author: /s/ Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Joel Anthony FRANKLIN, a Minnesota Attorney, Registration No. 271627.
    No. A06-1457.
    Supreme Court of Minnesota.
    Jan. 11, 2007.
   ORDER

- The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Joel Anthony Franklin committed professional misconduct warranting public discipline, namely, that while on a two-year private probation for neglect of client matters, failure to communicate with clients, and failure to cooperate with the Director’s investigation, respondent neglected and failed to adequately communicate with three additional clients, failed to return client documents and file materials, and failed to cooperate with the Director’s investigation of additional client complaints, in violation of Minn. R. Prof. Conduct 1.3,1.4,1.16, and 8.1(b).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a 90-day suspension from the practice of law, to be effective 14 days from the date of filing of the court’s suspension order. The parties also stipulate that the reinstatement hearing provided for by Rule 18, RLPR, is an express condition of respondent’s reinstatement, and that upon reinstatement respondent shall be placed on two years supervised probation.

This court has independently reviewed the file. ■ Because the misconduct to which respondent has admitted occurred while respondent was on probation and because respondent again failed to cooperate with the Director’s investigation, we deem the stipulated 90-day suspension insufficient to adequately protect the public. See In re Olson, 545 N.W.2d 35 (Minn.1996) (suspension for two years for neglect of two client matters and failure to cooperate with the Director); In re Kinnunen, 502 N.W.2d 773 (Minn.1993) (suspension for 18 months for neglect of a single client matter, failure to communicate, and failure to cooperate with the Director). We therefore suspend respondent indefinitely with no right to apply for reinstatement for a minimum of one year. In addition, we order respondent to immediately return all client files and materials to the respective clients or to substitute counsel (if any), to the extent respondent has not already done so. Because we suspend respondent indefinitely and require him to petition for reinstatement, respondent need not provide the Director with names of potential supervisors within two weeks of the filing of this order; respondent may submit such names with his petition for reinstatement.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Joel Anthony Franklin is indefinitely suspended from the practice of law, with no right to petition for reinstatement for a minimum of one year. Respondent’s suspension shall be effective 14 days from the date of filing of this order. The reinstatement hearing provided for in Rule 18, RLPR, is not waived. Reinstatement is further conditioned upon successful completion of the professional responsibility portion of the state bar examination and on satisfaction of continuing legal education requirements pursuant to Rule 18(e), RLPR.- Upon reinstatement, respondent shall be subject to two years’ supervised probation under such conditions as this court may impose after considering the recommendations of the panel hearing the petition for reinstatement. Respondent shall provide the Director with the names of potential supervisors at such time as he petitions for reinstatement. Respondent shall immediately return all client files and materials to the respective clients or to substitute counsel (if any), to the extent respondent has not already done so. Respondent shall pay costs in the amount of $900 plus disbursements in the amount of $55, pursuant to Rule 24(d), RLPR, and shall comply with Rule 26, RLPR (requiring notice of suspension to clients, tribunals, and opposing counsel).

BY THE COURT:

/s/ Helen M. Meyer Associate Justice


source: Caselaw Access Project

author: ANDERSON, PAUL H., Justice.

license: Public Domain

text:
    Janice M. FALLS, Respondent, v. COCA COLA ENTERPRISES, INC., and Sedgwick Claims Management Services, Inc., Relators.
    No. A06-994.
    Supreme Court of Minnesota.
    Jan. 18, 2007.

      David J. Klaiman, Brad M. Delger, Aaf-edt, Ford, Gray, Monson & Hager, P.A., Minneapolis, MN, for Relator.
    William H. Getts, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

We review on certiorari a decision of the Workers’ Compensation Court of Appeals (WCCA) reversing a workers’ compensation judge’s determination to discontinue temporary total disability benefits being paid to Janice M. Falls by her self-insured employer, Coca. Cola Enterprises, Inc. The workers’ compensation judge had found that Falls refused suitable employment and was therefore barred by Minn.Stat. § 176.101, subd. l(i) (2004), from making any future claims for temporary total disability benefits. We affirm the WCCA.

Respondent Janice M. Falls started working for relator Coca Cola Enterprises, Inc., in 1989. Over the years Falls performed a number of jobs for Coca Cola, including route driving, merchandising, and yard shoveling. In May 2005, she was working 12 to 14 hours a day as a “bulk driver” on a four-day per week night shift. Her job involved delivering beverage cases to retailers, including unloading and “throwing” cases, that is, stacking the cases in retail stores.

On May 10, 2005, Falls sustained an admitted injury to her left elbow while throwing cases. After injuring her elbow, Falls continued to work her normal shift at Coca Cola; but as a result of the injury, she sought medical attention at the Airport Medical Clinic (AMC) on May 18, 2005. An AMC physician diagnosed her injury as lateral epicondylitis. The AMC physician imposed work conditions that restricted her from lifting, carrying, pushing, and pulling items over 15 pounds. When Falls expressed concern to the physician about problems with operating the hand clutch on her motorcycle, which was her only mode of transportation, she was advised that reliable transportation was not “a work comp issue” and that transportation to and from work was her responsibility.

When Falls reported to work at Coca Cola on the evening of May 18, she presented her work restrictions to her supervisor. The supervisor assigned her to light-duty work, initially assisting another route driver with the driver’s clerical work. In order to provide this assistance, Falls rode in the passenger seat of the other driver’s truck. Although the driver’s seat in the truck was an “air-ride” truck seat, the passenger seat was metal and as a result, the bouncing of the truck aggravated Falls’ elbow condition. Consequently, on May 19, Falls’ supervisor reassigned her to a job counting bottle caps.

Falls was scheduled to be away from work from the morning of May 22 until the beginning of her night shift on May 24, 2005, so she did not work on those days. On her next regularly scheduled work day, May 24, she called in sick due to pain in her left elbow that prevented her from operating the clutch on her motorcycle. She remained on sick-leave status for one week, during which time she had her motorcycle clutch replaced with one that was easier to operate.

On June 1, 2005, Falls saw her family physician at the HealthEast Rice Street Clinic. She told her physician that she experienced pain and weakness when twisting her lower arm. Her physician commented in her notes that pain and tenderness over the left epicondyle were consistent with lateral epicondylitis. To hasten Falls’ recovery, the physician recommended that Falls “remain on relative rest” with the affected arm for two weeks. Falls was then fitted with a tennis-elbow brace and advised to return to her physician’s office in two weeks for reexamination. Because of a scheduling problem with her physician, Falls’ off-work status continued through June 27, 2005.

Meanwhile, on receipt of Falls’ “off-work physician’s slip,” Coca Cola’s claims management service commenced payment of temporary total disability benefits as of June 1, 2005. But, from June 2, 2005 through June 17, 2005, Coca Cola also had a surveillance crew monitor and videotape Falls’ activities. This crew videotaped Falls riding her motorcycle to Coca Cola’s facility, where she was observed using both arms to load three cases of bottled water into a small trailer attached to her motorcycle and then, after returning to her home, unhitching the trailer and pulling it across her lawn. The surveillance crew also videotaped Falls in her backyard where she was observed sanding and painting wooden window screens. More specifically, she was observed holding a screen with her left arm and sanding with her right arm.

On June 21, 2005, Coca Cola filed a notice of intention to discontinue Falls’ wage loss benefits on grounds that, based on its surveillance, she was seen exceeding the “assumed limitations set forth by her doctor.” On June 28, Coca Cola discharged Falls from her employment on grounds of “providing fails [sic] information to her supervisor regarding her medical injury.” On July 25, following an administrative conference, Falls’ wage loss benefits were discontinued by an interim administrative order.

Falls filed an objection to the discontinuance of wage loss benefits, and the matter was referred for an expedited hearing before a workers’ compensation judge. At the hearing, Coca Cola asserted that Minn. Stat. § 176.101, subd. l(i), precluded Falls from receiving temporary total disability compensation because she refused a suitable work offer. While this assertion differed from the grounds originally asserted by Coca Cola, Falls did not object to this expansion of the issues before the compensation judge.

Evidence presented to the compensation judge included deposition testimony of Falls’ family physician who indicated that by July 25, 2005, Falls could have returned to truck driving, but not throwing cases. The physician acknowledged that, at all times following the injury, Falls would have been physically capable of performing light duty work involving only the use of her right arm. Coca Cola presented as evidence the videotape taken by its surveillance crew. Coca Cola also submitted a report from an adverse medical consultant who saw Falls on September 12, 2005. The consultant agreed with the diagnosis of left lateral epicondylitis, thought that Falls might also have ulnar collateral ligament strain or disruption, and recommended an MRI scan “to determine the extent of her pathology.” The consultant concluded that Falls could work subject to a 50-pound lifting limitation and, although he reviewed the surveillance videotapes, the consultant did not address Falls’ ability to work in June 2005.

