appeal was taken from that judgment.

[¶ 3] Scott wrote to Judge Everett Neis Olson asking him “to stop the child support for the child that isn’t mine and a refund of all monies paid in.” Judge Olson responded, in a letter dated March 12, 2002:

Your recent letter to the Court indicates a misconception that it is the Minot Regional Child Support Office that has taken the position as an agency, that you are the natural father of [Dan], Actually, it is North Dakota law that presumes you to be the father. I enclose N.D.C.C. § 14-17-04 for your consideration. An action brought for the purpose of declaring the nonexistence of a father and child relationship is authorized under N.D.C.C. § 14-17-05 (attached).
Because no action is currently pending to declare the nonexistence of a father and child relationship, I will be making no further response to your correspondence. If you have any additional questions, I would suggest that you seek assistance from an attorney.

[¶ 4] In a second letter to Judge Olson, dated November 5, 2002, Scott asserted he was not Dan’s father, and he asked for a hearing on the issue. Judge Olson re-cused himself, and the presiding judge reassigned the case to Judge Gary A. Ho-lum. Without holding a hearing or conducting further proceedings, Judge Holum wrote a letter on December 4, 2002, ordering Ward County to conduct, through its office of child support enforcement, appropriate testing to determine paternity of Dan.

[¶ 5] On December 16, 2002, Scott sent Judge Holum another letter requesting “suspension” of child support billings for an older child Scott and Kathy had together during the marriage, claiming he had custody of the child. Judge Holum responded by letter on December 18, 2002, acknowledging Scott’s letter and stating, “[o]nce the results are in from the paternity testing I will rule on your most recent letter.”

II

[¶ 6] If the court’s order directing paternity tests to be conducted by Ward County had been entered in a pending action, it would be an interlocutory order that does not resolve issues of paternity or child support. As an interlocutory order it is not appealable. See Dimond v. State Board of Higher Education, 1999 ND 228, ¶ 9, 603 N.W.2d 66. We therefore dismiss the appeal.

[¶ 7] However, dismissal of the appeal would leave standing an order entered outside the context of a properly pending action. Therefore, to prevent a distortion of justice, we treat Ward County’s attempted appeal as a request for us to exercise our original jurisdiction and our authority to supervise the district court. See Boedecker v. St. Alexius Hospital, 298 N.W.2d 372, 374 (N.D.1980). The court neither held a hearing on Scott’s request, nor did it rule on the appropriateness, under the circumstances, of vacating the judgment and conducting further proceedings. We conclude the district court failed to follow appropriate procedure or substantive law in entering its order requiring Ward County to conduct paternity tests. We, therefore, vacate the order.

Ill

[¶ 8] This Court favors determinations on their merits and has approved the vacating of a default judgment of paternity when circumstances justified it under a properly raised motion for relief from the judgment under N.D.R.Civ.P. 60(b). Throndset v. J.R., 302 N.W.2d 769, 772 (N.D.1981). In Throndset, 302 N.W.2d at 774, this Court stated:

Paternity may be denied by the putative father or a man determined to be the father after judicial proceedings. That denial may well have a more detrimental effect on a child when the judicial proceedings have culminated in a default judgment which the court has refused to vacate upon the request of a man who wishes to have blood tests taken to determine his parenthood and who seemingly questions whether or not he is the actual father of the child.
We therefore believe it is preferable that the matter of Roe’s paternity of Ada be determined in a judicial proceeding rather than by default judgment so that this cloud at least will be removed from Ada’s birth record and from her future.

[¶ 9] Although Scott did not file a formal Rule 60(b) motion in this case, the court could treat his November 5, 2002, letter as a motion to vacate the December 11, 2001, judgment. See Green v. Green, 1999 ND 86, ¶ 6, 593 N.W.2d 398; Neubauer v. Neubauer, 524 N.W.2d 593, 594-95 (N.D.1994). However, the district court, prior to ordering paternity testing, did not have a hearing and made no findings that the circumstances justified vacating the 2001 judgment. Under these circumstances, and to prevent a miscarriage of justice, we direct the district court to treat Scott’s November 5, 2002, letter as a request to vacate the December 11, 2001, judgment. The court must hold a hearing after Ward County and Kathy have received appropriate notice and have had an opportunity to respond. The court can then make a decision whether, under the circumstances, the judgment should be vacated. If the December 11, 2001, judgment is vacated, the child support issue remains pending and unresolved.

[¶ 10] Scott was ordered to pay child support for Dan because he was married to the child’s mother and was, therefore, presumed to be the natural father under N.D.C.C. § 14-17-04(1)(a). The presumption may be rebutted, under N.D.C.C. § 14-17-05(1), by the man who is presumed to be the child’s father, upon bringing an action within a reasonable time, but not later than five years after the child’s birth. Thus, Scott is an appropriate party to contest his presumed paternity of Dan. Under N.D.C.C. § 14-17-10, the district court is authorized to order genetic tests for determining paternity either on its own motion or when requested by a party, providing the court orders the testing be performed “by a laboratory approved by ... an accreditation body.” However, the statute requires the court to order genetic tests only if the request for tests is made when proceedings are pending to adjudicate parentage under the chapter. See In Interest of M.Z., 472 N.W.2d 222, 223 (N.D.1991).

IV

[¶ 11] We dismiss the attempted appeal from the interloctuory order. Under our supervisory authority we vacate the order and remand with directions the court hold proceedings to determine whether to vacate the December 11, 2001, judgment under N.D.R.Civ.P. 60(b). If the court vacates the judgment, Scott can take further steps to contest paternity and the court can order genetic testing in accordance with the provisions of N.D.C.C. ch. 14-17.

[¶ 12] Order vacated and case remanded with instructions.

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

      . The names of these parties are pseudonyms.

      . This Court has previously commented on the practice of proceeding in an informal manner which confuses litigants as to the procedures to be followed and makes uncertain the status of directives given by the trial court. See In re Griffey, 2002 ND 160, ¶ 4 n. 1,652 N.W.2d 351.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2003 ND 86
    TRINITY HEALTH, Plaintiff and Appellee, v. NORTH CENTRAL EMERGENCY SERVICES, P.C., Defendant and Appellant.
    No. 20020317.
    Supreme Court of North Dakota.
    June 3, 2003.

      James B. Lynch, Dorsey & Whitney LLP, Minneapolis, MN, and David J. Ho-gue (appeared), Pringle & Herigstad, P.C., Minot, ND, for plaintiff and appellee.
    Randall J. Bakke, Smith Bakke Oppe-gard Porsborg Wolf, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] North Central Emergency Services, P.C. (“NCES”) appealed a summary judgment in Trinity Health’s action for a declaratory judgment that NCES breached an agreement to provide emergency room services and that Trinity Health had no further obligations to NCES under the agreement. We conclude genuine issues of material fact about what the parties meant in an exchange of letters by their attorneys, whether or not NCES breached the contract, and whether Trinity Health terminated the contract preclude summary judgment. We affirm in part, reverse in part, and remand for further proceedings.

[¶ 2] On May 1, 2001, “QHG of Minot, Inc. d/b/a UniMed Medical Center-St. Joseph’s Hospital (‘the Hospital’)” (“Un-iMed”) and NCES, which employed its sole owner, Dr. Michael Boulter and two other physicians, entered into an agreement for emergency room medical services. Under the agreement, NCES was required to have a physician, initially Dr. Boulter, serve as medical director and “schedule work hours and supervise the work of Hospital employees in the Department” and be “available at reasonable times for consultations with” UniMed staff, and to “provide coverage seven (7) days per week, twenty-four (24) hours per day.” The agreement further provided:

8. EXCLUSIVITY. As long as [NCES] and Physician have not failed to fulfill any of their obligations under this Agreement, [UniMed] will not hereafter extend Active Medical Staff privileges to any other Physician not affiliated with [NCES] to practice Specialty in the Department. ...
15. TERMINATION OF AGREEMENT.
A. Term. The term of this Agreement will be for four years commencing September 1, 2000 and ending on August 31, 2004 unless otherwise terminated as provided below. It may be renewed upon mutual agreement of the parties.
B. Termination.
1. This Agreement may be terminated immediately by [UniMed] upon the occurrence of any of the following events:
(c) upon the dissolution of [Un-iMed] if no successor to [UniMed] is formed for at least thirty (30) days thereafter; upon closure of [UniMed];
5. After the initial 24 months, this Agreement can be Terminated without cause by either party upon one-hundred eighty (180) Days written notice to the other.
16. NOTICES. Any notices or payments permitted or required by this Agreement shall be deemed made on the day personally delivered in writing or mailed by certified mail, postage prepaid, to the other party....
21. ASSIGNABILITY. The right and obligations of [UniMed] shall inure to the benefit of and be binding upon the successors and assigns of [UniMed]. [NCES] may not assign its rights or obligations under this Agreement, by operation of law or otherwise, without [UniMed’s] written consent....
23. AMENDMENTS. Any amendments to this Agreement will be effective only if in writing and signed by the parties.

[¶ 3] On March 20, 2001, UniMed informed the UniMed staff, including Dr. Boulter, that a sale of UniMed to Trinity Health was tentatively scheduled for April 27, 2001.- By letter of March 29, 2001, NCES’s attorney, Richard P. Olson, advised Trinity Health his law firm had been retained by NCES in connection with NCES’s agreement with UniMed and said “[i]t would appear to be appropriate for immediate discussions to take place relative to your fulfillment of the contract.”

