author: AMUNDSON, Judge. G. BARRY ANDERSON, Judge

text:
    Janice FUNCHESS, Trustee for the Heirs of J.W. HAYNES, decedent, Appellant, v. CECIL NEWMAN CORPORATION, et al., Respondents.
    No. C8-00-90.
    Court of Appeals of Minnesota.
    Aug. 8, 2000.
    Review Granted Oct. 17, 2000.

      John O. Murrin, III, Christopher A. La-Nave, Murrin Law Firm, Edina, for appellant.
    William F. Mohrman, Mohrman & Kaar-dal, P.A., Minneapolis, for respondents.
    Considered and decided by AMUNDSON, Presiding Judge, CRIPPEN, Judge, and ANDERSON, Judge.
   OPINION

AMUNDSON, Judge.

After third parties entered an apartment and killed a tenant, the tenant’s wrongful death trustee sued the landlord, alleging the landlord’s negligence contributed to the tenant’s death. The landlord moved for summary judgment, and the district court granted the motion. Tenant’s trustee appeals, alleging that (a) a Minneapolis housing ordinance required the landlord to repair the door to the apartment; (b) regardless of the duty imposed by the Minneapolis Housing ordinance, the landlord had an independent duty to make sure that the apartment was secure; and (c) the lease required the landlord to repair the door.

FACTS

On May 12, 1995, J.W. Haynes was murdered in his apartment. Intruders gained access to the apartment building without using force and subsequently entered the apartment he shared with his girlfriend and their son. Haynes’ mother, appellant Janice Funchess, commenced a wrongful-death action against respondent Cecil Newman Corporation (Newman), owner of Haynes’ apartment building. Funchess alleged that the assailants were able to gain entrance to the building through a security door that had a broken lock. The district court granted summary judgment, finding that Newman owed no duty to Haynes. This appeal followed.

ISSUES

I. Was respondent obligated to protect decedent from the criminal acts of third parties?

II. Did respondent owe the decedent a statutory duty of care to maintain door locks in working condition? If so, were sufficient questions of material fact raised, rendering the district court’s grant of summary judgment erroneous?

III. Is the intervening cause of a criminal act sufficiently foreseeable, so as to maintain the chain of causation?

IV. Did respondent have a contractual duty to maintain the door locks in working condition?

V. Should appellant’s motion to strike portions of respondent’s brief be granted?

ANALYSIS

Summary judgment may be granted when there is no genuine issue of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. To prevail on a negligence claim, a plaintiff must show: (1) the existence of a duty; (2) breach of that duty; (3) that the breach proximately caused the injury; and (4) injury in fact. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn.1982). The existence of a legal duty may be imposed by either the common law or a statute, Steffey v. Soo Line R.R., 498 N.W.2d 304, 307 (Minn.App.1993), review denied (Minn. May 28, 1993), and is a question of law for the court to determine. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985). But the determination of .whether a duty has been breached is generally within the province of the jury. Smith v. Carriere, 316 N.W.2d 574, 575 (Minn.1982).

I. Common Law Duty and Special Relationship Exception

This appeal centers on what duty, if any, Newman owed Haynes. The district court granted summary judgment because it determined that Newman had no duty to protect Haynes. Specifically, the court concluded that no special relationship existed between Newman and Haynes that would give rise to a duty to protect.

Holding a landlord liable for the intentional criminal acts of a third party is a modern development, representing , a change from the common law. See Errico v. Southland Corp., 509 N.W.2d 585, 587 (Minn.App.1993) (generally, a person “has no duty to control the conduct of a third person in order to prevent that person from causing injury to another”), review denied (Minn. Jan. 27, 1994); see also Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn.1995) (a person generally has no duty to act for the protection of another, even if he or she realizes or should realize that action is necessary).

A landlord-tenant relationship, standing alone, is not sufficient to give rise to the duty to protect. See Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 156-57 (Minn.App.1993) (failing to find landlord liable where apartment complex neither exposed tenants to greater risks, nor presented a unique opportunity for criminals and criminal activity), review denied (Minn. July 15, 1993). But a party may owe such a duty where a special relationship exists between that party and another that gives the other the right to protection. Errico, 509 N.W.2d at 587. When a special relationship exists, a party has the duty to take reasonable precautions against foreseeable criminal acts of third parties. Id. The rationale running through special relationships is that one party relinquishes part of its autonomy, or the ability to control the environment, in favor of another, usually dominant, party. See id. (special relationships exist when one entrusts her safety to another and the other accepts that entrustment). The imposition of liability on the dominant party not only redresses the imbalance of power, but places the precautionary burden more directly on such party. Id.

Historically, this principle did not apply to a typical landlord-tenant relationship. In pre-industrial-age leases, tenants did not usually relinquish their autonomy or their ability to control their surroundings. A typical tenant had full control over the land, including its own actions on the land. Thus, these relationships were properly excluded from the special relationships. Changes in society have caused modern leases to differ materially from those in the past. The hotel-and-guest relationship was one of the first to be considered special. Courts extended the special relationship to hotels because the reasons for the rule were acutely present; guests had no autonomy or ability to control their surroundings. Likewise, tenants in apartment buildings, whose'leases are often of short duration, cannot be expected to secure common areas of the building by individually making the necessary expenditures, for example, to install and maintain locks on outside entrances. See Tedder v. Raskin, 728 S.W.2d 343, 348 (Tenn.App.1987) (landlord may be liable for injuries to tenants from third-party crimes on the premises because landlord is in far superi- or position to take necessary steps to secure premises).

When Haynes signed the lease, he relinquished to Newman exclusive control over building security, the building’s security devices, and the areas outside his apartment unit. These factors are sufficient to create the existence of a special relationship as the logical extrapolation of the existing common law governing the special-relationship between innkeeper and guest. See generally Boone v. Martinez, 567 N.W.2d 508, 510 (Minn.1997) (discussing innkeeper liability in the context of a tavern’s duty to maintain safety and order for protection of its patrons). Because the special relationship exception applies, Newman had the duty to use reasonable care to prevent foreseeable criminal acts of third parties. Newman may have breached this duty if it took no action to remedy the defective lock, a genuine issue of a material fact.

But even if Newman had no duty to protect Haynes by providing reasonable security measures, it did have a duty to maintain the security measures already undertaken for the protection of its tenants. Specifically, by providing a secured back door to the building, Newman assumed the duty to maintain the locking mechanism on that door. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn.1979) (finding municipality’s duty of care with regard to fire code violations when municipality assumes to act for the protection of others, as distinguished from acting merely for itself when it inspects property for fire-code violations); see also State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 493 (Minn.1996) (“[Ojne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.”).

Where a person or entity voluntarily assumes a duty, then that duty must be exercised with reasonable care and the failure to so act may result in liability. Nickelson v. Mall of Am. Co., 593 N.W.2d 723, 726 (Minn.App.1999). We conclude that Newman had a duty to maintain the security locking mechanism on the apartment building’s back door. The parties dispute whether, in fact, the locking mechanism was working properly at the time of Haynes’ murder. This, of course, is another unresolved genuine issue of material fact. Not recognizing this, the district court again erred in granting summary judgment to Newman.

II. Statutory Duty

Funchess also, argues that Newman’s duty arose by statute. The difference between a statutorily imposed duty and a duty arising under common law is that the duty imposed by statute is fixed. Zerby v. Warren, 297 Minn. 134, 139, 210 N.W.2d 58, 62 (1973). If an ordinance imposes a duty and one neglects to perform that duty, then he or she is “liable to those for whose protection the statute was enacted for any damages resulting proximately from such * * * neglect.” Henderson v. Bjork Monument Co., 222 Minn. 241, 245, 24 N.W.2d 42, 45 (1946) (citation omitted). A breach of this nature generally constitutes conclusive evidence of negligence, or negligence per se. Zerby, 297 Minn. at 139, 210 N.W.2d at 62. Minneapolis, Minn., Code of Ordinances § 244.675 (1998), requires that all doorways leading to the exterior or entry of a multiple dwelling, such as the apartment building in question, “be secured by a locking device * * * that will engage and lock automatically when the door is in the closed position within the frame provided.” The ordinance also mandates that “[a]ll locking devices required by this section shall be kept in a professional state of maintenance and repair.” Id.