The workers’ compensation judge found that based on the surveillance videotape of Falls’ activity between June 3, 2005 and June 17, 2005, Falls had refused suitable employment and was therefore disqualified from the receipt of temporary total disability benefits by Minn.Stat. § 176.101, subd. 1(0. On appeal, the WCCA reversed, concluding that (1) the statutory disqualification for refusing a work offer did not apply to situations in which the work offer predated the period of total disability, and (2) there was no overt refusal of a work offer and no evidence of a constructive refusal. Falls v. Coca Cola Enters., Inc., No. WC05-274, 2006 WL 1324475, at *1 (Minn. WCCA Apr. 27, 2006). Coca Cola subsequently filed this certiorari appeal under MinmStat. § 176.471 (2004).

I.

We will not disturb the findings of a workers’ compensation judge that have been affirmed by the WCCA unless the judge’s findings are manifestly contrary to the evidence or unless the evidence clearly requires reasonable minds to adopt a contrary conclusion. Pelowski v. K-Mart Corp., 627 N.W.2d 89, 92 (Minn.2001) (citing Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 (Minn.1984)). But we review questions of law de novo. Busch v. Advanced Maint., 659 N.W.2d 772, 776 (Minn.2003) (citing Vezina v. Best Western Inn Maplewood, 627 N.W.2d 324, 328 (Minn.2001)). Here, Coca Cola asserts that the WCCA erred and that we should defer to the workers’ compensation judge’s findings because the findings were not contrary to the evidence nor did the evidence clearly require a different conclusion. We disagree because we conclude that this case presents a question of law.

Temporary total disability benefits, which are payable during a period of total disability, are subject to eight “cessation” and “recommencement” provisions. Minn. Stat. § 176.101, subd. 1(d) (2004). Temporary total disability benefits cease when: (1) the employee returns to work, id., subd. 1(e); (2) when the employee withdraws from the labor market, id., subd. 1(f); (3) when the employee fails to make a diligent search for work, id., subd. 1(g); (4) when the employee has been released to work without restrictions, id., subd. 1(h); (5) when the employee refuses an offer of suitable work, id., subd. l(i); (6) 90 days after maximum medical improvement, id., subd. l(j); (7) when 104 weeks of temporary total disability benefits have been paid, id., subd. l(k); and (8) if there are other grounds under the law to suspend or discontinue these benefits, id., subd. 1(1). Coca Cola asserts that subdivision l(i) mandates the cessation of Falls’ benefits. The workers’ compensation judge agreed with Coca Cola when it determined that Falls’ temporary total disability benefits were subject to discontinuance under subdivision l(i) because Falls refused an offer of suitable work.

When reversing the workers’ compensation judge, the WCCA adhered to the rule that the provisions of the Workers’ Compensation Act must be considered in light of related provisions. Zurich Am. Ins. Co. v. Bjelland, 710 N.W.2d 64, 68 (Minn.2006). It cited Minn.Stat. § 176.101, subd. 1(d), which states that temporary total disability benefits are “subject to the cessation and recommencement conditions in paragraphs (e) to (l).” Falls, 2006 WL 1324475, at *4. The WCCA then concluded that because a refusal of suitable employment under Minn.Stat. § 176.101, subd. l(i), is one of the cessation conditions set out in subdivision 1(d), application of subd. l(i) encompasses only those situations in which the employee’s entitlement to temporary total benefits commenced before the employment offer. Falls, 2006 WL 1324475, at *4. It cited Oliver v. Axman Surplus, 1999 WL 1242854, at *4 (Minn. WCCA Dec. 1, 1999), which notes that “[c]learly, benefits which never commenced cannot cease.” Falls, 2006 WL 1324475, at *4. Stated another way, to ground a discontinuance of temporary total disability benefits on a refusal of suitable employment, “there must be a job offer after the commencement of temporary total benefits.” Id. (citing Dell v. Parker Hannifin, No. WC04-128, 2004 WL 1697810, at *4 (Minn. WCCA July 12, 2004)). Because the WCCA concluded that there was no job offer made to Falls after the commencement of temporary total disability benefits, it held that “[o]n this point alone, the decision of the compensation judge is reversible.” Id.

On appeal, Coca Cola relies on contract law principles to support its argument that, by offering Falls suitable light-duty work before the period of her total disability, it had offered Falls a position within her restrictions, and therefore Minn.Stat. § 176.101, subds. 1(d) and (i), require that her benefits cease. We have said that: “Strictly speaking, the rights and liabilities created by the Workers’ Compensation Act are imposed on the employment relationship pursuant to the police power, independently of any actual or implied contract.” Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 307 (Minn.1987) (citing Todeva v. Oliver Iron Mining Co., 232 Minn. 422, 428, 45 N.W.2d 782, 788 (1951)). Nevertheless, on the theory that the Act becomes a part of the contract of employment, we have treated the Act as being “contractual in nature” and have stated that “any statute which purports to alter a substantial term of the contract which was in effect at the time the controlling event occurred” has been held to “impair[ ] the obligation of such contract” and is therefore unconstitutional. Joyce, 412 N.W.2d at 307 (internal quotation marks omitted).

But, contrary to Coca Cola’s argument, the basic principles related to payment of wage-loss benefits are not grounded on contract law. Instead, “[l]ia-bility on the part of an employer or the insurer for disability of a temporary total, temporary partial, and permanent total nature shall be considered as a continuing product and part of the employee’s inability to earn or reduction in earning capacity due to injury or occupational disease.” Minn.Stat. § 176.021, subd. 3 (2004). Wage-loss benefits are intended to replace a portion of the employee’s income that is lost as a result of the compensable disability. 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 1.03[5] (2006).

Compensable disability is generally viewed as the “inability, as the result of a work-connected injury, to perform or obtain” suitable work. 4 Larson & Larson, supra, at 80-1; see Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34 (1967) (stating the rule that “a person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.”). Accordingly, if a claim for benefits' depends on a factual showing of an inability to work due to the work injury, “the employer may defend [against such a claim] on the ground that claimant has refused suitable work.” 4 Larson & Larson, supra, § 85.01; see Morrison v. Merrick’s Super Mkt., Inc., 300 Minn. 535, 536-37, 220 N.W.2d 344, 345 (1974) (affirming denial of wage-loss benefits for refusal of available work).

Moreover, Minn.Stat. § 176.101, subd. l(i), provides that: “[o]nce temporary total disability compensation has ceased under this paragraph, it may not be recommenced.” Consequently, under the statute, an employee who refuses suitable work forfeits temporary total disability benefits for any and all future periods of temporary total disability that are caused by the same injury.

Workers’ compensation is a purely legislative creation, but we have stated that “ ‘[bjasic fairness requires that the parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.’ ” Manderfeld v. J.C. Penney, 526 N.W.2d 52, 54 (Minn.1995) (citation omitted). In Manderfeld, an injured worker rejected an offer of work. Id. at 53. A subsequent claim for rehabilitation expenses was denied on the ground that under the two-tier compensation system then in place, rehabilitation was forfeited by the employee’s prior rejection of an offer of work. Id. We reversed the WCCA, concluding that basic fairness required that a worker have reasonable notice and an opportunity to be heard before benefits were deemed forfeited. Id. at 54.

Under the current system, the forfeiture for refusing an offer of work might not be as significant as the forfeiture under the two-tier system we reviewed in Manderfeld; but for some injured workers, like Falls — who received three weeks out of the statutory maximum of 104 weeks of benefits — the forfeiture could have considerable financial impact. We conclude that the WCCA’s reading of the current statutory scheme — that conditions the discontinuance of temporary total disability benefits on an actual offer of suitable work during the payment of those benefits — properly addresses the same “basic fairness” concerns we noted in Manderfeld. We therefore conclude that the cessation condition in Minn.Stat. § 176.101, subd. l(i), under which temporary total disability benefits cease if the employee refuses an offer of suitable work, does not apply to work offers made before the commencement of temporary total disability benefits. Because Coca Cola made its job offer to Falls in May 2005 before the commencement of her temporary total disability benefits on June 1, 2005, we hold that the workers’ compensation judge erred in terminating Falls’ benefits and therefore the WCCA’s decision reversing the compensation judge on this issue should be affirmed.

II.

Coca Cola also argues that Falls’ conduct amounted to a constructive refusal of a work offer. The WCCA has concluded that a “constructive refusal may be inferred from an unjustifiable and intentional failure to respond to a job offer within a reasonable time or from misconduct by the employee after the return to work which justifies the employee’s termination.” Falls, 2006 WL 1324475, at *4 (citations omitted). Here, the WCCA declined “to expand the scope of constructive refusal beyond [its own] case law and hold that an employee who engages in activities beyond the restrictions set by the treating doctor is refusing employment and is precluded from temporary total disability benefits.” Id. Accordingly, the WCCA concluded that Falls’ conduct did not constitute a constructive refusal of suitable employment. Id. at *5. We agree with this conclusion.

Affirmed.

Employee is awarded $1,200 in attorney fees.