[¶ 4] On April 4, 2001, UniMed informed its contract providers it was being sold to Trinity Health, which would assume UniMed’s third-party contracts and service agreements. NCES asserts Trinity orally indicated on April 20 and 21, 2001, it was going to terminate the contract. NCES’s attorney advised Trinity Health’s attorney that, in his view, under Paragraph 15B(5), “the contract is not terminable until September 1, 2002, and then only after 180 days written notice to the other party.” NCES’s attorney also related:

It is my understanding ... Trinity Health ... plans to prematurely terminate the services of [NCES]. Subsequent to receiving formal notice of the premature termination by Trinity Health, we will put forth an outline of our proposed resolution.

[¶ 5] In a May 1, 2001, letter, Trinity Health’s attorney advised NCES’s attorney, in part:

Section 15.B.1 permits Trinity Hospitals to terminate the Agreement “immediately” upon the occurrence of certain events. In particular, clause (c) permits the immediate termination of the Agreement “upon closure of the Hospital.” The Agreement defines “Hospital” as UniMed Medical Center-St. Joseph’s Hospital (“UniMed”).
Upon completion of the acquisition, Trinity Hospitals will maintain a single emergency department at the existing Trinity Hospital facility.... As the Hospital’s emergency department effectively will be closed and the terms of the Agreement require North Central to provide emergency services exclusively at the “Hospital”, Trinity Hospitals will terminate the Agreement immediately, as permitted under Section 15.B.l(c). In addition, dissolution of UniMed and its Emergency Trauma Center makes it impossible for North Central to perform its services as intended by the Agreement. This would not be “premature termination” of the Agreement.
I hope this letter clarifies our understanding of the Agreement. If you have any questions, please contact me. Meanwhile, Trinity will provide a separate formal termination notice as required by Sections 15 and 16 of the Agreement.

[¶ 6] In a May 16, 2001, letter, Trinity Health’s attorney advised NCES’s attorney “Trinity Health has decided to continue to utilize the services of [NCES] ” and adverted to possible changes in the agreement, including elimination of the exclusivity provision, the medical director obligations, and “the requirement of supervision of anyone other than the physicians supplied by North Central (Agreement at Section l.F).” The letter also said: “Please let me know if there are other items that we should address in an addendum.” The letter also addressed anticipated workload changes:

For quality of care reasons (especially given the expectation that the ER at Trinity will have an increased number of visits over its current workload), ER shifts will be no more than twelve hours in duration. To the extent that [NCES] physicians will work shifts at Convenient Care, a hospital based clinic, those shifts will typically be either 4 or 8 hours in length.

NCES’s attorney responded, in part, on May 18, 2001:

You[r] recent suggestion that Trinity Health would like to continue to utilize the services of [NCES] with substantial contract revisions does not appear to be very workable. The work loads at the two emergency rooms have been quite different. The shifts and scheduling between the two emergency rooms are quite different. By way of example, the St. Joseph’s emergency room has maintained quality care utilizing 72-hour shifts, and as your correspondence indicates, quality care at Trinity’s emergency room requires 12-hour shifts.

[¶ 7] On May 25, 2001, Trinity Health’s attorney advised NCES’s attorney that Trinity Health would transfer all emergency department services to Trinity Hospital at 7:00 a.m., on June 4, 2001. He also advised:

Although Trinity retains its rights under the Agreement, including its rights under the termination provisions, Trinity is not terminating the Agreement as part of the transfer that will take place on June 4. The focus of some of our prior communications had been understanding the termination rights of the parties, however, the fact of the matter is that Trinity has never provided NCES with a notice of termination.

[¶ 8] Trinity Health closed the UniMed emergency services department on June 4, 2001, and NCES refused to provide emergency services at the Trinity Hospital emergency room.

[¶ 9] Trinity Health’s action against NCES seeks a declaratory judgment that, among other things, “failure of NCES to perform under the Agreement since June 4, 2001 constitutes a material breach of the Agreement” and “Trinity Health has no further obligations to NCES under the Agreement.” NCES answered the complaint, denying it breached the agreement and asserting affirmative defenses. NCES also counterclaimed for damages, alleging breach of contract by Trinity Health and estoppel.

[¶ 10] NCES moved for partial summary judgment dismissing all of Trinity Health’s claims on November 9, 2001. The trial court denied NCES’s motion for partial summary judgment, explaining in a July 25, 2002, letter memorandum:

[W]hen Trinity Health purchased Un-iMed “the hospital” as defined in the agreement, became Trinity Health as a successor and assignee.
The defendants further argue as part of their motion that full performance of the contract limited the performances of services to a specific physical location. I find that it did not.... There is nothing in the agreement to guarantee or require that the performance of the emergency medical services contracted for ... take place only at a physical location of UniMed-St. Joseph’s. I find nothing in the agreement which prohibited the possibility of a relocation of emergency services required under the agreement.
The defendant also raised the issue of whether or not the modifications to the agreement proposed by Trinity Health were material. I find they were not.

The trial court granted Trinity Health’s motion for a protective order and denied NCES’s motions to compel discovery and compliance with subpoenas, explaining:

It seems to me, simply put, that since there was no termination of the contract ... the side issues as to how other medical providers may or may not have been terminated, transferred or in some cases resigned is not relevant to the issues at hand in this case.

The trial court denied NCES’s motion in limine to dismiss Trinity Health’s mitigation of damages defense to NCES’s claim and for a determination NCES was not required to mitigate damages.

[¶ 11] In a September 23, 2002, order, the court found consolidation of emergency services was not a termination of the agreement by Trinity, modifications were not material, Trinity Health did not breach the agreement, NCES was obligated to perform under the agreement, and denied NCES’s motion for partial summary judgment. In a handwritten order of September 23, 2002, the court ruled Trinity Health was entitled to a declaratory judgment:

4. I agree with the Plaintiff on the estoppel issue. It is a defense by definition; by hornbook law; and by caselaw. It is not a cause of action and as such cannot be a counter claim
5. I agree with the Plaintiff that there are no issues for a jury to resolve. There was no material modification by Trinity in law; nor in fact for a jury to decide
6. The Plaintiff did not terminate the agreement with the Defendant. It did move the place the Defendant was to perform by three blocks and I have ruled this was within it[ ]s rights as successor and assignee of the “hospital” agreement
7. The Plaintiff seeks only declaratory judgment that Defendants failure to perform under the Agreement was a material breach. I so find
8. No jury will be called
9. The case is over.

[¶ 12] NCES in its appeal from the summary judgment entered November 1, 2002, contends the trial court erred in (1) granting summary judgment in favor of Trinity Health, (2) dismissing NCES’s claims and defenses, (3) denying NCES’s motion for partial summary judgment dismissing Trinity Health’s breach of contract claim against NCES, (4) denying NCES’s motion in limine, and (5) in denying NCES’s motions to compel discovery and compliance with subpoenas, and in granting Trinity Health’s motion for a protective order.

[¶ 13] NCES has contended the trial court erred in granting summary judgment in favor of Trinity Health, which did not move for summary judgment on its breach of contract claim. When there has been a motion for summary judgment, but no cross-motion, the court already is engaged in determining if a genuine issue of material fact exists, the parties have been given an opportunity to present evidence to support or refute the request, and the weight of authority is that summary judgment may be rendered in favor of the party opposing the motion without a formal cross-motion. 10A C. Wright et al., Fed. Prac. & Proc.: Civil 3d § 2720. See also Olander v. Gail Wachter Invs., 2002 ND 65, ¶ 25, 643 N.W.2d 29 (lack of motion for summary judgment dismissing negligence claims did not preclude trial court from dismissing negligence claims).

[¶ 14] We recently reiterated when a motion for summary judgment may be granted:

Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. Issues of fact may become questions of law if reasonable persons could reach only one conclusion from the facts. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden of proof at trial.

Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 23, 655 N.W.2d 60 (citations omitted).

[¶ 15] On appeal from a summary judgment, we review the evidence in the light most favorable to the party opposing the motion for summary judgment, giving that party the benefit of all inferences that reasonably can be drawn from the evidence. Abel v. Allen, 2002 ND 147, ¶ 8, 651 N.W.2d 635. “Whether the trial court has properly granted summary judgment is a question of law which we review de novo on the entire record.” Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689.

[¶ 16] A contract is ambiguous if rational arguments can be made for different interpretations. Gawryluk v. Poynter, 2002 ND 205, ¶ 9, 654 N.W.2d 400. Contracting parties’ ambiguously expressed intentions are questions of fact. Bohn v. Johnson, 371 N.W.2d 781, 788 (N.D.1985). Whether a contract has been substantially performed and whether a party has breached a contract are questions of fact. Wachter v. Gratech Co., Ltd., 2000 ND 62, ¶ 17, 608 N.W.2d 279. Under N.D.C.C. § 9-09-06, a written contract “may be altered by a contract in writing or by an executed oral agreement and not otherwise.” A party cannot be held liable for damages that flow from a material alteration of a contract without its consent. Koch Hydrocarbon Co. v. MDU Res. Group, Inc., 988 F.2d 1529, 1538-39 (8th Cir.1993). See also Barnes v. St. Joseph’s Hosp., 1999 ND 204, ¶ 14, 601 N.W.2d 587 (duty to act in good faith does not require a party to accept a material change in contract terms); Porter v. Hardy, 10 N.D. 551, 551, Syll. ¶ 1, 88 N.W. 458, 458 (1901) (“The material alteration of a written contract by a party entitled to a benefit thereunder, or with his consent, extinguishes all the executory obligations of the contract in his favor as against parties who do not consent to the alteration.”). “This Court has often said an assignee acquires no greater rights than those of the assignor, and simply stands in the shoes of the assignor.” Global Fin. Servs., Inc. v. Duttenhefner, 1998 ND 53, ¶ 19, 575 N.W.2d 667.

