author: PETERSON, Judge.

text:
    Ryan Lee DUNCAN, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. A03-1414.
    Court of Appeals of Minnesota.
    July 27, 2004.
    Mark D. Kelly, St. Paul, MN, for appellant.

      Mike Hatch, Attorney General, Kyle R. Gustafson, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; PETERSON, Judge; and STONEBURNER, Judge.
   OPINION

PETERSON, Judge.

In this appeal from an order sustaining the revocation of his driver’s license under the implied-consent law, appellant argues that the district court erred as a matter of law when it concluded that the police officer who saw appellant drive on the right shoulder of a roadway to pass vehicles on the right had a lawful basis for stopping appellant. Because we conclude that driving on the shoulder of a roadway to pass a vehicle on the right violates Minn.Stat. § 169.18, subd. 4(4) (2002), and, therefore, that the officer’s observations provided an adequate basis for stopping appellant, we affirm.

FACTS

Mille Lacs County Deputy Sheriff Terry Boltjes was traveling west on a two-lane state highway when the vehicle ahead of him slowed down to turn left. As Boltjes slowed to a stop behind the turning vehicle, he saw appellant Ryan Lee Duncan’s pickup truck approach from behind. Along the right side of Boltjes’s vehicle, there was a right-turn lane for a road that went north. At the beginning of the right-turn lane, there was a break in the fog line on the north side of the highway. After the break, there was a solid white line between the lane that Boltjes’s vehicle was in and the right-turn lane. The solid white line extended to the intersection with the northbound road, and there was a break in the line at the intersection. The fog line began again immediately after the intersection and ran along the north side of the lane that Boltjes’s vehicle was in. There was a paved shoulder along the north side of the highway.

Boltjes saw appellant’s truck enter the right-turn lane and pass the squad car. But appellant did not turn right; he drove straight through the intersection. Appellant’s truck was to the right of the fog line after appellant cleared the intersection. Boltjes saw appellant’s truck cross over the fog line and merge back into the lane that Boltjes’s vehicle was in and continue traveling west.

Boltjes believed that appellant had unlawfully passed on the right and stopped appellant’s vehicle. Boltjes ultimately arrested appellant for driving while impaired, and respondent Commissioner of Public Safety revoked appellant’s driving privileges under the implied-consent law.

Appellant sought judicial review of the revocation, and a joint omnibus and implied-consent hearing was held. Appellant argued that the license revocation must be rescinded because he lawfully passed Boltjes on the right without violating Minn.Stat. § 169.18, subd. 4 (2002), and, therefore, Boltjes did not have a reasonable, articulable suspicion to stop appellant’s vehicle. The district court found that appellant violated Minn.Stat. § 169.18, subd. 4(4), and that appellant was properly stopped. The district court affirmed the revocation. This appeal followed.

ISSUE

Does driving on the shoulder of a roadway to pass a vehicle on the right violate Minn.Stat. § 169.18, subd. 4(4) (2002)?

ANALYSIS

When an appellate court reviews a stop based on given facts, whether the stop was valid is purely a legal determination, and the appropriate approach to reviewing the case is “to simply analyze the testimony of the officer and determine whether, as a matter of law, his observations provided an adequate basis for the stop.” Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985).

“A stop is lawful if the officer is able to articulate at the revocation hearing (or at the omnibus hearing in a criminal prosecution) that he had a particularized and objective basis for suspecting the particular persons stopped of criminal activity.” Id. (quotation omitted). “The factual basis required to support a stop is minimal, and an actual violation [of the law] is not necessary.” State v. Haataja, 611 N.W.2d 353, 354 (Minn.App.2000) (quotation omitted), review denied (Minn. July 25, 2000). Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

Appellant does not contest the facts surrounding the stop of his vehicle; he argues that the district court erred when it found that he violated Minn.Stat. § 169.18, subd. 4(4) (2002). Therefore, appellant contends, because he did not commit a traffic violation, Boltjes had no lawful basis to stop his vehicle.

The district court found that by traveling on the shoulder of the roadway to pass the vehicles turning left, appellant violated MinmStat. § 169.18, subd. 4(4), which states, “the driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway.” Minn.Stat. § 169.18, subd. 4(4).

Appellant argues that the evidence establishes that he safely passed the cars in question without leaving the pavement or the main-traveled portion of the roadway. Appellant contends that the break in the fog line on the right side of the highway before the intersection established a separate lane for proceeding around vehicles stopped on the highway waiting to make a left turn, and no signs or markers indicated that the lane is a turn lane.

But appellant’s argument does not acknowledge the statutory definitions of words used in Minn.Stat. § 169.18, subd. 4(4), and does not account for his driving conduct after he passed through the intersection. For the purposes of chapter 169, “ ‘Roadway’ means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder.” Minn.Stat. § 169.01, subd. 31 (2002). “ ‘Shoulder’ means that part of a highway which is contiguous to the regularly traveled portion of the highway and is on the same level as the highway. The shoulder may be pavement, gravel, or earth.” Minn.Stat. § 169.01, subd. 73 (2002).

Under these definitions, the paved shoulder along the north side of the highway where appellant was stopped was not part of the roadway. After appellant passed Boltjes and went through the intersection, Boltjes saw appellant driving to the right of the fog line on the paved shoulder before returning to the lane that Boltjes’s vehicle was in and continuing west. Therefore, because the paved shoulder was not part of the roadway, and Minn.Stat. § 169.18, subd. 4(4), provides that in no event shall a driver pass another vehicle on the right by driving off the main-traveled portion of the roadway, Boltjes articulated a particularized and objective basis for believing that appellant violated Minn.Stat. § 169.18, subd. 4(4).

Appellant argues that the phrase “main-traveled” applies to nonpaved roads and does not mean the marked lane, and, therefore, on rural roadways with wide shoulders and fog lines, a driver may cross over a fog line to pass on the right provided that the driver does not leave the paved roadway. But the statutory definition of roadway explicitly states that the shoulder is not part of the roadway, and the statutory definition of shoulder explicitly states that the shoulder may be pavement, gravel, or earth. Therefore, driving on the shoulder to pass a vehicle on the right violates Minn.Stat. § 169.18, subd. 4(4), even if the shoulder is paved. See Minn. Stat. § 645.16 (2002) (“When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”).

DECISION

Because driving on the shoulder to pass a vehicle on the right violates Minn.Stat. § 169.18, subd. 4(4), Boltjes articulated a particularized and objective basis for suspecting appellant of criminal activity, and Boltjes’s observations of appellant’s driving provided an adequate basis for stopping appellant.

Affirmed.


source: Caselaw Access Project

author:
CRIPPEN, Judge.
     WILLIS, Judge

license: Public Domain

text:
    Sheryl L. DOUGHERTY, Respondent, v. STATE FARM MUTUAL INSURANCE COMPANY, Appellant.
    No. A03-1866.
    Court of Appeals of Minnesota.
    July 27, 2004.

      Steven R. Schwegman, Mary B. Mahler, Quinlivan & Hughes, P.A., St. Cloud, MN, for appellant.
    Timothy W. Nelson, Nelson Personal Injury Attorneys, St. Cloud, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, HUDSON, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appealing the district court’s final judgment in this insurance dispute, State Farm Mutual Automobile Insurance Gompany disputes the court’s conclusion that respondent’s voluntary intoxication was not an event of independent significance, that is, conduct that broke the causative tie between injuries she sustained and her use of a motor vehicle. Appellant also claims that injuries respondent sustained after leaving the vehicle, which was stuck in snow, did not arise out of the use or maintenance of the vehicle. Because we are required to apply no-fault law without consideration of fault, and because of inescapable characteristics of winter use of vehicles, we affirm.

FACTS

While respondent Sheryl Dougherty was driving home in the early morning hours of December 17, 2000, after a night of drinking at a bar, her car became stuck in a snowdrift that had formed in the street. She got out of her car, locking her gloves and keys inside. Although the temperature that morning was extremely cold, respondent decided to walk to her townhouse, which was less than a block away.

Respondent attempted to walk up the parking lot entrance at her complex but discovered it was blocked by snow. Using her elbows and hands, she pulled herself through the snow. Respondent fell to the ground in the icy parking lot and could not regain her footing. She then crawled behind a garage where she lay down to rest and may have fallen asleep. By the time respondent crawled to her townhouse, 30-40 minutes had elapsed since the time she left her vehicle.

Blood tests taken at the hospital where respondent was taken showed that her blood alcohol concentration was .136. Her hands were frostbitten and several fingers were amputated.

Respondent submitted a claim for no-fault benefits under her State Farm Mutual Automobile insurance policy, but the insurer denied coverage for her injuries. In a trial after she sued for these benefits, the jury found that (1) respondent locked her vehicle on purpose; (2) after locking the vehicle her activities were solely directed at getting to a place of safety; (3) a snow bank or other significant weather-related condition impeded her ability to proceed directly to her townhouse; and (4) her activities while trying to travel from her vehicle to her townhouse were unreasonable.

In concluding that respondent is entitled to no-fault benefits for her injuries, the district court noted that the focus of no-fault analysis “is on the actual use of the vehicle, not on whether the people involved behaved properly,” and that any of respondent’s “negligent or unreasonable decisions” after her vehicle became stranded “are irrelevant.” The court also determined that respondent’s frostbite injuries were “a natural and reasonable consequence of the use of her vehicle” because it was reasonable for her to attempt to walk home in adverse weather conditions after her vehicle became stranded.