The parties dispute whether the locking mechanism on the back door was broken. Funchess presented the affidavit of Angela Bennett, who stated that on the day of the murder, she was able to enter the apartment through the back door without using a key, although nothing was propping the door open and no one opened the door for her. Newman, on the other hand, introduced an affidavit from Randy Gott, stating that tenants often thwarted the locking mechanism on the back door by propping the door open. Additionally, Gott’s affidavit asserted it was not uncommon for people to be buzzed into the building by other tenants.

Considering the ordinance-im--posed duty to maintain the locking mechanism on the back door, the district court’s grant of summary judgment was premature. Determinations regarding breach and causation — that is, whether the lock in this case was actually broken- — generally present questions of fact properly determined by a jury. See Smith, 316 N.W.2d at 575 (breach); Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn.1995) (causation). When reasonable minds could reach only one conclusion, the existence of proximate cause is, of course, a question of law. Lubbers, 539 N.W.2d at 402. But there must also be a showing that the defendant’s conduct “was a substantial factor in bringing about the injury.” Flom v. Flom, 291 N.W.2d 914, 917 (Minn.1980).

Here, Newman owed a duty to Haynes to keep the back-door lock working properly. Assuming, for purposes of this appeal, that Newman breached this duty by allowing the back-door lock to remain in a state of disrepair, it cannot be said that Newman would have no reason to anticipate that breach of this duty would result in injury to its tenants. The parties disagree whether the alleged breach of this duty was a substantial factor in bringing about Haynes’ death, or whether Haynes himself was responsible by allowing his assailants access into the building. More than one conclusion as to the causes of Haynes’ death can be reached, and because reasonable minds could differ on the issue of causation, summary judgment in-favor of Newman should not have been granted.

III. Intervening Cause

A theoretical problem results when the actual harm is caused by a force other than tfyat initiated by the negligent actor. These forces may supercede the original actor’s liability. See Pearson v. Henkemeyer, 503 N.W.2d 504, 507 (Minn.App.1993) (generally, a third party’s criminal act “breaks the causation chain” unless the criminal act “is reasonably foreseeable”), review denied (Minn. Sept. 30, 1993). An intervening cause is one that comes about after the negligent act. It must come between the negligent act of the actor and the resulting harm, shifting the responsibility for the harm to the intervening act. If the actual harm is caused by an intervening act, the negligent actor is absolved from liability. See Restatement (Second) of Torts § 448 (1965).

But where the occurrence of the intervening act is reasonably foreseeable, the chain of causation will not be broken. Id. In this ease, the assault is entirely foreseeable under the totality of the circumstances. A lock is intended to prevent crimes against people and property within the area it secures. If the lock is ineffective, a crime is a foreseeable result. This is especially the case where, as here, the building is located in an area notorious for criminal activity. When a landlord beaches-his duty to maintain a lock, the landlord may be held hable for the foreseeable result — in this case, a violent assault resulting in death.

IV. Lease As Contract

A lease is one form of contract. Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 704 (Minn.1999). As such, the parties can insert almost any provision they choose. Here, the lease required the landlord to “maintain the common areas and facilities in safe condition * * * [and] make necessary repairs with reasonable promptness.” Where contract language is unambiguous, we will give it its plain and ordinary meaning. Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn.1993). A reasonable construction of the lease requires Newman to maintain the locks on the building doors in working condition and to repair them promptly if they are not locking properly. A question of fact exists as to whether Newman breached its contractual duty to keep the back-door lock in working condition. Thus, the district court’s grant of summary judgment to Newman was premature.

V. Motion to Strike

Appellant requests that this court strike portions of respondent’s brief that rely on alleged hearsay statements given by Newman’s security guard. See Walker v. Wayne County, Iowa, 850 F.2d 433, 434 (8th Cir.1988) (in a summary judgment proceeding, only evidence admissible or usable at trial should be considered). But we need not consider the security guard’s reports of alleged comments made by residents of the apartment in determining whether sufficient facts are in dispute to render summary judgment improper. Because we find the objected-to portions of Newman’s brief irrelevant to our decision, we deny appellant’s motion to strike.

DECISION

Newman owed the decedent a common-law- duty, a statutory duty, and a contractual duty to maintain the security locking mechanism on the back door of the apartment building in working condition. These duties were not abrogated by the foreseeable criminal acts of a third party. Because genuine issues of material fact exists with, regard to the security door’s condition and causation, we reverse the district court’s grant of summary judgment and remand for further proceedings.

Reversed and remanded; motion denied.

G. BARRY ANDERSON, Judge

(dissenting).

I respectfully dissent.

I believe the majority opinion in this case represents an extension of a very narrow exception that Minnesota courts have applied to negligence claims.

Historically, Minnesota courts have rejected negligence actions against a property owner for injuries to a tenant caused by the criminal activities of .another, usually finding that the property owner had no duty to protect the tenant. Spitzak v. Hylands, 500 N.W.2d 154 (Minn.App.1993); H.B. v. Whittemore, 552 N.W.2d 705, 709, 710 (Minn.1996) (no special relationship existed to impose a duty on a trailer-park manager to protect children from another resident even though the manager knew the resident , had a prior conviction for child molestation).

The exception expanded by the majority here provides that a duty may exist “if there is a special relationship between the parties and * * * the risk of harm is foreseeable.” N.W. v. Andersonj 478 N.W.2d 542, 544 (Minn.App.1991). That- case warned, however, that .the supreme court has developed “a rather rigid standard” and specifically went on to note that the standard applied only when “specific threats are made against specific victims.” Id. at 544.

There is no evidence in this case that the relationship between the decedent and the respondents was in any way special. At the end of the day this relationship was nothing more than an ordinary and routine landlord/tenant business transaction. If a special relationship exists here, under these facts, it is difficult to determine when a special relationship in any other ordinary landlord/tenant business transaction would not exist. Indeed, the principles enunciated here represent a worrisome expansion of landlord liability.

As to the alleged violation of the Minneapolis housing ordinance, because the issue was not raised at the district court it was waived and thus it need not be addressed by this court. Thiele v. Stick, 425 N.W.2d 580 (Minn.1988). But even if the principle in Thiele is not applied here and the merits of the claim are reached, the Minnesota Supreme Court has made clear in Bills v. Willow Run I Apartments, 547 N.W.2d 693, 695 (Minn.1996), that the principles of negligence per se do not apply unless the owner knew of the code violation and, among other things, failed to take reasonable steps to remedy the violation. There is little, if any, evidence in the record establishing either notice to the landlord or failure to cure by the landlord.

Ultimately, every crime is, to a greater or lesser extent, “foreseeable.” The Minnesota Supreme Court has, succinctly and thoroughly, addressed the difficulty of foreseeability in the context of criminal acts of third parties by noting:

The question whether a private party must provide protection for another is not solved merely by recourse to “foreseeability”. Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide “police” protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by private arms of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.
* * *
How can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath, the psychotic?

Pietila v. Congdon, 362 N.W.2d 328 (Minn.1985) (claim that private-property owner is liable in negligence for injuries suffered by a guest as a result of criminal attack [murder] ).

Under the facts of this case, there is no foreseeability, and thus no negligence, on the part of the landlord.

