author: DANIEL F. FOLEY, Judge

text:
    AUTO-OWNERS INSURANCE COMPANY, Respondent, v. EVERGREEN, INC., et al., Appellants.
    No. CX-99-1489.
    Court of Appeals of Minnesota.
    April 11, 2000.

      Timothy P. Tobin, Elliot L. Olsen, Minnetonka (for respondent).
    Thomas E. Peterson, Todd L. Nissen, Peterson & Hektner, Ltd., Minneapolis (for appellants).
    Considered and decided by RANDALL, Presiding Judge, TOUSSAINT, Chief Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

In this declaratory judgment action, insurer sought summary judgment arguing that it had no duty to defend or indemnify its insured as a matter of law in a negligence and wrongful death action brought against the insured. The insured challenges the district court’s grant of summary judgment in favor of the insurer, arguing the district court erred in concluding that the coverage provision in question was an exception to an exclusion, rather than a grant of coverage, and that the insurance policy as a whole was not ambiguous.

FACTS

On November 29, 1997, Leah Cook purchased a Christmas tree from appellant Evergreen, Inc. An Evergreen employee attached the tree to the roof of Cook’s vehicle. As Cook was driving home, the tree fell off her vehicle onto the highway. One person was killed and another injured when their vehicle rolled over after swerving to avoid hitting the tree.

The damages from the accident exceeded the limits of coverage on Cook’s vehicle. The injured driver and heirs of the deceased passenger sued Evergreen. Evergreen has a general liability insurance policy with Florists Mutual Insurance Company and an automobile insurance policy with respondent Auto-Owners Insurance Company.

Auto-Owners commenced a declaratory judgment action requesting a determination on which, if either, of the two insurance companies owed Evergreen a duty to defend and indemnify in the underlying tort action. The district court granted summary judgment for Auto-Owners, holding it had no duty to defend or indemnify Evergreen in the underlying action.

ISSUE

Does the language contained in an exclusionary provision of the insurance policy issued by Auto-Owners actually operate as a grant of coverage obligating Auto-Owners to indemnify and defend its insured, Evergreen?

ANALYSIS

In reviewing a grant of summary judgment, this court must determine whether genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The interpretation and construction of insurance policy provisions are matters of law which this court reviews de novo. Haarstad v. Graff, 517 N.W.2d 582, 584 (Minn.1994). This court will view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Because the parties dispute only the district court’s interpretation of an insurance contract, this court may review the district court’s decision de novo.

Auto-Owners issued to Evergreen an automobile insurance policy providing coverage for two specifically named vehicles owned by Evergreen. At issue is the district court’s construction of an exception to an exclusion contained in the Auto-Owners insurance policy.

The policy grants Evergreen the following coverage: “[Auto-Owners will] pay damages for bodily injury ⅜ ⅜ * for which you become legally responsible and which involve your automobile.” (Emphasis added.) The Auto-Owners policy also sets forth the following exclusion:

Liability Coverage does not apply:
18. To any person with respect to the loading or unloading of your automobile. We will cover you or your employee or a lessee or borrower of your automobile or that person’s employee.

(Emphasis added.)

Evergreen argues that this exclusionary provision in the Auto-Owners policy should be construed as granting coverage to a vehicle belonging to one of its customers. Specifically, Evergreen contends that the exception contained in this exclusionary provision grants coverage to all loading and unloading claims involving Evergreen or its employees, regardless of whether the vehicle involved is an Evergreen vehicle. To support its contention that the exception to the exclusionary provision should be read in conformity with its proffered interpretation, Evergreen contends that the exception contained in this exclusionary provision operates as a grant of coverage because the language contained in the provision is ambiguous. Specifically, Evergreen alleges that it is ambiguous because it is susceptible to the interpretations offered by both parties. We disagree.

Here, Evergreen does not contend that the policy as a whole is ambiguous, but merely that this one provision is ambiguous. But an exception to an exclusion will only constitute a grant of coverage if the policy as a whole is ambiguous. Moorhead Mach. & Boiler Co. v. Employers Commercial Union Ins. Co., 285 N.W.2d 465, 468 (Minn.1979). Rather than constituting a grant of coverage, exceptions to exclusions merely operate to narrow the scope of the exclusions.

“In order to effectuate the parties’ intent, ‘[t]he policy must be read as a whole, and unambiguous language must be accorded its plain and ordinary meaning.’ ” Landico, Inc. v. American Family Mut. Ins. Co., 559 N.W.2d 438, 440 (Minn.App.1997), review denied (Minn. Apr. 27, 1997) (quoting SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311 (Minn.1995)). Here, the exclusion makes reference to “your automobile.” (Emphasis added.) According the provision its plain and ordinary meaning, the exclusion negates coverage for liability arising from loading and unloading Evergreen’s automobile. The exclusion simply states that it does not apply to certain groups of people.

Furthermore, “[wjhere possible, courts should interpret insurance policies so as to give effect to all of their provisions.” Landico, 559 N.W.2d at 441. To construe the contract as Evergreen suggests would be to effectively eliminate the exclusion altogether, because it would allow the exception to the exclusion to swallow the exclusion entirely, allowing coverage for any class of persons loading or unloading any vehicle, whether owned by Evergreen or not. Accordingly, we conclude that the exception contained in the exclusionary provision is more limited in scope than the construction proffered by Evergreen.

Because we determine that there is no ambiguity in the policy provision at hand, we conclude that by its plain and ordinary meaning the exception provision sets forth that (1) third parties, strangers to the insurance contract, will not be covered for loading or unloading claims involving an Evergreen vehicle, but (2) the insured, a permissive user, or Evergreen employee, will be covered if negligently loading or unloading an Evergreen vehicle. To reiterate, the vehicle involved in the accident at issue was owned by a customer of Evergreen, and not by Evergreen, and coverage is excluded.

DECISION

The district court correctly determined that Auto-Owners was entitled to summary judgment because, by the unambiguous terms of its insurance policy, it was not obligated to indemnify or defend Evergreen in a negligence and wrongful death claim filed against it.

Affirmed.

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


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    ROCKFORD TOWNSHIP, Appellant, v. CITY OF ROCKFORD, Respondent, Minnesota Diversified Products, Inc., intervenor, Respondent.
    No. C0-99-1775.
    Court of Appeals of Minnesota.
    April 11, 2000.

      Thomas P. Melloy, Christopher W. Har-moning, Hall & Byers, P.A., St. Cloud (for appellant).
    Paula A. Callies, George C. Hoff, Hoff, Barry & Kuderer, P.A., Eden Prairie (for respondent City of Rockford).
    David F. Herr, Howard A. Roston, Mas-Ion, Edelman, Borman & Brand, LLP, Minneapolis, (for respondent Minnesota Diversified Products, Inc.).
    Considered and decided by DAVIES, Presiding Judge, LANSING, Judge, and HARTEN, Judge.
   OPINION

LANSING, Judge.

Rockford Township brought a declaratory judgment action against the City of Rockford, seeking a declaration that the city had improperly annexed 80 township acres. The district court dismissed the action for failure to apply for judicial review within the 30-day appeal period of Minn.Stat. § 414.07 (1998), and the township appealed. Because we agree that section 414.07 governs the time to seek judicial review of annexations by ordinance, we affirm.

FACTS

In early 1999, the City of Rockford agreed to help Minnesota Diversified Products, Inc., (MDPI) identify available property to expand MDPI’s Rockford manufacturing facility. The city proposed a tract of land known as the Mutterer Farm, located in Rockford Township. As part of the negotiation, the city accepted a petition by the owners of Mutterer Farm for annexation of 60 acres. When the township would not agree to a joint orderly annexation, the city gave 30 days’ notice of its intent to proceed with annexation by ordinance and called for objections. The township did not object. On March 30, 1999, the city passed two annexation ordinances, the first annexing 60 acres based on the landowners’ petition for land with no public sewer availability, and the second annexing 20 acres, formerly part of Mutterer Farm, that the city had purchased.

The city sent the ordinances to the Minnesota Municipal Board on March 31, 1999. The township sent a letter to the board dated April 6, 1999, protesting that the annexed property did not meet the statutory standards for annexation by ordinance. The board approved the first ordinance on April 9, 1999, noting its “limited authority in approving annexations by ordinance” and its “misgivings as to whether legal and/or technical abutment ha[d] been achieved.” The board approved the second ordinance on April 28, 1999. Both the city and the township received the board’s letters of approval on May 10, 1999. In May 1999, the city began developing an industrial park on the annexed land, with MDPI as the anchor tenant.

In August 1999, the township brought this declaratory action, and the district court permitted MDPI to intervene. The city and MDPI moved to dismiss under Minnesota Rule of Civil Procedure 12.02. The district court granted the motion, and the township appeals. In considering the motion to dismiss under rule 12.02, the district court reviewed and considered submissions in addition to the pleadings. We therefore review the dismissal as if the appeal were taken from summary judgment. Minn. R. Civ. P. 12.02.

ISSUE

Do the appeal provisions of Minn.Stat. § 414.07 (1998) apply to annexations by ordinance under Minn.Stat. § 414.033, subd. 2 (1998)?