ISSUES

1. Did the district court err by determining that the vehicle-use cause of respondent’s injuries was not interrupted by an act of independent significance?

2. Did the district court err by determining that respondent’s use of her vehicle extended to suffering injuries she incurred while walking and crawling from her vehicle to her townhouse?

ANALYSIS

The determination of whether injuries arise out of “maintenance or use of a motor vehicle” as defined by Minnesota’s no-fault insurance statute is a legal issue, subject to de novo review. See Continental W. Ins. Co. v. Klug, 415 N.W.2d 876, 877 (Minn.1987). Minnesota’s no-fault insurance statute provides that “[i]f the accident causing injury occurs in this state, every person suffering loss from injury arising out of maintenance or use of a motor vehicle ... has a right to basic economic loss benefits.” Minn.Stat. § 65B.46, subd. 1 (2000).

The statute defines the phrase “maintenance or use of a motor vehicle” as “maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, and alighting from it.” Minn. Stat. § 65B.43, subd. 3 (2000). Whether a given accident arises out of the maintenance or use of a motor vehicle turns on the facts of each case. Klug, 415 N.W.2d at 877-78.

Courts must first consider “the extent of causation between the automobile and the injury.” Id. at 878. If the plaintiff establishes causation, then the court must “determine whether an act of independent significance occurred, breaking the causal link between ‘use’ of the vehicle and the injuries inflicted.” Id. If the court finds no intervening independent act, no-fault coverage applies unless the vehicle was not being used for transportation purposes. Id.

1.

The parties do not dispute that respondent was voluntarily intoxicated beyond the legal limit at the time she sustained her frostbite injuries. Appellant argues that becoming intoxicated constituted an act of independent significance that broke the chain of causation between the use of her vehicle and her injuries.

Consuming alcohol is a serious event because drinking exacerbates mental and physical impairments that lead to negligent conduct. See O’Neal v. Burlington N., Inc., 413 N.W.2d 631, 634 (Minn.App.1987) (stating that intoxicated person is required to exercise same degree of care as sober person). The severity of these impairments creates the need for laws that forbid driving after excessive drinking. See Minn.Stat. § 169A.20, subd. 1 (2002) (stating it is a crime for any person to drive with a blood-alcohol concentration of O.1 or more). But it is not feasible to translate vital concerns about drinking and driving into the conclusion that voluntary intoxication breaks the causal link between insured motor vehicle use and a person’s resulting injury.

Although the jury found that respondent acted unreasonably in traveling from her vehicle to her townhouse after the accident, application of the no-fault act requires cognizance of its express aim to “provide prompt payment” of benefits to victims of automobile accidents “without regard to whose fault caused the accident.” Minn.Stat. § 65B.42(1) (2000). The statute dictates the district court’s conclusion that treating respondent’s actions in becoming intoxicated, contributing to her later negligence, as acts that break the tie between her injury and the use of her vehicle would impermissibly blame her for her injuries. See North Star Mut. Ins. Co. v. Carlson, 442 N.W.2d 848, 855 (Minn.App.1989) (concluding that negligently-throwing flaming gasoline can to avoid injury is not act of independent significance, even when bystanders injured), review denied (Minn. Sept. 21,1989).

We affirm the district court’s application of statutory law. Moreover, we are constrained to reach this conclusion in part by examining the practical consequences of a contrary decision — the prospect of a body of litigation on a wide variety of claims of broken causation when insured persons have contributed to impairment of then-reactions and are subsequently injured when using a motor vehicle. Among judicial challenges thus created would be the need to determine judicially the level of impairment or subsequent negligence that would require denial of no-fault benefits. The danger of establishing an undesirable precedent in no-fault insurance law is a significant consideration in our decision to follow Minn.Stat. § 65B.42(1) and established precedent on driver fault. See Luthen v. Luthen, 596 N.W.2d 278, 282 (Minn.App.1999) (considering dangers of establishing precedent); Petition of Minn. Power & Light Co., 435 N.W.2d 550, 557 (Minn.App.1989) (same), review denied (Minn. Apr. 19,1989).

2.

Appellant also argues that respondent’s injuries “are unrelated to the maintenance and use of her vehicle.” To satisfy the causation prong of the Klug test, respondent’s car must have been an “active accessory” in causing her injuries. Tlougan v. Auto-Owners Ins. Co., 310 N.W.2d 116, 117 (Minn.1981). This causation standard is less than proximate cause in the tort sense and requires more than the vehicle being the mere situs of the injury. Id. A plaintiff establishes a causal connection by showing “the injury is a natural and reasonable incident or consequence” of the vehicle’s use. North River Ins. Co. v. Dairyland Ins. Co., 346 N.W.2d 109,114 (Minn.1984) (citation omitted).

Appellant cites Christensen v. General Accident Ins., 482 N.W.2d 510 (Minn.App.1992), review denied (Minn. May 15, 1992), to support its proposition that respondent’s injuries do not arise out of the use of her vehicle. Christensen, who was injured after falling on an icy street shortly after exiting her vehicle, was not entitled to no-fault benefits because at the time she fell she had completed “alighting from” her car. Id. at 512-13. Applying Christensen, appellant argues that respondent’s injuries are unrelated to the use of her vehicle because they occurred after she alighted from her vehicle and they were caused by premises hazards, such as snow and ice.

But Christensen is distinguishable from this case, where respondent’s vehicle never reached her intended destination. The district court found, and it is undisputed on appeal, that respondent’s vehicle became “stuck” in a snowdrift while en route to her townhouse. Because respondent never completed using her vehicle due to her vehicle-related accident, Christensen is not authority for appellant’s assertion that respondent’s injuries did not arise out of the use of her vehicle.

Appellant also contends that Marklund v. Farm Bureau Mut. Ins. Co., 400 N.W.2d 337 (Minn.1987), supports the proposition that respondent’s injuries do not arise out of the use of her vehicle. Marklund finished refueling his car at a gas pump and slipped on a patch of ice while he was walking toward the front passenger side of his car. Id. at 338. The supreme court denied benefits Marklund claimed for injuries from the fall, concluding that the injuries did not arise out of the use or maintenance of his vehicle because he had “completed all maintenance functions he intended to perform on his car prior to the time that he fell.” Id. at 340. The court attributed Marklund’s injuries to premises hazards completely unrelated to the maintenance of his vehicle. Id. at 341.

Similarly, appellant asserts that respondent’s injuries did not arise out of the use of her vehicle but were caused by premises hazards. By transposing the Marklund holding, which asked whether injuries arose out of maintenance, we can consider the case as authority suggesting that use of a vehicle is completed when a driver’s intended use of a vehicle is completed. But Marklund, like Christensen, deals with facts that differ from those in this case; respondent’s intended use of her vehicle was not completed before she sustained injuries due to her vehicle-related accident.

Similarly, appellant’s reliance on Engeldinger v. State Auto. & Cas. Underwriters, 306 Minn. 202, 236 N.W.2d 596 (1975), is misplaced. In Engeldinger, the widow of an intoxicated and unconscious man who froze to death while spending the night in a vehicle, was denied insurance benefits because the vehicle was the mere situs of the deceased’s injuries. Id. at 208, 236 N.W.2d at 600. But Engeldinger addresses injuries that did not arise out of a problem encountered with operation of a motor vehicle, unlike these circumstances, where respondent’s vehicle became stuck in the snow.

We appreciate that weather emergencies are an anticipated part of the driving experience and that this is particularly true of winter elements when driving in Minnesota. Residents make preparations for winter driving, in selecting and equipping vehicles and in protective belongings carried in them. The state spends time and money plowing, sanding, and salting roads in winter to improve driver safety. See Hennes v. Patterson, 443 N.W.2d 198, 200-01 (Minn.App.1989) (listing some procedures MNDOT uses to remove snow in Twin Cities), review denied (Minn. Sept. 15, 1989). Roads are designed to alleviate drifting snow in the winter. See Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 571 (Minn.2000) (noting that highway department planned improvements to highway and county road to eliminate drifting snow in winter). And the laws of Minnesota immunize the state and its municipalities from most claims arising from snow or ice conditions on highways. See, e.g., Minn.Stat. § 3.736, subd. 3(d) (2002).

Because the hazards of winter are a fundamental part of the driving experience, it is a foreseeable condition of vehicle use that vehicles may become disabled on the road due to snow or ice, and drivers may be exposed to injury in attempting, sometimes unreasonably, to provide for their safety. We conclude that respondent’s frostbite injuries, which were sustained after her vehicle became stuck in the snow, are a natural consequence of the use of her motor vehicle. See Baker v. Am. Family Mut. Ins. Co., 460 N.W.2d 86, 87 (Minn.App.1990) (noting parties stipulated that Baker’s death, which was caused by exposure to subzero temperatures and hypothermia after walking away from her vehicle when it became stuck in a ditch, arose out of maintenance or use of her vehicle), review denied (Minn. Nov. 9, 1990).

Finally, appellant argues that respondent was not using her vehicle for transportation purposes at the time of her injury. Because the jury found that respondent purposely locked her vehicle when she left it after the accident, appellant asserts that respondent intended to abandon the vehicle and, consequently, that she was no longer using the vehicle for transportation purposes.

