author: HARTEN, Judge.

text:
    Jason Michael STONE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A03-987.
    Court of Appeals of Minnesota.
    March 9, 2004.

      Jason Michael Stone, Minneapolis, pro se, appellant.
    Mike Hatch, Attorney General, St. Paul; and Alan L. Mitchell, St. Louis County Attorney, Gordon P. Coldagelli, Assistant County Attorney, Virginia, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, and RANDALL, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

In postconviction proceedings, on a pro se appeal from the denial of a motion to modify his 1997 sentence for fourth-degree criminal sexual conduct, appellant Jason Stone argues that his sentence should be reduced because his plea was not intelligent and that the conditional release period unlawfully extends his sentence past the ten-year statutory maximum sentence for his crime. We affirm.

FACTS

On 28 July 1997, Jason Stone pleaded guilty and was sentenced for fourth-degree criminal sexual conduct under Minn.Stat. § 609.345, subd. 1(e) (1996). Before Stone entered his plea, his attorney acknowledged that Stone would be subject to a five-year “supervised release” period. After Stone entered his plea, but before the district court accepted it, the pre-sentence investigator noted on the record that Stone was subject to a ten-year “supervised release” due to a prior criminal sexual conduct conviction. At that point, the parties had a discussion off the record. The district court then accepted Stone’s plea and asked Stone if he wished to say anything. Stone made a brief comment unrelated to his plea and the court imposed his sentence:

[T]he sentence of the Court is 40 months with the Commissioner of Corrections .... I also direct as required by state law, two additional things as part of the sentence that don’t impact the sentence itself or good time. The first is the 10 years of supervised release upon your release regardless of when that is....

When the court asked Stone if he had any questions, he replied “No. No, I do not.”

In April 2003, in postconviction proceedings, Stone sought a sentence modification, arguing that he was not properly informed of the ten-year conditional release period and that his sentence unlawfully exceeds the statutory maximum. This appeal followed.

ISSUES

1. Was Stone’s guilty plea unintelligent?

2. Did the postconviction court abuse its discretion by denying Stone’s post-conviction petition to modify his sentence?

ANALYSIS

Appellate courts “review a post-conviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001) (citation omitted). We defer to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous. Id. A postconviction court’s decisions will not be disturbed absent an abuse of discretion. Id.

1. Imposition of “Supervised” Release

At the time of Stone’s sentencing, the conditional-release statute provided that:

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

Minn.Stat. § 609.346, subd. 5 (1996).

At Stone’s sentencing, the district court imposed a ten-year “supervised release” period. Stone asserts that his plea was not intelligent because the district court did not properly refer to the ten-year period as “conditional release” and, as a result, he did not fully understand the consequence of his plea.

A valid guilty plea must be accurate, voluntary, and intelligent. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998). For a plea to be intelligent, a defendant must be aware of relevant circumstances and direct consequences of the plea. Id. at 578.

The sentencing transcript shows that the “supervised release” the court imposed, which was discussed multiple times at Stone’s sentencing, was the conditional release period. Stone’s attorney did not object when the “supervised release” was imposed, and Stone did not question the court about it. Thus, we presume Stone was aware of the consequences of his plea and, therefore, his plea was intelligent. See State ex rel Rankin v. Tahash, 276 Minn. 97, 101, 149 N.W.2d 12, 15 (1967) (it is presumed that a defendant who pleads guilty with assistance of counsel has been advised of his rights and the consequences of his plea).

2. Mandatory Conditional Release Part of Maximum Sentence

Stone also argues that the conditional release period unlawfully extends his sentence past the ten-year statutory maximum sentence for fourth-degree criminal sexual conduct. See Minn.Stat. § 609.345, subd. 2 (1996) (maximum penalty for fourth-degree criminal sexual conduct is ten years).

“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Because the imposition of conditional release under Minn. Stat. § 609.109, subd. 7, is a mandatory aspect of the sentence to be imposed by the district court for offenders convicted of criminal sexual conduct, the conditional release period is part of the maximum sentence that an offender may receive for his crime. State v. Jones, 659 N.W.2d 748, 752-53 (Minn.2003).

In Jones, the supreme court determined that the imposition of Jones’s ten-year conditional release period under the patterned sex offender statute, MinmStat. § 609.108 (2002), was solely predicated on factual findings made by a judge using a preponderance of the evidence standard. Id. at 752. The court concluded that this release period, which extended Jones’s sentence past the statutory maximum 15-year sentence for his crime of third-degree criminal sexual conduct, violated Apprendi. But the court then applied Minn.Stat. § 609.109, subd. 7 (2002), the mandatory conditional release statute, as a part of the statutory maximum penalty that Jones could receive for his crime; this resulted in a maximum sentence of 20 years. See id. at 753-54 (combining the statutory maximum penalty of 15 years for third-degree criminal sexual conduct with the mandatory five-year conditional release period required for first time sex-offenders). Accordingly, the court reduced Jones’s sentence from 25 years to 20 years. Id. at 754.

This court applied Jones in State v. Warren, No. C1-02-646, 2003 WL 21152853 (Minn.App., May 20, 2003), re view denied (Minn. 5 Aug. 2003). In Warren, the appellant was convicted of first-degree criminal sexual conduct, which provided for a maximum sentence of 30 years and a presumptive minimum sentence of 144 months. See Minn.Stat. § 609.342, subd. 2 (2002). The appellant was sentenced to double the presumptive minimum sentence and a ten-year period of conditional release under the patterned-sex-offender statute. Id. at *4; see also Minn.Stat. § 609.108 (2002). Appellant argued that the 288-month sentence, combined with the ten-year conditional release, exceeded the 30-year statutory maximum sentence he could receive for his crime. Id. at ⅜4. Under Jones, this court determined that although the appellant’s ten-year conditional release was originally imposed under section 609.108, the district court properly imposed a ten-year conditional release because the appellant was convicted of his second sex-related crime and he is subject to a ten-year conditional release period under Minn.Stat. § 609.109, subd. 7. Id. at *5.

In the instant case, Stone is subject to a ten-year conditional release period specifically because he has been twice convicted of criminal sexual conduct. See Minn.Stat. § 609.346, subd. 5 (1996). That part of the sentence does not rest on a judicial finding that Stone is a patterned sex offender, or on any other judicial finding. Stone’s plea was intelligent, and the law was in place at all times material providing a ten-year maximum sentence plus a ten-year conditional release for Stone’s crime, considering his criminal record. See id.; Minn. Stat. § 609.345, subd. 2 (1996). Under Jones, the ten-year conditional release period and the ten-year maximum sentence for fourth-degree criminal sexual conduct establish a 20-year maximum penalty for Stone’s crime. We agree with the post-conviction court in concluding that Stone’s conditional release period does not unlawfully extend his sentence past the statutory maximum sentence for his crime of fourth-degree criminal sexual conduct.

DECISION

The postconviction court did not abuse its discretion in denying Stone’s motion for a sentence modification because Stone’s plea was intelligent and application of the conditional release period does not extend Stone’s sentence past the statutory maximum penalty for his crime.

Affirmed.

      . Stone's attorney, the pre-sentence investigator, and the court all used the term "supervised release,” although that term was changed to "conditional release” in 1993. See 1992 Minn. Laws ch. 571, art. 1 §§ 25, 29 (requiring district courts to impose mandatory "supervised-release” periods for all persons committing certain sex-related crimes); 1993 Minn. Laws ch. 326, art. 9, § 9 (changing "supervised release” to "conditional release”).