ANALYSIS

The interpretation of a statute and its application to undisputed facts raise questions of law that we review de novo. Oslund v. Johnson, 578 N.W.2d 353, 356 (Minn.1998). The purpose of statutory interpretation is to ascertain and effectuate the legislature’s intent. Minn. Stat. § 645.16 (1998). When the words of a statute, in their application to an existing situation, are clear and unambiguous, we must give effect to their plain meaning. Id. Sections of a statute should be considered together to give the words their plain meaning. Chanhassen Estates Residents Ass’n v. Chanhassen, 342 N.W.2d 335, 339 (Minn.1984); see also Minn.Stat. § 645.17 (1998) (statute must be considered as a whole to harmonize and give effect to all provisions); King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991) (“the meaning of statutory language, plain or not, depends on context”).

If a statute’s meaning is not explicit, we look beyond the text to the purpose of the statute, the circumstances under which it was enacted, contemporaneous legislative history, prior versions of the statute, and the consequences of a particular interpretation. Minn.Stat. § 645.16. We consult prior versions of a law only to solve an ambiguity, not to create one. See id. (courts may look to former laws on same subject if words of law are not explicit); Welscher v. Myhre, 231 Minn. 33, 36, 42 N.W.2d 311, 313 (1950) (if statutory language is clear-and unambiguous, no reference should be made to prior enactments).

Until June 1, 1999, the Minnesota Municipal Board was authorized to oversee the alteration of municipal boundaries. Minn.Stat. § 414.01, subd. 1 (1998). The legislature terminated the municipal board by sunset provision effective June 1, 1999. Minn.Stat. § 414.11 (1998 & Supp.1999). It transferred the board’s duties and budget to the office of strategic and long-range planning. Id. Because the act providing for the transfer of powers from the Minnesota Municipal Board did not direct otherwise, the office of strategic and long-range planning carries out the municipal board’s transferred responsibilities as if it were continuing rather than assuming new responsibilities. Minn.Stat. § 15.039, subd. 2 (1998). Thus, we continue to use the statute’s term “municipal board” to refer to the governing agency whether the reference applies to the governing agency before or after June 1,1999.

The legislature created the municipal board to facilitate annexations that would achieve efficiency in governmental services and integrity in land-use planning. Id. The legislation allows municipalities to annex abutting unincorporated land in two ways: annexation by ordinance or annexation by board order. Minn.Stat. §§ 414.031, 414.033 (1998). Annexations by ordinance are permitted in limited circumstances enumerated in Minn.Stat. § 414.033. These circumstances include annexing land owned by the municipality and land abutting the municipality not exceeding 60 acres if it has no available sewer facilities and if all landowners petition. Minn.Stat. § 414.033, subds. 2(1), (3). When the conditions listed in section 414.033 are not met, municipalities must pursue annexation by board order under Minn.Stat. § 414.031.

The municipal board’s procedures vary depending on whether it is considering an annexation by board order or by ordinance. The municipal-board statute requires the municipal board to give notice, hold hearings, and issue written findings on annexations by board order. Minn. Stat. § 414.031. Annexations by ordinance also require notice, hearing, and findings, but the municipal council conducts the proceedings and files the ordinance with the municipal board, township, county auditor, and secretary of state. Minn. Stat. § 414.033, subds. 2b, 7.

The annexation ordinance is “final on the date ⅜ * * approved by the [municipal] board.” Id. The municipal-board legislation also provides for appeal. The appeal provision states that “[a]ny person aggrieved by any order of the board” may appeal to district court “within 30 days of the order.” Minn.Stat. § 414.07, subd. 2 (1998). This appeal period indisputably applies to annexations by board order. Town of Stillwater v. Minnesota Mun. Comm’n, 300 Minn. 211, 218, 219 N.W.2d 82, 87 (1974). The issue presented in this appeal is whether the section 414.07 appeal provisions also apply to annexations by ordinance.

Rockford Township does not dispute that the municipal board’s approval establishes when an annexation by ordinance is final, but disputes that the board’s approval of the ordinance constitutes an “order” that is subject to the 30-day appeal period imposed by Minn.Stat. § 414.07, subd. 2.

We conclude that the township reads the appeal language too narrowly and attempts to impose too restrictive a meaning on “order.” The plain meaning of the municipal-board statute requires board approval for annexations by ordinance. Minn.Stat. § 414.033, subd. 7. The board can only act through its capacity to issue orders; consequently, the plain meaning of order would include the board’s approval of an annexation ordinance. See Minn. Stat. § 414.01, subd. 5 (1998) (board shall transact business by a majority of its members); Black’s Law Dictionary 1123 (7th ed.1999) (order is a command, direction, or instruction); American Heritage Dictionary 1273 (3rd ed.1992) (order is an authoritative indication to be obeyed; a command or direction). Interpreting “any order of the board” to include the board’s approval of annexation ordinances is consistent with the general definition of orders issued in administrative proceedings. See 5 U.S.C. § 551(6) (1996) (“ ‘order’ means the whole or a part of a final disposition ⅜ ⅜ * in a matter other than rulemaking”); cf. MinmStat. § 14.63 (1998) (any person aggrieved by final decision entitled to judicial review). The municipal-board statute’s failure specifically to define the characteristics of a board order approving an annexation ordinance, as it does the characteristics of annexations by board order, does not alter the plain meaning of “order.” Compare Minn. Stat. § 414.033, subd. 2 (requiring but not specifying form of board approval for annexation ordinances), with Minn.Stat. § 414.031, subd. 4 (outlining required elements of board order annexing land after hearing). Because the board must issue an order to approve an annexation ordinance, and because section 414.07 provides the method of appeal from all orders of the board, we hold that section 414.07 provides the exclusive method of appeal for annexations by ordinance.

We read Town of Stillwater to support rather than conflict with our interpretation of the plain meaning of section 414.07. In Stillwater, the supreme court held that “[Minn.Stat.] § 414.07, subd. 2, constitutes the exclusive method of judicial review of annexation proceedings requiring [municipal board] approval.” 300 Minn, at 218, 219 N.W.2d at 87. The court also held that annexations by ordinance were not subject to section 414.07. Id. at 217, 219 N.W.2d at 86. But Stillwater was decided in 1979, when the municipal-board statute did not require municipal-board approval of annexations by ordinance.

When the supreme court decided Still-water, section 414.07 provided for appeal to district court by “any person aggrieved by any incorporation, annexation, detachment, or annexation-detachment order of the board.” Minn.Stat. § 414.07, subd. 2 (1976). And an annexation was final upon filing with the municipal board, the town clerk, the county auditor, and secretary of state. Minn.Stat. § 414.033, subd. 7 (1976). Based on the language of the municipal-board statute in effect, the supreme court distinguished annexations by ordinance from annexations by board order and held that because annexations by ordinance were not subject to municipal-board approval, these annexations did not fall within the appeal provisions of section 414.07. Stillwater, 300 Minn, at 217, 219 N.W.2d at 86.

In 1978, the legislature comprehensively revised the municipal-board statute. See 1978 Minn. Laws ch. 705. In section 414.033, the legislature retained the requirement that annexation ordinances be filed with the municipal board, but added that the ordinances are “final on the date approved by the board.” 1978 Minn. Laws ch. 705, § 20 (emphasis added). The legislature also amended section 414.07 to provide the method of appeal for “any person aggrieved by any order of the board.” 1978 Minn. Laws ch. 705, § 31 (emphasis added).

We generally presume that amendments to statutory language are intended to change the meaning of the statute. See Northern States Power Co. v. Commissioner of Revenue, 571 N.W.2d 573, 575-76 (Minn.1997) (courts should presume amendments change the meaning of a statute unless it appears the amendment is meant only as clarification). We also presume the legislature acts with full knowledge of existing statutes and judicial interpretations of those statutes. See Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998) (unre-versed judicial construction is as much a part of statute as if part of original enactment); Meister v. Western Nat’l Mut. Ins, Co., 479 N.W.2d 372, 378 (Minn.1992) (courts should presume legislature acted with understanding of existing, related legislation). The context of the statutory changes, along with the legislature’s specific addition of a board-approval requirement in section 414.033 and its broadening of the language in section 414.07, evidences an intent to supersede the distinction in Stillwater between annexations by board order and annexations by ordinance and subject all annexations to the appeal provisions of section 414.07.

The township argues that the 1978 amendment to section 414.033 was intended only to provide an effective date for annexation ordinances. We disagree. We first note that the prior version of section 414.033 did designate an effective date, providing that annexations were final upon filing with the board, the township clerk, the county auditor, and the secretary of state. Minn.Stat. § 414.033, subd. 7 (1976). Second, the interpretation the township urges would read “approval” out of the amended statute. See Owens, 328 N.W.2d at 164 (statutes should be construed so that no word, phrase, or sentence is superfluous, void or insignificant). If the legislature intended to simplify the effective date by making it contingent on filing with the board alone, it could have used that language. Instead, the legislature provided that annexations by ordinance would be final when approved by the board, which we must assume carries a different meaning than its previous reference to filed with the board. See Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn.1999) (rejecting interpretation that made language of statute redundant), cert. denied, — U.S. -, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999).