      . "For injury producing temporary total disability, the compensation is 66-2/3 percent of the weekly wage at the time of injury.” Minn.Stat. § 176.101, subd. 1(a) (2004).

      . Minnesota Statutes § 176.101, subd. l(i), provides:
      Temporary total disability compensation shall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation filed with the commissioner which meets the requirements of section 176.102, subdivision 4, or, if no plan has been filed, the employee refuses an offer of gainful employment that the employee can do in the employee's physical condition. Once temporary total disability compensation has ceased under this paragraph, it may not be recommenced.


text:
    Juvon De WILSON, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-677.
    Supreme Court of Minnesota.
    Jan. 18, 2007.

      John Stuart, Minnesota State Public Defender, Michael C. Davis, Special Assistant State Public Defender, St. Paul, MN, for Appellant.
    Juvon De Wilson, Stillwater, MN, pro se.
    Lori Swanson, State Attorney General, St. Paul, MN, Michael O. Freeman, Hen-nepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

A Hennepin County jury found Juvon De Wilson guilty of second-degree intentional murder for the death of Dante Jemi-son. After discovering evidence of inaccurate or possibly false testimony and other new evidence, Wilson petitioned for post-conviction relief in the form of a new trial or an evidentiary hearing. The postcon-viction court denied Wilson’s petition without granting a hearing. The Minnesota Court of Appeals affirmed. We reverse and remand to the postconviction court for an evidentiary hearing.

Appellant Juvon De Wilson was arrested and tried in connection with the shooting death of Dante Jemison. No eyewitness to the shooting testified at Wilson’s trial, but three witnesses testified to the events leading up to the shooting, saying that they saw Jemison with a man who was holding a gun. One witness testified that, after several attempts at reviewing photo lineups, he identified Wilson as the man with the gun. The same witness also identified Wilson at trial as the man he saw with the gun. Another witness testified that she knew the man with the gun and had known him for about eight years. She also testified that this man was known as “E” and that “E” was holding a bottle just before the shooting. She identified Wilson in a photo lineup, but at trial she did not identify Wilson as the man with the gun. The last witness to the events before the shooting could not identify the man holding the gun.

Anthony Wallace, a jailhouse informant, also testified at trial. Wallace testified that Wilson told Wallace that he had killed Jemison. Wallace’s trial testimony was consistent with a statement he had given to the police. But before trial, Wallace recanted that statement, stating in writing that he had learned the facts of the case by reading Wilson’s file and that Wilson had not confessed to him. At trial, Wallace reverted to his initial statement, testifying that Wilson wrote most of the recantation and that Wallace did not read it, even though Wallace wrote the first line and a half. In exchange for his testimony, Wallace received a stayed sentence and probation for several prior convictions and pending charges.

A forensic scientist who is an officer with the Minneapolis Police Department testified that he used a microscope and a cautery probe to analyze a jacket worn by Wilson. The officer explained that he used the cautery probe to determine whether specks visible on the jacket when using a microscope were gunpowder. The cautery probe caused the specks to vaporize, destroying them. The officer testified that he was not aware of anything other than gunpowder that would react that way to such a test and said that he was 99.9 percent sure that the specks were gunpowder. Apparently, the officer did not photon graph the specks or document their, size, shape, or color. Wilson did not learn of the results from the officer’s test or that the officer would testify until the day of jury selection, but Wilson did not request a continuance to retain his own expert, nor did he call an expert to rebut the officer’s testimony.

The jury found Wilson guilty of second-degree intentional murder. Approximately one month later, Daniel Mack contacted Wilson’s defense counsel to inform counsel that he had witnessed the Jemison shooting and that Wilson was not the shooter. Mack also identified two different men known by the nickname “E,” neither of whom, according to Mack, is Wilson. Mack stated that he had not been interviewed by the police about what he saw the night of the shooting. The record reflects that at the time of trial, there was a warrant out for Mack’s arrest and that the police were unable to locate him. Mack also directed defense counsel to two other eyewitnesses to the Jemison shooting, Patrick Slaughter and Eric Owens. Slaughter and Owens also told defense counsel that Wilson was not the shooter.

Based on the newly-discovered eyewitness evidence, Wilson moved for a new trial and petitioned for postconviction relief. The district court denied the motion for a new trial as untimely. Wilson then timely filed a direct appeal, but sought a stay of the appeal and a remand to the district court for postconviction proceedings. The court of appeals dismissed Wilson’s direct appeal and remanded for post-conviction proceedings.

After the remand,. Wilson’s counsel retained an expert to examine a fingerprint on a bottle that the police found at the shooting' scene. The expert ascertained that the fingerprint did not match Wilson’s fingerprints. The defense also retained a forensic scientist, Richard Ernest, who called into question the forensic testimony of the Minneapolis police officer. Ernest stated in an affidavit that (1) no FBI protocols involve using a cautery probe to test for the presence of gunpowder and modern crime labs do not commonly use that test; (2) forensic.scientists avoid tests that destroy evidence; (3) forensic scientists examine particles for their size, shape, and color, and photograph them; and (4) the particles that the officer described could have been any number of things other than gunpowder. In the meantime, Wallace recanted his trial testimony, again claiming that Wilson had not confessed to him and that he had learned of the details of Wilson’s case by reading the file.

Wilson amended his petition for postcon-viction relief in order to accommodate the foregoing evidence. The amended petition contained a request for either a new trial or an evidentiary hearing. Without granting a hearing, the postconviction court denied Wilson’s amended petition for post-conviction relief. The court of appeals, in an unpublished opinion, affirmed the post-conviction court. Wilson v. State, No. A05-677, 2006 WL 997738, at ⅜5 (Minn. App. Apr. 18, 2006). Wilson then filed a petition for review with our court, which we granted.

Wilson argues that he is entitled to a new trial based on evidence of false testimony and newly-discovered evidence. He also argues that, at a minimum, he is entitled to a postconviction evidentiary hearing concerning the evidence of false testimony and newly-discovered evidence. We first address whether Wilson has provided sufficient evidence to entitle him to a new trial.

We review decisions of a postcon-viction court for an abuse of discretion. Opsahl v. State (Opsahl II), 677 N.W.2d 414, 422 (Minn.2004). A petitioner has the burden of establishing, by a preponderance of the evidence, facts that would warrant relief. Ferguson v. State, 645 N.W.2d 437, 442 (Minn.2002). We apply a three-prong test, known as the Larrison test, to claims of newly-discovered evidence of falsified testimony. Sutherlin v. State, 574 N.W.2d 428, 433 (Minn.1998); State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn.1982) (adopting by implication the Larrison test in Minnesota). This test provides that three things must be true before a new trial will be granted: (1) the court must be reasonably well-satisfied that the trial testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial. Ferguson, 645 N.W.2d at 442.

We have distinguished the Larri-son test from the four-prong Rainer test for newly-discovered evidence. See Dukes v. State, 621 N.W.2d 246, 257-58 (Minn.2001). To receive a new trial under the Rainer test, the petitioner must prove that: (1) the evidence was not known to the petitioner or counsel at the time of trial; (2) the evidence could not have been discovered through due diligence before trial; (3) the evidence is not cumulative, impeaching, or doubtful; and (4) the evidence probably would produce an acquittal or a more favorable result. Sutherlin, 574 N.W.2d at 434; Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997).

■ We conclude that Wilson’s petition for postconviction relief did not meet the standards required by the Larrison test for newly-discovered evidence of false testimony or the Rainer test for newly-discovered evidence, generally. Accordingly, we conclude that Wilson is not entitled to a new trial. But we acknowledge that our conclusion could result in part from Wilson’s inability to present evidence at a hearing before the postconviction court. Therefore, we next address the question of whether Wilson alleged sufficient facts to warrant an evidentiary hearing.

A petitioner’s burden of proof for a postconviction evidentiary hearing is lower than his burden for a new trial. Opsahl II, 677 N.W.2d at 423 (citing Ferguson, 645 N.W.2d at 446). Minnesota Statutes § 590.04, subd. 1 (2004), mandates that the postconviction court hold an evidentiary hearing and make findings of fact and conclusions of law “[ujnless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief.” We have interpreted the statute “to require the petitioner to allege facts that, if proven, would entitle him to the requested relief.” Opsahl II, 677 N.W.2d at 423 (citing Ferguson, 645 N.W.2d at 446). The allegations must have factual support and the postcon-viction court must grant the evidentiary hearing whenever material facts are in dispute. Id. at 423 (citations omitted). We have stated that if the court has any doubts about whether to conduct a post-conviction hearing, the doubts should be resolved in favor of granting the hearing. Id. (citing King v. State, 649 N.W.2d 149, 156 (Minn.2002)). Finally, we have stated that a postconviction hearing is particularly important when the petition “attacks” important evidence in a circumstantial case. Id. (citing Ferguson, 645 N.W.2d at 446).