      . The current conditional release statute is substantially similar to the 1996 statute, but it is recodified at Minn.Stat. § 609.109, subd. 7 (2002). See 1998 Minn. Laws. ch. 367, art. 6, § 6 (recodifying conditional release statute).

      . We note that this unpublished case has no precedential value. See Minn.Stat. § 480A.08, subd. 3 (2002).


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge.

license: Public Domain

text:
    Heidi MEYER, et al., Appellants, v. Derek LINDALA, Respondent, Annandale Congregation of Kingdom Hall of Jehovah’s Witnesses, et al., Respondents.
    No. A03-1142.
    Court of Appeals of Minnesota.
    March 9, 2004.

      Cynthia J. Waldt, Jeffrey R. Anderson, Jeff Anderson & Associates, P.A., St. Paul, for appellants.
    Linda M. Ojala, Kurzman, Grant & Oja-la, Minneapolis, for respondent Lindala.
    Lindsay G. Arthur, Jr., Sally J. Ferguson, Keesha M. Gaskins, Kirsten J. Hansen, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, for respondents Annandale Congregation of Kingdom Hall of Jehovah’s Witnesses and Watchtower Bible and Tract Society of New York.
    Considered and decided by SCHUMACHER, Presiding Judge; and WILLIS, Judge; and WRIGHT, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellants Heidi Meyer and Jane L A Doe challenge the district court’s grant of summary judgment in favor of respondents Annandale Congregation of Kingdom Hall of Jehovah’s Witnesses (Annan-dale Congregation) and Watchtower Bible and Tract Society of New York, Inc. (Watchtower). Meyer and Doe argue An-nandale Congregation and Watchtower owed a common law duty of care, had a special relationship with Meyer and Doe giving rise to a special duty of care, and are liable for negligence because they failed to report child abuse as mandated under Minn.Stat. § 626.556 (2000) An-nandale Congregation and Watchtower argue the Establishment Clause of the First Amendment to the United States Constitution precludes subject matter jurisdiction. We affirm.

FACTS

During the times of the alleged wrongdoing, Meyer and Doe, their parents, and respondent Derek Lindala were members of Annandale Congregation, a congregation of the Jehovah’s Witnesses. Annan-dale Congregation is managed by Watchtower’s governing body. The governing body has authority over every person and all matters in Annandale Congregation, in-eluding discipline of individual members and furthering the overall welfare of the congregation. The governing body appoints elders to each congregation, including Annandale Congregation, to act as spiritual leaders.

Meyer and Doe state that Jehovah’s Witnesses doctrine requires members “to associate only with other members of the Jehovah’s Witnesses organization and avoid association with other people who are not Jehovah’s Witnesses.” In their depositions, Meyer and Doe stated that members are expected to bring all allegations of wrongdoing to congregation elders. If a member makes an allegation of wrongdoing to anyone other than an elder, including law enforcement, that person can be accused of gossip or slander, which are punishable offenses within the organization. According to Jehovah’s Witnesses doctrine, wrongdoing cannot be proven without two eyewitnesses to the wrongful act, nondisputable evidence, or confession by the wrongdoer. According to Richard Olson, the presiding overseer of Annandale Congregation, upon hearing allegations of child abuse, the elders of Annandale Congregation contact legal counsel at Watchtower and make a report to authorities if directed to do so by counsel.

According to affiant Rebecca Mumford, in approximately 1989 the elders of Annan-dale Congregation received information that Lindala had sexually abused his younger sister. At the time, Mumford was a Jehovah’s Witness and friend to Lindala’s sister. Lindala was approximately 17 years old and his sister was six years old. The elders investigated the allegation, did not immediately report the information to law enforcement, and allowed Lindala to continue as a member of Annandale Congregation.

From 1989 to 1992, Meyer was repeatedly sexually assaulted by Lindala while she was between the ages of 10 and 12. The abuse occurred at various locations, including Lindala’s parents’ home. Meyer reported the abuse to her parents in approximately 1994. Meyer and her father then reported the abuse to elders of Annandale Congregation. Watchtower was also informed. The elders instructed Meyer not to report the abuse to anyone and threatened she would be “disfellowed” if she did so. Disfellowship is the act of excommunication from the organization.

In 1991, while she was 10 or 11 years old, Doe was sexually assaulted by Linda-la. The incident took place in the basement of Lindala’s parents’ home. Doe and her father immediately reported the incident to elders of Annandale Congregation. The elders told Doe and her father they would be investigating the allegation and threatened Doe and her father with disfel-lowship if they reported the matter to anyone, including other congregation members or the police. Watchtower was informed of the incident by letter in December 1993.

On July 1, 2002, Meyer and Doe commenced a lawsuit in Wright County District Court against Lindala, Annandale Congregation, and Watchtower. The suit alleged sexual battery of both Meyer and Doe by Lindala. The suit also alleged negligence by Annandale Congregation and Watchtower, arguing the parties were liable for not taking action to report Lin-dala’s conduct to authorities and by holding him out to Annandale Congregation as an appropriate person with whom to associate. On motion by Annandale Congregation and Watchtower, the district court granted summary judgment on the claim of negligence. The court found Meyer and Doe had not shown a special relationship existed between the parties, Annandale Congregation and Watchtower did not owe Meyer and Doe a duty of care, and their injuries were not proximately caused by Annandale Congregation or Watchtower. The court also held any failure to comply with Chapter 626 of Minnesota Statutes on the part of Annandale Congregation and Watchtower did not create a private cause of action.

‘ ISSUES

1. Does the Establishment Clause of the First Amendment to the United States Constitution prohibit judicial consideration of Meyer and Doe’s claims for negligence?

2. Did the district court err by granting Annandale Congregation and Watchtower’s motion for summary judgment, finding there was no duty of care owed to Meyer and Doe by Annandale Congregation and Watchtower?

3. Did the district court err by granting Annandale Congregation and Watchtower’s motion for summary judgment, finding MinmStat. § 626.556 does not provide for a civil cause of action for failure to report known child abuse?

ANALYSIS

1. Annandale Congregation and Watchtower argue the Establishment Clause of the First Amendment to the United States Constitution precludes subject matter jurisdiction. Constitutional questions should not be decided unless doing so is necessary “to dispose of the case at bar.” State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981). Because we decide this case on other grounds, we do not address the merit of this claim.

2. Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

The basic elements of a negligence claim are (1) the existence of a duty, (2) breach of that duty, (3) injury proximately caused by the breach, and (4) damages. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 729 (Minn.1990). Meyer and Doe argue Annandale Congregation and Watchtower owed a duty to protect them from Lindala after they learned in 1989 that he had sexually assaulted a child because they had control over investigating the allegations of wrongdoing, reporting child abuse to authorities, and informing congregants that Lindala was not a safe person with whom to associate. But an affirmative duty to act only arises when a special relationship exists between the parties. “The fact that an actor realizes or should realize that action on his part is necessary for another’s aid or protection does not' of itself impose upon him a duty to take such action ... unless a special relationship exists ... between the actor and the other which gives the other the right to protection.” Harper v. Herman, 499 N.W.2d 472, 474 (Minn.1993) (alteration in original) (quotation omitted). Meyer and Doe must first prove that a special relationship existed between the parties that placed an affirmative duty to act on the part of Annandale Congregation and Watchtower.