Our reading of the municipal-board statute, as amended, is also supported by the purposes of the statute. See Minn.Stat. § 645.16 (purpose of statute and consequences of particular interpretation can be considered to determine legislative intent); Grier v. Estate of Grier, 252 Minn. 143, 148, 89 N.W.2d 398, 402 (1958) (same). The municipal-board statute is meant to facilitate annexation of land that is or will become urban or suburban in nature. Minn.Stat. § 414.01, subd. 1. Section 414.07 functions as a statute of limitation, intended to prevent challenges to annexation after an unreasonable time during which actions may have been taken in reliance on the validity of the annexation. See Bachertz v. Hayes-Lucas Lumber Co., 201 Minn. 171, 176, 275 N.W. 694, 697 (1937) (statutes of limitation intended to protect defendants from lawsuits after unreasonable period of time has passed). The certainty brought by expiration of the appeal period is as important to annexations by ordinance as it is to annexations by board order. Interpreting the statute to exclude annexation ordinances from the appeal provisions would defeat the purpose of providing an accelerated procedure for annexations by ordinance. It is unlikely the legislature intended to allow an extended period of uncertainty in the summary proceedings.

Although we conclude that the plain meaning of Minn.Stat. § 414.07, subd. 2, sets forth the exclusive method of review of both types of annexations, we note that the 1978 amendments imposed a duty on the board to approve annexation ordinances without setting standards or procedure for that approval. The board’s confusion about its role in annexations by ordinance under this amendment is evidenced by its statement about its “limited authority in approving annexations by ordinance.” The board apparently has concluded that it does not have the authority to inquire, through hearings or otherwise, into the propriety of an annexation ordinance. Because neither party challenges the board’s interpretation of the approval requirement, we need not determine whether the board’s conclusion is correct, but we invite the legislature’s attention to the absence of standards.

The township does suggest, however, that applying section 414.07 to annexations by order denies due process. We do not agree that the flaws in the procedure extend that far. Section 414.07 limits the time for appeal from an order of the board, but it does not limit the district court’s ability to view evidence intended to show that the board acted beyond its jurisdiction. See Minn.Stat. § 414.07, subd. 2(b) (party may appeal actions that exceed the board’s jurisdiction); id., subd. 2 (court may vacate or suspend board’s action if it is unlawful).

We also note that the municipal board failed to give prompt notice of its approval of the Rockford ordinances. The township did not receive the board’s orders approving the ordinances until more than 80 days after the date on the board’s letter. The short appeal period of section 414.07 necessitates prompt notice by the board to interested parties. The township, however, has not argued that the notice itself was defective and, in any event, did not appeal until more than 90 days after it received the board’s written order. Thus, we do not determine whether the board’s notice was ineffective.

DECISION

The district court correctly concluded that Minn.Stat. § 414.07 (1998) applies to annexations by ordinance under Minn.Stat. § 414.033, subd. 2 (1998). Because the township failed to appeal to the district court within 30 days of the board’s order approving the annexation ordinance, we affirm summary judgment dismissing the township’s declaratory judgment action.

Affirmed.


author: PETERSON, Judge.

text:
    Nicholas BURKE, Respondent, v. David G. FINE, d/b/a David G. Fine & Associates, Appellant.
    No. C8-99-1197.
    Court of Appeals of Minnesota.
    April 18, 2000.
    Review Denied June 13, 2000.

      Kristen M. Ludgate, James M. Samples, Faegre & Benson, Minneapolis, for respondent.
    Andrew Tanick, Gerald T. Laurie, Lapp, Laurie, Libra, Thomson & Stoebner, Minneapolis, MN for appellant.
    Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and G. BARRY ANDERSON, Judge.

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

   OPINION

PETERSON, Judge.

In this appeal from a summary judgment, appellant Dr. David G. Fine argues that the district court erred by holding that the noncompete covenant in his employment agreement with respondent Dr. Nicholas Burke was not enforceable after the underlying employment agreement expired. We affirm.

FACTS

Appellant and respondent are cardiologists. Appellant is the sole proprietor of a cardiology practice. In 1995, he hired respondent pursuant to a written employment agreement for a two-year term that began on July 1, 1995. The employment agreement contained a noncompete clause under which respondent agreed not to practice at AbbotL-Northwestern Hospital for a period of two years after the termination of his employment.

Respondent continued working for appellant after the two-year term ended. In early January 1999, respondent told appellant that he was planning to leave the practice and would be looking for other employment. In late January 1999, respondent interviewed for a position at Minneapolis Cardiology Associates, which is associated with Abbott-Northwestern Hospital. After the interview, Cardiology Associates told respondent that it would like to make him an offer but needed confirmation that the noncompete covenant in the 1995 agreement was no longer in effect. Respondent sought appellant’s confirmation that the 1995 agreement had expired. Appellant responded that he would seek enforcement of the noncompete covenant if respondent accepted the position.

Respondent commenced this declaratory judgment action to establish that the 1995 agreement had expired and that the non-compete covenant was unenforceable. Appellant counterclaimed, seeking declaratory and injunctive relief, arguing that even if the 1995 employment contract expired, the restrictive covenant was still in effect. The district court held that when the employment agreement ended, the restrictive covenant also ended and, therefore, the restrictive covenant was not enforceable.

ISSUES

When an employee hired pursuant to a two-year employment contract that contains a noncompete agreement continues working for the employer after the two-year period ends, but later terminates his employment, can the noncompete agreement be enforced?

ANALYSIS

Contract interpretation is a question of law subject to de novo review. Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998); Hertz Corp. v. State Farm Mut. Ins. Co., 573 N.W.2d 686, 688 (Minn.1998). The court interpreting a contract must construe the agreement as a whole. Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 525 (Minn.1990).

The contract stated:

1. Term. Employer hereby employs Employee and Employee hereby accepts employment with Employer which shall begin on July 1, 1995 and continue for two years, and may automatically renew for one-year periods unless earlier terminated as hereinafter provided.

(Emphasis added.)

The contract also stated:

9. Termination. This Agreement shall terminate upon the happening of one of the following events: * * *
B. The end of the term of this agreement, unless extended.

Finally, the agreement contained modification provisions, which stated:

11. Partnership. Any extension of this agreement must be in writing and executed by both parties. * * *
⅜ ⅝ ⅝ ⅜
13.8 Modification. This Agreement may not be amended, waived or modified except by an instrument in writing signed by the party against whom the same is sought to be enforced.

The two-year term of the contract ended on June 30, 1997, and the parties did not enter into a new written agreement. The district court found that at that time, appellant did not apply the terms of the employment agreement to extend the agreement and did not engage in conduct consistent with extending the employment agreement. It found that the term of the employment agreement was not extended by the conduct of the parties and respondent’s continued employment after the two-year period ended was on an at-will basis. Appellant does not dispute this finding.

The district court stated that it could not harmonize the automatic renewal provision in paragraph 1 with the provision in paragraph 9.E that the agreement would terminate at the end of the term unless extended. The court also stated that the termination provision in paragraph 9.E was consistent with the modification provisions, which required that any extension or modification of the agreement be in writing. The district court determined that the provision that the agreement would terminate at the end of its term applied to the entire employment contract and concluded that pursuant to this provision, the restrictive covenant terminated on June 30, 1997, with the rest of the agreement. Therefore, the restrictive covenant was not enforceable.

The restrictive covenant provided:

12. Restrictive Covenant. In the event of Employee’s termination of employment whether by act of Employer, Employee or both, Employee agrees not to engage in the practice of medicine or cardiology at Abboth-Northwestern Hospital * * ⅞ directly or indirectly, either individually or as a member of a firm or clinic or as an Employee or otherwise, for a period of two (2) years from and after the date of such termination.

Appellant argues that the district court rewrote the parties’ agreement when it concluded that the noncompete agreement was no longer enforceable once the employment agreement expired. Appellant contends that by its express terms, the noncompete agreement prohibits respondent from competing with appellant for two years following the termination of respondent’s employment, and the fact that the employment agreement had a specific termination date does not mean that the parties could not, by mutual agreement, incorporate a provision that imposed obligations after the expiration date. Appellant argues that the district court took the erroneous position that a contractual provision cannot survive the expiration of the underlying agreement.

Appellant misunderstands the district court’s decision. The district court did not conclude that a contractual provision could never survive the expiration of the underlying contract; the district court concluded that the noncompete provision in respondent’s employment contract did not survive the expiration of the underlying contract. Appellant’s argument that the express terms of the noncompete agreement prohibit respondent from competing with appellant for two years following the termination of respondent’s employment ignores the fact that the express terms were part of a contract that had expired.

When the employment contract expired, its terms were no longer binding on the parties. Appellant has not cited any language in the employment contract that indicates the noncompete agreement was to survive the termination of the underlying contract. Consequently, the proper construction of the noncompete agreement is irrelevant because there is no longer any contract to construe.

In Nimis v. St. Paul Turners, 521 N.W.2d 54 (Minn.App.1994), this court addressed a similar issue. In that case, the issue was whether a waiver contract that the plaintiff signed in conjunction with a health club membership expired when the membership agreement expired, or whether the waiver was still in effect a year later when the plaintiff rejoined the club. Id. at 56-57. This court held that even though the waiver was on a separate piece of paper that contained no expiration date, it “was an integral part of the membership contract and thus would be of the same duration unless specific language designated otherwise.” Id. at 58.