The postconviction court determined that Wallace’s recantation was untrustworthy, and stated that it was not reasonably well-satisfied that Wallace’s trial testimony was false. We have stated that a new trial based on witness recantations is disfavored. Opsahl v. State (Opsahl III), 710 N.W.2d 776, 782 (Minn.2006). But we have also cautioned postconviction courts not to determine that a recantation is unreliable without first taking the opportunity to evaluate the credibility of the witness at an evidentiary hearing. See Opsahl II, 677 N.W.2d at 423-24. In this case, an evidentiary hearing is appropriate because it is difficult if not impossible to test Wallace’s conflicting statements without examining Wallace under oath. Without such examination, the postconviction court cannot make a judgment about which story is true and which is false.

We also conclude that the existence of three newly-discovered witnesses emphasizes the need for a credibility determination at a postconviction hearing. The three new witnesses have similar accounts of what happened the night of the shooting. They each swear that they witnessed the shooting and that Wilson was not the shooter. The postconviction court expressed concern about the veracity of Mack’s statements and the lack of detail in the accounts of Slaughter and Owens. But a postconviction hearing is exactly the forum in which the court can examine and compare each witness’s account for truthfulness and elicit details about each witness’s knowledge. A postconviction hearing would also give the court an opportunity to clarify to what extent each witness’s name appeared in the police reports, in order to determine whether the evidence provided by the witness could have been procured before trial with due diligence.

Further, we conclude that Wilson has raised important issues of material fact by submitting Ernest’s affidavit. The affidavit raises serious questions about the scientific methods used by the police department and the opinion testimony the police officer gave based on his use of these methods. The officer intimated that it was standard protocol to use the cautery probe to determine if particles are gunpowder, stating, “[o]nce you find them, the only way to tell if they are really gunpowder is they usually touch them with a cautery probe.” Throughout his testimony, the officer used the word “we” and “they” to refer to all of the tests he performed. While it is unclear to whom he was referring, at the very least, he was referring to himself and other forensic scientists. Ernest’s sworn statement, if true, indicates that the officer’s testimony may have been inaccurate or even unfounded because, unlike the officer, Ernest swore that there is no FBI protocol to use the cautery probe, and that the cautery probe test is not commonly used by modern crime labs.

Further, the officer testified that based on viewing the specks and using the cau-tery probe, but without documenting their size, shape, or color, he was 99.9 percent certain that the specks were gunpowder and that to his knowledge, nothing other than gunpowder would vaporize upon being touched by a cautery probe. In contrast, Ernest swore that forensic scientists generally photograph particles before they destroy them and examine them for size, shape, and color. Additionally, Ernest swore that forensic scientists generally try to avoid destructive tests. Ernest also listed numerous substances that the specks could have been, all of which would have reacted in the same way to the cautery probe. As with Wallace’s testimony, Wilson has raised sufficient questions as to the officer’s testimony to create genuine issues of material fact.

Next, we address Wilson’s argument with respect to the fingerprint found on the bottle. We conclude that the fact that the fingerprint on the bottle does not match Wilson’s fingerprints would not, standing alone, warrant a postconviction hearing. But in light of the fact that we are remanding this case to the postconviction court for an evidentiary hearing, the postconviction court should consider the fingerprint evidence along with the other evidence originally presented to the court.

We conclude that when a petitioner raises genuine issues of material fact, as Wilson did here, it is an abuse of discretion for the postconviction court to fail to hold an evidentiary hearing. And as noted earlier, an evidentiary hearing is particularly important in the context of a circumstantial case. Opsahl II, 677 N.W.2d at 423. Therefore, we hold that the postconviction court abused its discretion when it denied Wilson an evidentiary hearing.

Reversed and remanded for an eviden-tiary hearing.

      . The witness testified that she identified "E” in the photo lineup, but the police officer who conducted the lineup testified that the witness identified Wilson only as someone she recognized.

      . The parties disagree about whether. the three new witnesses were listed in the police reports. The postconviction court found that they were listed, but one defense attorney swears by affidavit that none of the three was listed "as [a] witness[] to the murder” and that Eric Owens’ last name was "never mentioned at all.”

      . Before trial, the state had tested the fingerprint on the bottle against Jemison’s fingerprints and found that they did not match. There is nothing in the record to indicate whether the police checked the fingerprint against those of Wilson. The defense did not test the fingerprint at the time of trial.

      . Having decided to remand this case to the postconviction court for an evidentiary hearing, we conclude that at this time it is not necessary for us to address the issues Wilson raises in his pro se brief.


author: WILLIS, Judge:

text:
    McINTOSH COUNTY BANK, et al., Appellants, v. DORSEY & WHITNEY, LLP, Respondent.
    No. A06-486.
    Court of Appeals of Minnesota.
    Jan. 10, 2007.

      Thomas C. Atmore, Edward W. Gale, Leonard, O’Brien, Spencer, Gale & Sayre, Ltd., Minneapolis, MN, for appellants.
    Richard G. Mark, Mark G. Schroeder, Jason R. Asmus, Briggs and Morgan, P.A., Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; WRIGHT, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

WILLIS, Judge:

Appellants challenge the district court’s grant of summary judgment to respondent on appellants’ legal-malpractice, breaeh-of-contract, and negligent-misrepresentation claims. We conclude that the district court appropriately granted summary judgment to respondent on appellants’ negligent-misrepresentation claim. The district court also correctly found that there are no genuine issues of material fact as to whether appellants have standing to sue respondent for legal malpractice under a contract-assignment or a tort theory. But because genuine issues of material fact exist as to whether, appellants were third-party beneficiaries of respondent’s legal services and whether appellants had an implied contract for legal services with respondent, we conclude that the district court erred when it granted summary judgment on appellants’ legal-malpractice and breach-of-contract claims. We affirm in part, reverse in part, and remand.

FACTS

Appellants are 31 banks from the Midwest that participated in two loans, originated by Miller & Schroeder Financial, Inc. (Miller), to President R.C.-St. Regis Management Company (President). Under a “management agreement,” President agreed to construct and manage a casino on the St. Regis Mohawk Tribe’s reservation in New York, and the tribe agreed to repay President when the casino’s revenues exceeded its expenses. The management agreement required approval from the National Indian Gaming Commission (NIGC), and such approval was obtained.

Miller arranged to make two loans to President to finance the casino project. As was Miller’s business practice, it sought commitments from participating banks to purchase interests in the loans. Miller retained Dorsey & Whitney LLP (Dorsey), as it had done for past loan transactions, to draft loan documents, including a “pledge agreement,” under which the tribe recognized its obligation to repay President, recognized President’s pledge to Miller of all payments received from the tribe, and agreed to make the payments it owed to President under the management agreement to an escrow account for Miller. President submitted an amendment to the management agreement to the NIGC for review and approval, and Dorsey submitted loan documents, including the pledge agreement, for the NIGC’s review and approval. Although there is no dispute that the amendment to the management agreement required NIGC approval, Dorsey advised Miller that the pledge agreement did not require NIGC approval, so Miller decided to close the loan without waiting for NIGC approval of the pledge agreement. Miller sent a letter to appellants and other prospective participating banks to advise them that the NIGC had not approved the amendment to the management agreement or reviewed the pledge agreement but that, because the review would take up to 60 days, which could be later than the scheduled casino opening, Miller wished to move forward and close the loan without waiting for NIGC approval.

The loans were closed, and Miller sold the loan balances to 32 banks, including appellants. Appellants signed “participation agreements,” which were prepared internally by Miller, and which assigned to each appellant an interest in the loans, collateral, and collections; the agreements also required appellants to acknowledge that they had made a “complete examination of copies of all Loan Documents” and “approve[d] of the form and content of the same”; that they had received all of the information that they needed to “make an independent and informed judgment with respect to the Collateral, Borrower and Obligor and their credit and the desirability of purchasing an undivided interest in the Loan”; and that they accepted the “full risk of nonpayment” by President. The participation agreements also required appellants to acknowledge that Miller had made no warranty or representation regarding the enforceability of any loan documents and to waive their rights to sue Miller for any negligence by its attorneys or others, provided that Miller used “reasonable care in the selection” of counsel.

The casino opened in April 1999 but was financially unsuccessful, and President began to default on the loans shortly thereafter. In October 2000, representatives of Miller, Dorsey, several appellants, and the tribe met in New York. The tribe expressed its belief that it was not obligated to make payments under the pledge agreement because the agreement had not been approved by the NIGC and was therefore unenforceable. Subsequently, appellants sued the tribe in New York for breach of the pledge agreement, and the tribe responded with a qui tam action in federal court in New York. Appellants and the tribe ultimately reached a settlement agreement.

Miller filed for bankruptcy in January 2002, and appellants commenced an adversary proceeding against Dorsey in federal bankruptcy court, alleging that Dorsey was negligent when it advised Miller, and therefore appellants, that the pledge agreement did not require NIGC approval. The bankruptcy court dismissed all but three appellants because they had not filed proofs of claim against Miller’s estate, and it denied Dorsey’s motion for summary judgment as to the remaining three appellants.