A special relationship exists where one party has custody of another under circumstances that deprive the other of normal opportunities for self-protection. Harper, 499 N.W.2d at 474. “Typically, the plaintiff is in some respect particularly vulnerable and dependent on the defendant, who in turn holds considerable power over the plaintiffs welfare.” Donaldson v. Young Women’s Christian Assoc. of Duluth, 539 N.W.2d 789, 792 (Minn.1995).

Here, Meyer and Doe argue the district court erred in finding there was no special relationship between Meyer and Doe and Annandale Congregation and Watchtower. Meyer and Doe point to the Jehovah’s Witnesses doctrine which provides that members rely on congregation elders for all of their concerns, to the specific exclusion of governmental bodies or agencies, as the source of Annandale Congregation and Watchtower’s control and therefore a special relationship exists. Meyer and Doe further point to doctrine that members only associate with other Jehovah’s Witnesses who are in good standing with the organization, the organization’s standard for proof of wrongdoing, and the punishment of disfellowship for gossip or slander. Meyer and Doe argue that this amounts to significant control, which deprived Meyer and Doe of normal opportunities for self-protection.

But, unlike previous eases where a special relationship was found, Annandale Congregation and Watchtower did not have custody or control over Meyer and Doe at the time of the alleged misconduct. The incidents of sexual misconduct took place at Lindala’s residence, on a snowmobile, and in an automobile. Meyer and Doe do not argue that the misconduct took place during Annandale Congregation functions or on Annandale Congregation property. Cf. Delgado v. Lohmar, 289 N.W.2d 479, 483-84 (Minn.1979) (noting “special relationships exist between parents and children, masters and servants, possessors of land and licensees, common carriers and their customers, or people who have custody of a person with dangerous propensities”). Moreover, Meyer and Doe’s contention of control is premised on faith-based advice given to Meyer, Doe, and other congregants by the elders of Annandale Congregation.

Providing faith-based advice or instruction, without more, does not create a special relationship. Lundman v. McKown, 530 N.W.2d 807, 821-26 (Minn.App.1995) (finding no special relationship between Christian Science church and critically ill child who died, where church’s teachings inspired parent to care for child through prayer, and parent, when hiring Christian Science nurse, relied on church’s listing of individuals that met requirements for faith-based care; but finding special relationship where Christian Science nurse accepted responsibility to care for child in his home in return for cash wages), review denied (Minn. May 31, 1995). Here, as in Lundman, mere knowledge coupled with power is insufficient to impose a duty. Id. at 826. ‘When it comes to restraining religious conduct, it is the obligation of the state ... to impose [the] necessary limitations[.]” Id.

A special duty may also arise where one accepts responsibility to protect another, although there was no initial duty. Walsh v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 570 (Minn.1979) (finding special duty where city, while having no affirmative duty to assist in preservation of private property, voluntarily undertook to render fire protection services to airport users); Abresch v. Northwestern Bell Tel. Co., 246 Minn. 408, 414, 75 N.W.2d 206, 210 (Minn.1956) (finding special duty where telephone company has held itself out to public as willing to convey messages in case of certain emergencies such as fire).

Here, Meyer and Doe again point to the organization’s doctrine that requires members to bring complaints exclusively to the attention of elders and argue that this is a voluntary undertaking of an affirmative duty to investigate allegations of wrongdoing and protect congregants from future wrongful acts. We disagree. An-nandale Congregation and Watchtower espoused religious faith and doctrine and, according to Meyer and Doe, threatened excommunication for failure to adhere to that doctrine. By doing so, Annandale Congregation and Watchtower did not assume a duty owed to Meyer and Doe but rather acted within their constitutional right to religious freedom, which includes the authority to “independently decide matters of faith and doctrine” and “to believe and speak what it will.” Lundman, 530 N.W.2d at 826.

The district court did not err in finding a special relationship did not exist between the parties. Because there is no special relationship, there is no duty, and we need not reach the issues of breach or causation. The district court did not err in applying the law or in granting Annandale Congregation and Watchtower’s motion for summary judgment.

3. Meyer and Doe’s brief to this court argues Annandale Congregation and Watchtower’s failure to report abuse, in violation of Minnesota’s child abuse reporting act, is negligence per se. See Minn. Stat. § 626.556 (requiring certain professionals to report to welfare agencies or police suspected neglect, physical abuse, or sexual abuse of children and providing that failure to report as mandated is misdemeanor). In their reply brief, Meyer and Doe argue they do not claim that a violation of the reporting statute is “negligence,” but rather argue “violation of the statute is evidence of negligence per se.” (Alteration in original.) We disagree. This court previously determined that section 626.556 does not create a private cause of action for violation of its reporting requirements or create a duty which could be enforced through a common-law negligence action. See Valtdkis v. Putnam, 504 N.W.2d 264, 266 (Minn.App.1993) (refusing to impose civil remedy for violation of Minn.Stat. § 626.556 (1990) where legislature provided criminal remedy and did not provide civil remedy).

DECISION

The district court did not err in finding there was no special relationship between the parties and therefore no duty owed. Annandale Congregation and Watchtower are entitled to summary judgment as a matter of law. Failure of Annandale Congregation and Watchtower to comply with Minn.Stat. § 626.556 did not create a private cause of action.

Affirmed.

      . We note Meyer and Doe allege Annandale Congregation and Watchtower breached duties imposed under versions of the Minnesota child abuse reporting statutes in effect from 1989 to 1994 but brought suit against them in July 2002. Thus, the case is governed primarily by Minn.Stat. § 626.556 (2000). Because the 2000 version of the reporting statute is substantively the same as that in previous years, we cite the 2000 version of the reporting statute in this opinion.


author: RUSCH, Circuit Judge.

text:
    2004 SD 14
    CITY OF SIOUX FALLS, a municipality chartered under the Constitution of the State of South Dakota, Plaintiff and Appellee, v. MISSOURI BASIN MUNICIPAL POWER AGENCY d/b/a Missouri River Energy Services, Defendant and Appellant.
    No. 22419.
    Supreme Court of South Dakota.
    Argued Oct. 7, 2003.
    Decided Feb. 4, 2004.

      R. Shawn Tornow, Sioux Falls City Attorney’s Office, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Mark V. Meierhenry and Clint Sargent of Danforth, Meierhenry <& Meierhenry, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   RUSCH, Circuit Judge.

[¶ 1.] This is an appeal from a judgment entered following a jury verdict in a condemnation action. Missouri Basin Municipal Power Agency (Missouri Basin) argues that the trial court lacked subject matter jurisdiction because the description of the property to be acquired by the City of Sioux Falls (City), as set out in its petition, was insufficient. In addition, Missouri Basin claims that it was denied a fair trial. We affirm.

[¶ 2.] On December 6, 2000, City began a condemnation action to acquire a strip of land for the construction of an extension of North Louise Avenue in conjunction with the State of South Dakota’s I-29/Russell Street interchange project. The condemnation action was a non-quick-take eminent domain proceeding.