Appellant contends that Nimis supports his position because specific language in the noncompete provision in the employment contract states that the noncompete period runs from two years after the termination of respondent’s employment. Appellant interprets this language to mean that the duration of the noncompete provision is not the same as the underlying contract period. We disagree.

There is no language in the noncompete provision that indicates that the provision survives the expiration of the underlying contract. The provision says no more than that if employment terminates, the employee agrees not to practice medicine or cardiology at Abbott-Northwestern Hospital for a period of two years. The fact that, if there is a termination during the two-year contract period, the agreed-upon, two-year noncompete period will necessarily extend beyond the two-year contract period, does not mean that the noncompete provision remains applicable to a termination that occurs after the two-year contract period ends.

Our conclusion that the noncompete agreement was not enforceable after the underlying contract expired is also consistent with this court’s decision in Roberts v. Baumgartner, 391 N.W.2d 545 (Minn.App.1986). In Roberts, a restrictive covenant prohibited a partnership from providing competitive occupational therapy services upon “termination” of a subcontractor agreement that had a one-year term. Id. at 547-48. The day after the subcontract expired, the partnership entered into an agreement to provide services that would have violated the restrictive covenant, and the principal contractor sued. Id. at 547. This court found that the restrictive covenant was no longer enforceable because, by its own terms, it applied if the agreement was actively “terminated” by one of the parties during the one-year term of the subcontract, and it could not be invoked following the “natural” expiration of the subcontractor agreement’s one-year term. Id. at 547-48.

Our conclusion is also consistent with decisions in other jurisdictions. Grossman v. Sherman, 198 Colo. 359, 599 P.2d 909, 910 (1979), which was cited in Roberts, involved a contract that was expressly limited to one year and provided for liquidated damages if the physician-employee violated the noncompete provision in the contract. After the year ended, the employer and the employee were unable to agree on terms for additional employment. Id. The employee left after the contract expired and established a practice that would have violated the noncompete provision if it applied. Id. The court considered whether the employee “terminated” the contract and triggered the liquidated-damages clause by violating the noncompete agreement. Id. at 911. The court held:

While the contract might have provided that the liquidated damages provision extended beyond the one-year term of employment, it did not so provide. We cannot add terms to the contract by interpretation when the terms set out by the parties are unambiguous. It must be concluded, therefore, that the liquidated damages provision expired with the rest of the contract when Grossman completed his agreed year of employment.

Id.

Appellant attempts to distinguish Gross-man on the grounds that the noncompete provision in Grossman was tied to the “termination of this agreement” and not to the termination of employment. But appellant again fails to explain why the reference in the noncompete provision to “termination of employment” should be construed to mean that the noncompete provision survives the expiration of the contract. See also Kaye v. Orkin Exterminating Co., 472 F.2d 1213, 1215 (5th Cir.1973) (finding that where an employment agreement had terminated, the non-compete clause in that agreement “ceased to have effect because the contract between the parties had ended”); Sanz v. R.T. Aerospace Corp., 650 So.2d 1057, 1059 (Fla.Dist.Ct.App.1995) (holding that once an employment agreement had expired, noncompete clauses contained in that agreement were no longer enforceable); Storz Broad. Co. v. Courtney, 178 So.2d 40, 42 (Fla.Dist.Ct.App.1965) (holding noncompete provision applicable to termination during term of agreement, but was not applicable after contract was fully performed).

DECISION

When the parties’ two-year employment contract expired at the end of the two-year contract period, the noncompete provision in the contract also expired. Therefore, the noncompete agreement was not enforceable when the respondent employee later terminated his employment.

Affirmed.


author: KLAPHAKE, Judge

text:
    STATE of Minnesota, Respondent, v. Bradley Allan NELSON, Appellant.
    No. C7-99-1305.
    Court of Appeals of Minnesota.
    April 18, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, Minneapolis, MN (for respondent).
    Kurt B. Glaser, Rau & Floyd, P.L.L.P., Minneapolis, MN (for appellant).
    Considered and decided by KLAPHAKE, Presiding Judge, CRIPPEN, Judge, and SHUMAKER, Judge.
   OPINION

KLAPHAKE, Judge

In this appeal from a conviction for criminal vehicular operation and homicide, appellant Bradley Allan Nelson challenges a pretrial order declining to dismiss his criminal complaint on double jeopardy grounds, arguing that he was previously sanctioned for the same offense by suspension of his driver’s license under Minn. R. 7409.2000 (1998). Because we conclude that the suspension was remedial, rather than punitive, separate criminal proceedings for the same conduct did not constitute a second punishment for double jeopardy purposes, and we affirm.

FACTS

In the early morning hours of September 29, 1998, appellant was involved in a fatal car crash at a Bloomington intersection. Appellant’s vehicle rear-ended another vehicle driven by Brian Dalzell. Stacy Klein died from injuries she received. Dalzell’s other two passengers were injured in the accident: Annie Haga-man suffered life-threatening injuries that resulted in severe brain damage; and David Martin suffered a skull fracture. Appellant’s blood alcohol concentration at the time of the accident was .11.

Appellant was charged with nine felony counts arising from the accident, and a jury found him guilty of two counts of criminal vehicular homicide and four counts of criminal vehicular operation in violation of Minn.Stat. § 609.21, subds. 1, 2 (1998).

At his Rasmussen hearing, appellant argued that the district court should dismiss the criminal complaint because he had already been punished for the same conduct by suspension of his driver’s license upon issuance of the criminal complaint. Minn. R. 7409.2000 (1998) requires suspension, among other reasons, upon the filing of criminal vehicular homicide charges against a defendant. The district court concluded that the suspension of appellant’s license did not constitute punishment for purposes of double jeopardy. Appellant challenges that ruling.

ISSUE

Did the trial court err in concluding that appellant’s criminal vehicular homicide conviction did not constitute a second punishment for the same conduct as his license suspension and therefore did not violate the double jeopardy clause?

ANALYSIS

A reviewing court is not bound by and need not give deference to a trial court’s decision on a purely legal issue. State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999). The Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. Y. The Minnesota Constitution similarly provides that “no person shall be put twice in jeopardy of punishment for the same offense.” Minn. Const. Art. I, § 7. Here, criminal adjudication for vehicular homicide could not follow suspension of appellant’s driver’s license if the suspension constituted “punishment” within the meaning of the double jeopardy clause.

A driver’s license must be suspended by the commissioner of public safety under Minn. R. 7409.2000, subp. 1 if the commissioner “receiv[es] a record of a criminal charge for criminal vehicular homicide * ⅜ * arising out of the operation of a motor vehicle.” The suspension must be terminated if the underlying criminal charges are dismissed or if the defendant in the underlying criminal action is acquitted. Id., subp. 2, 8.

Minnesota courts have long held that revocation of a driver’s license under the implied consent statute is not criminal and does not constitute punishment for double jeopardy purposes. See, e.g., State v. Hanson, 543 N.W.2d 84, 86 (Minn.1996) (Minnesota Supreme Court “decided over thirty years ago that a driver’s license revocation followed by criminal punishment does not violate any constitutional protections against double jeopardy”); State v. Dumas, 587 N.W.2d 299, 303 (Minn.App.1998) (“implied consent license revocations are remedial in nature” and separate criminal charges for drunk driving do not violate double jeopardy principles), review denied (Minn. Feb. 24, 1999). In Hanson, the supreme court adopted the “solely deterrenVretributive” test, which “permits the imposition of a civil sanction which ‘may fairly be characterized as remedial.’ ” Id. at 87-88 (quoting United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989)).

More recently, however, the United States Supreme Court has severely restricted or implicitly rejected the double jeopardy analysis employed in Halper, upon which the Minnesota Supreme Court relied in deciding Hanson. See Hudson v. United States, 522 U.S. 93, 99-102, 118 S.Ct. 488, 493-95, 139 L.Ed.2d 450 (1997) (noting that Halper deviated from traditional double jeopardy analysis and reaffirming that double jeopardy analysis must always include consideration of whether punishment is “criminal” and whether the statute, on its face, rather than by the character of the actual sanctions imposed, provides for a criminal sanction); see also State v. McKinney, 575 N.W.2d 841, 843 (Minn.App.1998) (“[i]n Hudson, the Supreme Court disavowed its method of analysis in Halper and reaffirmed the double jeopardy doctrine set forth in” pre-Halper cases). Since Hudson, this court has affirmed that “[t]he initial inquiry into whether a particular punishment is civil or criminal is a matter of statutory construction.” McKinney, 575 N.W.2d at 843. In McKinney, this court also adopted the following language in Hudson that enumerates a nonexclusive list of factors to consider in making that initial inquiry:

(1) ‘Whether the sanction involves an affirmative disability or restraint’; (2) “whether it has historically been regarded as a punishment’; (3) Vhether it comes into play only on a finding of scienter’; (4) ‘whether its operation will promote the traditional aims of punishment — retribution and deterrence’; (5) “whether the behavior to which it applies is already a crime’; (6) ‘whether an alternative purpose to which it may rationally be connected is assignable for it’; and (7) ‘whether it appears excessive in relation to the alternative purpose assigned.’

Id. (quoting Hudson, 522 U.S. at 99-100, 118 S.Ct. at 493-94).

