author: TERNUS, Justice.

text:
    Diana J. GARRETT f/k/a Diana J. Huster, Appellee, v. Duane T. HUSTER, Appellant, and Ellen Jandebeur, Roger Huster, Valerie Jo Townsend, Timothy Huster, Rusty Huster, and Edward Huster, Defendants.
    No. 03-0541.
    Supreme Court of Iowa.
    July 21, 2004.

      David P. Jennett, Storm Lake, for appellant.
    Warren L. Bush, Wall Lake, for appel-lee.
   TERNUS, Justice.

Appellant, Duane T. Huster, appeals the district court’s judgment quieting title to certain real estate in his former wife, ap-pellee, Diana J. Garrett. He argues the trial court erred in failing to uphold his title to the property on the basis of (1) adverse possession, (2) the bar of Iowa Code section 614.17A (2001), (3) the doctrine of laches, or (4) the doctrine of equitable estoppel. Upon reviewing the arguments of the parties and the applicable law, we conclude the trial court correctly rejected these theories and properly quieted title to the disputed land in Garrett.

I. Background Facts and Proceedings.

Duane Huster and Diana Garrett were divorced in 1985. The decree awarded Garrett an undivided 2/3 interest and Hus-ter an undivided 1/3 interest in a ten-acre parcel of property owned by the parties. In addition, Garrett was awarded an undivided 1/3 interest in Huster’s undivided 1/4 remainder interest in another 200 acres of land. Huster’s mother, Betty Huster, owned an undivided half interest in the 200 acres and held a life estate in the other undivided half interest. Huster’s three siblings each held an undivided 1/4 remainder interest in the undivided half interest subject to Betty’s life estate.

The dissolution decree required Huster to pay marital debt owed to Sac City State Bank that was secured by the parties’ interests in the ten-acre parcel and the 200 acres of land. When Huster failed to pay this debt, the bank foreclosed its mortgage. Betty purchased the parties’ interests at a 1987 sheriffs sale and received a sheriffs certificate of purchase transferring Huster’s and Garrett’s interests in these parcels subject to their statutory right of redemption. See Iowa Code § 626.95 (1987) (providing a one-year redemption period). Although Garrett was served notice of the foreclosure, she did not appear. She understood the property would be sold, but she was unaware of the purchaser’s identity.

Garrett did not redeem the property and Huster assigned his right of redemption to his mother. Betty, however, did not obtain a sheriffs deed within eight years of the sheriffs sale as prescribed by Iowa law. See id. § 626.97. During this eight-year period and until Betty died in 2000, Betty leased the property to other family members. Huster received the rent on the 10-acre parcel and paid the real estate taxes on this land. Betty received the rent and paid the taxes on the 200 acres. Garrett did not receive any portion of the rental payments and did not pay any of the taxes.

When Betty passed away in 2000, she left her property to her four children, including the defendant, per stirpes. In November 2001, the probate court entered an order for declaratory judgment, canceling the 1987 sheriffs certificate and declaring that all rights arising from the sheriffs sale were barred. On the same date, the court entered an order on the final report in the probate of Betty’s estate, holding that Betty’s purchase at the 1987 sheriffs sale gave her no rights with respect to the 10-acre parcel or the 200 acres.

Garrett, who had moved to Colorado following the parties’ divorce, first learned a few months after the closing of Betty’s estate that Betty had never obtained a sheriffs deed after her purchase of the property at the foreclosure sale. Garrett then filed this quiet title action in May 2002, naming Huster and Betty’s other heirs as defendants. Only Huster filed an answer and contested Garrett’s title.

Garrett claimed that based on the dissolution decree and the termination of Betty’s life estate, Garrett held fee simple title to an undivided 2/3 interest in the 10-acre parcel and an undivided 1/12 interest in an undivided 1/2 interest in the 200 acres. Huster alleged he had acquired title by adverse possession. He also asserted Garrett’s action was barred by Iowa Code section 614.17A, which extinguishes claims to real estate against the record title holder in possession under certain circumstances. Finally, Huster asserted the affirmative defenses of laches and estoppel. Huster also filed a counterclaim, seeking to quiet title to the disputed property in himself. The trial court ruled in favor of Garrett on every issue.

Huster appealed. Our review of this quiet title action is de novo. Larman v. State, 552 N.W.2d 158, 161 (Iowa 1996); Iowa R.App. P. 6.4.

II. Adverse Possession.

“A party claiming title by adverse possession must establish hostile, actual, open, exclusive and continuous possession, under claim of right or color of title for at least ten years.” C.H. Moore Trust Estate v. City of Storm Lake, 423 N.W.2d 13, 15 (Iowa 1988) (emphasis added). We construe this doctrine strictly. See id.

Huster seeks to satisfy the ten-year possession requirement in part by relying on the possession of his predecessor-in-title, Betty. Garrett responds that Betty’s possession was not hostile or adverse for the eight years Betty held equitable title to the property pursuant to the sheriffs certificate. We agree.

“A possession that is in law rightful and not an invasion of the rights of others is not adverse.” 3 Am. Jur. 2d Adverse Possession § 43, at 124 (2002); accord Chadek v. Alberhasky, 253 Iowa 32, 37, 111 N.W.2d 297, 300 (1961) (“Possession, to be adverse, must be hostile.”); Creel v. Hammans, 234 Iowa 532, 535, 13 N.W.2d 305, 307 (1944) (stating adverse possession “is not based on, but is hostile to, the true title”). Here, Betty held the property to the exclusion of all others once Garrett failed to redeem within one year of the sheriffs sale. This conclusion is dictated by Iowa Code section 628.16, which states: “Unless the defendant redeems, the purchaser ... will hold the property absolutely.” Iowa Code § 628.16 (emphasis added). We think this description of a purchaser’s rights is accurate even though title may subsequently be lost by virtue of the buyer’s failure to obtain a deed within eight years of the sale. See id. § 626.97 (providing sale can-celled and all rights from sheriffs certificate barred if no deed issued within eight years). Had the legislature, by its enactment of section 626.97, intended to alter the purchaser’s status during the seven-year period following expiration of the time for redemption, it would have also amended section 628.16 to indicate that the purchaser’s rights were something less than absolute during this interim period. Because the legislature chose not to alter section 628.16, that statute’s characterization of the buyer’s rights to the property as absolute applies during the seven-year period for issuing a deed.

Because Betty held the property absolutely from 1988 through 1995, Garrett had no possessory rights during this time. See Conner v. Long, 63 Iowa 295, 299, 19 N.W. 221, 223 (1884) (stating when the right to redeem expired, all right and interest of the former owner in the premises expired also). Only after Betty failed to have a sheriffs deed issued within this period did the property revert to its former owners, thereby resurrecting Garrett’s rights in the property. See Iowa Code § 626.97. Accordingly, Betty’s possession did not become hostile or adverse to Garrett until 1995, when the sheriffs sale was can-celled. Garrett, filed this action seven years later. Therefore, as the trial court correctly held, Huster and his predecessor in title did not hold the property adversely to Garrett for a sufficient period of time to obtain title by adverse possession.

III. Section 61⅛.17A Bar.

Section 614.17A(1) provides:

1. After July 1, 1992, an action shall not be maintained in a court, either at law or in equity, in order to recover or establish an interest in or claim to real estate if all the following conditions are satisfied:
a. The action is based upon a claim arising more than ten years earlier or existing for more than ten years.
b. The action is against the holder of the record title to the real estate in possession.
c.The holder of the record title to the real estate in possession and the holder’s immediate or remote grantors are shown by the record to have held chain of title to the real estate for more than ten years.