[¶ 17] Not only can rational arguments be made for different interpretations of the contract, there are genuine issues of material fact about what the parties meant in the exchange of letters by their attorneys, the actions of the parties, whether or not NCES breached the contract, and whether or not Trinity Health terminated the contract. Those issues preclude summary judgment. We conclude the trial court erred in granting summary judgment in favor of Trinity Health.

[¶ 18] Because we have determined there were genuine issues of material fact with regard to the parties’ intent, breach of contract, and termination of the contract, we necessarily conclude the trial court did not err in denying NCES’s motion for summary judgment dismissing Trinity Health’s breach of contract claim against NCES.

[¶ 19] We need not address the other issues NCES has raised, because determination of those issues is not necessary for disposing of this case and those issues are not certain to arise upon remand. Loberg v. North Dakota Workers Comp. Bureau, 1998 ND 64, ¶ 12, 575 N.W.2d 221.

[¶20] The order denying NCES’s motion for summary judgment is affirmed, the order granting Trinity Health summary judgment is reversed, the judgment is reversed, and the matter is remanded for further proceedings consistent with this opinion.

[¶ 21] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ„ concur.

      . Except in exigent circumstances, the trial court’s issuance of handwritten orders does not evidence care by the court and deprecates the importance of the proceedings to the litigants.


author: GILBERTSON, Chief Justice (on reassignment). AMUNDSON, Retired Justice

text:
    2003 SD 51
    STATE of South Dakota, Plaintiff and Appellant, v. I-90 TRUCK HAVEN SERVICE, INC., Licensee, Defendant and Appellee.
    Nos. 22215, 22228.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Reassigned Nov. 20, 2002.
    Decided May 07, 2003.

      David R. Nelson, Minnehaha County State’s Attorney, Colleen Moran, Deputy Minnehaha County State’s Attorney, Sioux Falls, for plaintiff and appellant.
    Mark E. Salter, Michael D. Bornitz of Cutler & Donahoe, LLP, Sioux Falls, for defendant and appellee.
   GILBERTSON, Chief Justice (on reassignment).

[¶ 1.] An employee of 1-90 Truck Haven Services, Inc. (Truck Haven), pled guilty to selling alcohol to a minor. Several months later, the State requested that the magistrate court impose an administrative sanction or fine on Truck Haven. Truck Haven filed a motion to dismiss. Although the magistrate court refused to dismiss the case against Truck Haven, the circuit court later reversed the magistrate court’s order and found that an administrative fine could not be imposed on a licensee pursuant to SDCL 35-4-78 through SDCL 35-4-78.4. We reverse.

FACTS AND PROCEDURE

[¶ 2.] On March 30, 2000, an employee of Truck Haven, Donald Soulek (Soulek), sold alcohol to a person under the age of twenty-one. This was in violation of SDCL 35-9-1.1. Soulek pled guilty to this offense and received a criminal fine and a suspended jail sentence. Eight months later, in magistrate court, the State filed an application and order to show cause, requesting that the court impose an administrative fíne under SDCL 35-4-78.3 on Truck Haven, the employer of Soulek. Truck Haven filed a motion to dismiss, which the magistrate court denied. Truck Haven appealed the magistrate court’s order to the circuit court. The circuit court dismissed the State’s case against Truck Haven, finding that a fine was not statutorily authorized. State appeals, raising the following issue for our review:

Whether SDCL 35-4-78.2 allows for the imposition of administrative fines against Truck Haven.

STANDARD OF REVIEW

[¶ 3.] This appeal involves the interpretation of a statute. In Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611, we stated:

Questions of law such as statutory interpretation are reviewed by the Court de novo.... The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result. When the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.

(citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17) (citing U.S. West Communications, Inc. v. Public Util. Comm’n, 505 N.W.2d 115, 122-23 (S.D.1993) (citations omitted)).

ANALYSIS AND DECISION

[¶ 4.] Whether SDCL 35-4-78.2 allows for the imposition of administrative fines against Truck Haven.

[¶ 5.] The relevant statutes at issue in this appeal are SDCL 35-4-78 through SDCL 35^4-78.4. The starting point is SDCL 35-4-78, which provides, in relevant part:

No licensee may sell any alcoholic beverage: (1) To any person under the age of twenty-one years[.] ...
A violation of this section is a Class 1 misdemeanor.

[¶ 6.] The express words of this statute clearly state that a licensee can be criminally charged with selling alcohol to a person under the age of twenty-one. However, SDCL 35-4-78.1 provides the licensee a defense to criminal charges. Specifically, this statute provides:

A licensee ... is not in violation of § 35-4-78, and no criminal penalty may be imposed on the licensee if:
(1) The person making the sale in violation of § 35-4-78 is an employee or agent of the licensee;
(2) The employee or agent does not own a controlling interest in the licensee; and
(3) The licensee or person having a controlling interest in the licensee is not present at the time of the sale.

[¶ 7.] Although SDCL 35-4-78.1 provides a defense to the licensee in the context of criminal charges, the next statute in this section, SDCL 35-4-78.2, provides for an imposition of a civil or administrative fine, even if no criminal penalty can be imposed:

If a sale is in violation of § 35-4-78 and does not constitute a criminal offense against the licensee, the state’s attorney for the county in which the sale took place may as part of any proceeding against the person making the sale request that the court require the licensee to pay a fine in accordance with §§ 35-4-78.1 to 35-4-78.4, inclusive.

[¶ 8.] SDCL 35-4-78.3 provides:

Upon a request from the state’s attorney and notice to the licensee, the court shall conduct a hearing to determine if the licensee is liable under §§ 35-4-78.1 to 35-4-78.4, inclusive, and upon a finding that the licensee is liable, the court may order the licensee to pay a fine not to exceed:
(1) Five hundred dollars upon the first violation within two years;
(2) Seven hundred fifty dollars upon the second violation within .two years; and
(3) One thousand dollars for the third violation within two years.

We stated in Faircloth v. Raven Industries, Inc:

Ultimately, the purpose of statutory interpretation is to fulfill the legislative dictate. Intent is ordinarily ascertained by examining the express language of the statute. We therefore defer to the text where possible. We read statutes as a whole along with the enactments relating to the same subject. We assume that the Legislature intended that no part of its statutory scheme be rendered mere surplusage.

2000 SD 158, ¶ 6, 620 N.W.2d 198, 201 (citations omitted). Therefore, the statutes at issue must be read as a whole, not in isolation. We have specifically applied this standard of statutory analysis in a previous case concerning the legal rights and responsibilities of alcohol beverage licensees. Rushmore State Bank v. Kurylas, Inc., 424 N.W.2d 649, 653 (S.D.1988).

[¶ 9.] Truck Haven first raises the argument that because SDCL 35-4-78.1 provides a defense to SDCL 35-4-78, one of the requirements of SDCL 35-4-78.2 is not satisfied. Specifically, it argues that SDCL 35-4-78.2 authorizes a fine against a licensee only when there has been a violation of SDCL 35-4-78. An interpretation of the statutes read as a whole does not support its assertion. If SDCL 35-4-78.1 was to act as an absolute bar from any liability, then SDCL 35-4-78.2 and SDCL 35 — 4-78.3 would be “mere surplusage.” See Faircloth, 2000 SD 158, ¶ 6, 620 N.W.2d at 201. See also DeSmet Ins. Co. v. Gibson, 1996 SD 102, ¶7, 552 N.W.2d 98, 100 (citation omitted) (stating that “in cases where a literal approach would functionally annul the law, the cardinal purpose of statutory construction — ascertaining legislation intent — ought not be limited to simply reading a statute’s bear language

[¶ 10.] This statutory interpretation is bolstered by the legislative history that exists. SDCL 35-4-78.1 and 35-4-78.2 were jointly enacted as part of the same act. See 1999 SD Sess.L. ch. 186. Thus, they clearly were intended to be interpreted together and not each in isolation. Moreover, although not part of the act, the act’s title give a further indication of legislative intent: “[a]n Act [to] restrict certain criminal Lability for alcoholic beverage licensees and to provide for administrative sanctions.” (emphasis added). The title makes clear that the administrative sanctions of SDCL 35-4-78.2 were not solely voided by failure to be in criminal violation of the portions of SDCL 35-4-78.

[¶ 11.] The text of SDCL 35-4-78 also runs counter to Truck Haven’s argument. The second portion of the statute declares that a violation does not constitute a basis for a finding of civil liability in favor of a third party who claims injury from an illegal sale prohibited by this section. Noticeably missing is any grant of civil protection to the licensee as against the State’s regulatory power.

[¶ 12.] In summary, SDCL 35-4-78 through 35-4-78.4 constitutes a single, yet thorough, method of regulation, both as to civil and criminal liability against licensees.