Finally, I would sustain the judgment of the district court simply because the plaintiff, under any legal theory, cannot establish causation. There isn’t a shred of evidence anywhere in the record demonstrating how the murderers entered the building and appellant addresses this issue only by way of an affidavit in which it is noted that the murderers “must have” entered the building through the back door. There is no particular reason to believe this as there are no eye witnesses to the entrance of the murderers onto the property, no documentary or visual entrance that the murderers entered through the back door and, indeed, there isn’t even any sign of forcible entry into the decedent’s apartment. Even assuming the highly dubious existence of a duty and a breach of duty, plaintiffs must still demonstrate a causal connection between the breach and injury and this they have not done. The district court should be affirmed on the basis of causation alone,

I would affirm the grant of summary judgment rendered by the district court,

      . Liability can be imposed on landlords for the criminal acts of third parties in certain situations. See Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn.1989) (under the special relationship doctrine, owner and operator of commercial parking ramp facility owed a duty to provide adequate security to its customers to deter criminal activity in the parking ramp); Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 913-15 (Minn. 1983) (where resident manager with criminal history entered tenant's apartment using a master key and raped tenant, liability imposed based on negligent hiring); Vermes v. American Dist. Tel. Co., 312 Minn. 33, 41, 251 N.W.2d 101, 105 (1977) (liability imposed based on landlord's failure to make lessee aware of facts tending to make the premises insecure for lessee’s jewelry business).


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    In re the Marriage of Paul W. CHAMBERLAIN, petitioner, Appellant, v. Mary Lou CHAMBERLAIN, Respondent.
    Nos. C5-99-1934, C9-00-115.
    Court of Appeals of Minnesota.
    Aug. 8, 2000.

      Becky Toevs Rooney, Minneapolis, for appellant.
    Jerrold F. Bergfalk and Sandra Suzanne Smalley, Lindquist & Vennum, Minneapolis, for respondent.
    Considered and decided by AMUNDSON, Presiding Judge, CRIPPEN, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant and respondent challenge various district court orders arising from their dissolution proceedings. We affirm those orders with respect to the nonmarital character of respondent’s townhouse proceeds and her share of appellant’s income-tax liability. We do not reach appellant’s claim that the homestead equity is a non-marital asset because that issue is not properly before us. We also affirm the district court’s award to respondent of marital property equal to the appreciation on appellant’s premarital contributions to his retirement plan. We affirm the award of permanent maintenance as to duration, but reverse as to the amount and remand for further proceedings. Finally, we deny respondent’s motion for attorney fees. Accordingly, we affirm in part, reverse in part, and remand.

FACTS

Appellant Paul W. Chamberlain and respondent Mary Lou Chamberlain, both now 50 years old, sought to end their 20-year marriage by a dissolution petition filed January 21, 1998. The parties have two sons, now ages 13 and 19. Both appellant and respondent have enjoyed successful careers. He is an attorney in solo practice, and her master’s degree has furthered her career as a second-grade teacher in a suburban school district. They earn about $200,000 and $63,000 per year, respectively. Appellant enjoyed increased, but out-of-the-ordinary, income totaling $335,000 in 1994 and $426,000 in 1996. Respondent has worked as a teacher since 1971, except for a five-year period following the birth of their first son.

To say that the parties experienced an affluent lifestyle is an understatement of the facts. The record contains references to: (1) the parties’ Lake Minnetonka home that sold in November 1999 for nearly $1.3 million (the parties have owned several homes, each on Lake Minnetonka); (2) numerous vacations, including biannual cruises, annual Hawaiian Christmas trips, and travel to ski destinations such as Vail, Colorado; (3) dining at expensive restaurants several times each week; (4) memberships at athletic and social clubs; (5) expensive designer and custom-made clothing; (6) luxury vehicles; and (7) frequent elective cosmetic surgeries.

At dissolution, the parties had approximately $900,000 in assets, exclusive of the anticipated homestead proceeds. A large percentage of these assets were in retirement accounts; only about twenty percent were easily converted to cash. Although the parties built equity in their home and retirement plans during their marriage, they also borrowed liberally and incurred considerable debt. The parties entered 1999 with more than $100,000 in consumer debt; that figure does not include the mortgage debt or the more than $100,000 in income-tax appellant owed for tax years 1997 and 1998.

The district court apportioned the parties’ assets and debt. As part of the property division, the district court ordered the sale of the Lake Minnetonka homestead and payment of unsecured debt with the proceeds. The parties stipulated, based on a neutral appraisal, that they expected the home to sell for $1 million. The district court ordered appellant to pay the mortgage on the home until the property sold.

After debt payments, the approximately $1.3 million in marital property was distributed nearly equally. The district court awarded respondent, as nonmarital property, the $35,000 proceeds from the sale of her premarital townhouse. The district court refused, however, to award appellant appreciation on his premarital Keogh-plan contributions as a nonmarital asset. The district court awarded respondent permanent maintenance of $2,400 per month.

After the April 1999 dissolution trial, the district court issued its findings of fact, conclusions of law, and order. Appellant and respondent both filed motions for amended findings of fact, conclusions of law, and new trial. Appellant raised many issues, but did not claim a nonmarital interest in any home equity built by mortgage payments he made before the homestead property sold. The district court disposed of the post-trial motions and, in August 1999, filed its amended findings of fact, conclusions of law, and judgment.

The parties dispute several aspects of the judgment. Appellant argues that the district court abused its discretion or erred by: (1) awarding respondent permanent maintenance; (2) failing to recognize the appreciation on his premarital Keogh-plan contributions as nonmarital property; and (3) characterizing respondent’s $35,000 townhouse-sale proceeds as nonmarital property. Respondent argues that the district court abused its discretion by requiring her to share appellant’s income-tax liability, and, on appeal, filed a motion for attorney fees.

Appellant filed his appeal in November 1999 and simultaneously moved the district court for, among other things, modification of maintenance based on the sale of the family homestead for far more than the stipulated value and reimbursement for the home equity built by post-valuation-date mortgage payments he made before the marital home sold in mid-November 1999. The district court, in a December 9, 1999, order, found itself without jurisdiction over the home-equity issue because it was not raised in appellant’s motion for new trial. The district court continued the maintenance issue pending the outcome of this appeal. Appellant filed an appeal from that order, which this court consolidated with his first appeal.

ISSUES

I. Did the district court abuse its discretion by awarding respondent permanent spousal maintenance?

II. Did the district court err in its determinations of whether property was marital or nonmarital?

III. Did the district court abuse its discretion by requiring both parties to share appellant’s income tax liability?

IV. Is respondent entitled to attorney fees on appeal?

ANALYSIS

I.

Appellant first claims that the district court abused its discretion by awarding appellant permanent maintenance of $2,400 per month. Appellant argues that respondent is not a suitable candidate for permanent maintenance because she has had, throughout the 20-year marriage, her own successful career as a teacher and presently earns the top salary in her profession — more than $63,000 annually. Appellant contends that because respondent does not need rehabilitation to become self-sufficient, and has significant financial resources available to her, she is not in need of maintenance, let alone permanent maintenance. Our standard of review from the district court’s determination of the maintenance award is whether the district court abused its wide discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982). We will not find an abuse of discretion absent “a clearly erroneous conclusion that is against logic and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984).

Spousal maintenance is an award of “payments from the future income or earnings of one spouse for the support and maintenance of the other.” Minn.Stat. § 518.54, subd. 3 (1998). Maintenance may be granted if the spouse seeking maintenance demonstrates that he or she:

(a) lacks, sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or
(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Minn.Stat. § 518.552, subd. 1 (1998).

When determining the amount and duration of maintenance, district courts must consider all relevant factors, including factors that address the financial resources of the spouse seeking maintenance to provide for his or her needs independently, the time necessary to acquire education to find appropriate employment, the age and health of the recipient spouse, the standard of living established during the marriage, the length of the marriage, the contribution and economic sacrifices of a homemaker, and the resources of the spouse from whom maintenance is sought. Minn.Stat. § 518.552, subd. 2(a)-(h) (1998). In the questionable case, the statute directs that the district court order permanent maintenance, leaving the order open for later modification. Minn.Stat. § 518.552, subd. 3 (1998). Maintenance-related findings of fact are not set aside unless clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn.App.1989).