Id. § 614.17A(1). Section 614.17 states that for purposes of section 614.17A, possession may be shown of record by an affidavit of possession filed with the county recorder. Huster filed such an affidavit on December 27, 2001, stating that he was “in complete actual and sole possession of’ the ten-acre parcel and his 1/4 undivided remainder interest in an undivided 1/2 interest in the 200 acres. He asserts that section 614.17A(1) bars Garrett’s claim to an interest in these properties.

The flaw in Huster’s argument is his failure to establish that he and his immediate grantor (Betty) held record chain of title for more than ten years as required by section 614.17A(l)(c). After the dissolution decree was issued, Garrett became the record title holder to her undivided interests in the 10-acre parcel and the 200 acres. See id. § 598.21(11) (requiring clerk of court to issue a certificate under chapter 558 when court orders transfer of title in real estate and to forward certificate to county recorder for recording). As we have already discussed, after Betty’s purchase of these interests was cancelled in 1995 upon her failure to obtain a sheriffs deed, legal and equitable title reverted to Huster and Garrett, the record title holders. Even though Huster claims to have been in possession of the property after 1995, he only had record title to his interests in the land, not to Garrett’s interests. Therefore, he did not hold record title to the disputed interests for more than ten years and consequently cannot rely on section 614.17A(1) to extinguish Garrett’s interests in the subject real estate.

IV. Laches.

The following principles govern our consideration of Huster’s claim that Garrett’s rights are barred by laches:

Laches is an equitable doctrine premised on unreasonable delay in asserting a right, which causes disadvantage or prejudice to another. The party asserting the defense has the burden to establish all the essential elements thereof by clear, convincing, and satisfactory evidence. Prejudice is an essential element of laches.

State ex rel. Holleman v. Stafford, 584 N.W.2d 242, 245 (Iowa 1998) (citations omitted). The mere passage of time will not give rise to an inference of prejudice. See State v. Seager, 571 N.W.2d 204, 209 (Iowa 1997).

Huster’s claim of prejudice in the present case is the inability of Betty’s “heirs” to recover the money paid by Betty in the foreclosure action since the estate is now closed. Although Huster does not identify the nature of this right of recovery, we surmise he believes the heirs would have had a claim against Garrett, as he asserts the money paid by Betty was in satisfaction of Garrett’s debt. Initially, we note that Betty’s heirs are not asserting a laches defense; they did not defend against Garrett’s quiet title action. Only Huster claims he was prejudiced by Garrett’s delay and there is certainly no prejudice to Huster. The dissolution decree required Huster to pay the money owed by Huster and Garrett to the Sac City State Bank. Thus, any payment made by Hus-ter’s mother in the foreclosure action was on account of Huster’s debt, not Garrett’s debt. Assuming this payment was recoverable, we are at a loss to identify who Huster or any other heir would hold accountable for this payment other than Huster himself. Consequently, Huster cannot claim prejudice from his inability to pursue this alleged cause of action. Therefore, we, like the trial court, find no merit in Huster’s laches defense.

V. Estoppel by Acquiescence.

Anticipating difficulty in establishing prejudice, Huster also relies on the doctrine of estoppel by acquiescence, which requires no showing of detriment. See Westfield Ins. Cos. v. Economy Fire & Cas. Co., 623 N.W.2d 871, 880 (Iowa 2001) (“Under Iowa law, it is not necessary to prove prejudice to establish estoppel by acquiescence.”). “[E]stoppel by acquiescence occurs when a person knows or ought to know of an entitlement to enforce a right and neglects to do so for such time as would imply an intention to waive or abandon the right.” In re Marriage of Fields, 508 N.W.2d 730, 731 (Iowa 1993).

Here, the record shows that, until shortly before this suit was filed, Garrett had no actual knowledge that Betty did not obtain a deed so as to nullify the foreclosure sale. Upon acquiring this information, Garrett immediately commenced this quiet title action.

In addition, the circumstances do not support a conclusion that Garrett should have known of her rights earlier. Garrett’s failure to discover that her interest in the ten-acre parcel had been restored in 1995 is attributable directly to Huster’s decision to treat the property as his own, keeping the rental payments rather than forwarding Garrett’s portion to her. As for Garrett’s remainder interest in the 200 acres, that interest did not vest until Betty’s death in June 2000. Garrett filed this action less than two years later. Given these circumstances, we agree with the trial court that Huster has failed to establish estoppel by acquiescence.

VI. Summary.

Huster did not prove he acquired title to Garrett’s interests in the subject property through adverse possession because he and his predecessor-in-title did not possess the property adversely to Garrett for the requisite ten-year period. Additionally, Garrett’s claim is not barred by section 614.17A(1) because Huster was not the record title holder of Garrett’s interests, as required by that statute.

Huster’s equitable defenses also fail. Huster did not establish laches because he did not demonstrate he suffered any prejudice from Garrett’s delay in asserting her rights in the property. There is no merit in Huster’s claim of estoppel by acquiescence because Garrett did not neglect to enforce her rights for such a period of time after she knew or should have known of her rights so as to indicate a waiver or abandonment of her rights.

Based on these conclusions, we affirm the trial court’s order quieting title in Garrett to an undivided 2/3 interest in the 10-acre parcel and to an undivided 1/12 interest in an undivided 1/2 interest in the 200 acres.

AFFIRMED.

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

      . Section 626.97 provides:
      After eight years have elapsed from the date of issuance of any sheriff's certificate of sale, and no action has been taken by the holder of such certificate to obtain a deed thereunder, it shall be the duty of the sheriff and clerk of the district court to cancel such sale and certificate of record and all rights thereunder shall be barred.
      This statute was intended to eliminate "uncertainties in land titles [caused by] the failure to present outstanding sale certificates for long periods.” Appleby v. Fanners State Bank, 244 Iowa 288, 296, 56 N.W.2d 917, 922 (1953).

      . Huster relies on this court’s decision in Moffitt v. Future Assurance Associates, Inc., 258 Iowa 1160, 140 N.W.2d 108 (1966), to support his claim that Betty's possession during the seven-year period for obtaining a deed was hostile. In that case, we held adverse possession can run against the holder of legal title. Moffitt, 258 Iowa at 1169, 140 N.W.2d at 113. But in Moffitt the party purporting to possess the property adversely to the former owner who held legal title was a third party who claimed it as his own as against the legal titleholder and the tax purchaser who held equitable title. Id. at 1164, 140 N.W.2d at 110. Thus, in Moffitt, the question was whether the third party’s possession was hostile to the legal and equitable title holders’ rights. In contrast, here, the person claiming to possess the property adversely to the former owner is the holder of the equitable title. Accordingly, the issue of hostile possession does not involve a third party, but rather concerns the possessory rights of the former owner vis-á-vis the purchaser at foreclosure. Therefore, our analysis in Moffitt is not controlling in the present case.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Mary Ellen KENNEDY, Respondent.
    No. 04-0394.
    Supreme Court of Iowa.
    July 21, 2004.

      Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    Max E. Kirk of Ball, Kirk & Holm, P.C., Waterloo, for respondent.
   CADY, Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct charged Mary Kennedy with numerous violations of the Iowa Code of Professional Responsibility for Lawyers based on her conduct in representing three separate clients. The Grievance Commission of the Supreme Court of Iowa found Kennedy violated the Code of Professional Responsibility. It recommended that she receive a public reprimand. Upon our review, we find Kennedy violated the Code of Professional Responsibility and impose a suspension of not less than sixty days.

I. Background Facts and Proceedings.

Mary Kennedy practices law in Waterloo, Iowa. She was admitted to the practice of law in Iowa in 1993. Prior to beginning her career as a lawyer, she worked first as a cosmetologist and later with the Department of Human Services for twenty years. Kennedy attended college and law school during this time and was a single parent. She primarily practices in the area of family law, but is also active in juvenile and mental health cases. She has a professional reputation as being knowledgeable and skillful in her work.

Three separate complaints were filed with the Board by clients of Kennedy, which gave rise to this proceeding. In one matter, Kennedy represented Jeffrey Baker in a postconviction relief proceeding. The proceeding was filed in 2001, and Baker was incarcerated throughout the course of the case. Kennedy failed to perform numerous essential services on behalf of Baker. She failed to recast the petition as ordered by the district court, failed to prepare for the hearing, and failed to respond to numerous letters from her client. After successfully moving to continue the hearing on several occasions, Kennedy agreed to submit the case to the district court without evidence. She did not obtain Baker’s consent to do this. Although the client requested to be present at the hearing, Kennedy never sought an order from the district court to have Baker transported to the hearing and never notified Baker of the date of the hearing. Following the hearing, Kennedy failed to file a brief as directed by the district court and later failed to respond to an inquiry by the district court concerning the absence of the brief. Ultimately, the district court removed Kennedy from the case and appointed new counsel.

In another matter, Kennedy agreed to represent JoAnn Carr in March 2002 for the purpose of establishing a voluntary guardianship on behalf of her granddaughter. Carr had physical custody of the granddaughter and had been her caretaker for many years. Kennedy charged a flat fee of $250 for her services, which Carr paid in July 2002. Kennedy did not deposit the fee in her trust account. Kennedy had prepared the petition and other necessary documents by this time, but never filed the petition or secured an order establishing the guardianship. Carr made several inquiries about the status of the case after the fee was paid, but Kennedy failed to respond. Kennedy claimed she did not promptly file the petition because she was waiting for one of the child’s parents to forward a written consent to the guardianship to her. She further claimed she did not file the petition after the consent was received because Carr had filed a complaint with the Board. Kennedy failed to respond to the Board inquiry of the complaint.

In the remaining matter, Kennedy agreed to represent Connie Rau for the purpose of establishing a guardianship on behalf of her grandson. Rau was a South Dakota resident and the grandson was involved in a juvenile proceeding in Waterloo. Kennedy charged a flat fee of $250, and Rau paid the fee. Kennedy did not deposit the fee in her trust account. Kennedy also never filed the petition to establish the guardianship. She decided to first seek directions from the juvenile court before filing the petition. This delayed matters, and the client eventually employed another lawyer in South Dakota to set up the guardianship. Kennedy never returned the fee or made an accounting. She also failed to respond to the Board inquiry into the matter.

Kennedy has had no prior disciplinary actions against her. Following the filing of the complaints, she hired a bookkeeper to handle her office finances and reduced her caseload. She has also sought counseling.

II.Board Complaint.

The Board charged Kennedy with numerous violations of the Code of Professional Responsibility. It claimed Kennedy, in all three cases, violated DR 6-101(A)(3) (neglect of a client’s legal matter) and DR 7-101 (failing to zealously represent a client). It also claimed Kennedy violated DR 1-102(A)(5) (conduct prejudicial to the administration of justice) and (6) (conduct adversely reflecting on fitness to practice law) by failing to cooperate with the ethics investigations in the Carr and Rau cases and by failing to properly pursue the interests of her clients in all the cases. It additionally claimed Kennedy violated DR 9-102(A) (trust account provisions) and (B) (accounting of fees) by failing to deposit fees into her trust account in the Carr and Rau cases and failing to account for the fees.

The Commission found the Board established that Kennedy committed neglect in the Baker case and did not zealously represent Baker. Additionally, it found this conduct was prejudicial to the administration of justice and adversely reflected on her fitness to practice law. In the Carr and Rau cases, the Commission found the Board established that Kennedy violated the trust account provisions, failed to make an accounting of fees, and failed to cooperate with the Board inquiry. It recommended Kennedy receive a public reprimand.

III. Scope of Review.

We review attorney disciplinary matters de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa 2002). We give weight to the findings of the Commission, but the findings are not binding on us. Id.

IV. Violations.

A. Neglect.

We generally define professional neglect “to involve indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004) (citation omitted). It is more than negligence, and normally involves more than a single act or omission. Id. at 552 (citations omitted). It can also involve procrastination.

Kennedy neglected her professional obligations in the Baker case. She did little to prepare the case for hearing and did less to involve her client in the process. Additionally, she failed to comply with court directives. Kennedy also neglected client matters in the Carr case. She failed to promptly file the petition for guardianship after receiving the necessary supporting documents and continued her neglect despite numerous attempts by the client to contact her and inquire about the case. The neglect continued even after the client filed a complaint with the Board. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 167 (Iowa 2003) (attorney has ethical duty to protect the interests of a client until withdrawal from the case or until the client has secured other representation). We agree with the Board that Kennedy did not commit neglect in the Rau case. She had legitimate concerns that needed to be addressed and these concerns justified her delay in filing the guardianship petition.

We conclude Kennedy committed neglect in violation of DR 6-101(A)(3). This conduct also violates DR 7-101 and DR 1-102(A)(5) and (6).

B. Client Funds.

Our prior cases have made it clear that a flat fee for performing a specific legal service constitutes a special retainer and, when paid in advance of completing the service, “must be deposited in a client trust account.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 476 (Iowa 2003); accord Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 55-56 (Iowa 1998). The full fee is not earned until the service is performed. Frerichs, 671 N.W.2d at 476.

In the Carr and Rau cases, Kennedy charged a flat fee for a specific service and was paid the fee by the client prior to the time the services were completed. Consequently, Kennedy was obligated to deposit the fees into her trust account. Her argument that the services she agreed to perform were almost complete is no defense. We explained the shortcomings of this argument in Frerichs. See id. Until services are complete, it is possible that at least a portion of the fee “would need to be refunded to the client in the event the attorney-client relationship is terminated before the services were rendered.” Id. The wisdom of this rationale is clearly evident in this case. We find Kennedy failed to place client funds into a trust account in violation of DR 9-102(A). She also failed to render an accounting of the fees and to deliver unearned funds to a client in violation of DR 9-102(B).

C. Failure to Cooperate.

We have repeatedly emphasized how important it is for an attorney to cooperate with disciplinary authorities when a complaint has been filed against the attorney. See Comm. on Prof'l Ethics & Conduct v. Horn, 379 N.W.2d 6, 8-9 (Iowa 1985). Moreover, the failure to cooperate constitutes a violation of DR 1-102(A)(5) and (6). See id.; Comm. on Prof'l Ethics & Conduct v. Pracht, 505 N.W.2d 196, 199 (Iowa 1993). An attorney who ignores Board inquiries only exacerbates matters. Kennedy ignored several notices and letters from the Board and provided incomplete information. We conclude she violated DR 1-102(A)(5) and (6).