[¶ 13.] Truck Haven next argues that the dismissal of the case against it was supported by additional grounds. Specifically, Truck Haven contends that the action against Truck Haven was not part of the proceeding against its agent, Soulek, which SDCL 35-4-78.2 mandates it should be. Truck Haven’s employee, Soulek, was sentenced on April 19, 2000 but was placed on conditions for a period of two years. First, we would note his criminal proceeding was still open at the time the State brought its action against Truck Haven eight months after Soulek’s sentencing. More importantly, Truck Haven’s argument fails to comport with the terms of SDCL 35-4-78.3 which states in part: “[u]pon a request from the state’s attorney and notice to the licensee, the court shall conduct a hearing to determine if the licensee is liable under §§ 35^1-78.1 to 35-4-78.4.... ” This statute contemplates a separate civil hearing for a licensee under SDCL 35-4-78.2 concerning the issue of an administrative fine, separate from the criminal trial available under SDCL 35^1-78 and the criminal charge’s statutory defenses available under SDCL 35-4-78.1.

[¶ 14.] Next, Truck Haven argues as an additional ground that the action against Truck Haven violates the constitutional doctrine of separation of powers. Truck Haven asserts that the authority to regulate an alcoholic beverage licensee is exclusively an administrative function. The statutory language of the statutes at issue clearly requires a hearing before the judiciary, not an administrative agency. Specifically, SDCL 35-4-78.2 requires that the “state’s attorney ... may as part of any proceeding against the person making the sale request that the court require the licensee to pay a fine[.]” As with a myriad of other statutes, the Legislature sets the statutory guidelines and the courts determine whether a person charged with their violation has indeed done so. See, e.g., Kurylas, 424 N.W.2d at 649, and the cases cited therein.

[¶ 15.] Finally, Truck Haven argues that its right to due process of law was violated because it did not have the opportunity to participate in Soulek’s criminal proceeding. We stated in Wuest v. Winner School Dist., 2000 SD 42, ¶ 25, 607 N.W.2d 912, 918, that “[d]ue process requires notice and an opportunity to be heard.” (additional citations omitted). However, we have also stated that “the sufficiency of the notice and opportunity required under due process is flexible and ‘requires only such procedural protections as the particular situation demands.’ ” Matter of Estate of Washburn, 1998 SD 11, ¶ 19, 575 N.W.2d 245, 250 (additional citations omitted).

[¶ 16.] This Court has held that the rule in this jurisdiction, as it is in others, is that as between the state and the licensee, “there exists no property right in the license, but merely a privilege to conduct that state regulated business.” Kurylas, 424 N.W.2d at 653. In Kurylas, we held that the license holder is nevertheless entitled to “fundamental due process rights such as a hearing, notice thereof and a right to be heard at such proceedings when consideration is given to grant, renew or revoke a license.” Id. Herein, we find that Truck Haven was provided with just that, a hearing, notice thereof and a meaningful opportunity to be heard all in accordance with SDCL 35-4-78.3.

[¶ 17.] There are substantial constitutional and statutory differences between the conduct of a misdemeanor criminal proceeding versus an administrative proceeding, which may lead to the imposition of a civil fine. See, e.g., City of Pierre v. Blackwell, 2001 SD 127, 635 N.W.2d 581. Truck Haven was served with an application and order to show cause. In addition, the State provided Truck Haven with a detailed affidavit that contained all of the relevant information on which the State’s action was based. Further, Truck Haven had a full opportunity to be heard on this matter in front of the court. It received the full amount of due process protection guaranteed to it under such a civil regulatory proceeding. See Kurylas 424 N.W.2d at 653.

[¶ 18.] For the above reasons, we reverse and remand for further proceedings consistent with this opinion.

[¶ 19.] SABERS, KONENKAMP, and ZINTER, Justices, concur.

[¶ 20.] AMUNDSON, Retired Justice, dissents.

[¶ 21.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

AMUNDSON, Retired Justice

(dissenting).

[¶ 22.] In this case, clearly the criminal action against Soulek had concluded. The criminal case Cri. # 0011625, the State of South Dakota v. Donald Lee Soulek, was filed on April 12, 2000. Soulek pleaded guilty and was sentenced on April 19, 2000. At that time the status of this criminal case was listed as terminated. Then more than eight months after Soulek pleaded guilty, the State filed an order to show cause in civil case Civ. # 00-3583, State of South Dakota v. I-90 Truck Haven Service, Inc., Licensee, seeking a civil fine against Truck Haven.

[¶ 23.] SDCL 35Mr-78.2 provides that “the state’s attorney ... may as part of any proceeding against the person making the sale request that the court require the licensee to pay a fine in accordance with §§ 35-4-78.1 to 35M-78.4, inclusive.” Black’s Law Dictionary defines proceeding as the progression of a lawsuit “including all acts and events between the time of commencement to the entry of judgment.” 1221 (7th ed. 1999). Here when the state brought this action against Truck Haven, it was certainly not part of the “same proceeding” against Soulek since criminal judgment had already been entered.

[¶ 24.] We should follow the “paramount rule of statutory construction and simply declare “what the legislature said, rather than what the courts think it should have said.’ ” Goetz v. State, 2001 SD 138 at ¶ 20, 636 N.W.2d 675, 682 (2001). Statutory construction as established by the precedence of the Court clearly provides that these two actions should have been brought in the same proceeding and they were not. Therefore I would affirm the trial court.

      . It is undisputed that no person having a controlling interest in the corporate licensee, Truck Haven, was present at the time of Sou-lek’s illegal sale.

      . SDCL 35-9-1.1 provides:
      It is a Class 2 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person who is eighteen years of age or older but less than twenty-one years of age unless it is done in the immediate presence of a parent or guardian or spouse over twenty-one years of age or by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.

      . The term "licensee” is not defined in the code. Black's Law Dictionary (7th ed.1999), defines "licensee” as "[o]ne to whom a license is granted.” The resolution of this case does not hinge on the definition of a "licensee.”

      . SDCL 35-4-78.3 was also passed as part of 1999 SL ch 186 as part of the comprehensive legislative package that also resulted in SDCL 35-4-78.1 and 35-4-78.2.


author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Thomas Robert WUKAWITZ, Jr., Petitioner, Appellant.
    No. C6-02-30.
    Supreme Court of Minnesota.
    May 29, 2003.

      Rochelle R. Wynn, Assistant State Public Defender, Minneapolis, for appellant.
    Michael A. Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, for respondent.
   OPINION

BLATZ, Chief Justice.

In this sentencing appeal, appellant Thomas Robert Wukawitz, Jr. challenges the method by which his plea-negotiated sentence was amended to impose a mandatory conditional release term of five years. The Ramsey County District Court imposed a 5-year conditional release term concurrent with Wukawitz’s sentence, beginning while Wukawitz was incarcerated and running for the remaining 60 months of his sentence. The court of appeals affirmed the district court but with modification holding that conditional release could not commence before Wukawitz had been released from prison. The court concluded, however, that the district court could reduce the conditional release term to less than the five years mandated by the statute in order to not violate the terms of the plea agreement. Wukawitz contends that the plain meaning of the statute and our prior holdings require that the court of appeals’ decision be reversed and he be allowed either to withdraw his plea or have his sentence modified to allow for only 80 months of incarceration plus a 60-month term of conditional release, thereby honoring the agreed-upon cap of 140 months while still accommodating the prescribed conditional release term.

We hold that in those limited circumstances where imposition of a conditional release term after sentencing would violate the plea agreement, the district court may allow the defendant to withdraw his plea. We further hold that if a plea withdrawal would unduly prejudice the state, the district court may impose conditional release commencing after the defendant is released from prison for a period of less than the five- or ten-year conditional release term set forth in the statute. Accordingly, we remand to the district court to determine whether the state would be unduly prejudiced if Wukawitz were allowed to withdraw his plea.

On March 12, 1998, Thomas Robert Wukawitz, Jr., pleaded guilty to two counts of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subds. 1(a) and 2 (1992). The conduct involved two minors and occurred between September 1988 and December 1992. Pursuant to a plea agreement, the district court sentenced Wukawitz to consecutive terms of 86 months on count one and 54 months on count two, for a total of 140 months. With credit for good time served, Wukawitz was to serve 93-1/3 months in prison and 46-2/3 months on supervised release. Minn.Stat. § 244.01, subds. 5, 8 (1998). The mandatory conditional release term was not discussed during the plea negotiations nor at the plea or sentencing hearings.

In April 2000, the district court issued an amended sentencing order adding the five-year conditional release term under Minn.Stat. § 609.109, subd. 7. Wukawitz moved to withdraw his plea asserting that he was unaware of the mandatory five-year conditional release term applicable to his convictions when he agreed to plead guilty. The court denied the motion and Wukawitz appealed. In an unpublished opinion, the court of appeals reversed and remanded to the district court, holding that if the district court determined that the plea was induced by the sentence, the district court must either allow Wukawitz to withdraw his plea or modify the sentence so the maximum period of incarceration, including the conditional release term, did not exceed the maximum-executed sentence agreed to in the plea agreement. State v. Wukawitz, No. C7-00-1859, 2001 WL 477207, at *2 (Minn.App. May 8, 2001), rev. denied (Minn. July 24, 2001).

On remand, the state conceded that Wukawitz negotiated for a specific term of months in return for his guilty plea. Concluding that withdrawal of the plea was not appropriate, the district court modified Wukawitz’s sentence, ordering the five-year conditional release term to run concurrent with Wukawitz’s 140-month sentence. Under the amended sentence, the 60-month conditional release period would begin after Wukawitz served 80 months of his 140-month sentence and run concurrent with his remaining time in prison and any subsequent supervised release period.

