author: GORS, Circuit Judge

text:
    2001 SD 41
    John PIERCE, Plaintiff and Appellant, v. CITY OF BELLE FOURCHE, South Dakota, a Municipal Corporation, Defendant and Appellee.
    No. 21520.
    Supreme Court of South Dakota.
    Argued Nov. 29, 2000.
    Decided March 28, 2001.

      Jim D. Seward and Roger A. Tellinghui-sen of Fuller, Tellinghuisen, Gordon & Percy, Spearfish, SD, Attorneys for plaintiff and appellant.
    Michael W. Day of Quinn, Day & Barker, Belle Fourche, SD, Attorneys for defendant and appellee.
   GORS, Circuit Judge

[¶ 1.] John Pierce (Pierce) appeals summary judgment in favor of the City of Belle Fourche (City). We reverse.

FACTS

[¶ 2.] On March 14, 1999, Pierce landed his airplane at the Belle Fourche Municipal Airport. The airport advertised that it was open 24 hours a day, 7 days a week. The airport was unattended because the airport manager was at a three-day airport conference in Pierre. After fueling, Pierce parked and tied down his airplane. Pierce had fueled and parked his airplane at the Belle Fourche airport numerous times in the past. The airport manager trusted Pierce to do business at the airport when he was absent. Pierce used tie-down ropes supplied by the airport to secure his airplane.

[¶ 3.] The airport manager personally selected and purchased the rope from which he fabricated the tie-downs. The airport manager had no set policy for inspecting or testing the tie-down ropes. He would replace them whenever the thought occurred to him sometimes on an annual basis. The manager customarily checked the weather every morning. When wind warnings existed, the manager would double-tie the airplanes at the airport to prevent wind damage.

[¶ 4.] On March 16, 1999, a windstorm hit the airport. The tie-down ropes securing Pierce’s airplane broke, and the airplane flipped over and slid down the parking area, incurring thousands of dollars in damage. No personnel had been on duty at the airport between the time Pierce landed and tied down his airplane and the time of the windstorm.

[¶ 5.] Pierce had the tie-down ropes tested by Dr. M.R. Hansen, a consulting engineer. Dr. Hanson tested the tie-down ropes which failed and tested new ropes of the same type. In Dr. Hanson’s opinion, the ropes which failed had an average tensile strength of approximately 10 percent of the new rope.

[¶ 6.] Pierce sued City based on ' implied contract and negligence. The trial court granted summary judgment on both causes of action and held as a matter of law that the airport owed Pierce no duty. Pierce appeals summary judgment only on the negligence claim, raising the following issues:

Did City owe Pierce a duty of reasonable care?
Was there a genuine issue of material fact?

STANDARD OF REVIEW

[¶ 7.] The standard of review of summary judgment is well settled. “Under our familiar standard for reviewing summary judgments, we decide only whether genuine issues of material fact existed and whether the law was correctly applied.” Kobbeman v. Oleson, 1998 SD 20, ¶4, 574 N.W.2d 633, 635. When making this analysis, we view the evidence in the light most favorable to the nonmoving party and resolve reasonable doubts against the moving party. Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480. As we take an independent review of the record, we are not bound by the trial court’s factual assessments in granting summary judgment. Fritzel v. Roy Johnson Const., 1999 SD 59, ¶ 7, 594 N.W.2d 336, 338 (citing Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 7, 580 N.W.2d 606, 609).

[¶ 8.] Summary judgment is proper in negligence cases if no duty exists as a matter of law. Peterson v. Spink Elec. Co-op., Inc., 1998 SD 60, ¶1-2, 578 N.W.2d 589, 591. Duty is a question of law subject to de novo review. Fisher Sand & Gravel v. State, 1997 SD 8, ¶ 12, 558 N.W.2d 864, 867; Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, ¶ 9, 545 N.W.2d 823, 825;. Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D.1991). “[W]e must determine if a relationship exists between the parties such that the law will impose upon the defendant a legal obligation or reasonable conduct for the benefit of the plaintiff.” Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993).

DECISION

ISSUE ONE

[¶ 9.] City owes Pierce a duty of reasonable care.

Pierce is a business invitee.

[¶ 10.] The airport manager testified that City wanted people to land at its airport and to do business at both the airport and in Belle Fourche. The airport parking area and tie-down ropes were offered as a convenience for the patrons. After landing, Pierce filled his airplane with gasoline, tied it down, and went to Belle Fourche. The trial court recognized that Pierce was a business invitee which is not at issue.

City owes a duty of reasonable care to business invitees and their property.