One should recognize that the term “condemnation” generically describes a variety of procedures by which a sovereign exercises its power of eminent domain or takes private property. Two such procedures established by the legislature are: 1) a municipality’s power to take by non-quick-take eminent domain proceedings in which the necessity to take and the value of the property taken are determined, SDCL ch 21-35; and 2) quick-take proceeding as applicable to municipalities described both in SDCL 21-35-9 and SDCL 31-19-23 et seq. These quick-take proceedings are not mutually exclusive. SDCL 31-19-40.
In non-quick-take condemnation cases, the municipality files a petition pursuant to the provisions of SDCL 21-35-2. No right to possession of the property is obtained by the condemning authority until it pays the full amount of condemnation judgment and costs. A City may dismiss the action after a just compensation verdict but before judgment is entered. City of Aberdeen v. Lutgen, 273 N.W.2d 183, 185 (S.D.1979).

City of Sioux Falls v. Johnson, 2001 SD 108, ¶¶10, 11, 632 N.W.2d 849, 852-53 (footnote omitted). As a result of utilizing this non-quick-take procedure, City did not obtain immediate possession of the property and could not begin construction of the North Louise Avenue project until after the trial at issue here. Under the non-quick-take procedure, City reserved the right to change its mind about building this street project if the land was too expensive. However, if City had changed its mind and dismissed this condemnation proceeding after the trial, the property owner would have been entitled to their costs including reasonable attorney’s fees. City of Aberdeen v. Lutgen, supra.

[¶ 3.] By these proceedings City sought to acquire approximately 2.9 acres which lay diagonally across the middle of a 14 acre tract owned by Missouri Basin. Most of the property that City sought to acquire was vacant land. Neither Missouri Basin’s office building nor its employee parking lot was affected by the taking, but it did include a portion of Missouri Basin’s visitor parking lot.

[¶ 4.] City’s condemnation petition identified the land to be acquired as:

Lot HI of Tracts 1 and 2 of Missouri Basin Municipal Power Agency Addition to the City of Sioux Falls, Minnehaha County, South Dakota (containing approximately 126,418 square feet or 2.902 acres), as shown on Exhibit A of Resolution 101-00.

In addition, a map or diagram accompanied the petition. Neither the petition nor the map showed what access would be allowed to the remaining property after the taking but it did show that the new North Louise Avenue, which would run through Missouri Basin’s property, would not be a controlled access road. As a non-controlled access road, City will allow whatever access a landowner wants, provided that it complies with City’s engineering design standards. The map also did not show such things as elevation or drainage plans.

[¶ 5.] Prior to the condemnation, access to the visitor parking lot was from a service road running along Russell Street. Included in the condemnation taking area was the entrance to that parking lot. Twenty-one months before the trial, City provided Missouri Basin with six different alternative proposals for reconfiguring the visitor parking lot. Each of those proposals utilized the existing parking lot and entrance into the building and each showed access to the parking lot from the Russell Street service road in approximately the same location where it was eventually constructed.

[¶ 6.] Both City and Missouri Basin employed appraisers to assist in valuing the taken property. Missouri Basin hired Deane Davenport, and City employed Steven Shaykett. The two appraisers arrived at similar values for the property taken with Davenport finding a loss in value of $392,000 and Shaykett finding a loss in value of $306,000. However, Davenport also claimed that there would be severance damages of $311,280 in order to remodel Missouri Basin’s building to construct a new front entrance to access the new visitor parking lot. As a result he claimed that total just compensation should be $703,280. Shaykett saw no need to move the parking lot and no need for a new front entrance.

[¶ 7.] The condemnation action was tried to a jury on January 30 through February 1, 2002. Although Missouri Basin’s appraiser testified that just compensation for the taking was $703,280, Merlin Sawyer, Missouri Basin’s Chief Financial Officer, testified that just compensation for the property taken was $1,417,105. One of the witnesses that City called was Mark Wiederrich, an engineer from HDR Engineering. Wiederrich had prepared the plans for the Louise Avenue/Russell Street interchange and had also prepared the six different alternative proposals for reconfiguring the Missouri Basin visitor parking lot. These plans kept the visitor parking lot. in approximately the same location where it was previously located and did not necessitate a new front entrance or any remodeling. Copies of these plans had been furnished to Missouri Basin in April 2000.

[¶ 8.] At the close of the trial, Missouri Basin moved to dismiss the condemnation action because the petition did not adequately describe the property to be taken, and because the evidence presented at trial by City did not conform to the petition’s description of the taking. The motion was denied and the case was submitted to the jury which returned a verdict for Missouri Basin in the sum of $316,500. Later, Missouri Basin moved for a new trial. The trial court denied this motion.

STANDARD OF REVIEW

[¶ 9.] Jurisdictional challenges are reviewed de novo. State ex rel. Le-Compte v. Keckler, 2001 SD 68, ¶ 6, 628 N.W.2d 749, 752 (citing Red Fox v. Hettich, 494 N.W.2d 638, 642 (S.D.1993)) (citing State v. Spotted Horse, 462 N.W.2d 463, 465 (S.D.1990), cert denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991)). Since questions of subject matter jurisdiction have no time limitation, they may be raised for the first time on appeal. Barnes v. Matzner, 2003 SD 42, ¶ 10, 661 N.W.2d 372, 375; Wuest v. Winner School Dist. 59-2, 2000 SD 42,¶ 15, 607 N.W.2d 912, 916.

SUBJECT MATTER JURISDICTION.

[¶ 10.] “Subject matter jurisdiction is the power of a court to act such that without subject matter jurisdiction any resulting judgment or order is void.” Bames, 2003 SD 42 at ¶ 10, 661 N.W.2d at 375. “It is ‘conferred solely by constitutional or statutory provisions ... [and] can neither be conferred on a court, nor denied to a court by the acts of the parties or the procedures they employ.’ ” Id. (quoting Freeman v. Sadlier, 1998 SD 114, ¶ 10, 586 N.W.2d 171, 173).

[¶ 11.] Missouri Basin contends that the trial court in this case lacked subject matter jurisdiction because City failed to adequately describe the property to be taken in its condemnation petition. South Dakota law requires that in order to maintain an action “taking or damaging private property for public use,” the condemning authority must file a petition in “the circuit court for the county in which the property to be taken or damaged is situated.” SDCL 21-35-1. The petition “shall contain a description of the property to be taken or damaged. SDCL 21-35-2.” If the petition does not contain an adequate description of the property to be taken, the court is without jurisdiction to entertain the condemnation action. Consumers Public Power Dist. v. Eldred, 146 Neb. 926, 22 N.W.2d 188, 196 (Neb.1946). The statute does not clarify how specific or detailed the property description must be.

[¶ 12.] This is an issue of first impression in South Dakota, but other states have considered similar cases. If a petition describes the property to be taken so inaccurately that it is “apt to mislead the appraisers in the assessment of damages,” the condemnation proceedings would be void. Dailey v. Missouri Pac. R. Co., 103 Neb. 219, 170 N.W. 888, 889 (Neb.1919). The description “must be such that a surveyor could locate the parcel described without the aid of extrinsic evidence.” Consumers Public Power Dist. v. Eldred, 22 N.W.2d at 196. However, the Nebraska Supreme Court also said “[tjhis does not mean the exactness required by deeds of conveyance but substantial accuracy and a certainty by reason of which the identical property can be definitely located,” and “[i]t is no objection that the description is incomplete or unintelligible without consultation with a map or plan, if the map is referred to in the description and is filed with it, and taken together the map and the description make clear what is intended to be included in the taking.” Id. In Re Blue River Power Co., 112 Neb. 500, 199 N.W. 788, 790 (Neb.1924), the Nebraska court stated:

There is little, if any, conflict in the decisions of any of the courts with respect to the fact that the petition by which such proceedings are instituted must accurately describe the property sought to be taken and that such a description is necessary to confer jurisdiction. This in our judgment does not mean meticulous accuracy, but substantial accuracy — that certainty by means of which a reasonably competent person could take the instrument and therefrom, aided by such inquiries as it suggests, locate the identical property.