Y. Discipline.

We have articulated several general principles to determine the appropriate level of discipline in attorney disciplinary cases. Generally, we focus on “ ‘ “the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent’s fitness to continue” ’ to practice law.” Iowa Supreme Ct. Bd. of Prof'l. Ethics & Conduct v. Walters, 646 N.W.2d 111, 113 (Iowa 2002) (citation omitted). “We also consider any aggravating and mitigating circumstances.” Id. (citation omitted). Multiple instances of past disciplinary action is an aggravating circumstance. Id. (citation omitted).In the end, however, the discipline imposed is based on the facts of each case. Frerichs, 671 N.W.2d at 478. Nevertheless, prior similar cases can provide an important guideline. See id.

The unethical behavior in this case essentially involved neglect, trust account and accounting violations, and failure to cooperate. We have been presented with similar circumstances in prior cases, generally resulting in suspensions from the practice of law for periods of time between three and four months. In Iowa Supreme Court Board of Professional Ethics and Conduct v. Adams, 623 N.W.2d 815, 818-19 (Iowa 2001), we imposed a three-month suspension for neglect, failure to deposit a fee into a trust account, failure to account for client property, and misrepresentation to the client in an effort to cover up the neglect. In Frerichs, we imposed a four-month suspension for neglect, an illegal fee accompanied by a trust account violation, failure to provide an accounting, and failure to cooperate. 671 N.W.2d at 477. In both Frerichs and Adams, the attorneys either had received a prior admonition concerning similar conduct or a prior reprimand. Frerichs, 671 N.W.2d at 478; Adams, 628 N.W.2d at 819; see also Kallsen, 670 N.W.2d at 166-68 (three-month suspension based on neglect, failure to make accounting, and failure to cooperate).

Based primarily on the lack of any prior disciplinary action against Kennedy, we conclude a sixty-day suspension is warranted in this' case. This discipline is consistent with our prior cases in the area and the relevant factors we consider and is supported by the particular circumstances involved in the case. In particular, Kennedy has taken steps to eliminate the problems underlying this case and we need not be overly concerned with her fitness to practice law following the period of suspension. Additionally, the two-month suspension imposed will serve to deter other attorneys and to maintain the reputation of the bar as a whole.

We suspend Kennedy’s license to practice law for a period of sixty days from the date of this opinion. She is eligible for reinstatement on the day following the expiration of the sixty-day period unless action is taken to deny reinstatement as provided by Iowa Court Rule 35.12(2). In addition, as a condition of reinstatement, Kennedy must confirm that she has accounted to Carr and Rau for the advance fees paid to her and that she has refunded any unearned fees. The suspension applies to all facets of the practice of law as provided in Iowa Court Rule 35.12(3) and requires notification of clients as required in Iowa Court Rule 35.21. Costs are assessed against 'Kennedy, and reinstatement shall not take place until the costs are paid. Iowa Ct. Rs. 35.25, 35.12(2).

LICENSE SUSPENDED.

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


author: VAITHESWARAN, J.

text:
    In re the MARRIAGE OF Flora E. HAKER and Franklin A. Haker. Upon the Petition of Flora E. Haker n/k/a/ Flora Findlater, Petitioner-Appellant, and Concerning Franklin A. Haker, Respondent-Appellee.
    No. 03-1620.
    Court of Appeals of Iowa.
    April 14, 2004.
    Benjamin Blackstock of Blackstock Law Offices, Cedar Rapids, for appellant.
    Mark Mossman of Mossman & Moss-man, L.L.P., Vinton, for appellee.
    Considered by SACKETT, C.J., and VAITHESWARAN and EISENHAUER, JJ.
   VAITHESWARAN, J.

A divorced mother appeals a modification ruling essentially discharging the father’s postsecondary support obligation. We affirm.

I. Background Facts and Proceedings

Franklin and Flora Haker married, had three children, and divorced in 1997. The dissolution decree incorporated a stipulation that Franklin would “assume full responsibility for the cost of higher education for the children.” When Franklin did not pay all the higher education expenses for his youngest son, Clark, Flora applied to modify the decree. Franklin answered and counterclaimed for a declaration that his obligation had been satisfied or, in the alternative, that “the Decree should be modified to incorporate the requirements and limitations of Iowa Code section 598.21(5A) with respect to both parties.” Following a hearing, the district court granted Franklin’s application and dismissed Flora’s. The court concluded that Franklin’s obligation to pay Clark’s higher education expenses would be deemed satisfied and discharged upon the payment of $15,000. In a subsequent ruling pursuant to Iowa Rule of Civil Procedure 1.904(2), the court found that Franklin had paid $12,222.18 toward his obligation.

On appeal, Flora contends Franklin’s obligation to pay Clark’s higher education expenses was unconditional. In her view, Iowa Code section 598.21(5A) .cannot be applied retroactively to limit his obligation because the dissolution decree fixed his contribution. Franklin responds that there was a substantial change of circumstances justifying the district court’s ruling.

II. Retroactive Application of Iowa Code Section 598.21(5A)

Iowa Code section 598.21(5A) was enacted in 1997 and authorizes a divorced parent to subsidize a child’s postsecondary education under certain conditions and with certain limitations. Following its enactment, the Iowa Supreme Court held that the provision did not apply retroactively. In re Marriage of Sojka, 611 N.W.2d 503, 505 (Iowa 2000).

In 2002, the legislature added Iowa Code section 598.21(5A)(e), which authorizes retroactive application. See In re Marriage of Vannausdle, 668 N.W.2d 885, 888 (Iowa 2003) (stating “our legislature specifically made the provisions retroactive, and any divorce decree providing for support of a child in college entered before July 1, 1997, is subject to modification in accordance with the statutory procedures.”).

Notwithstanding this retroactivity provision, the Iowa Supreme Court held in In re Marriage of Rosenfeld, 668 N.W.2d 840, 847 (Iowa 2003) that Iowa Code section 598.21(5A) only applied to decrees predating its enactment where “the court did not fix college expenses prior to” its enactment. The court stated that where the original decree “determined parental contributions to the child’s college expenses,” the holding of Sojka (precluding retroactive application of Iowa Code section 598.21(5A)) still applied. Rosenfeld, 668 N.W.2d at 847; cf. Vannausdle, 668 N.W.2d at 886-87 (applying Iowa Code section 598.21(5A) retroactively to a decree that did not fix the amount of higher education support); Johnson v. Louis, 654 N.W.2d 886, 888 n. 2 (Iowa 2002) (stating “legislative changes decreasing support benefits may not be applied retroactively to modify support payments ordered under prior law.”).

In light of Rosenfeld, and given the fact that the decree in this case fixed Franklin’s college contribution, we decline to apply Iowa Code section 598.21(5A) retroactively.

III. Substantial Change of Circumstances

We must next decide whether the district court’s modification of the decree was justified based on a material and substantial change in circumstances. See In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999) (setting forth modification standards). As the district court found, Clark enrolled in four institutions, including the University of Northern Iowa (UNI), following his graduation from high school. He had difficulty maintaining his grade point average at UNI and was ultimately expelled for academic failure. Clark then decided to attend a culinary school in Portland, Oregon. By this time, he was twenty-two years old. The program had a fifteen month curriculum and a cost of $20,625 for tuition alone. Franklin agreed to pay $12-$15,000 toward Clark’s expenses, with Clark to assume responsibility for the balance. Although Clark initially concurred in this arrangement, he implied at trial that his agreement was not voluntary, stating “either I signed this and get some help or I wasn’t going to get any help.”