This argument misinterprets the third prong of the Klug test. Respondent is not required to show that she was using her vehicle for transportation purposes at the moment she was injured, but is required more generally to show that her injuries resulted from the operation of a motor vehicle that was being so used. See Klug, 415 N.W.2d at 878 (stating no-fault “coverage should exist only for injuries resulting from use of an automobile for transportation purposes”). Her intent to “abandon” her vehicle after the accident, as a result, is irrelevant. Respondent was using her vehicle for transportation purposes at the time she became stuck in the snow.

DECISION

The district court did not err by concluding that respondent is entitled to no-fault insurance benefits because her injuries arose out of the use of her motor vehicle.

Affirmed.

WILLIS, Judge

(Concurring specially).

I concur in the result reached by the majority because I believe that it reflects the current state of no-fault law in Minnesota, and we are an error-correcting court only. I write separately to point out that, in my judgment, this case is a good example of how much the concepts of “accident” and “injury arising out of the use of a motor vehicle” have been expanded beyond what I think the legislature had in mind when it adopted the no-fault act in 1974.

Respondent Dougherty’s frostbite injuries resulted from the following: Dougherty spent the evening of December 16, 2000, drinking at two bars. • She left the second bar at approximately 1:15 a.m. on December 17, and, although she was intoxicated, she began to drive the 10 blocks from the bar to her apartment complex. When she was a little more than 300 feet from the door to her apartment, she ran her car into a snowdrift and got stuck. She left her car and began walking toward her apartment, and, unable to stand on the icy parking lot of her apartment complex, she crawled across the parking lot and wound up behind a garage, where she lay down and may have “dozed off,” or passed out, for a time. Approximately 30 minutes after she left her car, she reached the door to her apartment, where she awakened her daughter.

As the majority opinion obliquely suggests, if Dougherty had perhaps been a little less intoxicated and had made it into the parking lot of her apartment complex and parked her car, and then had fallen, crawled, passed out, and suffered frostbite, precedent would dictate that her injuries then would not arise out of the “use of a motor vehicle.” But the fact that Dough-erty did not reach her destination before abandoning her car produces a different result.

I find it difficult to believe that the legislature contemplated the mandatory payment of benefits on facts such as these when it passed the no-fault act 30 years ago to provide benefits “to victims of automobile accidents without regard to whose fault caused the accident.” Minn.Stat. § 65B.42(1) (2002).

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

      . State Farm’s argument is not supported by citation to any legal authority. Generally, unsupported propositions may be considered waived. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating that assignment of error based on mere assertion and not supported by any authorities in appellant’s brief is waived and will not be considered on appeal absent prejudicial error). But because the argument of the parties is mutually directed at the issue and revolves around the interpretation of the no-fault statutes, and because the issue implicates interests of justice, we elect to review appellant's claim.


author: LANSING, Judge.

text:
    SAVE LANTERN BAY, et al., Appellants, v. CASS COUNTY PLANNING COMMISSION, et al., Respondents, Thousand Acres Development, LLC, Respondent.
    No. A04-165.
    Court of Appeals of Minnesota.
    July 27, 2004.

      James P. Peters, Kama M. Peters, Peters & Peters, PLC, Alexandria, MN, for appellant.
    Scott T. Anderson, Isaac Kaufman, Rat-wik, Roszak & Maloney, P.A., Minneapolis, MN, for respondents Cass County Planning Commission, et al.
    Ryan J. Hatton, Rinke-Noonan, St. Cloud, MN, for respondent Thousand Acres Development, LLC.
    Considered and decided by WILLIS, Presiding Judge; LANSING, Judge; and HUDSON, Judge.
   OPINION

LANSING, Judge.

Save Lantern Bay appeals from summary judgment that it failed to appeal in a timely manner to the district court from a decision of the Cass County Planning Commission. Save Lantern Bay also appeals from the district court’s judgment that Cass County is equitably estopped from revoking the final-plat approval of a parcel owned by respondent Thousand Acres. Because we conclude that the district court erred in its interpretation of the appeals provision of the Cass County Subdivision and Platting Ordinance and in its judgment granting equitable estoppel against the county, we reverse and remand.

FACTS

Save Lantern Bay is a group of citizens who own property on or near Woman Lake in Cass County. Thousand Acres Development, LLC, owns a parcel of land on Woman Lake that it seeks to develop as lakeshore lots. Cass County Planning Commission (PC) is the local government entity responsible for the review of development proposals in Cass County as governed by state statute and local ordinances. The members of Save Lantern Bay have opposed the development from its inception, due to factors that include its location on a shallow bay and the increased activity that the lots would bring to the surrounding sensitive habitat.

On March 25, 2008, the PC reviewed the preliminary plat of the Woman Lake parcel during a public hearing attended by-members of Save Lantern Bay. The PC stated that it was reviewing the plat under the standards of a repealed version of the Cass County Subdivision and Platting Ordinance, rather than the version of that ordinance that had taken effect on January 12, 2003. The PC stated that its common practice was to continue to apply the repealed ordinance beyond the effective date of the new ordinance because it allowed a developer to proceed under known law and not have to anticipate changes in the ordinance. In accord with this practice, the Cass County Environmental Services Director told Thousand Acres during the application process and previous to the hearing that “the application would be considered according to the ordinance in effect at the time of the filing.” The director explained that proposed amendments to the ordinance could alter provisions that governed the development and assured the developer that any amendments would not apply to the development.

The amended Subdivision and Platting Oi’dinance contained one change in particular that affected the provision governing the development of the Woman Lake parcel. Section 5.02.08 of the ordinance governs the size and nature of common-access lots, defined as “[l]ots intended as controlled accesses to public waters or as recreation areas for use by owners.” Cass County, Minn., Subdivision and Platting Ordinance § 5.02.08 (2003). The ordinance previously governed only common-access lots provided for non-riparian (i.e., not contiguous with shoreline) lots, but the 2003 ordinance extended these limits to access lots provided for riparian lots. Id., § 5.02.08(C). Also, while the ordinance still required that the size of the common-access lot must increase commensurate with the volume of its proposed usage, that usage was now measured in a new way. Previously, Cass County measured usage of common-access lots by the number of watercraft docked, moored, or stored at the access lot; but the 2003 ordinance considered the number of residence lots within a plat entitled to use the common-access lot. Id. What did not change was the requirement that the common-access lot must increase in size by twenty-five percent for each boat or residence lot beyond a baseline quantity of six. Id. Under our reading of the facts of this case, application of these new standards would likely have altered the Woman Lake plat by reducing the number of residential lots.

The PC approved the preliminary plat by unanimous vote at the March 25, 2003 hearing. As required by the ordinance, the PC met again to approve the final plat on April 22, 2003, a necessary predicate in Cass County to final-plat approval by the county board. Members of Save Lantern Bay were also present at this final-plat-approval hearing, which included an opportunity for public comment. They stated that they disagreed with the PC’s decision not to apply the current ordinance. The PC responded that its policy remained the same: to apply the ordinance as it existed when the preliminary-plat process began.

On May 6, 2003, fourteen days after the meeting, Save Lantern Bay appealed the PC’s decision in Cass County District Court, pursuant to section 10.02 of the Subdivision and Platting Ordinance:

The decision of the Planning Commission shall not be final. Any person having an interest affected by the decision, has the right to appeal to District Court on questions of law and fact within fifteen (15) calendar days from the date of the meeting at which the decision was rendered.

Cass County, Minn., Subdivision and Platting Ordinance § 10.02 (2003). On competing motions for summary judgment by Save Lantern Bay and Thousand Aei*es (which had intervened as a co-defendant in the action), the district court granted summary judgment to Thousand Acres, stating that Save Lantern Bay had failed to appeal in a timely manner. In its order, the district court characterized Save Lantern Bay’s action as an appeal of the March 25 preliminary-plat approval rather than an appeal from the final-plat approval of April 22, even though Save Lantern Bay’s complaint referred to the latter hearing.

In addition to its ruling on this threshold issue, the district court went on to reject Save Lantern Bay’s argument that the PC lacked a rational basis to approve the plat, rejected Thousand Acres’s cross-claim that the sixty-day rule of Minn.Stat. § 15.99 (2002) had automatically effected approval of the plat, and ruled that Cass County would be equitably estopped from revoking the plat approval. Although the district court’s rejection of the application of the sixty-day rule under Minn.Stat. § 15.99 responded to Thousand Acres’ mandamus action and was therefore not extinguished by the summary judgment, Thousand Acres does not appeal the district court’s judgment on this issue. Save Lantern Bay appeals the remainder of the district court’s judgment.

ISSUES

I. Did the district court err in granting summary judgment on the basis that Save Lantern Bay had failed to appeal the decision of the Cass County Planning Commission in a timely manner?
II. Did the district court err in its judgment that Cass County was equitably estopped from revoking the final-plat approval?

ANALYSIS

I

Appellate review of a district court’s grant of summary judgment considers two basic questions: whether there are unresolved issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The district court’s grant of summary judgment in this case was based on its interpretation of the appeals provision of the county ordinance in the context of undisputed facts and thus is a legal conclusion, which we review de novo. Farmington Township v. High Plains Coop., 460 N.W.2d 56, 58 (Minn.App.1990).