We conclude that appellant’s double jeopardy claim fails under the standard applied by the Supreme Court in Hudson, or under either of the standards applied by Minnesota courts in Hanson and McKinney. The sanction applied in this case has not historically been regarded as punishment and may fairly be characterized as remedial under the “solely deterrent/retributive” test. Like an implied consent revocation, suspension of a driver’s license under rule 7409.2000 serves a strong public safety interest — to prevent drivers from using Minnesota roads after they have caused the death of another person while operating a vehicle. Arguably, the public safety interest is stronger in rule 7409.2000 suspension cases than in implied consent cases because the underlying conduct that supports the sanction is much more serious.

Further, although rule 7409.2000 applies only upon the filing of a criminal complaint, this does not undermine the remedial nature of the rule. The primary purpose of the rule is to promote public safety, not to punish the driver. The language of the rule does not support appellant’s argument that the rule is merely a “guise” for a summary criminal proceeding. The rule requires termination of the suspension if the underlying criminal charge is dismissed or if the accused driver is acquitted. Id. The suspension, however, becomes a revocation under rule 7409.1000 only if the driver is convicted of criminal vehicular homicide. Minn. R. 7409.2000, subp. 3. Thus, the suspension rule applies only as long as it appears that the driver will present a safety concern. As in implied consent cases, where a later criminal prosecution has been held to pass constitutional muster for double jeopardy purposes, a driver’s license suspension under rule 7409.2000 does not bar a later criminal prosecution. •

DECISION

Because administrative suspension of appellant’s driver’s license did not constitute punishment for double jeopardy purposes, the trial court did not err in concluding that the subsequent filing of criminal charges for the same conduct did not violate double jeopardy principles.

Affirmed.


author: KLAPHAKE, Judge.

text:
    Anne T. KEMP, petitioner, Respondent, v. Eugene G. KEMP, Appellant.
    No. C6-99-1814.
    Court of Appeals of Minnesota.
    April 18, 2000.

      Tsippi Wray, St. Paul, MN (for respondent).
    Gregory J. Holly, McGuigan & Holly, P.L.C., St. Paul, MN (for appellant).
    Considered and decided by KLAPHAKE, Presiding Judge, CRIPPEN, Judge, and SHUMAKER, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Eugene Kemp moved to reduce or terminate his permanent spousal maintenance obligation, based on his loss of dividend income and on respondent Anne Kemp’s increased income and reduced expenses since the time of the parties’ divorce in 1991. He appeals from the district court’s affirmance of a family court referee’s decision to reduce his maintenance obligation from $900 to $500 per month. Because the findings on respondent’s net income fail to consider her dividend income and otherwise fail to accurately calculate her net income based on the available evidence, we reverse and remand for findings on respondent’s need for continued maintenance.

FACTS

The parties divorced in 1991 after a 37-year marriage. The judgment incorporated the parties’ stipulation.

At the time of the divorce, appellant was 61 years old. He was self-employed as a counselor, with an average net monthly income of $1,584. The parties agreed that appellant would receive the parties’ stock in several closely-held corporations, which at that time generated gross monthly dividend income of $2,914. Appellant’s monthly expenses were $2,110.

Respondent, who was 58 years old at the time of the divorce, was a traditional homemaker. Beginning in 1973, however, respondent taught English part time; by 1991, she was employed full time as a seventh grade English teacher and earned a gross annual salary of $21,452. The parties agreed that respondent would be awarded stock, which was received during the marriage from her father and which generated an average of $348 per month in dividend income. Respondent’s monthly expenses at the time of the divorce were $5,291, which included a $1,092 mortgage payment and $550 in expenses directly related to the homestead, which was for sale at the time of the divorce.

Under the terms of the stipulation, appellant agreed to pay permanent spousal maintenance of $900 per month, to “terminate upon the death or remarriage of [respondent], or the death of [appellant], whichever event shall first occur.” Due to cost-of-living increases, appellant’s maintenance obligation rose to $954 by 1998.

In 1998, appellant lost his dividend income when the majority shareholder of the closely-held corporations sold the businesses. Appellant received $127,000 in gross proceeds from the sale. From this amount, he paid $32,000 in taxes, reinvested $75,000 in another closely-held corporation, paid off his automobile loan, and paid $8,000 to purchase rental property. Although he receives no dividend income from the new closely-held corporation, he claims the corporation plans to go public in the next year or two.

In December 1998, appellant served respondent with a motion to reduce or terminate his maintenance obligation. In support of his motion, appellant submitted an affidavit in which he set out the factual basis for his claim. Appellant is now 70 years old and retired from his principal occupation as a counselor. He underwent surgery in February 1998, after being diagnosed with cancer. He receives social security income of $1,000 per month. His current monthly expenses are $1,955. To supplement his social security income, appellant works several part-time jobs and grosses approximately $1,465 per month. He estimates his net monthly income from all sources to be $2,100. His net worth remains at approximately $160,000.

Based on materials he received from respondent during discovery, appellant estimated respondent’s current gross monthly income at $3,517 and her dividend income at $690, for a net monthly income of $3,281. Appellant further estimated respondent’s monthly expenses, not including repayment of her stock margin account, at $2,750. Finally, appellant claimed: (1) the value of respondent’s stocks have increased substantially, from $220,200 at the time of the divorce to their current value of $603,991; (2) respondent has a vested pension that would presently pay her $500 per month; and (3) respondent has been able to fund an additional, voluntary retirement plan with a present balance of almost $75,000.

Respondent, who is now 67 years old, opposed appellant’s motion and claimed that she continues to need maintenance. She claimed her monthly expenses are $3,375. With respect to her income, she offered no calculation and merely submitted two paycheck stubs. Regarding the dividend income she receives from the stocks she was awarded in the dissolution decree, respondent states:

When I purchased the condominium in which I reside at the present time, I had to borrow against my margin account, the entire down payment on my residence. Therefore, all the dividends that were generated on my portfolio have been paying back directly to replenish the margin account, as I had been advised by my financial advisor. Consequently, I do not really receive any dividends, and ,1 have not received any for the last few years, and I cannot claim that as an income for purposes of “operating” funds.

At the hearing before the referee, respondent conceded that appellant had shown that some reduction was warranted. The referee found that appellant’s current net monthly income totals $2,140 and that his current monthly budget is $1,955. The referee found respondent’s monthly expenses are $2,745, an amount that does not include the $630 monthly payment to her margin account. The referee further found that respondent’s net monthly income, using her paycheck stubs and the standard tax tables, and allowing her deductions for health insurance and a retirement contribution, totals $1,940. The referee found that both parties’ claimed monthly expenses were reasonable.

The referee concluded that respondent is “unable to meet her necessary monthly expenses solely on her income” and that termination of appellant’s maintenance obligation was not appropriate, based on his

agreement that his obligation was permanent and on the grounds that it would be unfair and unreasonable to permit [him] to meet his own obligations without using the principal of his marital assets while requiring [respondent] to use hers to meet her obligations.

The referee determined that maintenance should be reduced to $500 per month, an amount that “leaves both parties an approximate monthly deficit [of] $300.” Finally, the referee ordered the modification to take effect on March 1, 1999, because appellant’s motion was not filed until February 18,1999.

Appellant sought district court review of the referee’s order, seeking amendment of the referee’s calculation of respondent’s net income and its findings regarding her reasonable monthly expenses. The district court affirmed the referee’s decision in all respects.

This appeal followed.

ISSUES

1. Did the district court abuse its discretion in refusing to make the maintenance modification retroactive to the date appellant served his modification motion?

2. Did the district court abuse its discretion by refusing to terminate maintenance and by setting appellant’s maintenance obligation at $500 per month?

ANALYSIS

I.

The district court made the modification retroactive to March 1,1999, relying on the date appellant filed his motion, February 18, 1999. Appellant argues that any modification should be made retroactive to December 4, 1998, the date he served the motion.

Modification of a maintenance obligation “may be made retroactive” to the date of service of notice of the modification motion. Minn.Stat. § 518.64, subd. 2(d) (1998). Because the word “may” is defined as “permissive,” a district court has discretion to set the effective date of a maintenance modification. See Minn.Stat. § 645.44, subd. 15 (1998); Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn.App.1997); Finch v. Marusich, 457 N.W.2d 767, 770 (Minn.App.1990).

Appellant served his motion on respondent in December 1998, and claims that his loss of dividend income occurred even before he served the motion. He was able to continue making maintenance payments, however. In addition, because he did not file the motion in district court until February 18, 1999, his motion was not heard until March 4, 1999. Under these circumstances, it was not an abuse of discretion to set March 1, 1999, as the effective date of modification.

II.

This court will not reverse a district court’s decision setting or modifying maintenance unless the district court has abused its discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982). We may, however, find an abuse of that discretion if the district court’s findings are clearly erroneous and against logic and the facts in the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984).

The district court’s refusal to terminate appellant’s maintenance obligation was based partly on its conclusion that appellant had agreed “that his obligation was permanent.” However, appellant’s agreement to pay permanent maintenance does not preclude later modification or termination of maintenance. While permanent maintenance does not compel future self-sufficiency by the recipient, it also does not preclude an obligor from subsequently demonstrating that a recipient has, in fact, become self-sufficient. See Poehls v. Poehls, 502 N.W.2d 217, 218 (Minn.App.1993) (“permanent maintenance” is term of art that places burden on obligor to demonstrate that maintenance award should be modified due to changed circumstances).