We agree with Franklin that Clark’s lengthy and checkered voyage through post-secondary institutions amounted to a substantial change of circumstances warranting modification of the decree. We further conclude the district court acted equitably in deeming Franklin’s post-secondary support obligation discharged upon the payment of $15,000.

As for Flora’s argument that Franklin should reimburse her for amounts she expended on Clark’s postsecondary education, the same argument was rejected in In re Marriage of Longman, 619 N.W.2d 369, 371 (Iowa 2000).

IV. Attorney Fees

Flora contends the district court should have ordered Franklin to pay her trial attorney fees. Our review of this issue is for an abuse of discretion. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We find no abuse.

Both parties seek appellate attorney fees, Flora in the event we reverse the modification decree, and Franklin based on his belief that there is no merit to this appeal. As we are affirming the district court, we decline to order Franklin to pay Flora’s appellate attorney fees. As we have found merit to Flora’s argument concerning the retroactive application of Iowa Code section 598.21(5A), we decline to order her to pay Franklin’s appellate attorney fees.

AFFIRMED.

      . She initially filed an “Application for Orders Regarding Education Expenses.” The district court dismissed this application, concluding it was really an attempt to modify the decree. Flora then filed a modification application.

      . This rule was formerly Iowa Rule of Civil Procedure 179(b). It authorizes enlarged findings and conclusions.

      . This provision states, "[a] support order, decree, or judgment entered or pending before July 1, 1997, that provides for support of a Child for college, university, or community college expenses may be modified in accordance with this subsection.”

      . The court acknowledged the legislature's addition of a retroactivity provision, but stated it would not address the provision's effect. Rosenfeld, 668 N.W.2d at 847 n. 5.


author: /s/Helen M. Meyer Associate Justice

text:
    Christopher WINTER, deceased employee, by Karen Winter Ott, Respondent, v. D.J. KRANZ, and CNA Commercial Insurance, Relators.
    No. A04-730.
    Supreme Court of Minnesota.
    July 22, 2004.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 31, 2004, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: MEYER, Justice. GILBERT, Justice

text:
    Patricia Ludowese RAY, Respondent, v. MILLER MEESTER ADVERTISING, INC., Appellant, Robert V. Miller, Defendant.
    No. C3-02-1605.
    Supreme Court of Minnesota.
    July 29, 2004.

      Joseph W. Anthony, Mary L. Knob-lauch, Mark D. Wisser, Minneapolis, for Appellant.
    Susan M. Coler, Teresa K. Patton, Minneapolis, for Respondent.
    Robert R. Reinhart, Erik T. Nelson, Minneapolis for amicus Minnesota Employment Law Council.
    Leslie L. Lienemann, St. Paul, for ami-cus National Employment Lawyers Association.
   OPINION

MEYER, Justice.

In this appeal, we are asked to decide whether front pay is subject to multiplication under Minn.Stat. § 363.071, subd. 2 (2002).

Appellant Miller Meester Advertising, Inc. (MMA), a Minnesota-based advertising agency, hired respondent Patricia Lu-dowese Ray in June of 1996 in the position of Vice President/Group Creative Director. At the time she was hired, Ray had 21 years of experience in the advertising industry. In June 1998, after two years of employment and without a negative performance evaluation, Ray was promoted to the position of Creative Director, the first woman to hold that position. Two months later, Ray was terminated by Robert V. Miller, MMA’s owner. She was terminated without warning and with no prior criticism of her job performance. Ray then sued MMA and Miller for unlawful gender discrimination under the Minnesota Human Rights Act (MHRA), Minn.Stat. ch. 363 (2002), and Title VII of the federal Civil Rights Act, 42 U.S.C. § 2000e-5(g) (2004).

Ray’s Title VII claim was tried to a jury and the MHRA claim was tried to the court. The presiding judge used the jury in an advisory capacity with regard to claims of discrimination under the MHRA. By special verdict, the jury found that Ray was terminated on the basis of her gender and awarded past wage loss in the amount of $73,866, past compensatory damages in the amount of $95,000, future compensatory damages in the amount of $42,250, and punitive damages in the amount of $500,000.

On June 7, 2001, the district court issued its findings of facts and conclusions of law with respect to the MHRA claims. The court concluded that MMA terminated Ray in violation of the MHRA. The court ordered a total of over $1 million in damages on both the Title VII and MHRA claims. The MHRA damage award included $123,004 for three years of front pay which, under Minn.Stat. § 363.071, subd. 2 (2002), the court doubled to $246,008.

MMA appealed, and among its claims of error it asserted that doubling the front pay award was not permitted under the MHRA. The court of appeals reversed the entire Title VII award due to evidentiary errors. Ray v. Miller Meester Adver., Inc., 664 N.W.2d 355, 372 (Minn.App.2003). The court of appeals also reversed the district court’s trebling of emotional distress damages under the MHRA. Ray, 664 N.W.2d at 370. The court of appeals found no other errors in the district court’s evidentiary rulings or determination of liability and damages under the MHRA. Ray, 664 N.W.2d at 372. We granted MMA’s petition for review on the issue of whether front pay is subject to multiplication under the MHRA.

We begin by briefly examining the nature of front pay. “In employment contracts, the general rule is that ‘[t]he measure of damages for breach of an employment contract is the compensation which an employee who has been wrongfully discharged would have received had the contract been carried out according to its terms.’ ” Feges v. Perkins Rests., Inc., 483 N.W.2d 701, 709 (Minn.1992) (quoting Zeller v. Prior Lake Pub. Sch., 259 Minn. 487, 493, 108 N.W.2d 602, 606 (1961)). However, a court may award future damages, or front pay, for lost compensation that occurs after the time of trial. Id. at 710. The potentially speculative nature of front pay awards is limited by the plaintiffs duty to mitigate damages, the evidence presented concerning the extent of the potential damages, and the principle that front pay awards are limited to the damages caused by the breach of contract. Id.

Under the MHRA, when a court finds that an employer engaged in an unfair discriminatory practice, the court shall order the employer to pay “compensatory damages in an amount up to three times the actual damages sustained.” Minn.Stat. § 363.071, subd. 2 (2000). The question in this case is whether front pay is a component of “actual damages” and, therefore, subject to multiplication under the MHRA. This is an issue of statutory construction that we review de novo. State v. Wukawitz, 662 N.W.2d 517, 525 (Minn.2003).

The legislature did not provide a definition of actual damages in the MHRA. However, we have already construed the meaning of this phrase in Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 275 (Minn.1995). In Phelps we cited with approval the definition of actual damages found in Black’s Lato Dictionary. Phelps, 537 N.W.2d at 275. Black’s Law Dictionary defines actual damages as “[a]n amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses. — Also termed compensatory damages." Black’s Law Dictionary 394 (7th ed.1999). We concluded in Phelps that “[i]n general, compensatory damages ‘consist of both general and special damages. General damages are the natural, necessary and usual result of the wrongful act or occurrence in question. Special damages are those which are the natural but not the necessary and inevitable result of the wrongful act.’ ” Phelps, 537 N.W.2d at 275 n. 2 (quoting Black’s Lato Dictionary 390 (6th ed.1990)). We further construed the term “actual damages” as having the meaning ascribed by common law. See id. at 275.