In February 2005, Bremer Business Finance Corporation (Bremer), which had not participated with appellants in the adversary proceeding, commenced a separate action in federal bankruptcy court against Dorsey. In the same month, appellants filed suit against Dorsey in state district court, alleging the same claims that they had raised in the federal bankruptcy court. In May 2005, the bankruptcy court abstained from consideration of the claims of the three appellants remaining in bankruptcy court. See 28 U.S.C. § 1334(c)(1) (2000) (allowing a federal district court to abstain from hearing a bankruptcy proceeding “in the interest of justice, or in the interest of comity with State courts or respect for State law”). But the bankruptcy court declined to dismiss or abstain from consideration of Bremer’s claims, while acknowledging that its failure to abstain could result in a case being tried'in state court on the “same set of facts” as the case that would be tried in bankruptcy court. Dorsey moved for summary judgment in state district court in the action brought by appellants, and the court granted the motion. This appeal follows.

ISSUES

I. Was summary judgment appropriately granted to Dorsey on appellants’ legal-malpractice claim based on third-party beneficiary, implied-contract, contract-assignment, and tort theories?

II. Was summary judgment appropriately granted to Dorsey on appellants’ breach-of-contract claim?

III. Was summary judgment appropriately granted to Dorsey on appellants’ negligent-misrepresentation claim?

ANALYSIS

“A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). This court asks two questions when reviewing a district court’s decision to grant summary judgment: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue of material fact exists when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “[T]he party resisting summary judgment must do more than rest on mere aver-ments.” Id. at 71. A genuine issue for trial must be established by sufficient evidence. Id. at 69-70.

I. Legal Malpractice

To succeed on a legal-malpractice claim, a plaintiff must establish four elements: “(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiffs damages”; and (4) that “but for defendant’s conduct, the plaintiff would have obtained a more favorable result in the underlying transaction than the result” that occurred. Jerry’s Enters. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816, 819 (Minn.2006). If the plaintiff fails to prove even one of these elements, the claim fails. Id. at 816. Because the district court concluded that there were no genuine issues of material fact bearing on its determination that appellants had no attorney-client relationship with Dorsey, it declined to reach the remaining elements of appellants’ claims.

Generally, an attorney is liable only to those with whom he has an attorney-client relationship. Marker v. Greenberg, 313 N.W.2d 4, 5 (Minn.1981). But Minnesota courts have recognized exceptions to this strict privity requirement under a third-party-beneficiary theory, under an implied-contract theory, and under a tort theory of representation. Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 265 (Minn.1992). Whether an attorney-client relationship exists is usually a question of fact that depends on the communications and circumstances. Id. Appellants argue that all three exceptions to the strict privity requirement apply here.

Thirdr-Party-Beneficiary Theory

Appellants argue that they had an attorney-client relationship with Dorsey — and thus have standing to sue Dorsey for legal malpractice — because they were third-party beneficiaries of Dorsey’s representation of Miller. The district court concluded that there was no genuine issue regarding the fact that “[a]ny intended benefit to [appellants] of the attorney-client relationship between Miller & Schroeder and Dorsey was incidental; [appellants] were not the sole intended beneficiaries or the intended direct beneficiaries, as required by Marker.” Because the district court determined that appellants were not “sole intended beneficiaries” or “intended direct beneficiaries,” which it viewed as a threshold question, it declined to apply the multi-factor analysis first described in Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 (1961), known as the Lucas factors. The Lucas factors consider:

(1) the extent to which the transaction was intended to affect the nonclient; (2) the foreseeability of harm to the non-client; (3)' the degree of certainty that the nonclient suffered injury; (4) the -elosenessjjf the connection between the 'attorney’s conduct and the injury; (5) the policy of preventing future harm; and (6) whether recognition of liability under the circumstances would impose an undue burden on the profession.

Goldberger v. Kaplan, Strangis & Kaplan, P.A., 534 N.W.2d 734, 738 (Minn.App.1995) (citing Lucas, 364 P.2d at 687-88), review denied (Minn. Sept. 28, 1995).

Appellants argue that the district court misapplied Minnesota law when it stated that, as a threshold requirement, appellants needed to be “intended” beneficiaries of Dorsey’s representation, and the “sole purpose” of Miller’s retention of Dorsey had to be to benefit appellants. Appellants assert that the district court was required to apply the Lucas factors to determine whether “one of the primary objectives” of the agreement between Dorsey and Miller was to benefit appellants.

Dorsey emphasizes that the third-party-beneficiary exception to the privity requirement for a legal-malpractice claim is very limited. Dorsey argues that the “sole purpose” test remains the law in Minnesota and that the “primary purpose” test that appellants advocate has never been adopted or applied in Minnesota. Dorsey contends that the district court did not misapply the law and that the undisputed facts demonstrate that benefiting appellants was not the sole purpose of Miller’s retention of Dorsey. We agree that appellants were not the “sole beneficiaries” of Dorsey’s representation because it was also in Miller’s interest for the loan documents to be enforceable. But although the “sole purpose” language appears in our caselaw, we disagree that Minnesota courts have required the benefit to a third party to be truly the sole purpose of the legal representation in order for the third party to have standing to bring a legal-malpractice claim.

The original source of the “sole purpose” language in Minnesota is Marker, 313 N.W.2d at 5. In Marker, a father retained an attorney to draft his will and, later, to draft deeds that conveyed real estate to the father and his son as joint tenants. Id. at 4. The father died, and the son claimed that the fact that the real estate was held in joint tenancy rather than tenancy in common caused the entire value of the real estate to be included for tax purposes in the father’s gross estate. Id. The son sued the attorney for legal malpractice. Id. at 4-5. The Marker court determined that the son had no standing to bring a legal-malpractice claim against the attorney because the son received the intended benefit of the deeds: joint ownership of the property. Id. at 5-6. Notably, the court did not base its decision on — and in fact did not even mention — the fact that the benefit to the son could not have been the sole purpose of the legal representation "because, at most, the father intended for his son to derive a benefit equal to his own when he conveyed one-half of the interest in the property to his son and retained the other half. Since Marker, Minnesota courts have included the “sole purpose” language when setting forth the components of a third-party beneficiary analysis but have not strictly applied it as a requirement for the third party to have standing to bring a legal-malpractice claim. See, e.g., Admiral Merchs., 494 N.W.2d at 266 (citing Marker to note that an attorney may be liable to a third-party beneficiary “when the client’s sole purpose is to benefit the third party directly,” but proceeding to reverse summary judgment based on its application of the Lucas factors, including “the extent to which the transaction was intended to affect” the nonclient) (emphasis added). Therefore, the fact that the benefit to appellants was not the “sole purpose” of Dorsey’s representation of Miller is not fatal to appellants’ claim that they were third-party beneficiaries of Dorsey’s representation.

Appellants assert that the district court should have applied the Lucas factors, without resolving any threshold issue, to determine whether “one of the primary objectives” of the agreement between Dorsey and Miller was to benefit appellants. Dorsey argues that the district court correctly determined that whether appellants were direct and intended third-party beneficiaries is a threshold question and that, because the undisputed material facts demonstrated that appellants were not, the district court correctly declined to apply the Lucas factors. Dorsey argues that the Lucas factors determine the “extent of an attorney’s duty to a non-client,” not whether the nonclient is a direct and intended third-party beneficiary in the first place.

We note that Minnesota courts have been inconsistent in defining the proper role of the Lucas factors. At least one court has viewed the intended-beneficiary requirement as a threshold question before applying the Lucas factors and used the factors to determine the extent of the duty, as Dorsey advocates. Francis v. Piper, 597 N.W.2d 922, 924 (Minn.App.1999). But in Goldberger, for example, this court applied the factors to determine whether the attorney owed a duty to the nonclient at all. 534 N.W.2d at 738 (noting that “the supreme court intended the Lucas factors as an aid in determining whether the nonclient is a third-party beneficiary”). Clarification is necessary.

In Lucas itself, the California Supreme Court observed the relaxation of the strict privity requirement for claims involving negligence in the performance of a contract and noted that under then-recent caselaw,

the determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors[.] ... The same general principle must be applied in determining whether a beneficiary is entitled to bring an action for negligence in the drafting of a will....

364 P.2d at 687-88 (emphasis added). The Lucas court applied the “various factors” to determine whether a nonclient beneficiary of legal representation is entitled to bring an action for legal malpractice without first resolving any threshold issue. Id. at 687.