In Coastal Indus. Water v. Celanese Corp., 592 S.W.2d 597, 600 (Tex.1979), the Texas Supreme Court, quoting Wooten v. State, 142 Tex. 238, 177 S.W.2d 56, 57 (1944), noted “the certainty required in the description of the land in a condemnation proceeding ‘is of the same nature as that required in conveyances of land, so that a surveyor could go upon the land and mark out the land designated.’ ” If the description is sufficiently certain that a surveyor could locate the tract, the fact that it might contain “a false and contradictory element of description is harmless.” Boone v. Panola County, 880 S.W.2d 195, 196 (Tex.App.-Tyler, 1994) (quoting Roberts v. County of Robertson, 48 S.W.2d 737, 738 (Tex.Civ.App.-Waco 1932 writ ref'd)).

[¶ 13.] In this case, City’s petition described the property to be taken as Lot HI of Tracts 1 and 2 of Missouri Basin Municipal Power Agency Addition to the City of Sioux Falls, Minnehaha County, South Dakota (containing approximately 126,418 square feet or 2.902 acres), as shown on Exhibit A of Resolution 101-00. In addition, a map or diagram accompanied this description. Missouri Basin could determine with a reasonable degree of accuracy from the description used in the petition and from the accompanying map what land City intended to acquire. The description used in the pleadings together with the attached map are sufficiently accurate and afford that certainty by which a surveyor could use them and locate the identical property.

[¶ 14.] Missouri Basin contends that the petition did not contain an adequate description because it did not describe what access would be allowed to Missouri Basin’s property after the construction of North Louise Avenue through the middle of its property. In effect Missouri Basin is arguing that City can only take property if City specifically describes what the remaining access will be in its condemnation petition. There is no case law which requires this. While access or lack of access may be a matter which will affect the value of property, there are other items which will affect just compensation as well. See Schuler v. Board of Supervisors, 12 S.D. 460, 81 N.W. 890 (1900) and Highway Comm. v. Bloom, 77 S.D. 452, 93 N.W.2d 572 (1958). It would be impracticable to require that a condemnation petition describe every possible matter that could affect a property’s valuation.

[¶ 15.] In addition, it does not appear that Missouri Basin suffered a loss of access. Prior to the construction, Missouri Basin had no access to this portion of North Louise Avenue because the street did not exist. Under this construction project, North Louise Avenue did not become a controlled access road. After the construction, North Louise Avenue became a conventional road with access on both sides. Questions of where access points or curb cuts will be located will be resolved by application of the City building code just as they would be for any other landowner in the City. There was no evidence that under the City building code, Missouri Basin could be completely deprived of access. The record does not establish that landowner’s access will be unreasonably diminished or interfered with which is necessary for a recovery. State v. Henrikson, 1996 SD 62 at ¶ 15, 548 N.W.2d at 810. Missouri Basin’s claim that City took all of their access to their property is inaccurate.

FAIR TRIAL

[¶ 16.] Missouri Basin asked the trial court for a new trial on the grounds of surprise, irregularity in the proceedings, and newly discovered evidence. SDCL 15 — 6—59(a)(3) and (4). In respect to a motion for a new trial, this Court has previously stated:

Applications for new trial based solely on the grounds of newly discovered evidence are frowned upon by the courts. Piper v. Barber Transportation, 79 S.D. 353, 112 N.W.2d 329 (1961); Gaines v. White, 1 S.D. 434, 47 N.W. 524 (1891). In order to grant such a motion based solely on this ground, the applicant must demonstrate first that it is newly discovered evidence and secondly that it could not, by reasonable diligence, have been determined and produced at the trial and that it would be believed by the jury and would produce a different result.

Basin Elect. Power v. Gosch, 90 S.D. 222, 227-228, 240 N.W.2d 96, 99 (1976). However, the discovery statutes exist to eliminate trial by ambush. State v. Sorenson, 2000 SD 127, ¶ 9, 617 N.W.2d 146, 148.

[¶ 17.] Specifically, Missouri Basin claims it was denied a fair trial because City provided false discovery information and failed to disclose that the assumptions of both appraisers regarding the nature and extent of the taking were incorrect and inconsistent with other evidence which City intended to present at trial; that City failed to supplement its discovery responses to Missouri Basin; and that City amended its taking after Missouri Basin had rested its case.

[¶ 18.] These arguments by Missouri Basin relate to the visitor parking lot. Missouri Basin’s request for $311,280 severance damages was based upon a claim that their building would have to be remodeled and a new front entrance constructed. Missouri Basin claimed that the remodeling would be necessary because the visitor parking lot would have to be moved from its existing location southeast of the building to a new location southwest of the Missouri Basin building. Missouri Basin claimed that this relocation of the visitor parking lot would require substantial and expensive changes to the building, including relocation of the main entrance to the building and remodeling of the interior. Consequently, Missouri Basin’s appraiser included severance damages or cost to cure damages of $311,280 for remodeling, resulting in a claim that just compensation should be a total of $703,280. City disputed the necessity of moving the visitor parking lot, relocating the front entrance, or remodeling the building. By its verdict the jury obviously concluded that moving the visitor parking lot, relocating the front entrance and remodeling the building were unnecessary.

[¶ 19.] Missouri Basin claims that it was deprived of a fair trial because its expert appraiser, Davenport, assumed that the visitor parking lot and front entrance would have to be moved which assumption turned out to be untrue. Missouri Basin claims that City’s appraiser, Shaykett, also assumed that the existing driveway would be eliminated and a new driveway to Louise Avenue would have to be developed. Missouri Basin argues that, as a result, it was surprised at trial when City presented evidence that the existing driveway could continue to be used, although altered slightly, and that the existing visitor parking lot need not be totally removed and relocated, but could be extended to the southwest and reconfigured to provide the same or more visitor parking with continuing direct access to the existing front entrance to the building.

[¶ 20.] The record does not support Missouri Basin’s claims. Missouri Basin’s appraiser, Davenport, testified that he had seen some drawings that had access from the east (Russell Street) and others that did not and had been told that access was still up in the air, so he assumed there would not be any access from the east. However, in his written appraisal, Davenport stated:

Access to the site is by way of one point on West Russell Street frontage road, and two on the Louise Avenue side prior to the taking. To my understanding, no access is to be lost during or after this road control project construction. After the taking the original access will be intact and access along the new roadway will be allowed, (emphasis supplied).

[¶ 21.] Although Missouri Basin claims Davenport based his appraisal on erroneous assumptions about the location of access points, and that City should have known this, the written appraisal does not support this claim. City’s appraiser, Shaykett, indicated in his appraisal that access to the visitor parking lot would be from Louise Avenue but testified that access could be either from Louise Avenue or Russell Street. However, both his report and his testimony indicated that the visitor parking lot could remain in the same location where it had been and that there was no need for a new front entrance or remodeling of Missouri Basin’s building.