The common law principle that actual or compensatory damages may include future losses is well established in Minnesota. See, e.g., Pietrzak v. Eggen, 295 N.W.2d 504, 507-08 (Minn.1980) (holding that the jury should have been instructed on future medical expenses as a component of special damages); Hake v. Soo Line Ry. Co., 258 N.W.2d 576, 582 (Minn.1977) (providing that the jury could consider a special damage award that consisted of future medical expenses and future lost wages). Additionally, a tort victim may recover future damages caused by the tortfeasor even though it may be difficult to determine the exact amount of those damages. See Pietrzak, 295 N.W.2d at 507.

We conclude that a front pay award is a form of actual damages because it is an award that is the “natural, necessary and usual result” of an employer’s discriminatory behavior. As we have clearly stated, front pay awards are limited to the damages caused by the employer’s breach. Feges, 483 N.W.2d at 710. Therefore, front pay awards are subject to multiplication under Minn.Stat. § 363.071, subd. 2, and the district court did not err when it doubled the award.

MMA argues that front pay cannot be a component of “actual damages” because the MHRA provides at Minn.Stat. § 363.071, subd. 2:

In addition to the aforesaid remedies, in a case involving discrimination in
(a) employment, the [court] may order the hiring, reinstatement or upgrading of an aggrieved party, who has suffered discrimination, with or without back pay, * * * or any other relief the [court] deems just and equitable.

MMA reasons that the provision of reinstatement as a remedy for employment discrimination in addition to actual damages necessarily means that front pay cannot be awarded as a part of actual damages. We rejected an almost identical argument pertaining to back pay in Phelps. In Phelps, the employer argued that back pay was not an element of actual damages subject to multiplication under Minn.Stat. § 363.071, subd. 2, because back pay could be awarded attendant to an upgrade in hiring or reinstatement of the party who suffered discrimination. 537 N.W.2d at 277-78. We stated that “[w]e do not believe the statute precludes the inclusion of back pay as an element of damages that is subject to multiplication” because Minn.Stat. § 363.071, subd. 2, gives a court the discretion to award back pay either as actual damages or as damages “attendant to the hiring, reinstatement or upgrading of an aggrieved party.” Id. at 278. Similarly, the statute permits a court to award front pay as a component of actual damages and, additionally, gives the court the authority to order reinstatement of the aggrieved party. Front pay is not a substitute for the remedy of reinstatement as MMA contends; instead, it is a distinct measure of damages that may be awarded in combination with reinstatement.

MMA also urges this court to adopt the approach federal courts have taken in interpreting front pay awards under Title VII and hold that front pay is a substitute for the equitable remedy of reinstatement and, therefore, does not constitute actual damages subject to multiplication under the MHRA. In construing the MHRA, we have at times “relied on principles developed under Title VII” but we are not bound by interpretations of Title VII. Turner v. IDS Fin. Servs. Inc., 471 N.W.2d 105, 107 (Minn.1991); see also Carlson v. Indep. Sch. Dist. No. 623, 392 N.W.2d 216, 220 (Minn.1986).

There are significant differences between the MHRA and Title VII. Carlson, 392 N.W.2d at 221. Portions of the MHRA, including the sex discrimination prohibition, appear to be patterned after the Uniform Law Commissioners’ Model Anti-Discrimination Act, not Title VII. Carlson, 392 N.W.2d at 220; see also Minn. Mining & Mfg. Co. v. State, 289 N.W.2d 396, 399 (Minn.1979). Because “[t]he scope of discrimination liability, and its consequences, is more onerous under our state laws than under Title VII,” we are not bound to follow seemingly analogous federal court decisions. Carlson, 392 N.W.2d at 221. For example, we rejected the federal standard for proof in a same-sex harassment claim because “the MHRA is not similar to Title VII in its treatment of sexual harassment.” Cummings v. Koehnen, 568 N.W.2d 418, 422 n.5 (Minn.1997) (emphasis added).

The question is whether the MHRA is sufficiently similar to Title VII in its treatment of damages such that we should adopt Title VII principles with respect to front pay. The remedies provided under Title VII permit a court to “order such affirmative action as may be appropriate, which may include, but is not limited to reinstatement or hiring of employees, with or without back pay * * *, or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g) (2004). Further, a party may recover “compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by [42 U.S.C. § 2000e-5(g)].” 42 U.S.C. § 1981a(a) (2004) (emphasis added). The United States Supreme Court has held that front pay is included within equitable remedies and is intended under Title VII as an alternative remedy to reinstatement. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 853-54, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001). In contrast, the plain language of the MHRA not only allows a court to multiply a compensatory damage award, it also gives a court the power to “order the hiring, reinstatement or upgrading of an aggrieved party, who has suffered discrimination, with or without back pay * * * or any other relief the [court] deems just and equitable.” Minn.Stat. § 363.071, subd. 2(a). As discussed above, our interpretation of the damages language of the MHRA is based on the common law of damages, and does not characterize its monetary remedies as equitable remedies or substitutes for equitable relief. Because Congress includes an award of back pay within the equitable remedies available under Title VII, we conclude that the scope of damages under the MHRA is not similar to those provided under Title VII and we decline to adopt Title VII damages principles for the MHRA.

Affirmed.

GILBERT, Justice

(dissenting).

I respectfully dissent. I disagree with the majority’s classification of front pay as a component of “actual damages” that is eligible for multiplication under the Minnesota Human Rights Act. The stacking of the federal and state relief and then multiplication of large portions of the relief, without providing a rationale for that multiplication, plus punitive damages, leads to a result that I do not believe was contemplated by our legislature.

The multiplying provision in the MHRA was created to be a compensatory rather than punitive measure. As we have noted, “although the trebling function in this statute has a deterrent effect, it is primarily a compensatory measure which is made all the more clear by the statute’s explicit labeling of the treble damages as ‘compensatory.’ ” Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 277 (Minn.1995). In evaluating the MHRA, we have previously looked toward Black’s Law Dictionary to define compensatory damages as those damages for which a person has “actual losses.” Id. at 275 (quoting Black’s Law Dictionary 390 (6th ed.1990)). In the absence of an explicit definition within the statute, compensatory damages should be approached as being “synonymous with actual damages.” Phelps, 537 N.W.2d at 275.

In an attempt to define “compensatory damages,” the majority relies on personal injury tort cases and the Restatement of Torts. Indeed, I find it curious that the majority would do so, being that the present case involves employment discrimination, which is not a tort. We have previously distinguished between tort claims and claims under the MHRA, holding we do not allow “double recovery” for concurrent MHRA claims and tort claims. See Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn.1990) (holding that a MHRA sexual harassment claim does not address the conduct addressed by the common law tort of battery). In addition, federal and state courts around the country, in various contexts, have repeatedly declined to classify employment discrimination as a tort. See Boyd v. O’Neill, 273 F.Supp.2d 92, 97 (D.D.C.2003) (noting that tort claims and employment discrimination claims “seek[ ] to remedy a different wrong. [The federal discrimination statute] exists to redress employment discrimination, while common law tort theories aim to amend personal injuries. It is not ‘double recovery’ to be compensated twice based on one set of conduct if that conduct resulted in two distinct types of harm.”); Keating v. Gaffney, 182 F.Supp.2d 278, 291 (E.D.N.Y.2001) (“Employment discrimination is not a tort.”); Jancey v. Sch. Comm. of Everett, 421 Mass. 482, 658 N.E.2d 162, 173 (1995) (“acts of discrimination — whether intentional or unintentional- — do not thereby become torts.”); McMillan v. Mass. Society for Prevention of Cruelty to Animals, 168 F.R.D. 94, 96-97 (D.Mass. 1995) (“in tort cases for personal injuries or property damage, compensation for future lost wages will be treated conceptually as an already incurred loss of earning capacity; while, in discrimination cases * * * expected future income reductions will be treated conceptually as losses not yet incurred (i.e., “front pay damages”)) (quoting Kuppens v. Davies, 38 Mass.App.Ct. 498, 649 N.E.2d 164, 165 (Mass.1995)).