Absent language in a stipulation divesting the district court of jurisdiction, the district court retains authority to consider whether changed circumstances warrant modification. See Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn.1981). The stipulation identifies the baseline circumstances against which claims of substantial change are evaluated. Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn.1997). When determining whether a substantial change has rendered the terms of the original decree unreasonable and unfair, the stipulation may be relevant if one party claims this change was not or could not have been anticipated. See Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn.1997).

In this case, the stipulation anticipated appellant’s continued receipt of dividend income; even respondent has conceded that appellant’s loss of that dividend income represents a substantial change in his financial circumstances that warrants a reduction in maintenance. Thus, appellant’s agreement to pay respondent permanent spousal maintenance has become non-dispositive on the question of whether he is entitled to a reduction or termination of maintenance. See id. (without stipulated waiver, parties stipulating to maintenance retain right to seek maintenance modification).

Once an obligor establishes he is entitled to modification, the needs of the spouse receiving maintenance must be balanced against the financial condition or ability to pay of the spouse providing maintenance. Dougherty v. Dougherty, 443 N.W.2d 193, 194 (Minn.App.1989). A recipient’s needs are often determined by considering her income and available resources versus her reasonable monthly expenses. See id.

The district court here determined that appellant’s maintenance obligation should be reduced to $500, based on its conclusion that respondent is “unable to meet her necessary monthly expenses solely on her income.” The district court’s findings regarding respondent’s income and available resources, however, are clearly erroneous. See Rutten, 347 N.W.2d at 50 (findings clearly erroneous if against logic and facts on record). In particular, the district court (1) failed to consider any dividend income that respondent receives from her margin account; (2) based its income determination solely on two paycheck stubs and one deduction from the standard tax tables, even though respondent itemized deductions; (3) rejected, without comment, appellant’s calculation, which was based on respondent’s 1997 income tax return and utilized an effective tax rate of 22 percent; and (4) considered, without deciding whether it was reasonable, respondent’s voluntary contribution to her 403(b) retirement plan, which amounts to 19 percent of her gross income. See Minn.Stat. § 518.552, subd. 2(a) (district court must consider “financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently”); Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn.1989) (“A spouse’s ability to pay maintenance does not * ⅜ * obviate the statutory mandate that the other spouse’s own independent financial resources must be considered too.”); cf. State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 471 (Minn.App.1999) (when calculating net income for purposes of application of child support guidelines, district court should determine whether voluntary contribution to retirement plan is “reasonable”).

The district court also faded to adequately address appellant’s challenges to respondent’s claimed monthly expenses of $3,375. The district court merely found that, with the exception of the $630 payment on her margin account loan, respondent’s budget “appears reasonable.” Because the margin account loan is temporary and more in the nature of an investment, it cannot be considered a necessary, ongoing living expense, and we agree that it cannot be included in respondent’s expenses. A more detailed examination of respondent’s expenses is necessary in this case. See Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn.App.1992) (balance between maintenance recipient’s needs and obligor’s ability to pay “can only be struck when the [recipient’s] needs are, in fact, determined”), review denied (Minn. Dec. 15, 1992).

Finally, it is undisputed that appellant has little ability to pay maintenance, and it appears that respondent may have income available and resources to meet her reasonable monthly needs. Absent a demonstrated need, appellant’s continuing maintenance obligation should be terminated. See Lyon, 439 N.W.2d at 22 (maintenance depends on showing of need).

DECISION

The district court’s order affirming the referee is reversed. The matter is remanded for findings on respondent’s need for continued maintenance, considering her net income and available resources and her reasonable monthly expenses.

Reversed and remanded.

      . Although respondent characterizes the stocks she was awarded in the divorce as an inheritance, the judgment does not identify these stocks as nonmarital property. To the contrary, these stocks were included in the judgment as part of the marital estate. Under these circumstances, we must assume that respondent’s father gave these stocks to both parties.

      . Although respondent argued to the referee that appellant acted unwisely in his reinvestment decisions regarding this $127,000 and that income should be imputed to him as if he received a seven percent return on these proceeds, the referee found appellant’s actions were reasonable and refused to impute income to him. Respondent does not challenge the referee's rejection of her imputation of income argument or the findings on this issue.


author: DORIS O. HUSPENI, Judge.

text:
    Todd E. DEAL, as Guardian Ad Litem for Wayne Howard Crow, Appellant, v. NORTHWOOD CHILDREN’S HOME SOCIETY, INC., et al., Respondents.
    No. C5-99-1691.
    Court of Appeals of Minnesota.
    April 18, 2000.
    Review Denied June 13, 2000.

      Patrick M. Spott, Nancy C. von Seg-gern, Orman & Nord Law Office, Duluth, MN (for appellant).
    W.D. Flaskamp, Minneapolis, MN (for respondents).
    Considered and decided by WILLIS, Presiding Judge, RANDALL, Judge, and HUSPENI, Judge.
   OPINION

DORIS O. HUSPENI, Judge.

The trustee for appellant Wayne Howard Crow challenges the district court’s judgment dismissing appellant’s personal injury action subject to respondents’ payment of special damages following appellant’s death from unrelated causes. Because the district court correctly determined that punitive damages are not recoverable in a personal injury action when the plaintiff dies from a cause unrelated to those injuries, we affirm.

FACTS

This case arises out of an incident on January 8, 1995, near Gooseberry Falls State Park in which an ill-conceived practical joke went tragically awry. Appellant Wayne Crow, a minor, was on an outing to the park with ten other children, all residents of respondent Northwood Children’s Home Society, Inc. (Northwood). Respondents Lance Seboe and Sheri Bailey, both employees of Northwood, supervised the outing. Seboe drove the van that carried the children to the park. It was a cold day, with the actual temperature reaching a high of only nine degrees and the wind chill measuring 30 degrees below zero. Most of the children were not dressed for extended outdoor exposure.

While en route to the park, Seboe stopped the van to allow some of the children to get out and stretch. As a “little joke,” Seboe told the children to walk the last half-mile to the upper falls while he and Bailey drove over to meet them there. He drove down the road a short distance, expecting that the children would chase after the van. Instead, they dashed off into the wilderness and disappeared. Unbeknownst to the children, the upper falls were actually five miles away.

Seboe and Bailey did not seek outside help in searching for the children for over two hours. When Bailey finally notified their supervisor that the children were lost, the supervisor initially told her not to contact law enforcement or rescue services. Five hours elapsed before appellant was finally rescued. He suffered hypothermia and frostbite as a result of the ordeal. The parties have stipulated that his medical bills totaled $800.

On October 28, 1996, appellant’s guardian ad litem brought an action on appellant’s behalf, seeking recovery against Northwood for negligence, negligent hiring, and negligent and intentional infliction of emotional distress. The district court subsequently granted the guardian ad li-tem’s motion to amend the complaint to add a claim for punitive damages. On August 15, 1999, appellant died in an automobile accident as a result of injuries unrelated to those giving rise to this lawsuit. Respondents moved to dismiss the complaint subject to payment of special damages, pursuant to Minn.Stat. §§ 573.01, .02, subd. 2 (1998). The court granted the motion and this appeal followed.

ISSUE

Did the district court err in concluding that under Minn.Stat. §§ 573.01, .02, subd. 2 (1998), appellant’s claim for punitive damages in his personal injury action did not survive his death from unrelated causes?

ANALYSIS

Statutory construction is a question of law, which this court reviews de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). The primary purpose of statutory interpretation is to ascertain and effectuate the legislature’s intent. Minn.Stat. § 645.16 (1998). Where the legislature’s intentions are clearly discernible from plain and unambiguous language, no construction is necessary or permitted. Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995). If a statute is ambiguous, the court must determine and give effect to the intent of the legislature. In re Estate of Ablan, 591 N.W.2d 725, 727 (Minn.App.1999). The court should not construe the statute to lead to injustice or an absurd result if the language will reasonably permit another construction. Id. (citing Minn.Stat. § 645.17(1) (1998)).

Under Minnesota law, a claim for personal injuries dies with the plaintiff, subject only to specifically defined exceptions. The relevant statute provides:

A cause of action arising out of an injury to the person dies with the person of the party in whose favor it exists, except as provided in section 573.02.

Minn.Stat. § 573.01 (1998). MinmStat. § 573.02 (1998), which bears the title “Action for Death by Wrongful Act; Survival of Actions,” provides a broad exception for the survival of wrongful death actions as well as a limited exception for pre-existing personal injury actions unrelated to the cause of death. With respect to wrongful death actions, the statute provides:

When death is caused by the wrongful act or omission of any person or corporation, the trustee * ⅜ ⅜ may maintain an action therefor if the decedent might have maintained an action, had the decedent lived[J * * * The recovery in the action is the amount the jury deems fair and just in reference to the pecuniary loss resulting from the death, and shall be for the exclusive benefit for the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death. ⅝ * * Punitive damages may be awarded as provided in section 54-9.20.
If an action for the injury is commenced by the decedent and not finally determined while living, it may be continued by the trustee for recovery of damages for the exclusive benefit of the surviving spouse and next of kin * * *. The court on motion shall make an order allowing the continuance and directing pleadings to be made and issues framed as in actions begun under this section.