The district court found that the parties’ standard of living reflected a lifestyle that was beyond their means and reduced or eliminated some of respondent’s claimed reasonable expenses, such as elective surgery and dining at high-priced restaurants. And, rather than compute respondent’s mortgage expense at the marital mortgage expense of $5,400, the district court set $2,000 as respondent’s reasonable mortgage expense. Despite these reductions, the district court, in a detailed and thoughtful review of the evidence, determined that the facts supported a permanent maintenance award.

The district court explained,

[t]he simple fact of the matter is that Respondent needs spousal maintenance in order [to] duplicate a standard of living that already represents a substantial reduction from the standard of living born of deficit spending.

Considering the marital standard of living that would have been within the parties’ means, the district court found respondent’s and her unemaneipated son’s reasonable monthly expenses to be $6,627. Respondent’s monthly income of $3,046 and the $1,483 child-support award did not cover the reasonable expenses as determined by the district court. The district court found that appellant was able to pay monthly maintenance. Appellant’s monthly needs of $6,846 left nearly $6,000 of monthly after-tax income with which to support respondent and their youngest son. The district court awarded respondent permanent monthly maintenance of $2,400.

In order to properly understand the result reached by the district court here, and affirmed in part by this court, some historical perspective is helpful. In 1984, the then-existing maintenance statute was functionally read as disfavoring permanent maintenance; appellate decisions made the existence of an “exceptional case” a prerequisite for an award of permanent maintenance. See, e.g., McClelland v. McClelland, 359 N.W.2d 7, 10 (Minn.1984) (stating permanent maintenance awards “are to be restricted” to “exceptional cases” involving a dependent spouse with little likelihood of becoming self-sufficient). Here, appellant challenges the district court’s refusal to apply the “exceptional-case” standard for determining whether respondent’s maintenance award should be permanent.

Since McClelland, the maintenance statute has been amended several times. The history of those amendments, and the associated case law, is set out elsewhere and need not be discussed in detail here. See, e.g., Gales v. Gales, 553 N.W.2d 416, 418-20 (Minn.1996); Abuzzahab v. Abuzzahab, 359 N.W.2d 12, 16-18 (Wahl, J., dissenting). Here, we simply note that the 1985 amendments altered MinmStat. § 518.552, subds. 1, 2, to require a district court, when considering maintenance questions, to consider the parties’ marital standard of living. 1985 Minn. Laws ch. 266, § 2. We note that the marital standard of living is an important part of the analysis; it was inserted into the maintenance statute as a required consideration at not just one, but three, places. MinmStat. § 518.552, subds. 1(a), (b), 2(c). The 1985 amendments also added Minn.Stat. § 518.552, subd. 3, stating that when evaluation of the factors in MinmStat. § 518.552, subd. 2, produce uncertainty about the need for permanent maintenance, that uncertainty “shall” be resolved in favor of a permanent award left open for future modification. 1985 Minn. Laws ch. 266, § 2; see MinmStat. § 645.44, subd. 16 (1998) (stating “ ‘[s]hall’ is mandatory”). While appellant cites various decisions discussing the “exceptional-case” standard for permanent maintenance, most of those cases predate the statutory amendments. The purpose of the 1985 amendments was to eliminate the negative ■■presumption against permanent maintenance. See Nardini v. Nardini, 414 N.W.2d 184, 196-97 n. 10 (Minn.1987) (discussing legislative history of 1985 amendments). Thus, in light of those amendments, pre-1985 amendment cases are of limited value in construing and applying the amended statute, at. least with regard to the duration of a maintenance award.

Appellant also cites the portion of the post-amendment Gales opinion stating:

[0]ur family law jurisprudence establishes that, to consider an award of permanent maintenance, there must be an exceptional case such as the dissolution of a long-term traditional márriage in which there is an older, dependent spouse who has little likelihood of achieving self-sufficiency because of an absence from the labor market for a long period of time.

553 N.W.2d at 421.

One year following release of the Gales decision, apparently fearing misinterpretation of the “exceptional-case” language of Gales, the supreme court made clear that the holding in Gales should not be taken out of context because

Gales did not change the law, but instead applied the criteria of Minn.Stat. § 518.552, subd. 2 to the record. We take this opportunity to remind counsel that each marital dissolution proceeding is unique and centers upon the individualized facts and circumstances of the parties and that, accordingly, it is unwise to view any marital dissolution decision as enunciating an immutable rule of law applicable in any other proceeding.

Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn.1997).

Thus, while Dobrin dispels any suggestion that Gales resurrected McClelland’s “exceptional-case” standard for awarding permanent maintenance, Dobrin also makes clear that permanent maintenance awards are considered in light of the factors set forth in Minn.Stat. § 518.552 subd. 2.

Our analysis of the permanent maintenance issues in this appeal breaks down in to two parts: first, we consider whether the award of permanent maintenance is within the wide discretion given to .the district court. Appellant correctly notes that there are no appellate decisions in Minnesota affirming an award of permanent maintenance with a fact pattern similar to the present controversy. But the analysis does not stop with this observation. The district court correctly focused on the standard of living of the parties, a standard of living arrived at jointly' and experienced by the parties for many years, in determining that permanent maintenance was appropriate and made findings that appellant’s income was sufficient to support a permanent maintenance award. The district court correctly noted that the legislature could have excluded an affluent lifestyle as a consideration but chose not to do so. Indeed, a review of the legislative history reveals that the legislature amended the maintenance statute to expand the definition of “reasonable needs,” as well as “adequate self support” to include specifically a consideration of the standard of living established during the marriage. Minn.Stat. § 518.552, subd. 1 (1985).

What is at issue in this case, and what is unresolved by the statutory language and the decisions of the appellate courts of Minnesota, is whether the permanent-maintenance “factors” are equal in terms of the weight to be assigned to each or whether some should be more significant than others. See, e.g., Erlandson, 318 N.W.2d at 39 (remarking that “no single factor for determining the type or amount of maintenance is dispositive”). Appellant argues, with more than a little persuasive logic, that the district court judgment here determines, in effect, that standard of living is a “trump card” overruling other factors which in this case would normally not support an award of permanent maintenance. Respondent is in good health, 50 years old, at the top of her teaching career, did not play the role of a traditional homemaker for most of the marriage, needs no further education or rehabilitation, and does not suffer health problems that affect her ability to work. In addition, she received a substantial property award as a result of the dissolution.

But, to adopt appellant’s view of the law would essentially eliminate the statutorily required consideration of the marital standard of living from the maintenance analysis. See, e.g., Minn.Stat. § 645.16 (1998) (requiring laws to be construed, if possible, to give effect to “all” provisions and stating that “the letter of the law shall not be disregarded under the pretext of pursuing the spirit”).

It is our conclusion that, absent further direction from the legislature or the supreme court, the long-standing affluent lifestyle of the parties is an appropriate factor for the district court to consider, and given the court’s findings regarding appellant’s income and the wide discretion afforded the district court, we affirm the award of permanent maintenance in this case. While a different result is supportable, and we might have reached a different result, on this record we cannot say an award of permanent maintenance is an abuse of discretion.

We turn next to the second part of our analysis: the amount of maintenance awarded by the district court. Here, we do find an abuse of discretion and reverse and remand to the district court for further proceedings.

The district court properly discarded numerous examples of unreasonable spending claims that respondent sought to include as part of the alleged standard of living of the parties. Nonetheless, the district court used as its basis in arriving at a maintenance amount a claimed monthly housing allowance for respondent of $2,000, notwithstanding that respondent had at least $150,000 in equity to use as a down payment. The housing needs here are for two people, soon to be one person as the youngest child achieves the age of majority, and given the other assets awarded to respondent in the dissolution proceeding, permanent maintenance in the amount of $2,400 per month is excessive and an abuse of discretion.