Save Lantern Bay argues that the district court erred in its interpretation of the appeals provision of the Cass County Subdivision and Platting Ordinance. In addition to establishing minimum standards for land subdivision and platting, the ordinance provides the procedures by which various government entities approve development plans, including preliminary-plat and final-plat approval. Cass County, Minn., Subdivision and Platting Ordinance arts. 4, 7 (2003). Section 10.02 provides specifically for the appeal of a “decision” of the Cass County Planning Commission within fifteen days after the date of the meeting at which the decision was rendered. The district court interpreted “decision” in this context to be limited to the PC’s preliminary-pint approval under section 4.06 of the ordinance, despite the fact that section 7.04.03 of the ordinance also requires the PC’s approval of the final plat.

Fundamental to our construction of an ordinance is the rule that it “should be construed in accordance with the plain and ordinary meaning of its terms.” Mohler v. City of St. Louis Park, 643 N.W.2d 623, 634 (Minn.App.2002). When the language of an ordinance is not ambiguous, we need not attempt to examine the legislative intent of the promulgating entity. Id. The ordinance specifically provides that “[t]he decision of the Planning Commission shall not be final” and provides for its appeal to the district court. Cass County, Minn., Subdivision and Platting Ordinance § 10.02(2003).

We perceive no ambiguity in this language. We need go no further than to take notice that a governmental entity that is required by an ordinance to approve a final plat is also required to make a decision. Section 7.04.03 of the ordinance provides that “[n]o final plat shall be approved by the County Board of Commissioners without first receiving approval of the PC.” (Emphasis added.) Following public comment at the April 22, 2003 hearing, the PC voted unanimously to approve the final plat. The plain meaning of the ordinance requires our interpretation that persons having an interest affected by the PC’s decision can appeal either preliminary or final plat decisions.

Respondents’ reliance on Semler Constr., Inc. v. City of Hanover, 667 N.W.2d 457 (Minn.App.2003) is unavailing and ultimately works against them with respect to the timing issue. While the Semler court explained in detail the superior “importance” of preliminary-plat decisions as compared to the “mechanical” nature of final-plat approval, it did not strip final-plat decisions of all meaning. Id. at 461-63; see also Minn.Stat. § 462.358, subd. 3b (2002) (requiring final approval when “the applicant has complied with all conditions and requirements ... upon which the preliminary approval is expressly conditioned”). Final-plat decisions are still subject to review for mistake or abuse of discretion; indeed, the Semler court was considering a case procedurally similar to this one: an appeal of a municipality’s decision on an application for final-plat approval. Semler, 667 N.W.2d at 460. We cannot imagine that Thousand Acres would dispute the existence of a right to appeal from the PC’s final-plat approval if, at the April 22, 2003 hearing, the PC had declined to pass the final plat along to the Cass County Board. We conclude that the ordinance plainly provides for appeal from the PC’s action on the final plat. Because Save Lantern Bay appealed the PC’s action within the permitted fifteen calendar days, its appeal was timely.

Our review of the district court’s judgment does not, however, end here. The district court ruled in favor of Cass County and Thousand Acres on the timing issue. But the court, in the interests of justice, addressed the appeal on its merits and examined those issues that it would have reached had it found that Save Lantern Bay’s appeal was timely. In this contingent analysis, the district court resolved three remaining issues by concluding that the PC had not abused its discretion by applying a repealed ordinance to the preliminary-plat approval; that the county would be equitably estopped from revoking the plat approval; and that the sixty-day rule of Minn.Stat. § 15.99 (2002) had not automatically effected approval of the plat.

By extending its analysis beyond the timeliness of the appeal to reach the merits, the district court made a conscientious effort to fully resolve the issues without additional proceedings in the district court. But the district court’s analysis of the merits, entitled “Propriety of Final Plat Approval,” did not, in fact, review the approval of the final plat but, instead, reviewed the approval of the preliminary plat. Consequently, the analysis on the merits is flawed. The timely appeal of the final plat approval permits review of that approval, but it does not provide a conduit to review the unappealed preliminary-plat approval after the appeal period has expired.

A brief overview of the Cass County Subdivision and Platting Ordinance establishes that the planning commission’s purpose in approving a preliminary plat is distinct from its purpose in approving a final plat; correspondingly, the appeal from each of these decisions is distinct. When an affected person appeals from a preliminary plat decision by the PC, that appeal is circumscribed by section 2.44 and article 4 of the ordinance, which define “preliminary plat” and outline the PC’s procedures for approval or disapproval. That definition is “[a] tentative drawing or map of a proposed subdivision meeting the requirements ... enumerated.” Cass County, Minn., Subdivision and Platting Ordinance § 2.44 (2003). Thus, an appeal of the PC’s decision on a preliminary plat focuses on an evaluation of the preliminary plat measured against the minimum design standards outlined in article 5 of the ordinance.

An appeal from a final-plat decision by the PC, on the other hand, is evaluated with reference to the language of section 2.27 and article 7 of the ordinance governing final plats. The ordinance defines “final plat” as “[a] drawing or map of a subdivision showing the official plat to be filed in the office of the County Recorder.” Id., § 2.27 (2003). Section 7.04.03 requires that no final plat be approved by the county board “without first receiving approval of the PC certifying that the improvements described herein together with the agreements and documents required under this Article of the Ordinance meets the requirements of the County.” An appeal of the PC’s decision on a final plat thus examines the final plat against the standards of section 7.04 in particular and article 7 as a whole. In other words, final-plat approval by the PC is not concerned with the minimum design standards of article 5. As applied to Thousand Acres’ development, this means that the issue of common-access lot size was not an issue decided by the final-plat approval and, consequently, not an issue that could be raised in an appeal of that approval.

This view of the plat-approval process comports with our previous decision in Semler. See 667 N.W.2d at 463 (stating that “once the conditions and requirements [of the preliminary plat] are satisfied, the plat mechanically receives final approval”). Semler is distinguishable in that it involves plat approval by a municipal rather than a county board (which is governed by a separate statute); and the two-step approval process in Semler does not feature the intermediate final-plat approval required of the PC in Cass County. Id. at 461. But it is parallel in its comparison of preliminary-plat and final-plat approval and in reinforcing the relationship between preliminary-plat and final-plat approval in the Cass County ordinance: preliminary-plat approval is “the most important step in obtaining approval of the subdivision.” Id. At some point following the grant of preliminary-plat approval — Cass County has chosen an interval of fifteen days — a developer must be allowed to safely proceed with the infrastructural improvements necessary to secure final-plat approval.

Because the district court exceeded the scope of review from the appeal of final-plat approval by reviewing issues that were decided in the preliminary-plat approval, we reverse and remand for proper consideration of the appeal of the final-plat approval. The ordinance, as amended, has not changed the manner by which the PC executes final-plat approval. It is therefore beyond the issues properly raised in this appeal to determine whether a county has the unbounded discretion to suspend the operation of its existing ordinance and instead apply the provisions of its repealed ordinance, which was in effect when the original application for plat approval was made.

II

In the district court action, Thousand Acres asserted a cross-claim of estoppel against Cass County as a separate basis for protecting its final-plat approval. The district court found that Thousand Acres had acquired a vested right in the preliminary plat and that Cass County would be equitably estopped from revoking the final-plat approval. The district court predicated the estoppel on the statements of the Cass County Environmental Services Director to Thousand Acres expressing the county’s intention to disregard any amendments to the ordinance in reviewing the plat of the Woman Lake parcel.

The general rule for establishing equitable estoppel is that a plaintiff must demonstrate inducement to rely, in good faith, on language or conduct resulting in injury, detriment, or prejudice. Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 292 (Minn.1980). Applied to the specific circumstances of this case:

A local government exercising its zoning powers will be estopped when a property owner, (1) relying in good faith (2) upon some act or omission of the government, (3) has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights which he ostensibly had acquired.

Id. (emphasis omitted) (quotation omitted). To establish the existence of “extensive obligations and expenditures,” the property owner “must demonstrate expenditures that are unique to the proposed project and would not be otherwise usable.” Id. When estoppel is asserted against a government agency, “the equities of the circumstances must be examined and the government estopped if justice so requires, weighing in that determination the public interest frustrated by the estoppel.” Mesaba Aviation Div. of Halvorson of Duluth v. County of Itasca, 258 N.W.2d 877, 880 (Minn.1977).

Thousand Acres has failed to establish an element necessary to a finding of equitable estoppel because it has not shown that its expenditures on the Woman Lake parcel were unique or otherwise unusable, or that whatever rights it may have acquired would be destroyed by a revocation of the final-plat approval. The record indicates that, if the preliminary-plat approval had been revoked and subsequent review performed under the 2003 ordinance, some alteration of the layout of the plat would likely have been necessary, but certainly no fundamental, inequitable change to the subdivision. Consequently, we reject the district court’s determination that Cass County was equitably estopped from revoking its final-plat approval.

On remand the district court is limited to a determination on Save Lantern Bay’s appeal of the PC’s approval of Thousand Acre’s final plat. Because the appeal period for the approval of the preliminary plat has expired and because the approval process for the preliminary plat applied the standards imposed by the repealed, rather than the effective ordinance, the estoppel claim as stated has no factual basis; the county has fully complied with the alleged inducement.

DECISION

The district court erred in granting summary judgment based on its interpretation of the appeals provision of section 10.02 of the Cass County Subdivision and Platting Ordinance. The district court also erred in its judgment that Cass County was equitably estopped from revoking final-plat approval.