Wukawitz appealed to the court of appeals, arguing that imposing the conditional release term prior to his release from prison violated the conditional release statute. State v. Wukawitz, 644 N.W.2d 852, 853 (Minn.App.2002). In support, Wukawitz cited Minn.Stat. § 609.109, subd. 7(a), which requires conditional release to begin “after” a defendant has completed the sentence imposed. Id. Agreeing with Wukaw-itz, the court of appeals concluded that conditional release could not commence while Wukawitz was in prison. Id. at 857. The court concluded, however, that the district court could impose a conditional release term of less than five years commencing upon release from prison and terminating on the same date as the original sentence, typically at the completion of supervised release. Id. The court further concluded that a district court could modify a defendant’s sentence in such a way without giving priority to plea withdrawal. Id. at 855. Wukawitz appeals from this decision asking that he be allowed to withdraw his plea or in the alternative, that the length of his time in prison be reduced to accommodate the mandatory conditional release term.

Therefore, as framed by the parties, the central issue in this case is whether a defendant has an absolute right to withdraw a plea if a conditional release term is later added that exceeds the agreed-upon sentencing cap, or if under certain circumstances, the district court can modify the sentence to accommodate the non-negotiated mandatory conditional release term. In resolving this issue, we must squarely address our responsibility to insure that a defendant’s constitutional rights are not violated and, at the same time, apply the plain and unambiguous language of the conditional release statute to the facts before us. Because all statutes, rules, and case law must be consonant with the dictates of our federal and state constitutions, we begin there.

Both the United States and the Minnesota Constitutions provide that a person shall not be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. The United State Supreme Court noted in Mabry v. Johnson that it is not the plea bargain itself that implicates the Constitution but the ensuing guilty plea. 467 U.S. 504, 507-08, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). Once a defendant has pleaded guilty pursuant to a plea agreement, he has been convicted of a crime that may result in a deprivation of his liberty. Id. at 507-08, 104 S.Ct. 2543. Thus, when a defendant is not fairly apprised of the consequences of his plea, his due process rights are violated. Id. at 509, 104 S.Ct. 2543.

In Minnesota, we have held that for a guilty plea to be valid, it must be accurate, voluntary, and intelligent. Perkins v. State, 559 N.W.2d 678, 688 (Minn.1997). The accuracy requirement protects the defendant from pleading guilty to a more serious charge than he or she would have been convicted of at trial. The volun-tariness requirement insures that the guilty plea is not in response to improper inducements or pressures, and “the intelligent requirement insures that the defendant understands the charges, his or her rights under the law, and the consequences of pleading guilty.” Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998). In examining the voluntariness requirement, we noted in State v. Brown, 606 N.W.2d 670, 674 (Minn.2000), that “ ‘when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’ ” (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). Consequently, if a guilty plea is induced by a government promise, such a promise must be fulfilled or due process is violated. Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir.1994).

In the instant case, a plea agreement was tendered by the state and Wukawitz to the court. The plea agreement established that in exchange for a plea of guilty to two separate counts of criminal sexual conduct, Wukawitz would serve two consecutive terms of imprisonment, totaling 140 months. In pleading guilty, Wukawitz gave up his constitutional rights to remain silent, the presumption of innocence, and a 12-person jury. Because Wukawitz’s waiver of rights and plea were induced by the promise of a maximum sentence that the district court agreed to honor by its acceptance of the plea, due process requires that the promise be fulfilled.

Against this constitutional backdrop, we next examine the history of the conditional release statute at issue in this case, Minn. Stat. § 609.109, subd. 7(a) (2000), and our relevant prior case law. Section § 609.109, subd. 7(a) provides that persons convicted of certain criminal sexual conduct offenses are to be placed on a five- or ten-year period of conditional release after completing their imposed sentence:

Notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, when a court sentences a person to prison for a violation of section 609.342, 609.343, 609.344, or 609.345, the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release. If the person was convicted for a violation of section 609.342, 609.343, 609.344, or 609.345, the person shall be placed on conditional release for five years, minus the time the person served on supervised release. If the person was convicted for a violation of one of those sections a second or subsequent time * * *, the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.

This conditional release statute, passed in 1992, applied to criminal sexual conduct crimes that occurred on or after August 1, 1992. See Act of April 29, 1992, ch. 571, art. 1, §§ 25 & 29, 1992 Minn. Laws 1983, 2002-04 (codified at Minn.Stat. § 609.346, subd. 5 (1992)). When first enacted, the period of conditional release, then called a “supervised release term,” was imposed for “not less than” five or ten years. Act of April 29,1992, § 25,1992 Minn. Laws at 2002. In 1998, the terminology “supervised release term” was changed to “conditional release,” and the legislature deleted the words “not less than” preceding the specification of the five- or ten-year terms. Act of May 20, 1998, ch. 326, art. 9, § 9, 1993 Minn. Laws 1974, 2089 (codified as Minn.Stat. § 609.346, subd. 5 (1994)). Instead, the conditional release term was changed to a straight five or ten years, minus the time the person served on supervised release. Act of May 20, 1993, § 9, 1993 Minn. Laws at 2089. Further, the legislature adopted the description “supervised release” to define the period of mandatory community supervision following imprisonment if the inmate was released early due to having earned good time. Minn.Stat. § 244.05, subd. 1 (2002). The period of supervised release is typically one-third of the original pronounced sentence. Minn.Stat. §§ 244.04, subd. 1, 244.05, subd. 1 (2002).

In addition to this case, six other cases have been before this court in which the district court failed to impose conditional release at sentencing and later amended the sentence to add the conditional release term. See State v. Calmes, 632 N.W.2d 641, 644 (Minn.2001); State v. Schwartz, 628 N.W.2d 134, 137 (Minn.2001); State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn.2000); State v. Brown, 606 N.W.2d 670, 673 (Minn.2000); State v. Garcia, 582 N.W.2d 879, 881 (Minn.1998); State v. Humes, 581 N.W.2d 317, 318-19 (Minn.1998). Our first case, Humes, involved a conviction by a jury and not a plea negotiation. 581 N.W.2d at 318. Because the district court failed to include a conditional release term at sentencing and later added it, an appeal was taken to determine whether such a term could be added without violating the Due Process or Double Jeopardy Clauses of the United States and Minnesota Constitutions. Id. at 318, 320. We looked to the plain meaning of the statute and held that the word “shall” made conditional release mandatory and not waivable. Id. at 319. We further held that the district court had the authority to amend a sentence to include the mandatory five-year conditional release term because the sentence was illegal without the term and its addition did not violate the Due Process or the Double Jeopardy Clauses. Id. at 321.

In contrast to Humes, the second case decided by this court, Garcia, involved a plea agreement that did not include a conditional release term. 582 N.W.2d at 880. In that case, we held that even though Garcia’s conviction was based on a plea bargain that included a negotiated maximum sentence, the district court had jurisdiction to amend Garcia’s sentence to include mandatory conditional release. Id. at 881. However, we further held that if the addition of conditional release resulted in a breach of the plea agreement, Garcia could either withdraw his plea or agree to an amended sentence that included the conditional release term. Id. at 882. In so holding, we rejected Garcia’s request to order specific performance of the original plea agreement because, as we held in Humes, the original sentence without the conditional release term was unauthorized. Garcia, 582 N.W.2d at 882.

In another case involving a plea bargain, Brown, we stated that when a plea is induced by a promise of the prosecutor, that promise must be fulfilled. 606 N.W.2d at 674. In Brown, the parties agreed that the defendant, Brown, would receive a sentence of one year of local incarceration followed by probation if he completed an inpatient sex offender treatment program. Id. The parties further agreed that if Brown failed to successfully complete the treatment program, a double durational departure sentence of 172 months would be imposed. In the alternative, the parties agreed that if Brown was not accepted into the treatment program, he would be given a guidelines sentence of 86 months. Id. at 672-73, n. 1. The plea agreement did not include the mandatory conditional release term. Brown, 606 N.W.2d at 672-73.

In accordance with the plea agreement, the district court sentenced Brown to 172 months but stayed the sentence with certain conditions. Id. at 673. Brown was ultimately denied admission into the treatment program because he recanted his admission of guilt and the district court executed the 172-month sentence. Id. Brown appealed and the court of appeals remanded the case to the district court with instructions to impose the guidelines sentence of 86 months. Id. Nearly three years later, the district court corrected Brown’s sentence to include the five-year conditional release term. Id. Upon appeal, we held that the addition of conditional release did not violate the terms of the plea agreement for two reasons: (1) Brown’s plea was induced more by promise of an opportunity for probation and rehabilitation than by an agreed-upon sentence, and (2) Brown understood when he entered his plea that he could receive a sentence of up to 172 months and that this agreement was not breached when the conditional release term was added to the 86-month term of imprisonment. Id. at 674-75 & n. 6.

Our next case, Jumping Eagle, also involved a plea negotiation and an omitted conditional release term. 620 N.W.2d at 43. In Jumping Eagle, we determined that the agreed-upon maximum sentence term of 172 months induced Jumping Eagle to plead guilty. Id. at 44. We further held that because the addition of conditional release resulted in a sentence that exceeded the upper limits of the bargained-for sentence, the imposition of conditional release violated the plea agreement. Id. Accordingly, we remanded the case to the district court with instructions to either allow Jumping Eagle to withdraw his plea, or to modify his sentence in accordance with the agreed-upon cap. Id. at 45. We further stated that upon remand, the state should be allowed to present argument regarding whether the district court should modify the sentence or allow the plea to be withdrawn, recognizing that absent strong reason, a defendant should not be allowed to withdraw his plea if the state would be unduly prejudiced. Id. (citing Chapman v. State, 282 Minn. 13, 16-17, 162 N.W.2d 698, 700-01 (1968), and Hoag- land v. State, 518 N.W.2d 531, 536-37 (Minn.1994)).