Further, the homestead of the parties has now sold for approximately one-third more than anticipated and the effect of these additional proceeds will be, at a minimum, to nearly double the amount of monies available to respondent for down-payment purposes. While this record clearly supports a housing allowance as a component of a permanent-maintenance award, the amount of maintenance awarded by the district court is excessive and we reverse and remand.

II.

Appellant next contends that the district court erred by: (1) failing to recognize the appreciation of his premarital Keogh-plan contributions as a nonmari-tal asset; (2) recognizing respondent’s townhouse proceeds as nonmarital assets; and (3) failing to recognize some post-valuation home equity as appellant’s non-marital property. District courts have broad discretion over the division of marital property, and we will not disturb the division on appeal absent a clear abuse of discretion. Bogen v. Bogen, 261 N.W.2d 606, 609 (Minn.1977). WTiether property is marital or nonmarital is a question of law, but reviewing courts defer to the district court’s findings of fact unless they are clearly erroneous. Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn.1997). The party claiming a nonmarital interest in property must prove the necessary facts by a preponderance of the evidence. Campion v. Campion, 385 N.W.2d 1, 5 (Minn.App.1986).

“Marital property” includes, all property acquired during the marriage. Minn.Stat. § 518.54, subd. 5 (1998). “Non-marital property” includes all property acquired before marriage and the increase in value of that property. Minn.Stat. § 518.54, subds. 5(b), (c) (1998). Increases in the value of nonmarital property due to the “entrepreneurial decision-making” efforts of one or both spouses during the marriage are considered marital property. White v. White, 521 N.W.2d 874, 878 (Minn.App.1994); see also Nardini v. Nardini, 414 N.W.2d 184, 192 (Minn.1987).

But increases in value of non-marital property remain nonmarital if shown to be attributable “solely to market forces or conditions, such as simple appreciation in value of an asset.” White, 521 N.W.2d at 878. Upon dissolution, a spouse is entitled to receive the original nonmarital asset and any passive appreciation in value. Johnson v. Johnson, 388 N.W.2d 47, 49 (Minn.App.1986). Swick v. Swick offers the example of a painting, brought into the marriage by the wife as nonmarital property. 467 N.W.2d 328, 331 (Minn.App.1991) review denied (Minn. May 16, 1991). Over time, the painting appreciates in value, and that appreciation is not severable from the asset, so it remains nonmarital. Id. In contrast, income from an investment, such as income from active improvement or management of real property, is an asset acquired during the marriage and is marital property. Id.

A. Appellant’s Keogh Plan

Appellant claims a nonmarital interest in the appreciation on his premarital contributions to his Keogh retirement plan. Appellant’s retirement funds were invested in a Keogh plan administered by an investment advisor. Appellant’s premarital contributions to the plan totaled $8,656:94; appellant’s investment advisor calculated the appreciation on that amount to be $119,694.61.

The district court determined that the appreciation associated with appellant’s nonmarital contributions was marital property because appellant maintained control over the investments in the plan before and during the marriage through the investment advisor. As an alternative basis for the award, the district court noted the five years respondent was out of the labor market and the fact that respondent forfeited more than $100,000 in pension benefits that otherwise would have been earned had she been able to remain in the labor market during the time she maintained the family home. Because of the economic costs associated with respondent’s five-year absence from the labor market, the district court did not abuse its discretion by awarding respondent marital property in an amount corresponding to the appreciation on appellant’s premarital Keogh contributions. See Minn.Stat. § 518.58, subd. 1 (1998) (requiring just and-equitable property division); Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn.1979) (concluding court’s division of marital property need not be mathematically equal, but need only be just and equitable). Accordingly, we affirm the district court’s property division and we do not reach the issue of whether or not the district court correctly treated this asset as marital based on appellant’s alleged management of the funds.

B. Townhouse Proceeds

Appellant argues that the district court erred by awarding respondent, as nonmarital property, $85,000 earned from the sale of her premarital townhouse. Appellant does not dispute that respondent owned the townhouse, but contends that the $35,000 cannot be traced into any existing assets. The record contains a $35,000 check payable to respondent, which she testified represented the proceeds from the townhouse sale that were placed in an account administered by appellant’s investment advisor.

The district court found respondent’s testimony credible, and we have held credible testimony sufficient to prove a non-marital claim. See Danielson v. Danielson, 392 N.W.2d 570, 572 (Minn.App.1986); see also Doering v. Doering, 385 N.W.2d 387, 390-91 (Minn.App.1986) (district court is in the best position to determine credibility). Moreover, the district court granted appellant the same latitude in tracing his premarital home interests despite the absence of some documentation. The district court did not err in finding the $35,000 to be respondent’s nonmarital property.

C. Homestead Equity

Appellant asks this court to recognize and award him nonmarital homestead equity built by the mortgage payments he made after the valuation date, but before the Lake Minnetonka home was sold. Appellant did not raise this issue in his motion for new trial and amended findings, even though the district court’s original order set his mortgage-payment obligation. Because this issue was not raised in the motions for new trial, we are precluded from addressing it on appeal. See Lomen v. Lomen, 433 N.W.2d 142, 145 (Minn.App.1988) (issues not raised in motions for new trial may not be addressed by this court).

III.

Respondent argues that the district court abused its discretion by requiring her to share appellant’s income-tax liability. The district court reasoned that because the nonpayment of appellant’s income taxes gave respondent more discretionary income to spend, she ought to share the debt. Respondent hypothesizes that appellant stopped paying his income tax in 1998 once he “saw the dissolution occurring.”

The record does not support that conclusion, but instead shows that the parties typically paid taxes one or two years late. Additionally, further complicating respondent’s argument is her refusal to file joint tax returns for 1997 and 1998, which would have decreased the parties’ collective tax liability. Debts, like assets, are apportionable, and each division of property is considered in the light of the particular facts of that case. Lenzmeier v. Lenzmeier, 304 Minn. 568, 571, 231 N.W.2d 71, 74 (1975); Filkins v. Filkins, 347 N.W.2d 526, 528-29 (Minn.App.1984); see also Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn.App.1984) (holding that, in equity, the district court may apportion all the debt to one party even though the other party receives the benefit of payment). Appellant’s failure to pay taxes timely freed up cash that both parties spent. The district court did not abuse its discretion by ordering that respondent share the resulting debt.

IY.

Finally, respondent moves this court for attorney fees on appeal based on Minn.Stat. § 518.14 (1998), which permits an award if “necessary” to enable a party to contest a matter. A party seeking attorney fees must establish that he or she lacks the resources to pay the required fees and that the party against whom a fee award is sought has those resources. Id. After a careful review of the record, we conclude that respondent has sufficient resources to pay her own attorney fees and deny her motion.

DECISION

The district court did not abuse its broad discretion by determining that respondent is in need of permanent maintenance, but we reverse and remand as an abuse of discretion the district court’s determination that respondent needs monthly spousal maintenance of $2,400. The district court acted within its broad equitable discretion in awarding respondent marital property in an amount corresponding to appellant’s premarital Keogh-plan contributions. Additionally, the district court correctly held that respondent’s townhouse proceeds were her nonmarital property and properly required her to share appellant’s income-tax liability. Because appellant did not raise his nonmarital claim to homestead equity built by his mortgage payments in his motion for new trial, we decline to review it. Finally, we deny respondent’s motion for attorney fees.

Affirmed in part, reversed in part, and remanded; motion denied.