Reversed and remanded.


author: HUDSON, Judge.

text:
    BIRCH PUBLICATIONS, INC., et al., Respondents, v. RMZ OF ST. CLOUD, INC., f/k/a Quest Publications, Inc., et al., Appellants.
    No. A03-1913.
    Court of Appeals of Minnesota.
    July 27, 2004.

      Thomas P. Melloy, Gray, Plant, Mooty, Mooty & Bennett, P.A., St. Cloud, MN, for respondents.
    Michael C. Rajkowski, Krista L. Durr-waehter, Quinlivan & Hughes, P.A., St. Cloud, MN for appellants.
    Considered and decided by WILLIS, Presiding Judge; LANSING, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

In this appeal, appellants RMZ of St. Cloud, Inc., argue that the trial court erred in finding that RMZ abandoned a trademark and is therefore estopped from denying the transfer of the trademark to respondents Birch Publications, Inc. Because the trial court’s factual findings were not clearly erroneous, and the trial court did not err as a matter of law in concluding that RMZ abandoned use of the trademark, we conclude that RMZ is estopped from denying the transfer of the trademark to Birch, and we affirm.

FACTS

Ruth Zulkosky and three others organized appellants RMZ of St. Cloud, Inc. (RMZ), in late 1998 to publish a business-telephone and internet directory. RMZ published a telephone directory known as “The MIDbook” in 1999 and 2000.

RMZ experienced financial difficulties, and in July 2000, Zulkosky asked Harold Anderson for financial help, and Anderson agreed to help. In order to publish a directory in 2001 and to provide a vehicle through which Anderson could provide financial assistance, Anderson created respondent Birch Publications, Inc. (Birch). Between August 30, 2000, when Birch was incorporated, and September 15, 2000, Anderson provided significant financial assistance to RMZ, including cash-flow funding and equity contributions. Anderson also invested cash in Birch to fund its initial business operations, and Birch purchased some of RMZ’s assets, which was memorialized in a bill of sale. The bill of sale does not mention a purchase of all assets or a separate sale of the trademark name “The MIDbook.” In the fall of 2000, Birch took over the RMZ office lease and hired several RMZ employees, including Zulkosky, who was given principal responsibility for the day-to-day operations of the Birch business.

On September 20, 2000, RMZ filed a certificate of assumed name for “The MID-book” with the Minnesota Secretary of State. The certificate was published in the St. Cloud Times on November 2, 2000. On November 10, 2000, Birch filed a certificate of assumed name for “The MIDbook” with the Minnesota Secretary of State. Birch published the certificate in the St. Cloud Times on April 27, 2001.

A Birch employee testified that Birch and RMZ had discussions regarding RMZ’s inability to satisfy various debts, including debts to the Internal Revenue Service. Birch and RMZ sought to find a way to get RMZ money to satisfy the debts without using RMZ’s earned income. The discussions included reducing the commissions paid to Zulkosky and a possible sale of the trademark name “The MID-book.” An attorney for RMZ prepared an assignment of the trademark name, but the discussions broke down before the assignment occurred.

On March 2, 2001, Zulkosky drafted a letter to the Yellow Pages Publishers Association (YPPA), which stated that “[t]he Corporation that presently owns the MID-book directory has changed effective October 1, 2000, from Quest [RMZ] ... to Birch Publications.” RMZ contends that the letter was written so Birch could have permission to publish the 2001 directory, and Zulkosky testified she should have said Birch had permission to use the name rather than stating that the ownership had changed.

In September 2002, Birch underwent a staff reorganization and terminated several of their employees, including Zulkosky. On October B, 2002, Zulkosky sent a letter to Birch’s CEO, Beverly Berg, which stated that RMZ was withdrawing its permission to use the “MIDbook” name. Birch contends that both RMZ and Birch began to sell advertising for a directory in the late fall of 2002 using the “MIDbook” name.

In November 2002, Birch and Anderson commenced an action against RMZ and Zulkosky, seeking a temporary and permanent injunction to prevent RMZ from using the trademark or trade name “MID-book” in any business related to the publication of a business-telephone directory. Birch also sought monetary damages on promissory notes. RMZ filed an amended answer and a counterclaim seeking injunc-tive relief prohibiting Birch from using the name “MIDbook.” On December 9, 2002, after a hearing, the district court entered a temporary injunction prohibiting RMZ and Zulkosky from using the MIDbook name for publication of a directory in 2003. Prior to trial, the parties resolved the economic issues related to the promissory notes and other debts. On November 12, 2003, the trial court entered a permanent injunction prohibiting RMZ and Zulkosky from using the name “MID-book” or any similar name or logo in connection with the publication of a business-telephone directory. The trial court found that RMZ negligently abandoned “The MIDbook” trademark and was therefore estopped from denying the transfer of the trademark to Birch. Appellants filed this appeal.

ISSUES

1. Did the trial court err in finding RMZ abandoned the MIDbook trademark?

II. Did the trial court err in finding RMZ and Zulkosky are estopped from denying the transfer of the MIDbook name to Birch?

ANALYSIS

On appeal from a bench trial, this court’s scope of review is limited to determining whether the trial court’s findings are “clearly erroneous and whether the court erred as a matter of law.” Powell v. MVE Holdings, Inc., 626 N.W.2d 451, 457 (Minn.App.2001), review denied (Minn. Jul. 24, 2001). This court must give due regard to the opportunity of the trial judge to determine the credibility of the witnesses. Minn. R. Civ. P. 52.01. A trial court’s findings of fact will be reversed only if this court is left with a definite and firm conviction that the trial court has made a mistake. Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn.1987). This court exercises independent judgment on purely legal questions. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

I

The trial court found that RMZ abandoned the use of the trademark to Birch, but RMZ contends that it did not abandon the MIDbook trademark because Birch did not establish that RMZ intended not to resume the use of the trademark. Birch contends that the trial court correctly found that RMZ abandoned the use of the trademark to Birch. Birch notes it hired Zulkosky, and there is no evidence that she was acting in any capacity other than as a director or employee of Birch. Birch further contends that RMZ abandoned the MIDbook trademark through non-use and declared its intention not to resume use through various actions and statements, such as Zulkosky’s letter to the YPPA.

Under the Lanham Trademark Act, a trademark is abandoned when “its use has been discontinued with intent not to resume such use.” 15 U.S.C. § 1127 (2002). A party claiming that a trademark has been abandoned must show “non-use of the name by the legal owner and no intent by that person or entity to resume use in the reasonably foreseeable future.” Emergency One, Inc. v. Am. FireEagle, Ltd., 228 F.3d 531, 535 (4th Cir.2000). Mere non-use is not prima facie evidence of abandonment unless the trademark has not been used for three consecutive years. See 15 U.S.C. § 1127. Having “ ‘intent to resume’ requires the trademark owner to have plans to resume commercial use of the trademark.” Hiland Potato Chip Co. v. Culbro Snack Foods, Inc., 720 F.2d 981, 984 (8th Cir.1983) (quoting Exxon Corp. v. Humble Exploration Co., Inc., 695 F.2d 96, 102-03 (5th Cir.1983)). The Lanham Trademark Act does not permit a license for a trademark owner to merely have “an intent not to abandon,” which would allow a trademark owner to protect a trademark with neither commercial use nor plans to resume commercial use. Id.

Here, the record shows that Zulko-sky and RMZ ceased producing directories and RMZ ceased being a viable business sometime in 2001; thus, Zulkosky and RMZ ceased using the trademark in a commercial manner (i.e., to sell directories). Likewise, nothing in the record indicates that they had immediate plans to resume commercial use of the trademark. In addition, RMZ allowed Birch to publicly assume use of the trademark to sell directories, and Zulkosky voiced no objection when Birch filed its assumed name registration with the Minnesota Secretary of State and then published notice of that filing in the St. Cloud Times. Zulkosky even wrote a letter to the YPPA, which stated that “[t]he Corporation that presently owns the MIDbook Directory has changed effective October 1, 2000, from Quest [RMZ] to Birch Publications.” Zul-kosky testified that she should have said Birch had permission to use the name, and claimed that the YPPA told her if she did not state that ownership had changed she would have to “reregister and apply for a new name, a new directory code and PUB code, which is all part of a directory name.”

Although Zulkosky claims now that Birch merely had permission to use the name, we cannot ignore the fact that Zul-kosky chose to write the letter in a manner that clearly states that the corporation that “owns” the MIDbook directory has changed. Moreover, even if the YPPA suggested that Zulkosky use the ownership language in the letter, as Zulkosky claims, she did not inform Birch that the letter she wrote to the YPPA merely gave Birch permission to use the trademark; nor did she give Birch written permission to use the trademark. Zulkosky’s silence is telling.

Zulkosky also asserts that she hoped to revive RMZ as a viable business at some later date, but her stated hope is weak evidence of intent not to abandon. The owner of a trademark cannot defeat an abandonment claim by asserting a vague, subjective intent to resume use of a trademark at some unspecified future date. See Silverman v. C.B.S., Inc., 870 F.2d 40, 47 (2nd Cir.1989). The actual conduct of the parties suggests that Zulkosky had no immediate intention to revive RMZ. Rather, it appears the parties intended for Zul-kosky to have a management role in Birch and that she would have the opportunity to acquire an ownership interest in Birch. As the trial court noted, “[T]he new entity was producing the same product, under the same manager, but with Mr. Anderson being the majority shareholder.” The trial court correctly concluded that Zulkosky “was using the trademark every day in her role at Birch, but RMZ Publications was no longer using [the trademark].”