We conclude that the district court erred in its application of the law when, after concluding that there were no genuine issues of material fact, it declined to apply the Lucas factors to determine, as a matter of law, whether appellants were third-party beneficiaries of Dorsey’s representation of Miller and thus had a basis on which to sue Dorsey for legal malpractice. Not dissimilar from a determination of the existence of a contract, if the material facts are not in dispute, a district court determines as a matter of law whether the plaintiff was a third-party beneficiary by applying the Lucas factors. See Estate of Peterson, 579 N.W.2d 488, 490 (Minn.App.1998) (stating that when there are no relevant facts in dispute, the existence of a contract is “solely a question of law to be determined by the court”), review denied (Minn. Aug. 18, 1998). But when, as here, there are genuine issues of material fact, application of the Lucas factors to determine whether the plaintiff was a third-party beneficiary of legal representation must be left to the fact-finder to the extent that the facts necessary for application of the Lucas factors are in dispute. See Admiral Merchs., 494 N.W.2d at 266 (reversing a grant of summary judgment on a legal-malpractice claim in part because there were genuine issues of material fact and because “the question of whether an attorney-client relationship existed” under a third-party beneficiary theory “should be determined by the fact finder”).

Here, there is conflicting evidence regarding, for example, the extent to which Dorsey’s representation was intended to affect appellants as well as the foreseeability to Dorsey of harm to appellants. See Goldberger, 534 N.W.2d at 738 (listing the Lucas factors). Therefore, the district court erred when it granted summary judgment on appellants’ legal-malpractice claim. Even if we were to agree with the district court’s determination that there are no genuine issues of material fact,' the district court then erred by not applying the Lucas factors to determine whether appellants were third-party beneficiaries of Dorsey’s representation of Miller. But because we conclude that there are genuine issues of material fact that must be resolved in order to apply the Lucas factors, those issues must be resolved by the fact-finder on remand.

Implied-Contract Theory

Appellants argue that they had an implied contract for legal services with Dorsey and therefore have standing to sue Dorsey for legal malpractice. Appellants base their implied-contract theory on their assertions that Dorsey knew that Miller sold participation in its loans and that Dorsey knew that the advice Miller sought was “on behalf of the participants,” so “Dorsey’s role as the representative of the [appellants] was implicitly understood.”

Dorsey argues that this court should not impose an attorney-client relationship in this case merely because Dorsey was familiar with Miller’s business model, and it notes that appellants cite no authority to support their argument to the contrary. Dorsey also sets forth several “undisputed material facts that support the lack of a contractual attorney-client relationship”: (1) appellants did not ask for representation, and Dorsey never promised it; (2) the lack of direct communication between Dorsey and appellants; (3) the lack of written correspondence from Dorsey to appellants; (4) because Dorsey represented Miller, it could not have represented appellants in an adverse situation; and (5) Dorsey did not bill appellants, and appellants did not pay Dorsey.

Noting that “a party’s mere expectation that an attorney will represent him or her, is insufficient to create an attorney client relationship,” the district court explained that appellants’ “mere expectation ... that Dorsey represented them” or mere belief that Miller had hired Dorsey for their benefit or that they were Dorsey’s clients was insufficient to create an attorney-client relationship between appellants and Dorsey, and concluded that there was no genuine issue of material fact regarding the existence of an express or implied contract for legal services between appellants and Dorsey.

We note that it is undisputed that, among other things, appellants did not directly ask Dorsey for legal representation or communicate directly with Dorsey. But we also note that determination of the existence of an implied contract for legal services involves an examination of the communications and circumstances surrounding a transaction. See Admiral Merchs., 494 N.W.2d at 265 (discussing determination of an attorney-client relationship). Here, in addition to the “undisputed material facts” listed earlier, Dorsey points to a deposition statement by a representative of Miller that Dorsey was “retained to represent Miller & Schroeder, and I’ll leave it at that.” But appellants note that the same representative of Miller confirmed that he “expected that Dorsey’s legal work would benefit both Miller & Schroeder and the [appellants].” Appellants also emphasize the fact that Dorsey had been retained by Miller in connection with 36 different gaming loans originated by Miller before the loans to President that are at issue here, and they point to a statement by the Dorsey attorney who completed most of the work on the President loan documents that she was aware that Miller would be “participating the loans.”

We conclude that there are genuine issues of material fact regarding Miller’s and Dorsey’s understanding of the scope of Dorsey’s representation that must be left to the fact-finder rather than be resolved on summary judgment. The district court erred when it determined that no genuine issues of material fact exist regarding whether appellants had an implied contract with Dorsey and when it granted summary judgment to Dorsey on appellants’ claim based on that theory.

Contract-Assignment Theory

Appellants also argue that they had a contractual relationship with Dorsey — and thus have standing to bring a malpractice claim against Dorsey — because they were the assignees of Miller’s rights under the terms of the participation agreement. Appellants acknowledge that “Minnesota law currently holds that malpractice claims cannot be assigned” but argue that this court should take its cue from “other courts around the country faced with a commercial transaction where the assignor no longer has [an] interest in pursuing a malpractice claim and the loss is suffered by the assignees.” We decline to do so.

In Wagener v. McDonald, this court stated, without limitation, that “the assignment of legal malpractice claims is against Minnesota’s public policy” for several reasons: (1) it would be incompatible with the attorney’s duty of loyalty to the client; (2) it would be incompatible with the attorney’s duty to maintain confidentiality; (3) because of the unique character of the attorney-client relationship, it has been “jealously guarded and restricted to only the parties involved”; (4) there is a risk of collusion against attorneys; and (5) the risk that legal-malpractice actions will be converted into commodities with no regard for the professional relationships or duties traditionally involved, leading to unjustified lawsuits. 509 N.W.2d 188, 191 (Minn.App.1993). Our caselaw is clear on this point. Appellants may not base a legal-malpractice claim on a contract-assignment theory.

Tort Theory

Appellants argue that they had an attorney-client relationship with Dorsey under the tort theory of representation, which provides that “[a]n attorney-client relationship is created whenever an individual seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice.” TJD Dissolution Corp. v. Savoie Supply Co., 460 N.W.2d 59, 62 (Minn.App.1990) (quotation omitted).

The district court noted that under the tort theory of representation, “courts have focused on the contact' between the plaintiff and attorney.” The district court reasoned that “[e]ven if the facts asserted by the [appellants] reflected some direct contact between the [appellants] and Dorsey, the Participation Agreements specifically disclaimed any responsibility for warranties or representations .made in connection with the loan” and concluded that, “as a matter of law, the [appellants’] reliance upon information received from Miller & Schroeder is insufficient to create an attorney-client relationship between the [appellants] and Dorsey.”

Although appellants do not dispute Dorsey’s contention that there was no direct contact between appellants and Dorsey, appellants assert that direct contact is not required. They also assert that they relied on Dorsey’s advice as it was communicated through Miller and that it was foreseeable to Dorsey that appellants would receive the advice and rely on it because Dorsey knew Miller’s business model. Dorsey argues that for the tort theory to apply, a plaintiff must have requested and received legal advice from the defendant attorney and that it is undisputed that appellants did not request or directly receive legal advice from Dorsey.

For the tort theory to apply, the plaintiffs reliance on the attorney’s advice must have been reasonable. Although reasonableness depends, on the circumstances, courts have generally focused on the interactions between the plaintiff and the attorney to determine whether the plaintiffs reliance was reasonable. See Gramling v. Mem’l Blood Ctrs. of Minn., 601 N.W.2d 457, 460 (Minn.App.1999) (“Absent a request for legal advice, we cannot conclude an attorney-client relationship existed under the tort theory of representation.”), review denied (Minn. Dec. 21, 1999); see also Langeland v. Farmers State Bank of Trimont, 319 N.W.2d 26, 31 (Minn.1982) (determining that no attorney-client relationship existed under a tort theory in part because the plaintiffs did not deal directly with the attorney); Schuler v. Meschke, 435 N.W.2d 156, 162 (Minn.App.1989) (determining that no attorney-client relationship existed under a tort theory in part because the plaintiffs did not seek legal advice from the attorney), review denied (Minn. Apr. 19,1989).

Because it is undisputed that there was no direct contact between appellants and Dorsey and that appellants did not seek legal advice directly from Dorsey, and because the participation agreement required appellants to affirm that they had made an “independent and informed judgment” regarding the desirability of participating in the loans, which made appellants’ reliance on Dorsey’s advice unreasonable, we conclude that appellants had no attorney-client relationship with Dorsey under the tort theory of representation and affirm the district court’s decision in that respect.

II. Breach of Contract

Appellants contend that the district court erred when it granted summary judgment to Dorsey on appellants’ breach-of-contract claim after it concluded that there were no genuine issues of material fact that would allow a determination that a contract existed between appellants and Dorsey. Because we have determined that there are genuine issues of material fact regarding whether appellants had an implied contract for legal services with Dorsey, we also conclude that summary judgment was inappropriately granted on appellants’ breach-of-contract claim.