      . See, e.g., Arundel v. Arundel, 281 N.W.2d 663, 666-67 (Minn.1979) (affirming permanent award in the “exceptional case” of a 51-year-old wife, married 29 years, who had health problems and no vocational skills or independent resources); Abuzzahab, 359 N.W.2d at 14 (reversing award of permanent maintenance to wife, married over 20 years, finding she was capable of attaining self-sufficiency through employment); McClelland, 359 N.W.2d at 10-11 (reversing award of permanent spousal maintenance to wife, age 44, a homemaker during a 20-year marriage). We also note that appellant cites unpublished opinions of varying dates to support his argument. Unpublished opinions are of limited value in deciding an appeal. See Minn.Stat. § 480A.08, subd. 3(c) (1998) ("[ujnpublished opinions of the court of appeals are not prece-dential") (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn.App.1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that while persuasive, “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”).

      . Although the treatment of this nonmarital asset as marital by the district court based on the alleged active management of the account by appellant’s agent is troubling for several reasons, it,is not necessary to settle this question to affirm the treatment of this asset and, accordingly, we leave for another day the resolution of the active-management issue.


author: DORIS OHLSEN HUSPENI, Judge.

text:
    Jill EMANUEL, Relator, v. INDEPENDENT SCHOOL DISTRICT NO. 273, EDINA SCHOOL DISTRICT, Respondent.
    No. C0-00-147.
    Court of Appeals of Minnesota.
    Aug. 8, 2000.
    Review Denied Oct. 17, 2000.

      William F. Garber, Debra M. Corhouse, Education Minnesota, St. Paul, for relator.
    Paul C. Ratwik, Amy E. Mace, Ratwik, Roszak & Maloney, P.A., Minneapolis, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge, AMUNDSON, Judge, and HUSPENI, Judge.
   OPINION

DORIS OHLSEN HUSPENI, Judge.

Relator Jill Emanuel challenges by writ of certiorari the decision of the school board of Independent School District No. 273 to terminate her position with the district and its failure to offer her a continuing contract position. Because the school board’s interpretation of the law is not erroneous, we affirm.

FACTS

Relator Jill Emanuel was employed by Independent School District No. 273 (“the school district”) as a probationary teacher from 1979-81. Under then-existing law, she completed the statutory probationary period at the end of the 1980-81 school year and attained continuing contract status. Rather than accept a continuing contract with the school district, however, she submitted a letter of resignation and moved to another state. She made no reservation of a right to return to the school district.

In 1992, Emanuel returned to the area and began working as a casual substitute for the school district. In April 1998, she was hired as a long-term substitute for a teacher on medical leave. Emanuel continued in this position to the end of that school year, and returned as a long-term substitute in the same position for the 1998-99 and 1999-2000 school years. The permanent teacher remained on medical leave during this entire time.

In September 1999, Emanuel sought to clarify her contract status with the school district. The director of human resources acknowledged in a memorandum to Emanuel that she had completed her probationary period through her employment in 1979-81 and that the full year of substitute teaching in 1998-99 had completed any other required probationary period. The director noted that, were Emanuel offered and if she accepted a continuing contract position, she would have immediate continuing contract status, with no further probationary period.

The permanent teacher died on October 6, 1999. The school district advertised for applicants to fill the now-vacant permanent position. Emanuel applied for this and another position, but on November 30, 1999, she learned that she would not be hired. Her long-term substitute contract terminated on December 17, 1999, when the permanent hire assumed the position.

Emanuel sought a writ of certiorari, alleging that she had been wrongfully terminated and asking for a determination that she held a continuing contract with the school district. In a February 4, 2000 order, this court asked the parties to brief the issue of jurisdiction. After briefing, this court issued an order on March 8, 2000, concluding that Emanuel had petitioned the court in a timely fashion and that the writ of certiorari should proceed.

ISSUE

Did relator become a continuing contract teacher upon completing a probationary period and a full year of long-term substitute teaching, although not offered a continuing contract with the school district?

ANALYSIS

1. Continuing Contract Status

In applying the proper standard of review, this court must determine whether the school board’s action was fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law. Foesch v. Independent Sch. Dist. No. 646, 300 Minn. 478, 485, 223 N.W.2d 371, 375 (1974).

Emanuel alleges that the school district erroneously interpreted the law and in so doing denied her the due process rights to which she was entitled prior to her termination. She argues that because she successfully completed a probationary period in the school district in 1981, she became a continuing contract teacher upon her hire as a long-term substitute in 1998. Alternatively, she argues that after completing a full year as a long-term substitute, she attained continuing contract status under Minn.Stat. § 122A.44 (1998). Our review of the record and the applicable statutes convinces us that neither of Emanuel’s theories has merit.

In 1981, teachers were granted continuing contract status after completion of a probationary period of two years of teaching in a single school district. Minn.Stat. § 125.12, subds. 3, 4 (1980). Emanuel completed her probationary period, but resigned and left the state prior to accepting a continuing contract with the district; she expressed no intention to return. A written resignation by a teacher terminates a continuing contract. Minn.Stat. § 125.12, subd. 4 (1980). The current statute, Minn. Stat. § 122A.40, subd. 7 (1998), contains substantially identical language.

Emanuel’s hire as a long-term substitute occurred almost 17 years after her resignation. Under current law, a probationary period of one year is required in each subsequent district where a teacher who has completed a three-year probationary period is employed. Minn.Stat. § 122A.40, subd. 5 (1998). A preliminary, nondeterminative question is whether Emanuel was required to fulfill the additional one-year probationary period under the statute, despite the fact that she taught in the same school district in both the 1980-81 and the 1998-99 periods.

The requirement of an additional year of probation in subsequent school districts undoubtedly allows the new district an opportunity to evaluate the skills of the teacher before committing itself to a continuing contract. 'It is reasonable to apply this rationale to Emanuel. After an absence of 17 years, the school district should be allowed to evaluate the skills of a teacher candidate before committing to a continuing contract, particularly when it has had no prior continuing contract with her. The facts of this case are distinguishable from those where the teacher returned after an absence, but had worked' under a continuing contract with the school district and had made a reservation of the right to return. See, e.g., Lucio v. Independent Sch. Dist. No. 625, 574 N.W.2d 737, 738-39, 742 (Minn.App.1998) (teacher with 15 years of experience with district did not explicitly waive tenure rights by failing to return after leave of absence), review denied (Minn. Apr. 30, 1998); Mohn v. Independent Sch. Dist. No. 697, 471 N.W.2d 723, 727 (Minn.App.1991) (former tenured principal successfully reserved tenure rights to principal position, despite resignation from teacher position), review denied (Minn. Aug. 29,1991):

In the case of a substitute teacher, each full school year during which the teacher is employed by a district [as a long-term substitute] shall be deemed one year of the teacher’s probationary period of employment pursuant to * * * section 122A.40, subdivision 5 * * *. The teacher shall be eligible for continuing contract status pursuant to section 122A.40 * * * after completion of the ■applicable probationary period.

Minn.Stat. § 122A.44, subd. 2(b) (1998). Thus, assuming for the sake of further analysis that Emanuel was required to complete an additional one-year probationary period, there is no doubt that after substituting for the entire 1998-99 school year, she had met the probationary requirements of Minn.Stat. § 122A.40, subd. 5.

The question remains, however: is there a difference between being eligible for continuing contract status and attaining that status? We note initially that the purpose of the tenure act is

[to provide] stability, certainty, and permanency of employment on the part of those who had shown by educational attainment and by probationary trial their fitness for the teaching profession.

McSherry v. City of St. Paul, 202 Minn. 102, 108, 277 N.W. 541, 544 (1938). Balanced against this purpose is the “need to allow the school board enough latitude to administer effectively the operation of the public schools.” Hudson v. Independent Sch. Dist. No. 77, 258 N.W.2d 594, 597 (Minn.1977).