Minn.Stat. § 573.02, subd. 1 (emphasis added). Two separate scenarios are set forth in this subdivision. The first paragraph addresses the case of a decedent who dies before instituting an action for the injuries that led to death; the second paragraph addresses the case of a decedent who dies after having already begun a personal injury action. In the latter instance, the action converts to a wrongful death action for the benefit of the surviving spouse and kin.

The more limited exception for the survival of personal injury actions is found in subdivision 2 of Minn.Stat. § 573.02, which reads:

When an injury is caused to a person by the wrongful act or omission of any person or corporation and the person thereafter dies from a cause unrelated to those injuries, the trustee * * * may maintain an action for special damages arising out of such injury if the decedent might have maintained an action therefor had the decedent lived.

Subdivision 2 addresses the situation present in this case. This provision has remained substantially the same since its initial enactment in 1967. Compare Minn. Stat. § 573.02, subd. 2 (1967), with Minn. Stat. § 573.02, subd. 2 (1998).

In the absence of ambiguity, the court must apply the plain language of the statute. Minn.Stat. § 645.16. Under the statutory scheme set forth in Minn.Stat. §§ 573.01 and 573.02, the legislature began by abating all types of personal injury actions by deceased plaintiffs (section 573.01) and then allowing specific exceptions to that abatement (section 573.02). For a plaintiff whose death is unrelated to his cause of action (the circumstance addressed in Minn.Stat. § 573.02, subd. 2), the legislature specifically limited recovery to special damages. In contrast to Minn. Stat. § 573.02, subd. 1, there is no mention of punitive damages in subdivision 2.

Appellant would have this court strain to find some ambiguity in Minn.Stat. § 573.02, subd. 1, that would permit a statutory construction to include punitive damages in both subdivisions 1 and 2. He notes that the legislature inserted the punitive damages provision at the end of the first paragraph of Minn.Stat. § 573.02, subd. 1 (which permits a trustee to commence a wrongful death action), but not at the end of the second paragraph of subdivision 1 (which permits a trustee to convert decedent’s personal injury action to a wrongful death action). According to appellant, under a plain reading of this subdivision, punitive damages can be had in a wrongful death action only if the trustee starts the action after decedent’s death; a result appellant characterizes as absurd. Therefore, argues appellant, this absurdity renders the entire statute ambiguous, and as a result of the ambiguity, the statute is subject to the statutory construction he urges upon us.

Appellant’s argument regarding ambiguity in Minn.Stat. § 573.02, subd. 1, is flawed. We find none. The second paragraph of subdivision 1 provides that in a wrongful death action, if the decedent dies after commencement of a personal injury action, the court “shall make an order allowing the continuance and directing pleadings to be made and issues framed as in actions begun under this section.” Minn.Stat. § 573.02, subd. 1 (emphasis added). The statutory mandate is clear. Upon death from the wrongful acts of another, the existing personal injury action converts to a wrongful death action and is treated as an action begun under the wrongful death statute. Id. Punitive damages may be sought both in those actions commenced by the trustee after the death of the decedent, and in those actions commenced by the decedent before death. Because we conclude that appellant has failed to identify any real ambiguity in the statute, the district court properly applied the plain language of the statutes in question in dismissing appellant’s complaint, subject to payment of special damages.

In what is essentially a policy argument, appellant urges that because punitive damages exist to punish and deter wrongful conduct, they should be available under both subdivisions of Minn.Stat. § 573.02 because that purpose survives a plaintiffs death. In support of this argument, appellant cites Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226 (Minn.1982), in which the supreme court reluctantly held that punitive damages were unavailable under the version of the wrongful death statute then in existence. The court noted the inequity of permitting a tortfeasor to escape liability for punitive damages when he causes death, but not when he only injures. Id. at 228. The court concluded that despite the apparent inequity of the result it was required to reach, “any change in the recovery for wrongful death that is not permitted by fair interpretation of the statute is for the legislature to make.” Id.

We believe that the action of the legislature in the year after the decision in Eisert bolsters our decision here. In 1983, the legislature amended Minn.Stat. § 573.02, subd. 1, to add the final sentence in the first paragraph, which specifically allows for an award of punitive damages in a wrongful death action. 1983 Minn. Laws ch. 347, § 2. Although the legislature could have quite easily amended the language of subdivision 2 to add a punitive damages provision similar to that added to subdivision 1, it did not do so. We are prohibited from adding that which the legislature did not. Ullom v. Independent Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994).

Finally, appellant argues that the same inequity that troubled the court in Eisert exists in this case because respondents grievously wronged appellant but will escape liability for punitive damages because of his death. The moral persuasiveness of appellant’s position notwithstanding, however, it does not follow that because the legislature elected to allow punitive damages in one type of action, it must have intended to allow claims for punitive damages to survive in every personal injury action. The supreme court’s refusal to rewrite the plain language of the wrongful-death statute in Eisert illustrates that equitable considerations cannot justify ignoring plain statutory language. That court has recognized that the legislature faces competing interests in punishing and deterring misconduct while ensuring that punitive damages do not become “a loose cannon on the legal deck.” Jacobs v. Farmland Mut. Ins. Co., 377 N.W.2d 441, 445 (Minn.1985); see also Father A v. Moran, 469 N.W.2d 503, 507 (Minn.App.1991) (holding parents cannot recover punitive damages based on injury to child). Ultimately, in this case as in Eiserb, appellant must look to the legislature to balance the competing interests involved in the question of when and in which cases punitive damage awards may be sought.

DECISION

Appellant’s claim for punitive damages in his personal injury action did not survive his death from unrelated causes, pursuant to Minn.Stat. §§ 573.01, .02, subd. 2. The district court did not err in dismissing appellant’s action subject to respondents’ payment of stipulated special damages.

Affirmed.

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

      . "Special damages" are those damages to which an exact dollar amount can be assigned, such as medical expenses or lost wages to date of death. Beaudry v. State Farm Mut. Auto. Ins. Co., 518 N.W.2d 11, 12 n. 1 (Minn. 1994).


author: KALITOWSKI, Judge.

text:
    STATE of Minnesota, by its Attorney General, Mike HATCH, Respondent, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant.
    No. C1-99-1705.
    Court of Appeals of Minnesota.
    April 4, 2000.
    Review Denied June 13, 2000.

      Mike Hatch, Attorney General, Alan Gilbert, Chief Deputy Attorney General, Solicitor General, St. Paul, and David Woodward, Assistant Attorney General (for respondent).
    Corey J. Ayling, Douglas J. Franzen, Kathleen M. Brennan, McGrann Shea Franzen Carnival Straughn & Lamb, Chartered, Minneapolis (for appellant).
    Considered and decided by KALITOWSKI, Presiding Judge, WILLIS, Judge, and HALBROOKS, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant contends that because the attorney general lacks the independent authority to bring this lawsuit against an insurance company, the district court erred in determining it had subject matter jurisdiction.

FACTS

In March 1999, respondent State of Minnesota, by the attorney general, brought an action against appellant American Family Mutual Insurance Company concerning appellant’s payment of claims for storm damage. Respondent alleged that appellant violated consumer protection laws prohibiting false advertising, deceptive trade practices, consumer fraud, and regulations of insurance trade practices under chapter 72A of the Minnesota Statutes. Appellant asserted a counterclaim contending that because the attorney general did not have the authority to bring this action, the district court lacked subject matter jurisdiction. Respondent moved to dismiss the counterclaim and appellant moved for summary judgment on the counterclaim.

The district court denied appellant’s summary judgment motion and dismissed the counterclaim. The district court determined that the attorney general and the commerce department had concurrent authority to pursue actions against an insurance company for the alleged statutory violations. The district court also determined that the doctrine of primary jurisdiction did not require the court to defer the case to the commerce department. The district court therefore enjoined the commerce department from going forward with any investigations or proceedings on the same matter. Following commencement of an appeal, this court issued an order limiting the appeal to the sole issue of subject matter jurisdiction and dismissing the parts of the appeal dealing with the doctrine of primary jurisdiction and the injunction against administrative proceedings.

ISSUE

Did the district court err in determining that it had subject matter jurisdiction based on its conclusion that the attorney general had legal authority to sue an insurance company for alleged violations of consumer protection laws?

ANALYSIS

This case presents a question of law involving the legal authority of the attorney general to bring an action in district court against an insurance company. A reviewing court is not bound by and need not defer to a district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

We first note that, consistent with a prior order of this court, the only issue before us pertains to subject matter jurisdiction. Appellant contends the district court lacked subject matter jurisdiction because: (1) the attorney general did not have authority to bring this action; and (2) the commerce department has exclusive power over insurance. We disagree.

The attorney general has broad powers at common law:

As the chief law officer of the state, the attorney general possesses all of the powers inherent in that office at common law. * * * The attorney general may institute, conduct, and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of this state, the preservation of order, and the protection of legal right.

Humphrey ex rel. State v. McLaren, 402 N.W.2d 535, 539 (Minn.1987) (quoting Head v. Special Sch. Dist. No. 1, 288 Minn. 496, 503, 182 N.W.2d 887, 892 (1970)). The attorney general’s discretion to bring suit is plenary and is beyond the control of any other state department or officer. State ex rel. Peterson v. City of Fraser, 191 Minn. 427, 432, 254 N.W. 776, 778-79 (1934).