If it is not enough that the majority relies on the Restatement of Torts to define terms within a non-tort MHRA question, the majority also misinterprets the Restatement of Torts itself. The majority quotes the Restatement of Torts that de- ■ fines compensatory damages as damages awarded to a person for harm “sustained.” Restatement (Second) of Torts § 903 (1979). It is important to note that the Restatement utilizes the past tense of the word “sustain,” and does not provide any sort of prospective or future harm reference (i.e., “will sustain”). Next, the majority cites to Section 910 of the Restatement, which states that a person injured by a tort is entitled to recover “damages * * * for all harm, past, present and prospective, legally caused by the tort.” It is not so obvious, however, that Section 910 is directly tied to Section 903 as the majority asserts. Section 910 generally provides for “damages” but does not express the type of damages that should be awarded. In addition, nowhere in the comments to Section 910 does it mention the terms “compensatory damages” or “actual damages.” I am sure that the majority recognizes that a variety of types of recoverable “damages” exist in the legal world that would not be classified as “actual damages.” Of course, as previously noted and it should be clear, the Restatement of Torts is limited in scope to torts, which does not include employment discrimination.

The majority also cites to several of our past tort-related cases to attempt to link employment “front pay” with future medical “special damages.” The majority ties these personal injury cases to the present matter by arguing that the “special damages” we allowed in those cases are the same as “special damages” that we tied to “compensatory damages” in Phelps. Phelps, 537 N.W.2d at 275. The majority then makes a second step to argue that our definition of future medical expenses as “special damages” in prior tort-related injury cases can be utilized to define “front pay” as an “actual damage” in the current employment discrimination matter. The connection that the majority makes between these medical tort cases and the present case is tenuous at best. Future damages in employment discrimination are calculated in a different manner than future expenses in tort cases. Tort cases offer a different degree of certainty when calculating future damages. See Pietrzak, 295 N.W.2d at 508 (“future pain and suffering as well as future diminished earning capacity are so inextricably tied to future surgery.”).

Although not cited by the majority, several other relevant authorities are helpful in deciding the “front pay” issue presented in this case. See Sprint Spectrum LP v. Comm’r of Revenue, 676 N.W.2d 656, 662 (Minn.2004) (noting that we are reluctant to be restricted by any one source for the definition of certain terms). As the majority recognizes, in Phelps, we relied on Black’s Law Dictionary to define “compensatory damages.” Phelps, 537 N.W.2d at 275. Black’s Law Dictionary defines “actual damages” as “[a]n amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses. — Also termed compensatory damages.” Black’s 394 (7th ed.1999) (emphasis added). Looking further into Black’s, which the majority declined to do, separately, and in contrast, Black’s defines “prospective damages” as “[fjuture damages that, based on the facts pleaded and proved by the plaintiff, can reasonably be expected to occur.” Black’s at 396. Although Black’s does not explicitly define front pay, it defines a virtually equivalent term “front wages” as “[pjrospective compensation paid to a victim of job discrimination until the denied position becomes available.” Black’s at 1573. After closely approaching the definitions of these terms, it becomes clear that front pay is more closely related to “prospective damages” rather than “compensatory” or “actual damages.”

We have also acknowledged the prospective nature of front pay awards. In Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710 (Minn.1992), we recognized the inherent speculative nature of front pay awards, noting that the “greatest danger of post-trial or front-pay damages in employment cases is their uncertainty.” To alleviate the danger of uncertainty, we advised that three steps must be taken to prevent the awards from being “unduly speculative”: First, based on the plaintiffs duty to mitigate front pay damages should be limited to “those cases where the plaintiff has been unable to find comparable employment after termination.” Id. Second, front pay awards must be based on objective evidence regarding “the feasibility of reinstatement, the'employee’s prospects for future employment, the certainty of what the employee’s income would have been absent the breach, and the length of time for which front-pay is sought.” Id. Third, front pay must be limited to “those losses caused by the breach.” Id. Front pay is not a preferred remedy, but rather a last resort when all avenues for reinstatement or subsequent employment have been exhausted.

We have not been alone in recognizing the speculative and prospective nature of front pay awards. The Supreme Court has analyzed the role of front pay in compensating victims of employment discrimination under the Civil Rights Act, finding that front pay is not an element of compensatory damages. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 852, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001). It defined front pay as “money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Id. at 846. In a situation where reinstatement would cause another employee to be displaced, “courts have ordered reinstatement upon the opining of such a position and have ordered front pay to be paid until reinstatement occurs.” Id. Where reinstatement is not viable because of continuing workplace hostilities or psychological trauma from the discrimination, front pay serves “as a substitute for reinstatement” and not a form of compensatory damages. Id.

The Supreme Court’s classification of front pay as not being a form of compensatory damages has been utilized towards the MHRA. In a directly analogous case to the present matter, the Eighth Circuit Court of Appeals analyzed the role of front pay in the MHRA, finding that front pay does not constitute compensatory damages under that statute. Mathieu v. Gopher News Co., 273 F.3d 769, 782 (8th Cir.2001). In Mathieu, the Eighth Circuit found that front pay is not subject to multiplication under the MHRA. It first noted that “front pay is the alternative to the preferred equitable remedy of reinstatement.” Id. (citations omitted). Based on this assumption it stated,

It should be obvious that the multiplier under the Minnesota statutes would not be awarded on top of reinstatement; there is no monetary award to be multiplied when reinstatement is determined proper. This counsels against multiplying its equitable alternative.
An award of front pay also is inherently speculative in length of time and when considering possible mitigation by reason of other employment. It is based on probabilities rather than actualities. This easily distinguishes it from damages which have been actually incurred. Indeed, the mere fact that a front pay damage award is discretionary makes it distinguishable from the award of back pay, which can be readily determined within a degree of reasonable certainty.

Id. Unlike the majority, the Eighth Circuit in Mathieu appears to utilize a realistic interpretation of the multiplier provision. Unfortunately, the majority glossed over Mathieu in a footnote by quickly distinguishing it as being “almost wholly based on federal case law under Title VII” rather than the Minnesota MHRA. While the majority is correct in asserting differences between the federal Title VII and Minnesota MHRA, these differences should not affect the more general definition of front pay — i.e., as a prospective remedy utilized as an equitable substitution for reinstatement.

With that definition in mind, it seems unreasonable to multiply a front pay award as it would be impossible to multiply a reinstatement order. For example, had the district court determined that reinstatement was proper in Ray’s scenario, it would not have been able to “multiply” the reinstatement. She would have simply been able to retain her job. As reinstatement would have been extremely difficult in Ray’s scenario, front pay was awarded as an equitable substitution. It seems illogical to subject this remedy to multiplication merely because it happens to be a monetary figure rather than a reinstatement order. As the Eighth Circuit has pointed out, “there is no monetary award to be multiplied when reinstatement is determined proper. This counsels against multiplying its equitable alternative.” Mathieu, 273 F.3d at 782.