Although no case has directly interpreted the meaning of “eligible” in Minn.Stat. § 122A.44, subd. 2(b), Hudson provides insight. In Hudson, a teacher previously tenured in one district moved to a second district, where she worked as a long-term substitute for more than two years, covering two medical leaves. Id. at 595. After being offered a third year of long-term substitute work, she sought to clarify her contract status. Although the issue before the court was interpretation of Minn.Stat. § 123.35, subd. 5 (1976) (now Minn.Stat. § 122A.44, subd. 2(b) (1998)), to determine whether a substitute could be hired for longer than a one-year period, the court concluded that a substitute could be hired for more than one year to replace teachers on leave and could be so hired without acquiring continuing contract status. Id. at 597. The court noted that the board needed to maintain flexibility, which it could not do if it ran into tenure requirements when filling a temporary vacancy. Id.

In Minneapolis Federation of Teachers v. Minneapolis Special Sch. Dist. No. 1, 270 N.W.2d 773, 775-76 (Minn.1978), a case decided shortly after Hudson, a teacher had worked as a long-term substitute, followed by two years as a regular probationary teacher. The court concluded that the three-year probationary period had been completed and the teacher had continuing contract status. Id. at 776. The court also distinguished Hudson, where there had been shifting long-term substitutions in subsequent years, and specifically reaffirmed the validity of Hudson. Id.

The holdings of Hudson and Minneapolis Federation of Teachers were codified by amendment of Minn.Stat. § 123.35, subd. 5. See 1980 Minn. Laws ch. 609, art. VI, § 16. That statute, which is essentially identical to the current Minn.Stat. § 122A.44, subd. 2(b), permitted use of substitutes for longer than a one-year period of time, if replacing a regular teacher on leave, but also explicitly stated that each full year of substitute teaching would count toward the probationary period.

The language of the amended and current statutes, however, perpetuates the question of what is meant by “eligible.” Contrary to Emanuel’s argument that “eligible” equates with having a continuing contract, the school district insists that “eligible” means that, should a contract be offered and accepted, the candidate has immediate tenure rights. The position of the school district is persuasive.

In interpreting statutes, if the words are clear, the court “must give effect to the plain meaning of the language.” Ullom v. Independent Sch. Dist. 112, 515 N.W.2d 615, 617 (Minn.App.1994) (citation omitted). Minn.Stat. § 122A.44, subd. 2(b) provides that a teacher “shall be eligible for continuing contract status * * * after completion of the applicable probationary period.” We conclude that consistent with the policy considerations underlying the substitute statute, which ensure flexibility for the school district while protecting against abusive hiring practices, “eligible” is not synonymous with “attain.”

The issue of use of long-term substitutes and their status is a recurring one. Generally, when a school district has sought to circumvent the tenure law by using long-term substitute contracts, courts have affirmed continuing contract rights. See, e.g., Perry v. Independent Sch. Dist. No. 696, 297 Minn. 197, 207, 210 N.W.2d 283, 290 (1973) (no waiver of continuing contract rights where teacher offered no option but limited contract because of school board intention not to confer tenure on married female teachers); Flaherty v. Independent Sch. Dist. No. 2144, 577 N.W.2d 229, 234 (Minn.App.1998) (where school district fails to follow statutory requirement of written contract, its failure to comply cannot be used to teacher’s disadvantage), review denied (Minn. June 17, 1998).

There is no evidence in the record before us, however, that suggests the school district was attempting either to circumvent the continuing contract law or to abuse the long-term substitute statute. Emanuel was hired to replace a teacher on medical leave; a teacher who, it was hoped and expected, would return to her tenured position, one temporarily being filled by Emanuel. Emanuel was not shunted from assignment to assignment to prevent her from acquiring continuing contract status. When the continuing contract teacher died, Emanuel applied for the position; when another teacher was hired for that position, Emanuel applied for the then-vacant position. Emanuel’s actions were entirely consistent with the interpretation of “eligible” we reach here. Consistent, also, is the acknowledgment of the school district that, should Emanuel be offered and accept a continuing contract position, she then will have immediate continuing contract status.

Finally, there is merit to the school district’s observation that accepting the interpretation of “eligible” urged by Emanuel would effectively prohibit school districts from ever hiring as long-term substitutes individuals who have completed their probationary periods; such hiring would automatically confer upon those individuals continuing contract status. To avoid such consequences, the school district would be compelled to hire as long-term substitutes only less experienced teachers who had not completed (and would not complete during the time of their employment) required probationary periods. We conclude that under the most reasonable interpretation of “eligible,” Emanuel cannot attain continuing contract status without first being offered and accepting a continuing contract by the school district.

2. Jurisdiction

The school district raised the issue of jurisdiction in its brief, alleging the writ of certiorari is improper because no quasi-judicial determination had been made. The question of jurisdiction is subject to de novo review without deference to a lower court. See Minnesota Center for Environmental Advocacy v. Metropolitan Council, 587 N.W.2d 838, 842 (Minn.1999). By order issued March 8, 2000, however, this court considered this issue and ruled that the writ of certiorari is timely and an appropriate vehicle for this appeal. We decline to disturb this ruling.

DECISION

The school board’s interpretation of Minn.Stat. § 122A.44, subd. 2(b) (1998), is not erroneous. A teacher who has otherwise fulfilled the probationary requirements and who is acting as a long-term substitute is eligible for, but does not have, continuing contract status, until the teacher is offered and accepts a continuing contract position.

Affirmed.

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

      . "Continuing contract status," or tenure, means that a teacher may be terminated only on certain grounds and only after certain procedural requirements are met. Minn.Stat. § 122A.40, subd. 7 (1998). Unless these well-defined conditions are met, a continuing contract is deemed to remain in force. Id.

      . The current statute requires three consecutive years of teaching in a single district. Minn.Stat. § 122A.40, subd. 5 (1998).

      . The requirements for cities of the first class, which are not at issue here, are different. Minn.Stat. § 122A.41 (1998).'


author: BERTRAND PORITSKY, Judge.

text:
    Robert LUND, petitioner, Appellant, v. MINNESOTA STATE COLLEGES AND UNIVERSITIES, et al., Respondents.
    No. C2-00-165.
    Court of Appeals of Minnesota.
    Aug. 9, 2000.

      Christina L. Clark, St. Paul (for appellant).
    Mike Hatch, Attorney General, Tomas L. Stafford, Francis C. Ling, Assistant Attorneys General, St. Paul (for respondents).
    Considered and decided by KLAPHAKE, Presiding Judge, SCHUMACHER, Judge, and PORITSKY, Judge.
   OPINION

BERTRAND PORITSKY, Judge.

Appellant Robert Lund petitioned the district court for a writ of mandamus to compel respondents, the Board of Trustees for the Minnesota State Colleges and Universities and its chair, Michael Vekich (together, MnSCU), to issue him a teaching license or-to hold a contested-case hearing on the licensure issue. The district court concluded that it lacked subject-matter jurisdiction to issue a writ of mandamus because Lund had other adequate legal remedies in the form of certiorari review of MnSCU’s refusal to issue a license and a grievance proceeding under the collective bargaining agreement. Because we conclude that an adequate legal remedy was available to Lund in the form of certiorari review of the MnSCU decision, we affirm.

FACTS

Lund was employed by the Minneapolis Community Technical College (MCTC). MCTC is a member of the MnSCU system. At some point in 1998, a position to teach a machine tool careers course became available. In November 1998(a) Lund had a license to teach, and was teaching, metal pattern, and model making; (b) Lund applied to MnSCU, through MCTC, for a license to teach machine tool careers; (c) MCTC, on behalf of MnSCU, returned Lund’s application because he was not teaching a machine tool careers course and had not received an offer to teach that course; (d) Lund informed MCTC that the class he was teaching was more advanced than the one for which he sought the license; (e) MCTC replied that the course Lund was teaching neither required him to have nor qualified him to have the license he sought; and (f) MCTC informed Lund that, due to lack of student enrollment in the modeling course, he would be laid off after spring 1999.

In December 1998, Lund sent the president of MCTC a letter attempting to exercise his seniority rights, claiming entitlement to teach a machine tools technology course. MCTC responded with a letter stating it had reviewed Lund’s letter and the contract between MCTC and Lund’s union, had consulted MnSCU, and was denying Lund’s claims.