[¶ 22.] Although both parties accuse the other of failing to respond to discovery requests in a timely manner, the record does not include any documentation of interrogatories dealing with access to the visitor parking lot that were unanswered by City. Missouri Basin’s argument regarding discovery lacks any factual support in the record.

[¶ 23.] At a hearing on January 14, 2002, when City refused to stipulate to the appraiser’s assumptions, there was no list of assumptions that City was asked to agree to. The judge indicated that he did not know what the assumptions were. At the time Missouri Basin’s attorney said that the singular big issue was whether an existing sewer easement in favor of City was going to be moved to the location of the road. No mention was made of any assumptions dealing with access to the visitor parking lot.

[¶ 24.] It is clear that prior to the trial, both parties knew that the issue of the necessity of moving the parking lot and front entrance would be an issue of contention. Prior to trial, City moved to prevent Davenport from testifying about the $311,280 severance damages for the new front entrance and remodeling because it “lack[ed] foundation, is unduly speculative and is based on unreliable hearsay which can not be considered.” Missouri Basin was clearly aware that City was disputing Davenport’s assumption that the parking lot would have to be moved, necessitating a new front entrance and remodeling.

[¶ 25.] It is unclear why Missouri Basin and their appraiser, Davenport, assumed that it would be necessary to move the visitor parking lot. Twenty-one months before trial City provided Missouri Basin with six alternative proposals for reconfiguring that parking lot. Each of these plans utilized the existing parking lot southeast of the building and each of these plans showed that access to the visitor parking lot would be from the Russell Street service road. At trial Missouri Basin introduced Exhibit 8, a drawing relied upon by their expert engineer, which shows the parking lot and access as it was finally constructed. Davenport also included this drawing in his appraisal so he was aware of it. Finally, Sawyer, Missouri Basin’s Chief Financial Officer, admitted that Missouri Basin had always assumed that there would be access to the visitor parking lot off the Russell Street service road.

[¶ 26.] Missouri Basin can not claim that it was surprised by the testimony that access to the visitor parking lot would remain where it had been, off the Russell Street service road, that the parking lot would not have to be moved, and that no new front entrance would have to be constructed. The criteria for a new trial have not been satisfied. Missouri Basin has not produced sufficient evidence to support its claim that it was denied a fair trial.

[¶ 27.] The judgment is affirmed.

[¶ 28.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, and ZINTER, Justice, concur.

[¶ 29.] RUSCH, Circuit Judge, for MEIERHENRY, Justice, disqualified.

      . Missouri Basin is a municipal power agency that provides supplemental electricity to 55 member communities in South Dakota, North Dakota, Minnesota, and Iowa. The company's corporate offices have been located in Sioux Falls since the 1960s.

      . Although not part of the record at trial, the parties have since supplemented the record on this appeal to include Exhibits AA, BB, CC and DD which show the parking lot and access as it was actually constructed after the trial.

      . A judgment was entered on April 8, 2002, which vested City with title to the property described in City’s petition, and the proposed street construction project was allowed to proceed at that time.

      . Under some circumstances landowners are entitled to compensation for a loss of access to their property. State v. Henrikson, 1996 SD 62, ¶ 15, 548 N.W.2d 806, 810 (citing Hurley v. State, 82 S.D. 156, 143 N.W.2d 722, 724 (S.D.1966)).

      . As City’s appraiser stated in his appraisal: New Louise Avenue route through the subject, will provide subject with access points along the new frontage. In the before posture, access was possible along approximately 760 feet of frontage on Louise Avenue and 638 feet of frontage along Russell Street service road. New frontage will total approximately 750 feet on each side of the new Louise Avenue, but the frontage on the old Louise Avenue will be approximately 180 feet less or 580 feet. Frontage along Russell Street frontage road will be the same, except for the 100 feet acquired in right-of-way, leaving frontage of approximately 538 feet. New intersection of Louise Avenue and Russell Street will be a controlled intersection.

      . As it was finally constructed after the trial in this case, the access to the visitor's parking lot was from the Russell Street service road, almost exactly where it had previously been. The visitor parking lot was also essentially where it had been and there was no need for a new front entrance.

      . However at another time Davenport testified, "Quite frankly, I don't know I inquired specifically about access right here."


author: CADY, Justice.

text:
    Tony ROSS, et al., Appellants, v. Thousand Adventures of Iowa, et al., Defendants, and FIRST SAVINGS BANK OF ARLINGTON, Appellee.
    No. 02-0697.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Douglas H. Napier and William H. Napier, Napier, Wolf & Napier, Fort Madison, for appellants.
    Thomas D. Waterman of Lane & Waterman L.L.P., Davenport, and John M. Rogers of Rogers Law Firm, P.L.L.C., Weath-erford, Texas, for appellee.
    Robert L. Hartwig, Johnston, for amicus curiae Iowa Bankers Association.
   CADY, Justice.

This appeal presents the issue whether Iowa courts have personal jurisdiction over a nonresident participant bank to a participation agreement with a nonresident lead bank involving a pool of retail installment contracts, some of which were entered into by the vendor in Iowa with Iowa residents, in an action by the vendees for breach of the installment contracts. The district court determined it did not have personal jurisdiction over the nonresident participant bank and granted its motion to dismiss. On our review, we affirm the district court.

I. Background Facts and Proceedings.

Plaintiffs are consumers who purchased memberships in a nationwide network of fifty-eight recreational vehicle campgrounds operated by Thousand Adventures, Inc. The memberships provided access and other privileges to the campgrounds. Five of the named plaintiffs are Iowans and four of the campgrounds are located in Iowa. The memberships were purchased through real estate installment contracts with Thousand Adventures, Inc., in amounts up to $10,000, typically payable over a period of less than five years. The contracts included a notice providing, in essence, that any holder of the contract was subject to all claims and defenses the retail consumer could assert against the campground company.

Thousand Adventures, Inc. subsequently sold packages or pools of the installment contracts to various financial institutions and investors around the country, including Western American National Bank (Western) of • Bedford, Texas. Western then sold fractional interests in its undivided pool of installment contracts to other banks, including First Savings Bank (First Savings) of Arlington, Texas. The contract between Western and First Savings was entitled “Certificate of Participation.” Under this contract, First Savings purchased a fifty percent participation interest in the pool of retail installment contracts for $2.5 million. The contract provided that Western and First Savings would “share income, principal reductions and expenses including servicing on a pro-rata basis.” However, Western retained physical custody of the contracts, and was solely responsible for handling the collections from the consumers of the installment payments required to be made pursuant to the contracts. Western was not required to pay First Savings its share of the collections until Western actually collected the payments from the consumers. Although not formally known by First Savings at the time it acquired its participation interest, some of the installment contracts in the pool were with Iowans.

Plaintiffs filed an action against Thousand Adventures, Inc. and its Iowa subsidiary, Thousand Adventures of Iowa, Inc. (collectively Thousand Adventures), in the Iowa district court. The plaintiffs claimed Thousand Adventures failed to provide all the promised benefits of the membership. The case was certified as a class action and default judgment was entered against Thousand Adventures. Thousand Adventures then filed for bankruptcy. Plaintiffs subsequently amended their petition to assert claims against eighteen financial institutions that had acquired an interest in the installment contracts either by assignment or certificate ■ of participation. Two of these financial institutions were Western and First Savings.