It is within the context of this prior case law and our concerns regarding the dictates of our state and federal constitutions that we turn to the conditional release statute in order to answer the question raised in this appeal. Statutory-construction is a question of law and is reviewed de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

The primary objective in the interpretation of a statute is to ascertain and effectuate the intention of the legislature. Minn.Stat. § 645.16 (2002); Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). “When interpreting a statute, a court must first determine whether the statute’s language, on its face, is clear or ambiguous.” Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002). A statute is considered ambiguous only if the language is subject to more than one reasonable interpretation. Amaral, 598 N.W.2d at 384. If the statutory language is plain and unambiguous, the court does not engage in any further construction and instead looks to the plain meaning of the statutory language. Gomon, 645 N.W.2d at 416; Amaral, 598 N.W.2d at 384. The court is not to disregard the letter of the law under the pretext of pursuing the spirit of the law. Minn.Stat. § 645.16; Amaral, 598 N.W.2d at 384. In ascertaining the intention of the legislature, there is a presumption that “[t]he legislature does not intend a result that is absurd, impossible of execution, or unreasonable.” Minn.Stat. § 645.17(2002).

The statute at issue here, Minn.Stat. § 609.109, sub. 7(a), in relevant part provides that “the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release * * * [and] the person shall be placed on conditional release for five years * * (emphasis added). Wukawitz argues that the language of the statute is clear and unambiguous — the statute mandates that the district court impose a five-year period of conditional release and conditional release is to begin after he has completed his time in prison. Accordingly, Wukawitz contends that we cannot ignore the clear wording of the statute in order to effectuate what we believe to be the spirit of the statute.

Wukawitz’s argument is well taken. The plain meaning of the phrase, “the person shall be placed on conditional release for five years * * * [or] ten years” indicates that the period of conditional release must be either five or ten years, not more and not less. Similarly, the plain meaning of the phrase “after the person has completed the sentence imposed” indicates that the conditional release term cannot begin prior to the inmate’s release from prison. Because the language of the statute is plain and unambiguous, we will not engage in any further construction unless we conclude that the plain meaning leads to absurd or unreasonable results that depart from the purpose of the statute. Minn.Stat. § 645.17; Wegener v. Commissioner of Revenue, 505 N.W.2d 612, 617 (Minn.1993).

The difficulty presented here, however, is not the application of the statute at the initial sentencing hearing but rather, application of the statute after a plea negotiation has been accepted and sentencing has occurred. It is this after-the-fact application of conditional release that butts heads with our state and federal constitutions. This conflict is easily illuminated by the facts of this case.

As the state conceded at the district court, Wukawitz agreed to plead guilty and receive a sentence capped at 140 months. With good time, he would only serve 93-1/3 months in prison and would be on supervised release the remaining 46-2/3 months. Minn.Stat. § 244.01, subds. 6, 8. If a five-year (60-month) conditional release term was imposed at the end of Wukawitz’s time in prison, assuming he received all potential credit for good time, Wukawitz’s total sentence would be 153-1/3 months — 13-1/3 months longer than the total time he agreed to in the plea agreement. When analyzing similar facts in Jumping Eagle, we held that when a defendant is induced to plead guilty by an agreed-upon maximum sentence, the modified sentence including the conditional release term cannot exceed the term set forth in the plea agreement. 620 N.W.2d at 44-45. To allow otherwise would violate a defendant’s due process rights. The tender of a guilty plea, once accepted by a court, “is and must be a most solemn commitment.” Chapman, 282 Minn. at 16, 162 N.W.2d at 700.

Wukawitz asserts that the only way to reconcile the plain meaning of the statute and Jumping Eagle is for us to either allow him to withdraw his plea or reduce his time in prison. We first look at Wukawitz’s contention that he should be allowed to withdraw his plea. When a guilty plea is induced by unfulfilled or unfulfillable promises, the voluntariness of the plea is drawn into question, Brown, 606 N.W.2d at 674, and due process considerations require that the defendant be given the opportunity to withdraw his plea. Santobello, 404 U.S. at 263, 92 S.Ct. 495. In Brown and Jumping Eagle, we recognized another option — modification of the sentence so as to not violate the plea agreement. Brown, 606 N.W.2d at 674.

Here, Wukawitz’s plea was induced by the promise of a maximum executed sentence of 140 months and that promise is violated by the addition of the conditional release term of 60 months. Due process considerations, therefore, mandate that if a conditional release term is to be added, as we have already held it must be, Humes, 581 N.W.2d at 321, then Wukawitz must be allowed to withdraw his plea or have his sentence modified so as not to violate the plea agreement. Allowing Wukawitz to withdraw his plea would comply with the plain meaning of the statute and comport with Wukawitz’s due process rights. The state argued to the district court, however, that Wukawitz should not be allowed to withdraw his plea because the state would be unduly prejudiced. In support of its argument, the state relies on our statements in Jumping Eagle.

In Jumping Eagle, we stated that, when the addition of conditional release would result in a violation of the plea agreement, the state should be allowed to present argument to the court regarding whether the court should modify the sentence or allow a plea to be withdrawn. 620 N.W.2d at 45. In so stating, we recognized that prejudice to the state may be a consideration in determining which option to pursue. Jumping Eagle, 620 N.W.2d at 45 (citing Chapman, 282 Minn. at 16-17, 162 N.W.2d at 700-01, and Hoagland, 518 N.W.2d at 536-37). In the past, we have recognized that “reprosecution is always difficult after the passage of a long period of time,” Wensman v. State, 342 N.W.2d 150, 151 (Minn.1984), and that plea withdrawal should not be used as a tactical device to frustrate the prosecution. Chapman, 282 Minn. at 17, 162 N.W.2d at 701.

In determining prejudice, the burden is on the state to prove undue prejudice. Hoagland, 518 N.W.2d at 536. While the state will experience some degree of prejudice in any retrial, whether the state will be unduly prejudiced depends on the facts of each case. Id. In this case, the district court did not make specific findings of fact and the record is not sufficiently developed for us to conclude whether undue prejudice would result from Wukawitz’s withdrawal of his plea. We therefore remand to the district court to make specific findings as to prejudice. If the district court concludes that the state would not be unduly prejudiced, the application of the statute as well as due process considerations require that Wuk-awitz be allowed to withdraw his plea.

Contrary to the court of appeals’ determination that plea withdrawal does not have priority over the modification of a sentence, we conclude that plea withdrawal should be the first option considered when the imposition of conditional release after the fact would violate the plea agreement. Nonetheless, if the state would be unduly prejudiced by the withdrawal of Wukaw-itz’s plea, the district court may modify his sentence. Wukawitz asserts that the only way to modify his sentence that comports with our prior ease law and the conditional release statute is for the minimum period of incarceration — 93-1/3 months — to be reduced to 80 months. He then urges us to add the five-year conditional release term, totaling the 140-month negotiated sentence. The state objects to Wukawitz’s proposal, arguing that the reduction in prison time would not preserve the expectations of the parties.

The state’s argument is not without merit. Both the state and Wuk-awitz negotiated for a sentence of 140 months, expecting that Wukawitz would serve not less than 93-1/3 months in prison. Courts look to “what the parties to the plea bargain reasonably understood to be the terms of the agreement” in determining whether a plea agreement has been violated. Brown, 606 N.W.2d at 674 (citations omitted). Given that both parties in this case anticipated that Wukawitz would spend a minimum of 93-1/3 months in prison, Wukawitz’s proposed reduction of prison time in order to accommodate mandatory conditional release would violate the plea agreement.

Further, the future reduction of a sex offender’s time in prison so that conditional release can be added could not have been anticipated or desired by the legislature. The title to the 1992 omnibus crime act (Act) that included the conditional release provision described the Act as “increasing supervision of sex offenders.” Act of April 29, 1992, ch. 571, title, 1992 Minn. Laws 1983, 1983. Importantly, a number of other provisions included in the Act increased sentences imposed for criminal sexual conduct and imposed stiffer penalties for repeat and patterned sex offenders. Act of April 29, 1992, §§ 22-24, 1992 Minn. Laws at 2000-02 (codified at Minn.Stat. § 609.346 (1992)). Given the legislative history and the Act’s increased penalties for sex offenders, it would be difficult to surmise that the legislature intended the statute to be applied in a way that allowed for early release from prison in order to accommodate a conditional release term. Taken as a whole, the legislative history indicates that, because of the serious and heinous nature of some criminal sexual conduct, the legislature chose to treat some sex offenders more punitively and to keep tighter post-incarceration control of them. Thus, the extraordinary step of reducing incarceration time to accommodate an extra layer of mandatory supervision would undermine the very purpose for which conditional release was enacted. We therefore hold that reduction of Wuk-awitz’s time in prison in order to accommodate a conditional release term that was not within a plea negotiation is not a viable option.

We turn then to the two alternative approaches adopted by the lower courts in modifying Wukawitz’s sentence to accommodate conditional release. The district court modified Wukawitz’s sentence by imposing the conditional release term concurrent with Wukawitz’s sentence, beginning after Wukawitz has served 80 months in prison and running for the remaining 60 months of his sentence. Wukawitz, 644 N.W.2d at 852-53. This approach follows the mandate of the conditional release statute that the conditional release term be for a five-year period but ignores the statute’s requirement that conditional release begin after incarceration. Minn.Stat. § 609.109, subd. 7(a).