Multiplying an award of front pay would overcompensate a victim by allowing a greater reward than an equitable substitution for reinstatement. In addition, it would create an unwarranted incentive for a victim to not seek reinstatement or subsequent employment, because the victim is being compensated at a greater, multiplied rate than the assessed value of the victim’s future work. See Snow v. Pillsbury, 650 F.Supp. 299, 300 (D.Minn.1986) (denying nine-year front-pay award on grounds it was too speculative that plaintiff would have voluntarily remained employed in same position until retirement); Riethmiller v. Blue Cross & Blue Shield of Mich., 151 Mich.App. 188, 390 N.W.2d 227, 233 (1986) (noting “[t]he recognition that front pay damages are available creates the possibility of substantial monetary liability for some employers.”)

The majority’s classification of front pay will contribute to disturbingly large damage awards that could threaten to bankrupt businesses. We have previously noted that the damages provisions of the MHRA are designed to restore a victim of discrimination “as near as possible, to the same position she would have attained had there been no discrimination.” Anderson v. Hunter, Keith, Marshall & Co., Inc., 417 N.W.2d 619, 627 (Minn.1988). In the present matter, Ray’s base damage claim of $199,332 for lost back and front pay has been expanded by a multiple of five when emotional distress and all the add-ons are taken into consideration. The total award under the dual relief provisions amounted to over $1 million before the court of appeals reversed the Title VII portion of the verdict and the district court’s doubling of emotional distress damages. After the court of appeals reversed the Title VII portion and emotional distress multiplication of the judgment, the MHRA portion of the judgment amounts to almost $900,000.

In context, when Ray was terminated in August of 1998 she was earning approximately $100,000 per year, plus benefits. At the time of the trial, 2⅜ years had gone by and she could not find a substantially equivalent job, but to her credit, started her own company and had mitigated her damages in the year 2000 to the extent of $65,000 per year. Even assuming that Ray was forced to take an unjustified and significant pay cut due to appellant’s discriminatory practices, the MHRA judgment amounts to almost nine times her prior salary for one year. If Ray continues to earn her reduced income of $65,000 per year, the final judgment equals more than 25 times the difference between her previous salary and her present salary ($85,000 difference).

The economic impact of this judgment on an employer, who at that time of trial had 23 employees and was in the service business, will be devastating. A major multinational company may be able to absorb the economic damages under this system but the very existence of small to medium-sized companies is put at risk by the stacking, duplication, multiplication and combining of all of these remedies arising out of the same wrongful conduct, without any coordination of benefits or remedies, and without any uniform guidance for the multiplication of awards. Allowing multiplication on a purely specula-five front pay award, that is meant to be a last-resort equitable substitution for the preferred remedy of reinstatement, will only contribute to these massive judgments that could threaten the existence of certain businesses. I do not believe that this is the result the legislature envisioned when they created the multiplying provision that was not meant to be a punitive measure.

      . Section 363.071, subdivision 2, has been renumbered and now may be found at Minn. Slat. § 363A.29, subd. 4 (Supp.2003).

      . MMA asserted that the district court abused its discretion by admitting testimony that was either an improper lay opinion, irrelevant, unduly prejudicial, or an improper expert opinion. Ray v. Miller Meester Adver., Inc., 664 N.W.2d 355, 362 (Minn.App.2003). MMA also argued that the admission of inadmissible evidence resulted in prejudicial error in both the Title VII jury trial and in the MHRA bench trial. Ray, 664 N.W.2d at 362.

      . Likewise, the Restatement (Second) of Torts defines compensatory damages as "the damages awarded to a person as compensation, indemnity or restitution for harm sustained by him." Restatement (Second) of Torts § 903 (1979). Section 910 of the Restatement further states that the victim of a tort "is entitled to recover damages from the [tortfeasor] for all harm, past, present and prospective, legally caused by the tort.” (Emphasis added.) The Restatement also notes that both general and special damages are forms of compensatory damages. Id. § 904. The Restatement, like Phelps, defines general damages as “compensatory damages for a harm so frequently resulting from the tort that is the basis of the action that the existence of the damages is normally to be anticipated and hence need not be alleged in order to be proved.” Id. (1). The Restatement defines special damages as "compensatory damages for a harm other than one for which general damages are given.” Id. (2).

      . The dissent asserts that we improperly rely on the Restatement of Torts and prior tort cases to define compensatory damages. To the contrary, we are merely relying on our precedent in Phelps, where we looked to the common law definition of compensatory damages as defined by Black’s. See Phelps, 537 N.W.2d at 275.

      . Our precedent and the legislative history of the MHRA do not support the dissent's contention that front pay awards should not be subjected to multiplication because multiplication will overcompensate the victim and “threaten the existence of certain businesses.” In Phelps, we noted that "the legislature defined compensatory damages to be an amount up to three times the actual damages proven.” 537 N.W.2d at 275. Such a multiplier can undoubtedly impact employers. Nonetheless, it is the legislature, not the courts, that should balance the policy considerations raised and inherent in the MHRA.

      . The Eighth Circuit Court of Appeals held that front pay awards are not subject to multiplication under the MHRA. Mathieu v. Gopher News Co., 273 F.3d 769, 781-82 (8th Cir. 2001). We decline to follow the Eighth Circuit's interpretation of Minnesota law because its analysis is almost wholly based on federal case law under Title VII.

      . In a footnote, the majority asserts that it is “merely relying on our precedent in Phelps, where we looked to the common law definition of compensatory damages as defined by Black’s." Reading through the majority opinion, it is clear that the majority goes much further. As I explain infra, not only does the majority ignore relevant portions of the Black’s Law Dictionary, but it also heavily relies on tort cases and the Restatement of Torts to define "compensatory damages” and front pay in an employment context. This approach signals a departure from our opinion in Phelps, where we did not rely on tort cases to define terms in an employment-related statute.

      . For example, in Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn.1980), we allowed a jury to calculate future damages as "special damages" that were the direct result of a tort-related foot surgery. We stressed that we would allow such a calculation because "future pain and suffering as well as future diminished earning capacity are so inextricably tied to future surgery and its attendant expenses.” Id. at 508. Similarly, in Hake v. Soo LineRy. Co., 258 N.W.2d 576, 583 (Minn.1977), we allowed a jury to take into consideration future damages as "special damages” in a personal injury case, noting that "damages for personal injury, as in the instant case * * * [are not] fixed."

      . While I acknowledge that a district court has wide discretion to decide whether compensatory damages should be multiplied, I find it troubling that little guidance or uniformity exists in the multiplying process. In the present matter, the district court found "that the awards of frontpay and backpay to Ray should be doubled.” The district court did not explain why it chose to double the award. For other options, the district court could have declined to multiply the award or triple the award, and it did not explain the reasoning behind the path it took. The process of multiplying an award without any sort of rationale disturbingly leads to a lack of uniformity in judgment awards. The same judgment under an identical set of facts could easily be tripled by one judge, doubled by another judge, and declined to multiply by a third judge.

      . Originally, the total judgment entered on July 19, 2002 amounted to $1,082,719.35.

      . In addition, Ray's former employer is required to implement multiple measures in order to restructure their procedures for handling employees.

      .Out of this final judgment, punitive damages under the MHRA amounted to $6,000.