After the additional defendants unsuccessfully sought removal of the action to federal court, First Savings filed a motion to dismiss for lack of personal jurisdiction. An affidavit attached to the motion, prepared by an officer of First Savings, revealed First Savings was a federal savings bank doing business in Texas. Furthermore, it had no agents or offices in Iowa, no property in Iowa, and had never solicited or conducted business in Iowa. First Savings also had never had any direct contact with the plaintiffs or any of the parties to the real estate installment contracts.

The district court dismissed the action against First Savings. It found First Savings had insufficient minimum contacts with Iowa to support personal jurisdiction. In particular, it found First Savings was not an assignee or holder of the installment contracts and was not an agent of Western. It also found there was no privity of contract between First Savings and the plaintiffs.

Plaintiffs appealed. They claim sufficient minimum contacts exist for the Iowa court to assert personal jurisdiction over First Savings because the contract between Western and First Savings makes First Savings a holder of the consumer retail sales contracts and it is consequently subject to all claims of the consumers as if it was the original party to the contract. Thus, the issue we face is whether the participation arrangement between Western and First Savings establishes sufficient minimum contacts with Iowa for purposes of asserting personal jurisdiction over First Savings.

II. Scope of Review.

In reviewing a district court’s decision concerning personal jurisdiction, we are not bound by its conclusions of law or application of legal principles. Hodges v. Hodges, 572 N.W.2d 549, 551 (Iowa 1997). We accept “the allegations of the petition and the contents of uncontroverted affidavits” to be true. Id.

III. Minimum Contacts.

The Due Process Clause of the Fourteenth Amendment to the federal constitution limits the power of a state to assert personal jurisdiction over a nonresident defendant to a lawsuit. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404, 410 (1984). It protects the liberty interest of an individual from becoming bound to a judgment of a state court where there is no meaningful contacts or relations with the state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528, 540 (1985). Thus, personal jurisdiction over a nonresident defendant can exist under the Due Process Clause only when “the defendant has ‘certain minimum con tacts with [the forum state] such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” Heslinga v. Bollman, 482 N.W.2d 921, 922 (Iowa 1992) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (citation omitted)). The minimum contacts must show “a sufficient connection between the defendant and the forum state so as to make it fair” and reasonable to require the defendant to come to the state and defend the action. Hodges, 572 N.W.2d at 551. This test makes it “essential in each case that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958). Random or attenuated contacts do not meet this test. See Rudzewicz, 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542.

We consider five factors to determine whether a nonresident defendant has sufficient minimum contacts with Iowa:

(1) the quantity of the contacts;
(2) the nature and quality of the contacts;
(3) the source of and connection of the cause of action with those contacts;
(4) the interest of the forum state; and
(5) the convenience of the parties.

Cascade Lumber Co. v. Edward Rose Bldg. Co., 596 N.W.2d 90, 92 (Iowa 1999); Hodges, 572 N.W.2d at 552. The first three factors are considered the most important. Cascade Lumber Co., 596 N.W.2d at 92.

The essence of the connection between First Savings and the State of Iowa for the purposes of the due process analysis is found in the contract giving First Savings the right to receive a portion of the amounts collected by the assignee of a pool of retail installment contracts, including contracts entered into between the plaintiffs to this litigation and the vendor-assignor. Yet, we recognize “that a contract alone cannot automatically establish sufficient contacts.” Hager v. Doubletree, 440 N.W.2d 603, 607 (Iowa 1989) (citing Rudzewicz, 471 U.S. at 478, 105 S.Ct. at 2185, 85 L.Ed.2d at 544-45). Instead, the minimum contacts test looks to the entire transaction — prior negotiations, contemplated future consequences, terms of the contract, and the course of dealings — to assess the sufficiency of the defendant’s contacts. Id.

Plaintiffs characterized the participation agreement between First Savings and Western as an assignment of the retail installment contracts, and seek to use the terms and circumstances surrounding the installment contracts to drive the minimum contact analysis. Thus, it is appropriate for us to begin our resolution of the issue by reviewing the nature of the agreement between First Savings and Western.

We have previously considered the use of participation agreements between banks in the context of loans. In In re Receivership of Mount Pleasant Bank & Trust Co., 526 N.W.2d 549, 556 (Iowa 1995), we rejected the claim that a participant bank in such an arrangement was a mere creditor in a bank receivership proceeding. Instead, we recognized that the lead bank was contractually obligated to pay the participant banks their fair share of the payments received on loans as provided under the agreement upon receipt of any payments from the debtors. Id. We observed:

A loan participation is a solution to the lending limits federal and state laws place on banks in order to reduce the banks’ risk of insolvency. Lending limits for small banks often prevent them from making loans which meet the needs of their principal customers. By engaging in a loan participation, a “lead bank” can lend an amount to a customer in excess of the bank’s lending limit, divide the loan into shares, and then contract to sell the shares to “participating banks.” The result of the agreement is that the banks share in sponsoring the customer’s loan and thereby do not exceed their lending limits.

Id.; see also Iowa Code § 524.904 (2001) (lending limits for state-chartered banks); 12 U.S.C. § 84 (2000) (lending limits for nationally-chartered banks); 12 C.F.R. § 32 (2003) (same).

It is clear that a loan participation agreement comes into existence only after a lender, known as the lead bank, contracts with the borrower or obtains an assignment of a contract with the borrower. It “then makes a separate agreement — the participation agreement— with other banks, to which the lead bank sells shares in the loan ... evidenced by participation certificates.” First Nat’l Bank v. Cont’l Illinois Nat’l Bank & Trust Co., 933 F.2d 466, 467 (7th Cir.1991). Although this arrangement has some elements of an assignment, it falls well short of the traditional concept of an assignment because it merely involves the transfer of a portion of an intangible right. See Iowa Supreme Ct. Comm’n on Unauthorized Practice of Law v. A-1 Assocs., Ltd., 623 N.W.2d 803, 808 (Iowa 2001); W.H. Knight Jr., Loan Participation Agreements: Catching Up With Contract Law, 1987 Co-lum. Bus. L.Rev. 587, 612-13 (1987). An assignment involves the transfer of the entire rights under a contract from the assignor to the assignee so that the assign-ee assumes not only the benefits of the contract, but also the rights and remedies. Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 533 (Iowa 1995). Importantly, a participation agreement does not give the participant bank control over collection of the loan or contract. See Banque Arabe et Internationale D’lnvestissement v. Bulk Oil (USA), Inc., 726 F.Supp. 1411, 1417 (S.D.N.Y.1989). Instead, only the lead bank maintains a contractual relationship with the borrower. First Nat’l Bank, 933 F.2d at 467. The participant bank is not a creditor of the borrower, has no ability to assert a claim against the borrower, and can only look to the lead bank for satisfaction of its claims. Hibernia Nat’l Bank v. FDIC, 733 F.2d 1403, 1407 (10th Cir.1984); see Patrick J. Ledwidge, Loan Partic-ipations Among Commercial Banks, 51 Tenn. L.Rev. 519, 524, 528 (1984). Additionally, the participating bank is not a creditor of the lead bank, but is merely entitled to recover from the lead bank a share of the money the borrower pays the lead bank. Ledwidge, 51 Tenn. L.Rev. at 524.