III. Negligent Misrepresentation

Appellants claim that Dorsey “negligently misrepresented the enforceability of the Pledge Agreement,” noting a letter that they received from Miller conveying the “sum and substance” of the advice that Miller received from Dorsey. A negligent-misrepresentation claim arising out of legal advice requires the existence of an attorney-client relationship. Eustis v. David Agency, Inc., 417 N.W.2d 295, 298 (Minn.App.1987). Absent an attorney-client relationship,, liability arises only if the attorney committed fraud, acted with malice, or otherwise committed an intentional tort. Id. The district court concluded that because appellants were not clients of Dorsey and because there were no genuine issues of material fact regarding whether Dorsey acted with malice or committed fraud or another intentional tort, summary judgment was appropriate on appellants’ negligent-misrepresentation claim.

Appellants argue that because an attorney-client relationship existed, their negligent-misrepresentation claim should be reinstated. Dorsey argues that summary judgment was properly granted on this claim because it is undisputed that Dorsey made no representations whatsoever to appellants, so it could not have negligently misrepresented anything to them.

But under Minnesota caselaw, it is not necessary that.Dorsey have made representations directly to appellants. In Bonhiver v. Graff, 311 Minn. 111, 122, 248 N.W.2d 291, 298 (1976), the supreme court adopted the formulation of negligent misrepresentation described in the Restatement (Second) of Torts § 552 (1976), which provides:

(1) One who, in the course of his .business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) ... [T]he liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

(Emphasis added.) ’

We concluded earlier that there is a genuine issue of material fact regarding whether an attorney-client relationship existed under a third-party-beneficiary theory or an implied-contract theory, and we also believe that there is a genuine issue of material fact regarding whether Dorsey knew that Miller intended to convey Dorsey’s advice to appellants. See Restatement (Second) of Torts § 552(2)(a). But appellants’ reliance on Dorsey’s advice must be “justifiable” to allow recovery for negligent misrepresentation. Id. at § 552(1). Whether reliance is justifiable becomes a question of law if there is no evidence supporting a contrary conclusion. Greuling v. Wells Fargo Home Mortgage, Inc., 690 N.W.2d 757, 760 (Minn.App.2005). Because the participation agreement specifically required appellants to affirm that they had made “an independent and informed judgment with respect to the Collateral, Borrower and Obligor and their credit and the' desirability of purchasing an undivided interest in the Loan” and to acknowledge that Miller made no warranty or representation regarding the enforceability of any loan documents, appellants’ reliance on Dorsey’s advice, as communicated through Miller, was not justifiable. Summary judgment was therefore appropriate on appellants’ negligent-misrepresentation claim.

DECISION

We affirm the district court’s grant of summary judgment to Dorsey on appellants’ negligent-misrepresentation claim. We also affirm the district court’s determination that appellants cannot prevail on their legal-malpractice claim under a contract-assignment or a tort theory. But because we conclude that the district court erred in its application of the law regarding appellants’ third-party-beneficiary theory, and because we conclude that there are genuine issues of material fact regarding whether appellants were third-party beneficiaries of Dorsey’s representation of Miller and whether appellants had an implied contract for legal services with Dorsey, we reverse and remand for further proceedings consistent with this opinion on appellants’ legal-malpractice and breach-of-contract claims. We express no opinion on the merits of any of appellants’ claims.

Affirmed in part, reversed in part, and remanded.

      . The parties use the terms "third-party beneficiary,” "sole beneficiary,” and "intended beneficiary” interchangeably, and so have courts. We use only "third-party beneficiary” for the sake of consistency.

      . Appellants cite an unpublished opinion by this court to argue that no direct contact between the plaintiff and the attorney is required under the tort theory. Not only is the unpublished opinion not precedential, but also the language for which appellants cite the opinion is dictum.


author: ROSS, Judge.

text:
    In the Matter of the RISK LEVEL DETERMINATION OF S.S.
    No. A06-36.
    Court of Appeals of Minnesota.
    Jan. 16, 2007.

      John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, Minneapolis, MN, for relator S.S.
    Lori Swanson, Attorney General, Allen Y. Louie, Angela Helseth Kiese, Assistant Attorneys General, and Brent D. Wartner, St. Paul, MN, for respondent Department of Corrections.
    Considered and decided by KLAPHAKE, Presiding Judge; ROSS, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

ROSS, Judge.

This appeal arises from an administrative law judge’s order affirming a decision by the department of corrections’ end-of-confinement review committee to designate S.S., a female convicted of criminal sexual conduct, a risk-level-III predatory offender. S.S. argues that the committee failed to follow the requirements of Minnesota Statutes section 244.052 in making its risk-level determination. Because the procedure the committee followed to assess S.S.did not comply with the statutory requirement to apply a weighted risk-assessment tool, we reverse and remand for a redetermination of S.S.’s risk level.

FACTS

5.5. is an adult female who was convicted of criminal sexual conduct for her sexual behavior with an adolescent male. In this challenge to an end-of-confinement review committee’s (ECRC) risk-level determination, S.S. does not dispute the administrative law judge’s (ALJ) factual findings but instead contests the procedure through which the committee reached its determination.

5.5.’s underlying misconduct occurred when she worked as a cook and youth supervisor at a residential juvenile treatment facility in 1998. Five teenage boys at the facility alleged that, during her employment, S.S. engaged in sexual intercourse and oral sex with them. They stated that she provided them with marijuana and cigarettes and, when one of them tried to end their sexual relationship, she became angry and threatened to deny him home visits. She also would expose her breasts to some of the boys.

In February 1999, the state charged S.S.with seven counts of criminal sexual conduct, two counts of indecent exposure, seven counts of contributing to the delinquency of a minor, and seven counts of furnishing tobacco to a minor. After hearing testimony from several staff members and residents who observed or experienced inappropriate behavior by S.S., a jury convicted her of three counts of criminal sexual conduct for her acts against one of the boys, five counts of contributing to the delinquency of a minor, and seven counts of providing tobacco to a minor. In August 1999, the district court sentenced S.S.to 86 months’ incarceration.

S.S.continued to misbehave after she arrived in prison. She was disciplined several times for rule violations, some major. 5.5. entered the prison’s sex-offender treatment program in February 2001 but was terminated from the program six months later for sexual misconduct. S.S. had flashed her breasts at other inmates in the food-service area and offered to perform sexual favors in exchange for money. She maintains that she was joking. She reentered the treatment program in January 2003 and completed it in September 2003.

S.S.also engaged in misconduct after her release. Several months before her scheduled-release date, a correctional department psychologist reviewed her case file and recommended a risk-level-II assignment. The ECRC adopted this recommendation, and S.S. did not challenge it. She was released from prison in June 2004, but the district court terminated her conditional release in December 2004 after she violated several conditions of the release. She had unauthorized contact with minors, failed to maintain employment, and was terminated from her outpatient sex-offender treatment program. Most notably, S.S.’s friend and the friend’s two children, a thirteen-year-old boy and a twelve-year-old girl, had moved into S.S.’s one-bedroom apartment. S.S. had not obtained permission from her supervised release agent, and she failed to mention her living arrangement to the agent. Based on the violations, the court ordered. S.S. to return to prison for 150 days.

Before S.S.’s new scheduled-release date, the department’s psychologist, who is also a member of the ECRC, reassessed 5.5.’s- risk-level determination. He reviewed her file and evaluated her according to the statutory factors set forth in Minn.Stat. § 244.052, subd. 3(g) (2004). He also noted that S.S.’s high-risk behavior while on release was a special concern. The psychologist recommended a risk-level-III assignment, and, in February 2005, the ECRC agreed. It is the process of reaching this risk-level assignment that is the subject of this appeal.

S.S.sought administrative review of the committee’s assignment decision, challenging the procedure through which the committee reached its decision and its failure to apply a weighted risk-assessment tool in addition to the statutory factors. The department has a risk-assessment tool — an evaluative psychological and behavioral test — that is applied to male evaluees, but it has none specifically for women. The ALJ affirmed the ECRC’s determination. The ALJ held that the department developed the statutorily required risk-assessment tool, but that the controlling statutes do not require application' of a weighted tool when assessing a female offender’s risk level. She reasoned that it is not currently feasible to develop a tool for females comparable to the Minnesota Sex Offender Screening Test-Revised (MnSOST-R), which the ECRC uses when determining a male offender’s risk level. The ALJ then found that the ECRC properly reviewed S.S. in light of other statutory factors and a department of corrections’ policy. S.S. appeals by writ of certiorari. She asserts that the ECRC did not follow the applicable statutory procedure when assessing her risk level.

ISSUE

Did a department of corrections’ end-of-confinement review committee comply with Minn.Stat. § 244.052 (2004) when it failed to apply a weighted risk-assessment tool to assess the risk level of a female offender?

ANALYSIS

S.S. challenges the ALJ’s affirmance of the risk-level-III assignment, which the ALJ based on the ECRC’s evaluative process. An offender may seek administrative review of an ECRC’s risk-level determination. Minn.Stat. § 244.052, subd. 6(a) (2004). The offender bears the burden of proving, by a preponderance of the evidence, that the committee’s determination was erroneous. Id., subd. 6(b) (2004). On certiorari appeal, we will affirm an ALJ’s decision unless we find that the offender’s substantial rights have been prejudiced because the agency decision was made upon unlawful procedure, affected by an error of law, or otherwise unsupported by substantial evidence. Id. § 14.69 (2004) (listing circumstances in which court of appeals may reverse or modify agency decision).