We conclude that the trial court’s findings were not clearly erroneous and that the trial court did not err as a matter of law in concluding that RMZ abandoned use of the trademark.

II

RMZ further argues that the trial court erred by finding that RMZ negligently abandoned the MIDbook trademark name and was estopped from denying the transfer of the trademark to Birch. RMZ contends that the trial court failed to consider all of the evidence presented at trial and instead relied solely on the letter Zulkosky wrote to the YPPA. Birch contends that the trial court correctly found that the conduct of the parties supports the estop-pel claim. In support of its position, Birch notes that it reasonably relied on the words, actions, and silence of Zulkosky and contends that it acquired RMZ’s business and the MIDbook name.

A party seeking to invoke the doctrine of equitable estoppel has the burden of proving three elements: (1) that the promise or inducement was made; (2) that it has reasonably relied upon the promise; and (3) that it will be harmed if estoppel is not applied. Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919 (Minn.1990). An equitable-estoppel claim arises when

one by his acts or representations, or by his silence when he ought to speak, intentionally or through culpable negligence, induces another to believe certain facts to exist, and such other rightfully acts on the belief so induced in such manner that if the former is permitted to deny the existence of such facts it will prejudice the latter.

Transamerica Ins. Group v. Paul, 267 N.W.2d 180, 183 (Minn.1978) (quotations omitted). A plaintiff may establish an es-toppel claim by showing that the defendant “through his language or conduct, induced the plaintiff to rely, in good faith, on this language or conduct to his injury, detriment or prejudice.” Semler Const, Inc. v. City of Hanover, 667 N.W.2d 457, 466 (Minn.App.2003), review denied (Minn. Oct. 29, 2003) (citation omitted).

Here, there is considerable evidence that Zulkosky’s conduct, words, and silence when she should have spoken, induced Anderson and Birch to make a substantial investment of time and money to create a viable business using the MID-book name. First, Anderson created Birch to keep the underlying business of RMZ alive using the MIDbook name. Anderson invested thousands of dollars to create Birch, buy RMZ’s office equipment, take over RMZ’s lease, hire RMZ employees, and fund Birch’s cash shortfalls. Second, Anderson rejected Zulkosky’s proposal that he buy an interest in RMZ. Anderson’s assistant participated in the initial meetings between Zulkosky and Anderson, and she testified that Anderson would only help RMZ by creating “a new company using the MIDbook name.” Third, Zulkosky voiced no objection when Birch filed its assumed-name registration with the Minnesota Secretary of State and then published notice of that filing in the St. Cloud Times. Finally, Zulkosky wrote the letter to the YPPA, which stated that “[t]he Corporation that presently owns the MIDbook directory has changed effective October 1, 2000, from Quest [RMZ] to Birch Publications.” The trial court was correct when it noted “[t]hat letter does not discuss that the trademark was by permission or by license, but was now owned by Birch.” Based on all of the above, the first element of equitable estop-pel has been satisfied because Zulkosky’s conduct, words, and silence when she should have spoken induced Anderson and Birch to make a substantial investment of time and money to create a viable business using the MIDbook name.

Based on the facts described above, the trial court properly concluded that Anderson and Birch reasonably, and in good faith, relied on Zulkosky’s conduct, words, and silence when she should have spoken. As the trial court correctly noted “Anderson clearly relied both upon [Zulko-sky’s] presence and the trademark use when making his investment in Birch. Officers of Plaintiff Birch Publications relied upon this continuing belief when pouring business efforts and goodwill into the trademark.” Accordingly, the second element of equitable estoppel has been satisfied because Birch reasonably, and in good faith, relied on Zulkosky’s inducement.

Finally, Birch and Anderson will be harmed if Birch loses the opportunity to continue to use the name MIDbook in the operation of the business. Birch believed that they had full ownership of the name MIDbook for two years, and during that time Birch added value to, commercially used, and poured business efforts and goodwill into the trademark.

DECISION

The trial court’s findings were not clearly erroneous, and the trial court did not err as a matter of law in concluding that RMZ abandoned use of the trademark and that RMZ is estopped from denying the transfer of the trademark to Birch.

Affirmed.

      . At the time it was formed, RMZ of St. Cloud, Inc., was known as Quest Publications, Inc. The name change from Quest Publications to RMZ of St. Cloud, Inc., was the subject of other litigation, which has no bearing on this case. For clarity, we refer to appellants as RMZ throughout this opinion.

      . The relevant Minnesota statute, Minn.Stat. §§ 333.18-.31 (2002), is patterned closely after the Lanham Trademark Act. See Imported Auto Parts Corp. v. R.B. Shaller & Sons, 258 N.W.2d 797, 801 (Minn.1977).


author: TOUSSAINT, Chief Judge.

text:
    Robert UNZEN, et al., Respondents, v. CITY OF DULUTH, Appellant (A04-80), Defendant (A04-81), Steve Dornfeld, Inc., Defendant (A04-80), Appellant (A04-81).
    Nos. A04-80, A04-81.
    Court of Appeals of Minnesota.
    Aug. 3, 2004.

      Harry L. Newby, Jr., Harry L. Munger, Newby, Lingren & Newby, Cloquet, MN, for respondents.
    M. Alison Lutterman, Deputy City Attorney, Duluth, MN, for appellant City of Duluth.
    Jerome David Feriancek, Jr., Thibodeau Johnson & Feriancek PLLP, Duluth, MN, for appellant Steve Dornfeld, Inc.
    Considered and decided by HALBROOKS, Presiding Judge; TOUSSAINT, Chief Judge; and MINGE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In this personal-injury action arising from a fall inside a municipal-golf-course clubhouse, appellants contest the district court’s denial of their motions for summary judgment on immunity grounds. Because neither appellant is entitled to statutory immunity under the circumstances of this case, we affirm.

FACTS

On October 22, 2001, respondent Robert Unzen fell as he was walking down a flight of stairs in the Enger Park Golf Course clubhouse. The course is owned and maintained by appellant City of Duluth (the city). Appellant Steven Dornfeld, Inc. (Dornfeld) performs services related to the golf course; specifically, Dornfeld contracted with the city to operate concessions at the clubhouse, to “maintain the kitchen, toilets, and main lobby of the club house in a neat and presentable condition and according to the Health Department standards for eating establishments,” and to handle “golf operations,” such as ticket sales, a pro shop, and club and cart rentals.

The record indicates that the stairs at issue, which led from the main floor to the restrooms below, were covered with a rubberized matting surface. A metal “nosing” was placed at the edge of each stair, which allegedly protruded slightly above the stair’s rubber tread. Unzen asserts that he tripped over the metal nosing on a stair near the top of the stairwell, and fell down the stairs.

Unzen commenced this action on March 5, 2002, claiming that his injuries were a direct result of the city’s negligent design and maintenance of the clubhouse and stairwell. After preliminary discovery, Unzen amended his summons and complaint to include Dornfeld as a defendant, claiming that the careless manner in which Dornfeld operated the clubhouse was an additional factor causing his injuries.

The city and Dornfeld filed separate motions for summary judgment, asserting that they were immune from suit under the recreational-use immunity statute, Minn.Stat. § 466.03, subd. 6e (2002). Alternatively, the city argued that it was protected by discretionary immunity under Minn.Stat. § 466.03, subd. 6 (2002). Unzen, in turn, filed his own motion for summary judgment, seeking a court declaration that recreational-use and discretionary immunity were unavailable to the city and that Dornfeld was not protected by statutory immunity because it was an independent contractor instead of an agent.

After a hearing on the matter, the district court denied the summary judgment motions of the city and Dornfeld. It determined however, that the city was not immune from suit under the discretionary-immunity statute, was generally covered by the recreational-use immunity statute, but was nevertheless liable under its exception. Both Dornfeld and the city now appeal, and Unzen has filed a notice of review regarding the court’s determination that the clubhouse was recreational property.

ISSUES

I. Did the district court err in determining that appellants were not protected by recreational-use immunity?
II. Did the district court properly determine that the city was not protected by discretionary immunity?

ANALYSIS

The existence of governmental immunity is purely a question of law, distinct from a defense to the merits of a plaintiffs claim. Elwood v. County of Rice, 423 N.W.2d 671, 675 (Minn.1988). We review immunity issues de novo, without deference to the district court. Landview Landscaping, Inc. v. Minnehaha Creek Watershed Dist., 569 N.W.2d 237, 240 (Minn.App.1997), review denied (Minn. Dec. 22, 1997); Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn.1989).

I.

All parties to this action claim that the district court erred in determining that the clubhouse was “within the type of property contemplated by the parks and recreation immunity statute,” but that appellants could still be found liable because the statute does not extend to “conduct that would entitle a trespasser to damages against a private person.” Unzen claims that the district court improperly determined that the clubhouse was recreational property. The city contends that the court’s recreational-property determination was correct, but that it erred in its application of the accepted legal standards to the undisputed facts. Dornfeld argues that it is entitled to immunity because it is an agent of the city, and Unzen’s claim “is premised entirely upon the condition of the recreational property which was under the control of the City.”