In contrast, the court of appeals determined that conditional release could not begin before Wukawitz was released from prison. Wukawitz, 644 N.W.2d at 856. In order to stay within the framework of the plea agreement, the court of appeals concluded, however, that the district court had the discretion to impose conditional release for less than the five or ten years specified in the statute. Id. at 857. While recognizing that such a modification would not comport with the express words and the plain meaning of the statute, the court of appeals determined that such an approach to this difficult issue would be more consistent with the purpose of the conditional release statute. Id. at 856.

While both the district court and the court of appeals attempted to arrive at a modification that was consonant with both the statute and our prior case law; we believe the approach taken by the court of appeals more closely fulfills the statutory language and intent of the legislature without violating the constitutional dictates that a plea be accurate, voluntary, and intelligent. We therefore hold that in those circumstances where withdrawal of a plea would unduly prejudice the state, the district court at its discretion may impose a conditional release term commencing after the defendant is released from prison for a term of less than the five or ten years mandated by the statute. Our holding is limited to those situations where the original sentence did not include conditional release and the imposition of such a term after the fact would violate the plea agreement. We further limit our holding to allow for a reduction in the mandatory five- or ten-year conditional release term only in those instances where a plea withdrawal would unduly prejudice the state. Such a holding preserves the due process rights of defendants while still remaining consonant with the policy objectives of the legislature. Accordingly, we affirm the court of appeals’ holding as to the method of modifying Wukawitz’s sentence, but reverse the court of appeals’ holding that plea withdrawal does not have priority over modification of a sentence. We further remand to the district court to make specific findings as to prejudice.

Affirmed in part, reversed in part, and remanded.

      . Although Wukawitz pleaded guilty to two separate counts, the pleas will be referred to by the singular use, plea.

      . Conditional release is a term of supervision imposed on persons convicted of certain sex crimes after their release from incarceration. Minn.Stat. § 609.109, subd. 7(a) (1998). If a sex offender fails to meet any condition of release, the commissioner may revoke the person’s conditional release and order the person to serve the remaining portion of the release term in prison. Minn.Stat. § 609.109, subd. 7(b).

      . We recognize that some plea agreements contemplate recommendations by the parties without binding the court to a specific sentence. In such cases, the failure of the court to follow such recommendations does not violate due process. See Perkins v. State, 559 N.W.2d at 687-88; State v. Ford, 397 N.W.2d 875, 882-83 (Minn.1986); Schwerm v. State, 288 Minn. 488, 491, 181 N.W.2d 867, 868 (1970). That, however, is not the factual background giving rise to this case.

      . The statute was originally codified as Minn. Stat. § 609.346, subd. 5(a) (1992) but was recodified without change as Minn.Stat. § 609.109, subd. 7(a) in 1998. Act of April 6, 1998, ch. 367, art. 6, § 6, 1998 Minn. Laws 666, 731, 735. The legislature noted at that time that the purpose of the recodification was to "unify these various increased sentence provisions to facilitate their use” and "not * * * to result in any substantive change in the recodified sections.” Act of April 6, 1998, § 2, 1998 Minn. Laws at 727.

      . Calmes and Schwartz did not involve claims that the negotiated plea had been induced by the promise of an agreed-upon sentence or other issues pertinent to our analysis and therefore will not be discussed below.

      . The general issue of when a defendant has an absolute right to withdraw a guilty plea was not squarely presented in Garcia, because the state conceded that, under the circumstances of the case, the defendant could withdraw his plea. See State v. Garcia, 1997 WL 644964, at *1 (Minn.App. Oct.21, 1997); see also Brown, 606 N.W.2d at 674 n. 5.

      . In Humes, we held that "[t]he canons of statutory construction provide that 'shall' is mandatory," and therefore, the conditional release term is mandatory and not waivable. Humes, 581 N.W.2d at 319; see also Minn. Stat. § 645.44, subd. 16 (2002). Applying the same analysis to the word "shall” in the phrase “the person shall be placed on conditional release for five years * * * [or] ten years” also makes the term of five or ten years mandatory.

      . As we recognized in La Bere v. Palmer, "[a]lthough the title of an act is not of decisive significance and may not be used to vaty the plain import of a statute’s explicit language within the scope of the title, it may be considered in aid of its construction, * * 232 Minn. 203, 206, 44 N.W.2d 827, 829 (1950).

      . For example, the legislature increased the statutory maximum sentences imposed for first-degree and second-degree criminal sexual conduct from 25 to 30 years and 20 to 25 years, respectively, and increased the maximum sentence for sex offenders convicted under section 609.342 (criminal sexual conduct in the first degree) who had previous criminal sexual conduct convictions from 37 years to a life sentence. Act of April 29, 1992, ch. 571, art. 1, §§ 14, 15, 22, 1992 Minn. Laws 1983, 1992-95, 2000-01 (codified at Minn.Stat. §§ 609.342, 609.343, 609.346 (1992)). The legislature also imposed a mandatory 30-year sentence on certain sex offenders if the crime involved an aggravating factor and the person had a previous criminal sexual conduct conviction. Act of April 29, 1992, § 23, 1992 Minn. Laws at 2001 (codified at Minn.Stat. § 609.346 (1992)). Lastly, the legislature removed the provision that allowed a patterned and dangerous sex offender to be put on conditional release once he or she had completed one half of his or her sentence if the offender participated in treatment. Act of April 29, 1992, § 12, 1992 Minn. Laws at 1991. Instead, the patterned and dangerous sex offender was to be put on conditional release after he or she had completed the sentence imposed less good time earned for a period equal to the remainder of the statutory maximum period or ten years, whichever was longer. Act of April 29, 1992, § 12, 1992 Minn. Laws at 1991 (codified at Minn.Stat. § 609.1352, subd. 5 (1992)).


author: GILBERT, Justice.

text:
    ILLINOIS FARMERS INSURANCE COMPANY, Respondent, v. Janet Dawn REED, et al., Defendants, Richard Peschong, et al., Petitioners, Appellants.
    No. C2-02-123.
    Supreme Court of Minnesota.
    June 12, 2003.

      Sharon L. Vandyck, Mark H. Gruesner, Schwebel, Goetz & Sieben, P.A. Minneapolis, MN, for Petitioner/Appellant.
    Matthew Robert Zahn, Gislason <& Hunter, LLP, Minnetonka MN, for Respondent.
    Michael A. Zimmer, Tewksbury, Kerfeld & Zimmer, P.A., Minneapolis, MN, for Defendant.
    Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN, for MTLA, Amicus Curiae.
   OPINION

GILBERT, Justice.

This case presents the issue of whether an insured’s criminal conviction can be used by the insurance company to collaterally estop the victim of the crime from litigating in a subsequent civil action the issue of the insured’s intent to determine whether the insured’s homeowner’s insurance policy provides coverage for the incident. Richard and Kimberly Peschong, individually and as parents and natural guardians of Jordan Peschong, and Jordan Peschong, a minor child, (appellants) brought suit against Janet Reed for the injuries Jordan incurred on May 25, 1999, while in Reed’s care. Illinois Farmers Insurance Company (respondent), Reed’s homeowner insurance provider, denied coverage and filed a complaint for declaratory relief with the Anoka County District Court naming Janet and James Reed, the Peschongs and First Health as defendants. The district court denied respondent’s motion for summary judgment and pursuant to Minn. R. Civ.App. P. 103.03(i), certified a legal question as important and doubtful. The court of appeals held that: (1) the collateral-estoppel effect of a conviction is not limited to situations in which a criminal defendant seeks to profit from the crime, and (2) Reed’s conviction collaterally es-topped relitigation of the issue of intent with respect to the intentional acts exclusion. Ill. Farmers Ins. Co. v. Reed, 647 N.W.2d 553, 568 (Minn.App.2002). The Peschongs petitioned this court for review, which was granted on October 15, 2002. We reverse and remand.

One-year-old Jordan Peschong was seriously injured on May 25, 1999, while being cared for by Janet Reed in the daycare that Reed operated in her home. As a result of the incident, Reed was charged with assault in the first degree (great bodily harm), Minn.Stat. § 609.221, subd. 1 (2002), and malicious punishment of a child (resulting in great bodily harm), Minn. Stat. § 609.377, subd. 6 (2002). The state alleged that Reed had shaken Jordan and that the shaking led to the severe, life-threatening injuries Jordan incurred. Reed claimed that the state could not meet its burden of proof to show the injuries were the result of “shaken baby syndrome” and that Jordan’s injuries were the result of his falling backwards from a standing position onto the hard ceramic floor of her kitchen. Reed waived the right to a jury trial and agreed to a bench trial with the court acting as finder of fact. Following the bench trial, the district court issued a 90-page order including findings of fact, conclusions of law, and a guilty verdict on both charged counts.

Appellants filed a civil suit against Reed arising from the same incident that resulted in Reed’s criminal convictions. Respondent, Reed’s homeowner insurance provider, filed a complaint for declaratory relief naming Janet and James Reed, the Pes-chongs and First Health as defendants and claiming that it had no obligation to defend, indemnify or otherwise provide benefits to Reed for the injuries suffered by Jordan Peschong. In that complaint, respondent provided the following rationale for denying coverage:

16. The Farmers Policy provides coverage for “bodily injury ... resulting from an occurrence.” The term “occurrence” is defined in the Farmers Policy as “an accident including exposure to conditions which results during the policy period in bodily injury.”
17. The Farmers Policy excludes coverage for bodily injury, which is either:
a. Caused intentionally by or at the direction of the insured; or
b. Results from any occurrence caused by an intentional act of any insured where the results are reasonably foreseeable.
18. Janet Dawn Reed intentionally caused Jordan D. Peschong’s injuries, those injuries were reasonably foreseeable and those injuries are not the result of an “occurrence” as that term is defined in the Farmers Policy.