S.S. argues that the ECRC made its risk-level determination without following the statutory procedures set forth in section 244.052. We agree. When an agency’s authority is questioned, we independently review the enabling statute. In re Risk Level Determination of R.B.P., 640 N.W.2d 351, 353 (Minn.App.2002), review denied (Minn. May 14, 2002). Section 244.052 of the Minnesota Statutes establishes a five-person end-of-confinement review committee within the department of corrections to assess, on a case-by-case basis, the public risk posed by predatory offenders who will soon be released from confinement. Minn.Stat. § 244.052, subd. 3(a)-(b) (2004); see also id., subd. 1(5) (2004) (defining predatory offender to ⅛ elude persons required to register as a predatory offender under Minn.Stat. § 243.166 (2004)). The committee must assign one of three risk levels to an offender according to the offender’s risk-assessment score. Id., subd. 3(e) (2004). A risk-level-I designation indicates that an offender has a low risk of reoffending, a risk-level-II designation indicates a moderate risk of reoffending, and a risk-level-III designation indicates a high risk of reof-fending. Id. The committee must make its determination by using a nonexclusive list of statutorily enumerated risk factors and a risk-assessment scale that assigns weight to each of the factors. Id., subd. 3(d)(i), (g) (2004).

S.S. contends that the ECRC failed to follow the express requirement of the statute by not employing a risk-assessment scale. We look to the statute “to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). If a statute’s language is unambiguous, we apply its plain meaning. Id.; In re Risk Level Determination of C.M., 578 N.W.2d 391, 395 (Minn.App.1998). On that review we agree that the ECRC’s procedure for assessing S.S.’s risk level did not comply with the plain meaning of the applicable statutes.

Section 244.052 was enacted in 1996. 1996 Minn. Laws Ch. 408, art. 5, § 1, at 660-64. Subdivision 2 of this section required the commissioner of corrections to develop, by January 1,1997, “a risk assessment scale which assigns weights to the various risk factors listed in subdivision 3, paragraph (g), and specifies the risk level to which offenders with various risk assessment scores shall be assigned.” Minn. Stat. § 244.052, subd. 2 (2004). The subdivision required the commissioner to consult with various professionals to develop the scale. Id. Subdivision 3(d)(i) states, “The committee shall use the risk factors described in paragraph (g) and the risk assessment scale developed under subdivision 2 to determine the offender’s risk assessment score and risk level.” The plain language of the statute requires the creation and application of the weighted risk-assessment scale and application of the statutory factors.

To implement section 244.052, the department adopted policy 205.220 and uses the MnSOST-R as its- weighted risk-assessment tool. The MnSOST-R is an actuarial risk-assessment instrument that compares characteristics of an individual offender to those of a group of documented offenders to calculate the subject offender’s risk to reoffend. The test replaced an earlier version, the MnSOST, which also weighted various factors but was not statistically significant. Under the policy in effect when the ECRC designated S.S. to be a risk-level-III offender, an offender evaluated with the MnSOST-R would be assigned a presumptive risk level based on the results, but the committee reserved the discretion to adjust the level upward or downward based on an offender’s individual circumstances that are not adequately measured by the MnSOST-R. The department supplemented the policy with a list of fourteen special concerns that may result in an upward adjustment to the presumptive risk level.

At issue in this appeal is the ECRC’s failure to apply the MnSOST-R or an alternative weighted risk-assessment tool to female offenders, like S.S., who are subject to the committee’s evaluation for risk-level assignment. The department of corrections’ psychologist testified that, when evaluating male sex offenders, he follows the procedure stated in the policy and applies the MnSOST-R. The committee, however, did not employ the MnSOST-R in determining S.S.’s risk level because the test is statistically valid only as applied to male sex offenders, and the test has never been used for female offenders. The psychologist stated that, to his knowledge, a statistically valid test does not exist to assess females for their risk of reoffense. He noted that the relatively low number of female sex offenders likely contributes to the difficulty in developing a test similar to the MnSOST-R to be applied to females. The lack of female sex offenders in the corrections population is supported by his 'testimony that, in his five years with the ECRC, he has evaluated over 2,000 males but only 30 to 35 females.

In the absence of a version of the MnSOST-R for female offenders, the psychologist testified that the department has an unwritten informal policy of “applying] the policy for males, as much as possible, as fairly and as accurately as possible, to females.” In this case, the committee considered its list of special concerns (that is, those fourteen factors it considers when deciding whether to apply an upward adjustment to a male’s presumptive risk level) and found that one applied because S.S. had engaged in high-risk behavior during release. The committee also considered the statutory factors, which address the potential danger of reoffense, behavior on release, prior criminal history, offender characteristics, support in the offender’s community, intent to reoffend, and physical condition. Minn.Stat. § 244.052, subd. 3(g). When asked if the factors were weighted in any way, the psychologist responded, “I don’t know if I can answer that.”

The ECRC erred in its procedure for determining S.S.’s risk level because the committee did not use any weighted risk-assessment tool as required by statute. The department argues that the failure to apply a weighted tool as directed by subdivision 2 of section 244.052 is inconsequential because the committee addressed the factors listed in subdivision 3(g), along with its. own list of special concerns. But subdivisions 2 and 3, which were enacted at the same time, outline complementary, not alternative, obligations. The use of the mandatory “shall” coupled with the conjunctive “and” in subdivision 3(d)(i) indicates that the legislature intended the committee to apply both the factors and a weighted risk-assessment tool. We hold that applying the factors alone is insufficient under the plain meaning of the statute.

The ALJ also relied on the discretion the ECRC is given in section 244.052 because, in addition to the risk-assessment scale results, the committee may consider the nonexclusive list of factors listed in subdivision 3(g). We acknowledge that the statutory provisions establishing the ECRC and the procedures it should follow vest the committee with some discretion, but this discretion does not relieve it of the obligation to comply with the provisions of section 244.052. In R.B.P., we concluded that the legislature intended to vest some discretion in the ECRC and held that, while the MnSOST-R score provides a presumptive score, the ECRC can rebut this presumption by accounting for individual circumstances not otherwise reflected in the score. R.B.P., 640 N.W.2d at 355-56. But although we have recognized the ECRC’s authority to undertake a subjective analysis, it is only to augment, not replace, its application of an objective analysis. See id. at 355 (recognizing presence of objective component while noting legislative intent “to vest some discretion in the ECRC” (emphasis added)). Section 244.052 requires application of a weighted tool in addition to the factors.

We also note that the department’s policy states that the ECRC “will assign risk levels based on the totality of circumstances and articulable facts, including but not limited to the score indicated on the MnSOST-R.” Its policy to include the MnSOST-R score when imposing a reof-fense risk level underscores our conclusion that the test must, by statute, play a central role in establishing a risk level. The psychologist testified that MnSOST-R does not capture the nature and quality of the events it measures, and the special concerns and statutory factors therefore allow the committee to consider the presence of aggravating or mitigating factors. But the procedure the committee applied in determining S.S.’s risk level was wholly subjective and did not follow the statutory requirement to apply a weighted risk-assessment tool.

The testimony in this case indicates that the department’s present ability to develop a statistically significant scale for females comparable to the MnSOST-R is dubious. Section 244.052, subdivision 2, however, does not require the department to develop a scale based on statistically determined criteria. The statute requires input from, professionals who serve in specific fields to develop the weighted assessment, but it does not include statisticians or social scientists among them. Minn. Stat. § 244.052, subd. 2 (requiring department to consult with county attorneys, treatment professionals, law-enforcement officials, and probation officers). We also note that the weighted risk-assessment tool the committee used before the MnSOST-R was not statistically valid. By all indications, the department took reasonable steps not only to comply with the statute but to improve its former assessment tool for greater, statistically based accuracy. This improved procedure may exceed the. requirements of section 244.052 in the vast majority of cases, which involve men, but the department failed to implement a statutorily sound procedure for the comparably few female offenders it must also assess. The department has since incorporated different procedures based on gender, but only after S.S.’s assessment. Whether the current policy satisfies section 244.052 is therefore not at issue in this appeal.

Because we hold that the ECRC erred in its procedure for determining S.S.’s risk level, we do not address S.S.’s argument that the ALJ’s interpretation of section 244.052 violates principles of equal protection. See State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981) (holding that courts do not decide constitutional questions unless issue is dispositive).

DECISION

Because Minnesota Statutes section 244.052 required the department of corrections to develop and apply a weighted risk-assessment tool for assessing offenders’ risk levels and the end-of-confinement review committee did not apply any weighted risk-assessment tool when assessing S.S.’s risk level, we reverse and remand for a redetermination of S.S.’s risk level.

Reversed and remanded.