A. Clubhouse as Recreational Property

Unzen asserts that the Enger Park Golf Course may be divided into two distinct operations: (1) the outside golf course, which Unzen concedes is clearly “recreational property” as intended by statute; and (2) the clubhouse, which provides the general public with a number of services only tangentially related to recreational activity. He contends that Minnesota law only extends statutory immunity to buildings “where the injury occurred to users while engaging in recreational activities within the building or when injuries occurred on, or in, a building designed to house recreational activities.” The clear language of the statute, however, indicates that it should not be interpreted as narrowly as Unzen urges.

Minn.Stat. § 466.03, subd. 6e (2002) provides immunity to a municipality from

[a]ny claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services ... if the claim arises from a loss incurred by a user of park and recreation property or services. (Emphasis added).

The statute does not provide explicit examples of municipal property protected by recreational-use immunity. Merchlewitz v. Midwest 4 Wheel Drive Ass’n, Inc., 587 N.W.2d 652, 655-56 (Minn.App.1999). This court, however, has noted that “subdivision 6e covers claims arising from alleged negligence based on the provision of recreational services and unrelated to the condition of the recreational property.” Habeck v. Ouverson, 669 N.W.2d 907, 910 (Minn.App.2003), review denied (Minn. Dec. 23, 2003). Coverage under subdivision 6e is thus is not based on what the injured person was doing, but on the intended recreational function of the property.

Here, it is clear that the property as a whole was intended for golf, undisputedly a recreational activity under the statute. The clubhouse, in providing tickets, lockers, restrooms, and rental equipment, is operated to provide recreational services in support of golfing. Because the clubhouse is part of the same property as the golf course, provides services related to the course, and facilitates use of the course, the district court properly determined that the municipal-golf-course clubhouse is subject to the same recreational-use immunity as the course itself under subdivision 6e.

B. Application of Restatement

Notwithstanding the clubhouse’s protected status as recreational property under subdivision 6e, a municipality or its agent may still be liable for “conduct that would entitle a trespasser to damages against a private person.” Minn.Stat. § 466.03, subd. 6e; Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 213 (Minn.App.2001), review denied (Minn. Dec. 11, 2001). For purposes of determining this limited liability under the subdivision, Minnesota has adopted the standard of care owed to a trespasser found in the Restatement (Second) of Torts § 335 (1965). Martin v. Spirit Mountain Recreation Area Auth. 566 N.W.2d 719, 721 (Minn.1997).

Section 335 provides that a possessor of land is subject to liability for bodily harm caused to a trespasser by an artificial condition on the land if

(a) the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

Restatement (Second) of Torts § 335. Under this standard, “a landowner will be liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner.” Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn.1994) (citation omitted). The plaintiff bears the burden of establishing that all of the elements of section 335 have been met in order to defeat an immunity claim. Martinez v. Minnesota Zoological Gardens, 526 N.W.2d 416, 418 (Minn.App.1995), review denied (Minn. Mar. 29, 1995).

The city concedes the district court correctly found that the stairs were man-made, that it was responsible for maintaining them, and that there were no visible warning signs in or around the staircase. It contends, however, that the court’s analysis thereafter was flawed because (1) the stair’s condition was not hidden because Unzen admitted that he saw the condition causing his fall; and (2) the condition was not, to the city’s knowledge, likely to cause death or great bodily harm.

The city points to Unzen’s deposition where he acknowledges seeing the metal edging on the stairs as he fell. It contends that because Unzen saw the metal edging, the condition was clearly visible, and that therefore the city had no duty to warn or liability. It further asserts that the district court completely failed to consider whether the object was visible rather than appreciable, see Merchlewitz, 587 N.W.2d at 656, and instead based its determination on evidence indicating that other people had fallen in the 40 years since the metal nosing was installed.

The district court notes that “[t]he evidence tends to show that the elements of Restatement § 335 are present, i.e.: that the condition was an artificial condition which ... was of such a nature that the city would have reason to believe that persons using the stairway would not discover the problem ...” The court’s statement is supported by the record: Fred Bolf, a city employee who examined the steps, stated that he did not see anything wrong with the steps even after Unzen had fallen. Mark Carlson, a former Enger Park Golf Course supervisor, stated that “[i]t was difficult to observe that the metal edging was raised above the rubber floor tread on each step,” and that he only discovered the condition after he himself tripped.

Thus, contrary to the city’s assertions, the record supports the district court’s determination that the condition causing Unzen’s injury was not readily discoverable. The focus should not be on whether the metal nosing itself was visible, but rather whether the dangerous condition was visible. Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 520 (Minn.App.1998) (whether condition was hidden depends on visibility of condition, not on whether injured party actually saw danger); see also Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 361 (Minn.App.1995) (photographs taken day of accident show that large portion of barrel into which appellant skied was visible); Martinez, 526 N.W.2d at 419 (claim failed because appellant had seen loose steel railings causing her child’s injury pri- or to accident). Because the evidence indicates that even though the nosing was visible, the actual dangerous condition was not, the district court’s determinations on this matter shall not be disturbed.

Further, there is ample evidence in the record supporting the district court’s conclusion that the stairs “would be to the city’s knowledge a condition likely to cause death or serious bodily harm to persons if they tripped and fell.” Carlson acknowledged that during his tenure at Enger Park, approximately a dozen people fell using the stairway. He also stated that he advised Street and Park Maintenance Manager Bob Troolin that he believed the steps were dangerous. Michael Netzel, the golf course superintendent at the time of Unzen’s fall, also stated that he was aware of people tripping or catching their feet on the metal nosing.

The city’s approach to these past falls is that for 40 years after the metal nosing was installed, no one was seriously injured on the stairs. It claims, therefore, that the district court erred in determining that the condition was likely to cause death or great bodily harm. Instead, the city urges this court to consider only conditions that have “inherently dangerous propensities, such as high voltage electrical wire” as inherently dangerous conditions. We read section 335 differently. In fact, our case law is replete with instances where falling down a flight of stairs has caused death or serious bodily harm. E.g., Muckler v. Buchl, 276 Minn. 490, 491, 150 N.W.2d 689, 691 (1967) (causing death); O’Connor v. M.A. Mortenson Co., 424 N.W.2d 92, 93 (Minn.App.1988) (requiring hip replacement), review denied (Minn. July 28, 1988); Hanson v. Roe, 373 N.W.2d 366, 368 (Minn.App.1985) (causing death). Considering the potential injuries involved with falling down a flight of stairs, a staircase may clearly be an “inherently dangerous” condition. Cf. Johnson v. State, 478 N.W.2d 769, 773 (Minn.App.1991) (holding raised sidewalk joint not a condition likely to cause death or serious bodily hard), revietu denied (Minn. Feb. 27, 1992).

Because the district court properly concluded that the condition of the stairs (1)could not be readily appreciated and (2) was likely to cause death or great bodily harm, the court correctly determined that the trespass exception to the recreational-use-immunity statute applied.

C. Dornfeld as agent

Dornfeld asserts that it is immune from suit because it is an agent of the city. It claims it must be considered an agent because (1) the agreement does not expressly state that Dornfeld is an independent contractor; (2) the city “controls the means and manner of performance over all aspects of the golf course”; (3) the city compensates Dornfeld for services rendered; (4) materials, tools, and other equipment are provided by the city; (5) the city retained control over the golf course while Dornfeld operated the clubhouse; (6) the city retained the right to terminate Dornfeld; and (7) both this court’s and the district court’s silence on the matter was an implicit determination that it was an agent of the city. Notwithstanding these assertions, we are convinced by the record that Dornfeld is an independent contractor rather than an agent.

A five-factor test is applied to determine whether one is an employee or an independent contractor:

(1) The right to control the means and manner of performance;
(2) The mode of payment;
(3) The furnishing of materials and tools;
(4) The control of the premises where the work is done; and
(5) The right of the employer to discharge.

Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143, 128 N.W.2d 324, 326 (1964). The most important of these factors is the right of the employer to control the means and manner of employment. Id.

Here, according to the terms of the agreement, Dornfeld was given considerable latitude with regard to concessions operations, operation of pro-shop facilities, and day-to-day course operations. And although the city paid Dornfeld $40,000 annually for its services, Dornfeld retained 100% of the commissions from concessions, rental revenues, pro-shop revenues, and golf-lesson revenues. It also purchased all of its inventories, and was responsible for hiring, training, scheduling, and supervising golf-course personnel.

These facts indicate that Dornfeld had (1) extensive control of the means and manner of performance; (2) was paid, for the most part, by sales generated by its own employees; (3) furnished its own inventory; and (4) almost completely controlled both the clubhouse and the golf course. Therefore, we cannot accept Dornfeld’s argument that it is an agent of the city, and hold that the immunity granted to political subdivisions cannot apply to the company.

II.

As an alternative argument to recreational-use immunity, the city claims that the district court should have granted summary judgment based on the discretionary immunity afforded municipalities under Minn.Stat. § 466.03, subd. 6. It claims that the failure to provide maintenance to the stairs at issue was part of an overall policy that weighed the urgency of the repair in light of the city’s limited financial resources. Though the city argues at length that its failure to repair the stairs is protected by discretionary immunity, it completely fails to address its potential liability for failure to warn.