In January 1999, Lund, through his union, filed a grievance under the relevant collective bargaining agreement. During spring 1999, Lund, in what he claims was an attempt to mitigate his damages, applied as a member of the public — rather than an MCTC teacher- — -to teach the same course he had previously sought to teach by exercising'his seniority rights. MCTC indicated Lund lacked the experience necessary to teach the class and declined to send his application to MnSCU.

In May 1999, Lund’s attorney sent Lund’s application directly to MnSCU in an attempt to get the relevant license and teaching position. In July, MnSCU responded with a letter stating (a) licenses are available only to persons teaching or with an offer to teach; (b) a person with a license can get an additional license only if the person is teaching or has an offer to teach in the additional field; (c) no administrator had signed Lund’s application as was required to show that Lund had been offered or had secured a teaching position; (d) the relevant statute did not require that a license be granted in these circumstances; and (e) Lund’s request for a license would not be granted. That day, Lund’s attorney sent MnSCU a letter demanding a contested-case hearing on the licensure issue. A month later, Lund’s attorney received a letter from an assistant attorney general, stating that the attorney general’s office now represented MnSCU and that Lund was not entitled to a contested-case hearing.

In December 1999, Lund petitioned the district court for a writ of mandamus to compel MnSCU either to issue the requested license or to hold a contested-case hearing on the licensure question. After a hearing, the district court issued an order dismissing Lund’s petition for lack of jurisdiction because Lund had adequate non-mandamus remedies, including the still-pending grievance proceeding and the opportunity to seek certiorari review of MnSCU’s July 1999 denial of the license request. Lund sought reconsideration of this ruling, his request was denied, and he appealed.

ISSUE

Did the district court err by dismissing Lund’s petition for a writ of mandamus?

ANALYSIS

The district court lacks jurisdiction to issue a writ of mandamus if an adequate legal remedy exists. See Minn.Stat. § 586.02 (1998) (stating mandamus “shall not issue in any case where there is a plain, speedy, and adequate remedy in the ordinary course of law”); McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989) (stating mandamus is an extraordinary remedy available to compel or restrain action by a judicial or quasi-judicial body, particularly where there exists no adequate remedy at law (citing authorities)); Silver Bay Area Citizens for Quality Educ. v. Lake Superior Sch. Dist., No. 381, 448 N.W.2d 92, 95-96 (Minn.App.1989) (stating district court “lacked jurisdiction to issue a writ of mandamus” because, in that case, certiorari was an adequate remedy), review denied (Minn. Jan. 23, 1990). Here, the district court ruled that it lacked jurisdiction to issue a writ of mandamus because Lund had adequate legal remedies: (a) certiorari review of MnSCU’s July 1999 denial of his license request, and (b) his grievance proceeding.

For an administrative agency’s decision to be reviewable by certiorari, it must be quasi-judicial in nature. See Western Area Bus. & Civic Club v. Duluth Sch. Bd. Indep. Dist. No. 709, 324 N.W.2d 361, 364 (Minn.1982) (stating certiorari lies to review administrative agency’s quasi-judicial decisions but not its legislative or administrative decisions); Mahnerd v. Canfield, 297 Minn. 148, 152, 211 N.W.2d 177, 179 (1973) (stating certiorari does not lie to review legislative or ministerial acts of administrative agencies). Here, the parties disagree about whether MnSCU’s July 1999 decision to deny Lund’s request for the license was a quasi-judicial decision and hence whether Lund could seek certio-rari review of that decision.

The supreme court has stated:

[T]he three indicia of quasi-judicial actions can be summarized as follows: (1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.

Minnesota Ctr. for Envtl. Advocacy v. Metropolitan Council, 587 N.W.2d 838, 842 (Minn.1999) (citing Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275, 279, 280 (Minn.1996) and Meath, 550 N.W.2d at 280 (P. Anderson, J., concurring)). Lund alleges the second element of the test for quasi-judicial conduct was not met in this case because MnSCU’s denial was not based on a prescribed standard but on an “unwritten, unpromulgated, non-existent policy” of granting licenses only to persons who were teaching or had an offer to teach. We reject that assertion.

Under Minn.Stat. § 136F.49 (1998), MnSCU “shall adopt policies for licensure of teaching personnel in technical colleges.” (Emphasis added.) The statute limits MnSCU’s licensing authority to “teaching personnel.” MnSCU reads “teaching personnel” literally to refer to persons who are actually teaching or who (because they have an offer to teach) will be teaching. Thus, MnSCU reads the statute as making a teaching position a threshold for the issuance of a license.

The policy of MnSCU’s board of trustees and its licensing handbook are consistent with MnSCU’s reading of the statute. The portion of the policy of. MnSCU’s board of trustees addressing licensing of faculty states:

Authoi-ity to Identify, Establish, and Modify Licensure Fields and Minimum Qualifications
Subpart B. The system administration shall establish minimum educational and occupational qualifications necessary to be granted specified licenses.

(Emphasis added.) Apparently expanding on this statement, MnSCU’s licensing handbook states:

This office is authorized to license only those who are either currently employed or who have been offered employment by either a MnSCU campus or a private vocational setting in a position that requires licensure. Therefore, this office does not have authority to issue licenses to the general public.'

These statements by MnSCU articulate and explain its refusal to license persons who do not have either a teaching position or an offer to teach. This refusal flows logically from MnSCU’s reading of Minn.Stat. § 139F.49 as limiting its licensing authority to “teaching personnel.” While other readings of that statute may be possible, we accord considerable weight to MnSCU’s reading of the statute. See Mammenga v. Department of Human Servs., 442 N.W.2d 786, 792 (Minn.1989) (stating courts are not bound by agency’s interpretation of its governing statute but that if meaning of statute is doubtful, “courts should give great Weight to a construction placed upon [the statute] by the Department charged with its administration”) (quoting Krumm v. R.A. Nadeau Co., 276 N.W.2d 641, 644 (Minn.1979)).

Moreover, the question here is not whether MnSCU correctly reads the statute, but whether there is a prescribed standard for making licensure decisions. MnSCU has a viable reading of the statute and that reading identifies a standard threshold that is articulated in MnSCU’s licensing handbook. Indeed, we note that in addition to satisfying the threshold requirement of having a teaching position or an offer to teach, obtaining a license requires satisfaction of other criteria that vary depending on the license sought and the circumstances under which that license is sought. See MnSCU Board of Trustees-Policy § 3.9, part 5, subpart A (identifying Minn. R. 3515.0100-3515.9942 (except 3515.4400) & chapter 3700 (except 3700.0145 and 3700.1405) (1993 & Supp. 1994) as rules applicable to licensing decisions); Minn. R. 3515.0100-3515.9942 (except 3515.4400) & chapter 3700 (except 3700.0145 and 3700.1405) (1993 & Supp. 1994) (listing requirements and substitute requirements for obtaining license). Because the identification of the relevant circumstances and requirements under the rules requires MnSCU at least potentially to exercise some discretion, we must also reject Lund’s assertion that MnSCU’s teaching decisions are purely administrative or ministerial.

Because only the existence of the second (prescribed-standard) element of a quasi-judicial decision is contested here and because MnSCU’s licensing decisions involve a prescribed standard, we conclude that MnSCU’s decision to deny Lund a license was a quasi-judicial decision. Therefore, certiorari was available to review that decision and Lund had an adequate remedy at law. As a result, the district court lacked jurisdiction to issue a writ of mandamus. Because this analysis resolves the appeal, we need not address whether Lund’s grievance was an adequate remedy.

DECISION

Because MnSCU’s July 1999 decision refusing to grant Lund a license was a quasi-judicial decision, certiorari was available to review that decision and the district court lacked jurisdiction to issue a writ of mandamus.

Affirmed.

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