[¶ 11.] Under § 343 of the Restatement (Second) of Torts a possessor of land owes a business invitee a duty of reasonable care. Ballard v. Happy Jack’s Supper Club, 425 N.W.2d 385, 388 (S.D. 1988); Mitchell v. Ankney, 396 N.W.2d 312, 313-14 (S.D.1986); Stenholtz v. Modica, 264 N.W.2d 514, 516 (S.D.1978). The duty includes the use of ordinary care in active operations on the property. Mitchell, 396 N.W.2d at 313-14; Restatement (Second) Torts § 343, comments b and d (1965). The duty extends to fixtures, attachments and appliances used on land. Restatement (Second) Torts § 343 comment f (1965). Tie-down ropes are appliances. The trial court held that if there is a duty of reasonable care, the duty extends not only to the business invitee’s person but also to the business invitee’s personal property. City did not appeal this ruling.

The injury is foreseeable

[¶ 12.] Common law duty depends on foreseeability of the injury. The risk defines the duty to be obeyed. A person is not required to take measures against a risk which would not be anticipated by a reasonable person. Peterson, 1998 SD 60 at ¶ 14, 578 N.W.2d at 592.

[¶ 13.] Examining the facts of this case, it is foreseeable that airplanes will land at the airport. After all, that is the purpose of an airport. City encourages people to use its airport. It is also foreseeable that people mil park their airplanes at the airport and City provides parking spaces for airplanes.

[¶ 14.] It is foreseeable that the wind will blow in South Dakota and that when the wind blows, unsecured airplanes will be damaged. City provided tie-down rings and tie-down ropes for its patrons to secure their airplanes from wind damage. When wind warnings were in effect, the airport manager would double-tie parked airplanes. If City did not foresee wind damage, tie-downs and double-tying would not be necessary.

[¶ 15.] It is also foreseeable that the tie-down ropes could break. The airport manager selected and fabricated the tie-down ropes to secure parked airplanes. If City did not foresee rope breakage, care in selection of the rope and fabrication of the tie-downs would not be necessary to prevent damage. Any old rope would do. In addition, when wind warnings were in effect, the airport manager would double-tie parked airplanes. If City did not foresee rope breakage, double-tying would not be necessary.

[¶ 16.] It is also foreseeable that the ropes would wear out from use and exposure to the elements. The airport manager claimed he replaced the ropes whenever the thought occurred to him, sometimes annually. If City did not foresee that the ropes would wear out, replacement would not be necessary.

[¶ 17.] Therefore, it was foreseeable that the ropes would wear and that worn ropes would break and an airplane could blow away. Consequently, City had a duty to use reasonable care in selecting the ropes, fabricating the tie-downs and detecting and replacing worn tie-downs.

A duty of reasonable care does not make City an insurer of the safety of Pierce’s airplane

[¶ 18.] A possessor of land is not an insurer of the safety and welfare of an invitee and is not liable for injuries where the danger was known or obvious to the invitee. Mitchell, 396 N.W.2d at 314. City also points out that the danger should have been just as obvious to Pierce as it was to City. However, City admits or concedes that there was no obvious or apparent defect in the tie-down ropes. Only City knew how long the tie-downs had been in service and how long the tie-downs had been exposed to the sun and rain and other destructive elements. Imposing a duty of reasonable care on City does not impose strict liability.

[¶ 19.] City also objects that it is impossible to tell when a rope is worn out because the ropes in question did not appear to be defective and there is no way to tell if a rope is weakened other than to break it to see if it is weak. A duty is no less a duty because it is difficult. City could have established a regular schedule of testing or developed a regular schedule of replacement. Perhaps replacement whenever the thought occurred to the airport manager or sometimes annually is reasonable and perhaps it is not. That question is for a properly instructed jury to decide based on the- facts in this case.

City owes a duty to use reasonable care in selecting, fabricating and maintaining tie-down ropes

[¶ 20.] City had a duty to possess and exercise a knowledge of the qualities of the tie-down ropes and to use reasonable care in their selection, fabrication and maintenance. The trial court erred as a matter of law in determining that City did not owe Pierce a duty of reasonable care.

ISSUE TWO

[¶ 21.] There is a genuine issue of material fact for trial by a jury.

[¶ 22.] “Negligence is the breach of a duty owed to another, the proximate cause of which results in an injury.” Peterson, 1998 SD 60, ¶ 12, 578 N.W.2d at 591. This Court has repeatedly stated that “[questions of negligence, contributory negligence and assumption of the risk are for the jury in all but the rarest of cases so long as there is evidence to support the issues.” Peterson, 1998 SD 60, ¶ 11, 578 N.W.2d at 591. “It is only when reasonable men can draw but one conclusion from facts and inferences that they become a matter of law and this rarely occurs.” Mitchell, 396 N.W.2d at 313, (quoting Wilson v. Great Northern Railroad Company, 83 S.D. 207, 157 N.W.2d 19, 22 (S.D.1968)). In this case, genuine issues of material fact exist.

[¶ 23.] City provided tie-down ropes to people who used the airport. City knew that pilots used the tie-down ropes to secure their airplanes. In addition, City selected the rope and designed and fabricated the tie-downs. Pierce used the tie-downs for their intended purpose. Having made the decision to supply tie-down ropes, City had a duty to provide and maintain adequate tie-down ropes.