By statute, a municipality generally is liable for its torts, but the municipality can assert immunity as to “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty.” Minn.Stat. §§ 466.02, 466.03, subd. 6 (2002). For immunity purposes, discretionary acts are planning-level actions that require evaluating such factors as the financial, political, economic, and social effects of a given plan. Holmquist v. State, 425 N.W.2d 230, 232 (Minn.1988). Operational-level decisions, in contrast, are those actions involving the ordinary, day-to-day operations of the government and do not receive immunity. Id. To determine whether discretionary immunity applies, the courts must “identify the precise government conduct being challenged.” Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn.1988).

Here, the city provides ample reasons why discretionary immunity should apply to its failure to repair or replace the metal nosing prior to the accident. The city is responsible for maintaining some 300 sites. And due to the city’s limited budget, it cannot respond to every maintenance request and must prioritize its projects accordingly. It therefore developed its so-called “reaction-based” policy, giving higher priority to “work orders that are an immediate hazard and those items for which the cost of delay is deemed excessive,” and giving low priority to those conditions that “are still functional, but could be improved.”

It seems likely from the record, therefore, that in delaying repair of the stairs, the city conducted “the evaluation and weighing of social, political, and economic considerations underlying public policy decisions” that invoke discretionary immunity. Holmquist, 425 N.W.2d at 233. It considered the stairs “low priority” because they were not in a state of disrepair and the city had received no specific work order on the stairs prior to Unzen’s fall. And even if the city’s prioritization were incorrect, the statute provides immunity to the city whether or not its discretion was abused. Minn.Stat. § 466.03, subd. 6; Nguyen v. Nguyen, 565 N.W.2d 721, 722-23 (Minn.App.1997).

Notwithstanding this immunity for failure to repair, nothing in the record suggests that the same public policy considerations were made in failing to warn its invitees about the condition of the steps. In fact, the city does not even address Unzen’s failure to warn argument at all in its discretionary immunity analysis. Our case law has made clear that the burden is on the municipality to “produce evidence [that] its conduct was of a policy-making nature.” Zank v. Larson, 552 N.W.2d 719, 721 (Minn.1996) (quoting Steinke v. City of Andover, 525 N.W.2d 173,175 (Minn.1994)).

Here, the record reflects that the city employees have known about the stairs’ potential hazard for years. Despite this knowledge, no signs or other warnings were provided to the public concerning the stairs’ condition.

When a known danger may be corrected through relatively inexpensive remedies, such as warning signs, it may not be necessary for the municipality to make any policy decisions regarding the allocation of resources. Nguyen, 565 N.W.2d at 724. When no policy decisions are made, this action or inaction is an “operational-level” decision that does not receive immunity. Id. at 723. Because the city has failed to show that its failure to warn was policy-based, the district court properly ruled that discretionary immunity may not be applied.

DECISION

Because neither appellant is entitled to recreational-use immunity under the circumstances of this case, and given that a municipality may not claim discretionary immunity without evidence of policy-based decision-making, we affirm the district court’s denial of summary judgment.

Affirmed.

      . The district court held that the trespasser standard of care also applied to statutory discretionary immunity. This conclusion is erroneous; the statute is silent as to standard of care, and therefore the invitee/licensee standard of care applies under these circumstances. See Minn.Stat. § 466.03, subd. 6.


author: KAPSNER, Justice.

text:
    2004 ND 144
    STATE of North Dakota, Plaintiff and Appellee, v. Michael Ray SIMS, Defendant and Appellant. Michael Ray Sims, Plaintiff and Appellant, v. State of North Dakota, Defendant and Appellee.
    Nos. 20030150, 20040036.
    Supreme Court of North Dakota.
    July 6, 2004.
    Todd A. Schwarz (on brief), Bismarck, ND, for appellant.
    Michael Ray Sims (on brief), pro se, appellant.
    Allen M. Koppy (on briefs), State’s Attorney, NW, Mandan, ND, for appellee.
   KAPSNER, Justice.

[¶ 1] Michael Sims appeals from two district court judgments. The first appeal is from a criminal judgment. The second appeal is from a district court judgment that denied Sims’ request for post-conviction relief. Sims requested the Court to stay the criminal appeal pending post-conviction relief. The two appeals were consolidated. We affirm.

I.

[¶ 2] On January 14, 2003, Sims pleaded guilty to theft of property, a class C felony. On April 11, 2003, Sims was sentenced to five years with four years suspended for five years from the date of release from incarceration. Sims argues he pleaded guilty to the charge because he was assured by his attorney he would be eligible for work release while incarcerated at the Morton County Correctional Center.

[¶ 3] After Sims’ incarceration in the Morton County Correctional Center, he discovered he was not eligible for work release because he was convicted of a felony. The guidelines governing work release are implemented and enforced by the Morton County Sheriff and preclude a person convicted of a felony from being eligible for work release. Sims asserts he would not have pleaded guilty to the charge if he had been made aware by either his attorney or the State that he was ineligible for work release under the rules of the Morton County Correctional Center. Sims sought amendment of the sentence in his brief on appeal from the criminal judgment, which was filed pro se. Sims sought reversal of the judgment in his brief on appeal from the denial of his post-conviction relief, which was filed by counsel.

[¶ 4] On June 5, 2003, Sims made a motion to modify his sentence. The district court denied the motion on June 11, 2003. On July 18, 2003, Sims moved the district court for post-conviction relief pursuant to N.D.C.C. § 29-32.1-01(1) and a hearing was held on October 16, 2003.

[¶ 5] In his application for post-conviction relief, Sims argued the categorical denial of his eligibility for work release was new evidence not available at the time of sentencing. The district court denied post-conviction relief on October 27, 2003, and denied a request to reconsider on December 18, 2003. Sims appealed the district court denial of post-conviction relief on January 22, 2004. Sims appealed the original district court criminal judgment entered on April 11, 2003, on May 29, 2003, pursuant to a time extension granted by the district court. The appeals were consolidated at this Court.

II.

[¶ 6] The issue argued by Sims in this appeal is “whether the trial court improperly delegated its determination of eligibility for work release to the Morton County Sheriff when imposing the sentence upon Defendant Michael Sims.” Sims argues the district court improperly delegated its sentencing authority to a nonjudicial officer, the Morton County Sheriff.

[¶ 7] In its criminal judgment, the district court stated, “[t]he defendant shall be eligible for work release during his actual incarceration pursuant to the rules and regulations of the jail administrator of the Morton County Correctional Center.” Sims argues the district court’s delegation to set guidelines as to which inmates qualify for work release was improper. We disagree.

[¶ 8] The ability of correctional facilities in North Dakota to establish guidelines for work release programs is governed by statute. The applicable statute provides:

A correctional facility may provide for a work release program for inmates unless the court has ordered that an inmate may not receive work release. Work release projects may include public service and community service projects, and may utilize any particular skill or trade of participating inmates. The correctional facility shall take measures to maintain correctional facility security and safety and to protect the safety of the public.

N.D.C.C. § 12-44.1-18.1.

[¶ 9] The statute provides correctional facilities with the power to determine measures which will maintain public safety and security. To maintain safety and security, correctional facilities may determine which categories of inmates qualify for work release. The Morton County-Correctional Center maintains a written policy that prohibits felons from participating in the work release program. Sims did not qualify for work release under the terms of the policy because he pleaded guilty to theft of property, a class C felony.

[¶ 10] Sims’ failure to qualify for the Morton County work release program was not an unauthorized delegation of authority by the district court. The district court expressly considered the possibility Sims might not qualify for the program and confirmed the sentence. The record reflects Sims was warned by the district court at his sentencing he might not qualify for the work release program and his failure would not affect his sentence.

[¶ 11] Sims analogizes the sheriffs denial of Sims’ ability to participate in the work release program to State v. Nelson, 417 N.W.2d 814 (N.D.1987). In Nelson, the district court required the defendant to undergo an alcohol evaluation. As a part of Nelson’s sentence, he was required to follow treatment prescribed by an addiction counselor. Nelson, at 817. This Court held it was improper for the district court to delegate its authority to sentence Nelson to an addiction evaluator. Id. Following Nelson, it is appropriáte for district courts to accept and follow recommendations from addiction counselors regarding treatments; however, district courts may not leave a sentence blank for a counselor or evaluator to prescribe at a later date.

[¶ 12] This case is distinguishable from the situation in Nelson. The district court sentenced Sims to five years with four years suspended. The district court specifically provided Sims would only be eligible for work release if he qualified according to Morton County Correctional Center’s rules and guidelines. At the time of the sentencing hearing, the district court stated:

The defendant will be sentenced to five years at the North Dakota Department of Corrections, four years will be suspended for a period of five years. You will serve the one year at the Morton County Correctional Center with work release if that’s approved by the Morton County Sheriff and to the extent approved by the sheriff. If there is no work release, I guess then he sits in the jail. ,

The district court did not delegate its sentencing authority to the Morton County Sheriff or other unauthorized non-judicial officer. The district court followed proper procedure when it sentenced Sims and provided the possibility of work release in accordance with N.D.C.C. § 12-44.1-18.1.

[¶ 13] The district court judgments are affirmed.

[¶ 14] GERALD W. VANDE WALLE, C.J., EVERETT NELS OLSON, S.J., MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

[¶ 15] The Honorable EVERETT NELS OLSON, S. J., sitting in place of SANDSTROM, J., disqualified.

      . The attorney for Sims on appeal also represented Sims at the district court level.