The district court issued an order and memorandum denying respondent’s motion for summary judgment and certifying a question for the appellate courts under Minn. R. Civ.App. P. 103.03(i). The court framed the certified question as follows:

When interpreting an intentional act exclusion of a common liability policy, does Minnesota law permit criminal convictions to be used for collateral estoppel purposes in a subsequent civil case in situations other than those envisioned in Travelers Insurance Co. v. Thompson, 281 Minn. 547, 163 N.W.2d 289 (1969)[sic] — namely, where the criminal defendant seeks to profit from his/her crime in a subsequent civil proceeding?

The district court denied the motion for summary judgment believing that Minnesota law, under Thompson, allowed a criminal conviction to be used to estop a subsequent civil action only when the criminal attempted to profit from the crime. The court concluded it did not have the authority to expand the doctrine of collateral estoppel beyond the situation in Thompson. The court found that if collateral estoppel could apply to a situation other than that in Thompson, then all the requirements of collateral estoppel were met by the facts of this case.

The court of appeals answered the certified question in the affirmative, and reversed the district court. It held that collateral estoppel could be applied in situations other than that in Thompson. The court of appeals concluded that under the facts in the record, Reed’s conviction for assault in the first degree collaterally es-topped relitigation of the intent issue with respect to the intentional acts exclusion.

“Certified questions are matters of law that we review de novo.” Conwed Corp. v. Union Carbide Chem. and Plastics Co., Inc., 634 N.W.2d 401, 406 (Minn.2001). Under Minnesota law, collateral estoppel is appropriate when the following four elements are met:

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the es-topped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn.1982) (quoting Victory Highway Village, Inc. v. Weaver, 480 F.Supp. 71, 74 (D.Minn.1979)).

The certified question references Travelers Insurance. Co. v. Thompson, 281 Minn. 547, 163 N.W.2d 289 (1968). In Travelers, a number of insurance companies sought declaratory relief as to their liabilities to a beneficiary husband who had been convicted of murdering his wife. Id. at 548, 163 N.W.2d at 290. We held that the husband’s judgment of conviction in the criminal case was conclusive as to the result in the civil action to determine his rights to the life insurance proceeds of his deceased wife. Id. at 555, 163 N.W.2d at 294. In so concluding, we granted a prior criminal conviction collateral estoppel effect “where the convicted defendant attempts by subsequent civil litigation to profit from his own crime, as where an arsonist seeks to recover insurance proceeds for damage caused by the fire which he was convicted of setting, or where a beneficiary convicted of homicide seeks to recover under the victim’s life insurance policy.” Id. at 552, 163 N.W.2d at 292.

Appellants argue that collateral estop-pel, an equitable doctrine, should not be extended beyond the holding in Thompson, and is not appropriate in the present case. Appellants point out that in Thompson, this court precluded a convicted criminal from profiting from his crime; whereas, applying collateral estoppel under the facts present here would unfairly extend the doctrine to injured persons who were not parties to the preceding criminal trial.

Appellants cite as persuasive two cases from the Supreme Judicial Court of Massachusetts. The Massachusetts court issued two rulings on the same day that relate to the issue before this court. In Aetna Casualty & Surety Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356, 1360 (1985), Massachusetts adopted the rule that “a party to a civil action against a former criminal defendant may invoke the doctrine of collateral estoppel to preclude the criminal defendant from relitigating an issue decided in the criminal prosecution.” That ruling mirrored our decision in Thompson. Thompson, 281, Minn. at 555, 163 N.W.2d at 294. The second case released that day, Massachusetts Property Insurance Underwriting Ass’n. v. Norrington, 395 Mass. 751, 481 N.E.2d 1364 (1985), addressed the issue confronting us in the present case.

In Norrington, Sandra Thomas and John Person had a homeowner’s insurance policy that excluded coverage for “bodily injury or property damage * * * which is expected or intended by the insured.” Id. at 1365. Person shot and killed Thomas while the homeowner’s policy was in effect. He was then convicted of second-degree murder. Thomas’s next of kin, Norrington, brought a wrongful death action against Person before the criminal trial. After Person was convicted, the insurance company brought a declaratory judgment action asking the court to declare that because the shooting was found to be intentional, the insurance company had no obligation to pursue settlement of the wrongful death action nor indemnify Person for a judgment against him in that case. Id. The Massachusetts court stated that for collateral estoppel to apply the issue decided in the preceding litigation must be identical, there must be a final judgment on the merits, and the party against whom estoppel is applied was the party or in privity with the party in the prior adjudication. Id. at 1366. The court went on to conclude that collateral estop-pel could not apply because “he [Norring-ton] was neither a party nor in privity with a party to the criminal case.” Id. The court held that Norrington should not be precluded in the wrongful death action from attempting to show that Person neither intended nor expected to shoot Thomas. Id. at 1367.

The court noted, “the right of the injured party to have recourse to the indemnity promised by the insurer rises no higher than the right of the insured.” Id. The court concluded, however, “that, even though MPIUA [insurer] could invoke collateral estoppel against Person [insured shooter], MPIUA cannot invoke that doctrine against Norrington.” Id. The Massachusetts court based its ruling on the fact that the injured person had no opportunity to litigate whether the shooting was intentional or accidental and that fairness required that he have that opportunity. Id. at 1368. Finally, the court stated that denying collateral estoppel placed no undue burden on the insurer, because the insurer had not yet litigated the coverage question and only sought to benefit from a case to which it was not a party. Id.

We find the reasoning of the court in Norrington convincing. The fact that appellants have not had the opportunity to present their case to a court or jury is compelling. The two parties in the criminal prosecution were the state and Reed. The appellants were not parties to the criminal proceedings and have not had the opportunity to cross-examine Reed nor have they had the opportunity to present their own evidence or experts. A defendant’s Fifth Amendment right not to testify in a criminal proceeding and the negative inference that can be drawn from exercising that right in a civil case may result in substantially different evidence being offered at the civil trial.

Respondent argues that we should determine the applicability of the doctrine of collateral estoppel by focusing on how the doctrine applies to Reed. Respondent asserts that the dominant trend among other jurisdictions is to invoke collateral estoppel to preclude recovery under an intentional acts exclusion from an insurer where the insured has been criminally convicted for the conduct at issue. The respondent also cites the Restatement (Second) of Judgments § 85 cmt. e (1982) to support that contention. The court of appeals relied on the following portions of the restatement:

With respect to issues determined in a criminal prosecution:
⅜: ⅜ ⅜ ⅜
(2) A judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action:
(a) Against the defendant in the criminal prosecution as stated in § 29 [repudiating the mutuality rule with respect to the effect of a civil judgment].

Reed, 647 N.W.2d at 565 (quoting Restatement (Second) of Judgments § 85 cmt. e (1982)). The court of appeals then quoted Restatement (Second) of Judgments § 85 cmt. e, which explained, “long before the mutuality rule was repudiated in civil cases, well-reasoned decisions had extended the rule of preclusion to operate in favor of third persons where the first action is criminal and the second is civil.” Reed, 647 N.W.2d at 565 (quoting Restatement (Second) of Judgments § 85 cmt. e (1982)).

The Restatement (Second) of Judgments § 85 cmt. e, however, does not address the circumstances present here, where the rights of a victim against the wrongdoer’s insurance company are concerned. Rather, Restatement (Second) of Judgments § 85 cmt. e states that courts have es-topped the criminal from benefiting from his crime, and have used estoppel in favor of the third-person victim in a civil suit against the criminal defendant.

A different portion of the Restatement (Second) of Judgments § 85 informs our decision. Appellants and the amicus curiae brief submitted by the Minnesota Trial Lawyers in this case direct our attention to Restatement (Second) of Judgments § 85 cmt. f.

f. Judgment for prosecution: preclusion against third party. Under some circumstances the criminal judgment may be preclusive as to issues not only against the defendant in the criminal case but also against those “in privity” with him, as privity is defined in §§ 46, 48, 56(l), and 59-61, or analogous rules. The relationship with the criminal defendant must be sufficiently close that it would be unjust to allow the third party to prevail notwithstanding the judgment for the prosecution.
The following illustration follows comment f:
D inflicts a blow on X as a result of which X dies. D is convicted of intentional homicide. P, administrator of X’s estate, brings an action against D for wrongful death, alleging D’s act was negligent. I had previously issued a policy of liability insurance to D, insuring liability for D’s negligent acts but excluding intentional acts. In P’s action against D, P is not precluded by the criminal conviction from showing that D’s act was negligent rather than intentional.

Restatement (Second) of Judgments § 85 cmt. f, Ulus. 10.

The preceding illustration addresses the situation presented by the present case. It demonstrates that the Restatement (Second) of Judgments supports our conclusion that an insurer may not use an insured’s criminal conviction to collaterally estop a subsequent civil suit brought by a third-party crime victim based on the intentional act exclusion within the policy.

Finally, we are concerned the appellants were not “given a full and fair opportunity to be heard.” Ellis, 319 N.W.2d at 704. (citation omitted). In order to uphold the appellants’ right to a fair and full hearing, we will not expand our Thompson ruling to these facts.

Reversed and remanded.

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

      . The victim’s status as a party to the insurance contract was of no significance to the Massachusetts court's decision. Norrington, 481 N.E.2d at 1365 n. 2.