These relationships clarify the activities and contacts of the lead bank and the participant bank with the forum state of the borrower or obligor for purposes of determining personal jurisdiction. They reveal it is the lead bank, not the participant bank, which maintains contact with the forum state by collecting the payments. It also reveals the borrower’s contact with the loan is with the lead bank. The participant bank has no relationship with the borrower, and no direct contact with the forum state in relation to the participation agreement.

While this case involves a participation agreement where the underlying transactions are retail installment contracts acquired by the lead bank through an assignment, not loans, this difference does not change the nature or treatment of the participation agreement or the limited role of the participant bank. The participant bank still has no contractual relationship with the consumers who entered the installment contracts and is not entitled to assert its rights under the participation agreement against the consumers. Accordingly, the participation agreement in this case, like loan participation agreements, is not an assignment. It simply represents a secondary market financing tool commonly used by banks that has become a vital aspect of today’s banking and lending practices. See In re Receivership of Mount Pleasant Bank & Trust Co., 526 N.W.2d at 556; see also Knight, 1987 Colum. Bus. L.Rev. at 588-89. It is primarily a financing mechanism for the lead bank to remain within the permissible lending limitations and an investment for the participant bank where its lendable funds can be placed into a more favorable market. See Ledwidge, 51 Tenn. L.Rev. at 522-23. It is a world removed from the traditional assignment of loans. Clearly, our failure to recognize the legal and practical distinctions between these two worlds for personal jurisdictional purposes would heap havoc on the Iowa banking industry and those banks that compete in the secondary market. While Iowa certainly has an interest in protecting its residents, it also has an interest in protecting the interests of its banking industry. It would not be reasonable for a participant bank to expect to be haled into court in the resident state of each obligor to the underlying installment contract, absent some additional contacts beyond its status as a participant bank.

We conclude participation agreements of the type involved in this case do not alone establish sufficient minimum contacts between the forum state where the contracts in the pool were executed and a nonresident participant bank. In this case, the nature of the participation agreement reveals the participant bank has no purposeful contact with Iowa. The agreement merely involves the purchase from a nonresident bank of a right to receive a portion of whatever contract payments are collected by the nonresident lead bank. The participation agreement also shows the participant bank has no real connection to the underlying cause of action between the vendor and the vendee to the retail installment contract.

Notwithstanding, the plaintiffs claim First Savings is a “holder” of the retail installment contracts and this consequently subjects it to all claims by the consumers pursuant to the holder notice contained in the retail installment contracts. Plaintiffs rely upon this proposition to establish minimum contacts with Iowa.

The holder notice found in the installment contracts is imposed by the Federal Trade Commission and is known as the FTC holder rule. See 16 C.F.R. § 433.2. This rule is based on the understanding that contractual obligations are frequently transferred as negotiable instruments, and seeks to protect consumers from being required to make payments under the contract to a holder of the contract even though the consumer may have a valid defense to payment against the original vendor of the contract. See Ford Motor Credit Co. v. Morgan, 404 Mass. 537, 536 N.E.2d 587, 589 (1989) (the holder rule is designed to preserve consumer’s claims and defenses by cutting off rights of creditors as a holder in due course). Thus, this rationale is inapplicable to a participant bank to a participation agreement since the participant bank has no right to collect directly from the consumer. Additionally, the failure to include a participant bank within the definition of a holder does not harm the consumer because the consumer is still able to assert any claims and defenses against the lead bank to the participation agreement, as a holder of the contract. Therefore, the interests of Iowa residents in not paying installment contracts when a valid defense exists can be protected without subjecting a participant bank to our jurisdiction.

There is also no support for the claim by the plaintiffs that a “holder” of an instrument includes the participant bank to, a participation agreement. See Bank of Mulberry v. Fireman’s Fund Ins. Co., 720 F.2d 501, 502 (8th Cir.1983) (distinguishing purchaser of participation interest from a holder). A holder of a negotiable instrument is a person “in possession/’ and possession of the retail installment contracts in this case is with Western, not First Savings. See Iowa Code § 554.1201(20). Furthermore, the participation agreement itself is not a negotiable instrument because it is conditional on the collection of the payments by Western. See FDIC v. State Bank, 893 F.2d 139, 142 (7th Cir. 1990) (FDIC was not a holder because “loan participation is not itself a negotiable instrument, even though the underlying note may have been”).

Similarly, we reject the argument by the plaintiffs that the minimum contact test is met because Western was an agent of First Savings. We acknowledge that the activities of an agent within a state may support personal jurisdiction of a nonresident principal. We also acknowledge that a participation agreement creates a form of an agency in the relationship between the lead bank and the participant bank. This relationship imposes legal rights and obligations, and means the lead bank acts for the benefit of the participant bank within the context of the agreement. However, for jurisdictional purposes, the agent must act in the forum state under the control of the nonresident principal. The participation agreement makes it clear that the role of First Savings is very limited. Western is the responsible party to collect the payments independent of any control by First Savings. The lead bank continues to conduct its business with the consumer, and the presence of the participant bank does not alter this activity. The participant bank vests tremendous discretion and reliance in the lead bank to service the installment contract. See Knight, 1987 Colum. Bus. L.Rev. at 612-13 (“The fact that the lead [bank] retains possession of the note[s] means that the participant has given the lead the power to control the participant’s rights and claims based on the instrument. Each participant trusts the lead, and expects it to act to protect the participant’s interest in the loan.”). First Savings is paid a return on its investment in the arrangement only through the proceeds collected by Western with no servicing expense. See id. at 589.

In considering the activities of Western and First Savings for jurisdictional purposes, there is nothing to show First Savings has purposely availed itself of the benefits of dealing with Iowa residents by entering into the participation agreement. Hanson, 357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298. To the contrary, First Savings is merely a passive investor. See Al-Jon, Inc. v. Garden St. Iron & Metal, Inc., 301 N.W.2d 709, 714 (Iowa 1981) (recognizing a distinction between active and passive purchaser in the personal jurisdiction context); see also State ex rel. Miller v. Grodzinsky, 571 N.W.2d 1, 3-4 (Iowa 1997) (something more than individual corporate employee defendant’s association with a corporation subject to personal jurisdiction is necessary to permit exercise of personal jurisdiction over employee defendant).

We consider and reject all arguments made by the plaintiffs to support personal jurisdiction over First Savings in this case. We conclude that First Savings, as merely a participant bank to a participation agreement, does not have sufficient minimum contacts with Iowa to support personal jurisdiction. First Savings has not purposely availed itself of the privilege of conducting activities with Iowans. Its contact with Iowa is simply too attenuated.

IV. Conclusion.

It would offend traditional notions of fair play and substantial justice to find Iowa courts have personal jurisdiction over First Savings. We conclude the district court properly granted the motion to dismiss for lack of personal jurisdiction.

AFFIRMED.

      . The full clause provided:
      NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

      . We also specifically reject the argument by plaintiffs that the Uniform Consumer Credit Code, Iowa Code chapter 537, provides an independent statutory basis for personal jurisdiction. Iowa Code § 537.1101-.8101 (2001). This argument was not preserved. See Meier v. Senecaut III, 641 N.W.2d 532, 537 (Iowa 2002). Even if the argument had been preserved, our discussion of the minimum contacts test reveals First Savings was not a creditor as defined by section 537.1301(17).