The attorney general has broad statutory powers as well. The attorney general may appear for the state in all civil causes in the state courts whenever, in the attorney general’s opinion, the interests of the state require it. Minn.Stat. § 8.01 (1998). The attorney general has also been charged with investigating violations of the law “respecting unfair, discriminatory, and other unlawful practices in business, commerce, or trade.” Minn.Stat. § 8.31, subd. 1 (1998). We conclude that the attorney general has been authorized by statute to bring suit for all the alleged violations in this action either because the violations are specifically listed by statute or because the violations involve unfair business practices. See Minn.Stat. §§ 8.31, subd. 1 and 8.32, subd. 2(a) (1998); Morris v. American Family Mut. Ins. Co., 386 N.W.2d 233, 235-36 (Minn.1986) (stating that it is “clear” that section 72A.20 deals with unfair business practices within the meaning of Minn.Stat. § 8.31, subd. 1).

Appellant argues that, while the attorney general may otherwise be able to pursue violations of these statutes, the attorney general has limited authority over the insurance industry. We disagree. This argument is contrary to the plain language of Minn.Stat. § 8.31 (1998). Moreover, a provision excluding the insurance industry from the attorney general’s power was repealed in 1983. Minn.Stat. § 8.31, subd. 4 (1982) (repealed by 1983 Minn. Laws ch. 290, § 173; ch. 301, § 235). “Legislative history indicates that [this provision] was repealed to make sure the attorney general could investigate and take action on unfair claims practices of insurance companies.” Morris, 386 N.W.2d at 236.

Notwithstanding Minn.Stat. § 8.31, appellant argues that the district court erred in not dismissing this action because the commerce department has the exclusive authority to bring this suit based on statutes enumerating the commerce commissioner’s authority. Appellant relies particularly on Minn.Stat. § 45.027, subd. 5 (1998), which provides:

Whenever it appears to the commissioner that any person has engaged or is about to engage in any act or practice constituting a violation of any law, rule, or order related to the duties and responsibilities entrusted to the commissioner, the commissioner has the following powers: (1) the commissioner may bring an action in the name of the state * * * in the district court * * * or the commissioner may refer the matter to the attorney general or the county attorney of the appropriate county.

The commissioner has the power to enforce this state’s laws relating to insurance. Minn.Stat. § 60A.03, subd. 2 (1998). The commissioner has the specific power to investigate allegations against insurance companies of unfair trade practices prohibited by section 72A.19. Minn.Stat. § 72A.21 (1998).

Appellant is correct that the commissioner has the authority to bring certain court actions under these provisions. But it does not necessarily follow that the commissioner’s power to bring suit is exclusive. The legislature did not state that the commerce department’s power was exclusive in any of the sections mentioned above. Cf. Minn.Stat. § 144.653, subd. 1 (1998) (providing that the state commissioner of health is “the exclusive state agency charged with the responsibility and duty of inspecting” facilities licensed under sections 144.50 to 144.58) and Minn.Stat. § 29.051 (1998) (providing that the board of animal health “shall have exclusive jurisdiction and control over all matters pertaining to poultry diseases”). If the legislature had intended that the commerce commissioner have exclusive authority, it could have stated this explicitly. Thus, we conclude that these provisions regarding the authority of the commerce commissioner do not prohibit the attorney general’s action. See State by Spannaus v. Northwestern Bell Tel. Co., 304 N.W.2d 872, 876-77 (Minn.1981) (holding that attorney general was permitted to bring suit to compel telephone company to obey Minnesota laws regarding telephone charges in light of the attorney general’s broad common law powers where telecommunications statutes did not prohibit attorney general from doing so).

Appellant further argues that section 45.027 requires the attorney general to consult with the commissioner of commerce and obtain the commissioner’s permission before commencing an action. But the plain language of the statute does not support such a construction. That the commissioner of commerce has the authority to investigate and prosecute claims against insurance companies does not mean the attorney general is precluded from doing so. See State ex rel. Young v. Robinson, 101 Minn. 277, 284-85, 112 N.W. 269, 271 (1907) (holding that although city had authority to remove delinquent city officials, the legislature did not intend to deprive the attorney general of its power to remove delinquent city officials).

Moreover, the existence of a comprehensive regulatory scheme in an area does not necessarily constrain the authority of others. See State by Humphrey v. Byers, 545 N.W.2d 669, 672 (Minn.App.1996) (holding that the department of transportation, represented by the attorney general, possessed the authority to bring an eminent domain suit in district court to acquire a drainage easement even though drainage systems were governed by the county drainage authorities and a comprehensive act regulating drainage systems).

In conclusion, the district court has subject matter jurisdiction to hear this matter because: (1) the attorney general has broad common law and statutory authority to bring suits to protect the interests of Minnesota citizens; (2) the attorney general has not been prohibited by statute from bringing suit against an insurance company for the statutory violations alleged in the complaint; and (3) the statutes dealing with the authority of the commerce department and its commissioner to regulate insurance do not explicitly provide that the commissioner’s authority is exclusive.

DECISION

The district court properly concluded that it has subject matter jurisdiction to hear this matter.

Affirmed.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Rex Lee FURMAN, Appellant.
    No. CX-99-892.
    Court of Appeals of Minnesota.
    April 4, 2000.
    Mike Hatch, Attorney General, St. Paul, and Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, Minneapolis (for respondent).
    John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis (for appellant).
    Considered and decided by CRIPPEN, Presiding Judge, KLAPHAKE, Judge, and SHUMAKER, Judge.
   OPINION

CRIPPEN, Judge.

Appellant Rex Furman, who received a ten-year conditional-release term as part of his sentence, contends it should have been for a five-year term. He argues that the trial court could not consider his 1981 conviction because imposition of sentence for that crime was stayed. We affirm the trial court’s conclusion that the 1981 conviction remains a “conviction” for purposes of the conditional-release statute.

FACTS

Appellant was convicted of first-degree criminal sexual conduct on January 13, 1999. He had been convicted of fourth-degree criminal sexual conduct in 1981, but the sentencing court stayed imposition of the sentence. Appellant successfully performed conditions of the 1981 stay and was discharged from the court’s jurisdiction in 1986. As a result of the 1981 record, deemed a conviction by the trial court, the court imposed a ten-year conditional-release term under Minn.Stat. § 609.109, subd. 7(a) (1998), rather than the five-year term.

ISSUE

Was the term of appellant’s post-imprisonment conditional release properly set at ten years?

ANALYSIS

The interpretation of a sentencing statute is a question of law and is reviewed de novo by this court. State v. Sheppard, 587 N.W.2d 53, 54 (Minn.App.1998), review denied (Minn. Jan. 27, 1999). The courts may at any time correct a sentence not authorized by law. Sheppard, 587 N.W.2d at 54 (quoting Minn. R.Crim. P. 27.03, subd. 9). This court may review sentences “imposed or stayed to determine whether the sentence is inconsistent with statutory requirements.” Minn. R.Crim. P. 28.05, subd. 2.

If the language of a statute is clear and unambiguous, this court must “give effect to the statute’s plain meaning.” Tuma v. Commissioner of Economic Sec., 386 N.W.2d 702, 706 (Minn.1986). The terms in question are not ambiguous. The statute provides for the application of a ten-year conditional-release term “(i)f the person was convicted for a violation of [specified sex offenses, including fourth-degree criminal sexual conduct] a second or subsequent time.” Minn.Stat. § 609.109, subd. 7(a) (1998).

In 1981, appellant was convicted of fourth-degree criminal sexual conduct, a felony in violation of Minn.Stat. § 609.345 (1980). Because the imposition of a sentence was stayed in 1981 and appellant was subsequently discharged, transforming the conviction into a misdemeanor, he contends that there remains no “conviction” under Minn.Stat. § 609.109, subd. 7(a). See Minn.Stat. § 609.13, subd. 1(2) (1998) (designating conviction as misdemeanor after stayed imposition and discharge); see also Minn. Sent. Guidelines, Appendix, Definition of Terms (stating that stay and discharge produce a record of a misdemeanor “for civil purposes (employment applications, etc.)”).

Assuming that the 1981 conviction should be treated by statute as a misdemeanor, there is no authority suggesting that this makes the elements of the crime different from what existed at the time of the conviction. And the Minnesota Supreme Court has determined that section 609.13 does not necessarily change the consequences of a separate statute that is based upon the nature or elements of the offense for which a defendant was originally convicted. See State v. Moon, 463 N.W.2d 517, 521 (Minn.1990) (firearms restriction correctly applied to defendant despite fact that his felony conviction was deemed misdemeanor under Minn.Stat. § 609.13, as operation of section 609.13 did not alter the nature or elements of offense for which defendant was originally convicted). Regardless of the subsequent discharge of the stay of imposition, appellant’s current conviction remains his second conviction for criminal sexual conduct and the trial court correctly applied the ten-year conditional-release term.

DECISION

Where appellant was previously convicted of fourth-degree criminal sexual conduct but received a stay of sentencing and was subsequently discharged from the court’s jurisdiction, his current sentence correctly included the double conditional-release term provided by law for his second conviction of specified sexual-contact crimes.

Affirmed.