[¶ 24.] There is evidence that the tie-down ropes were only ten percent as strong as new ropes of the same type. City was the only party in a position to have knowledge of how long the tie-down ropes were exposed to the elements and what the wind and weather were like. City made no attempt to inspect or test the tie-down ropes in question and replacement was irregular.

[¶ 25.] Viewing the facts in a light most favorable to the non-moving party, and resolving doubts against the moving party, genuine issues of material fact exist. See Satellite Cable Srvs., 1998 SD 67, ¶ 5, 581 N.W.2d at 480. This is not a case where a reasonable person can draw only one conclusion from the facts or a case where no evidence exists to support the issue.

[¶ 26.] City points out that the ropes might not have held up to this particular windstorm if they were new. This is a question of proof for the parties and a question of fact for the jury. We are not trying the case. We are only deciding whether there is a duty as a matter of law and a genuine issue of material fact.

[¶ 27.] The trial court relied on Peterson, 1998 SD 60, 578 N.W.2d 589. Peterson is different. In Peterson, the plaintiff owned the appliance, which was an extension cord, which failed on his own property, which was his farm. Here, Pierce owned neither the property, which was the airport, nor the appliance, which was the tie-down ropes; City owned both the property and the appliance. Therefore, the trial court’s reliance on Peterson is misplaced.

[¶ 28.] The question of whether City met its duty to use reasonable care in this case is a question of fact for a properly instructed jury not a question of law for summary judgment. We reverse and remand for a trial on the merits

[¶ 29.] MILLER, C.J., and SABERS, KONENKAMP and GILBERTSON, JJ„ concur.

[¶ 30.] GORS, Circuit Judge, for AMUNDSON, J„ disqualified.


source: Caselaw Access Project

author: MAHAN, Justice.

license: Public Domain

text:
    WEST BEND MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 00-0618.
    Court of Appeals of Iowa.
    Jan. 10, 2001.
    John F. Lorentzen and John T. Clende-nin of Nyemaster, Goode, Voigts, West, Hansell, & O’Brien, P.C., Des Moines, for appellant.
    Richard Trinrud of Brooks & Trinrud, P.C., Davenport, for appellee.
    Heard by VOGEL, P.J., and MAHAN and MILLER, JJ.
   MAHAN, Justice.

Plaintiff appeals from the district court’s judgment in favor of defendant, concluding defendant did not breach its contract by refusing to defend or indemnify the insured. Plaintiff contends the trial court erred because the language of defendant’s policy with the insured provided coverage for the loss at issue. Furthermore, plaintiff contends the district court’s decision constituted an acceptance of the “closer to the risk” analysis previously rejected by the Iowa Supreme Court. If this court finds defendant’s policy provided coverage, plaintiff requests we determine the settlement paid by it was fair and reasonable and plaintiff be entitled to both pre-filing and prejudgment interest. We affirm.

Background Facts and Proceedings. West Bend and State Farm issued liability policies to a common insured, Steamatic of Iowa-Illinois, Inc. (Steamatic). This dispute concerns the respective liability of each insurer for the defense and settlement of a third-party claim against the insured.

Steamatic provides carpet, rug, furniture, and upholstery cleaning services on-site at its customers’ premises. The cleaning unit used by Steamatic in this case was a Steamatic Model 8400-L Truck Mounted Unit (TMU). The TMU was installed into a 1988 Dodge Ram cargo van owned by Steamatic.

The TMU consists of a gasoline powered twenty-three horsepower two-cylinder engine that powers a high pressure water pump and a high suction vacuum pump. The TMU has a clean water tank.capacity of fifty gallons and a vacuum tank capacity of sixty gallons. The TMU’s self-contained water heater is powered from large liquid propane tanks installed in the cargo van by means of elastic cords that allow the tanks to be removed from the van for refilling or maintenance. The TMU is equipped with multiple hoses and cleaning devices, many of which extend from the cargo van into the building being cleaned. The TMU is securely bolted to the cargo van and cannot be removed without tools, specialized lifts, and other mechanical assistance.

West Bend issued a contractors business owner’s insurance policy to Steamatic with a policy period from February 1, 1996 to February 1, 1997. The West Bend policy included commercial general liability coverage for property damage, subject to its terms and conditions. The West Bend policy limited liability to $1,000,000 for each occurrence.

State Farm issued a policy to Steamatic on the 1988 Dodge Ram cargo van with a policy period from February 1, 1996 to February 1, 1997. The State Farm policy provided liability coverage for property damage “caused by an accident resulting from the ownership, maintenance or use of your car,” subject to the policy’s terms and conditions. The State Farm policy limited its liability coverage for property damage to $50,000 for each occurrence.

On July 2, 1996, a Steamatic employee was performing professional cleaning services at the home of Richard Bermel and Patricia Freiburger (customers) in Musca-tine, Iowa, when a fire occurred causing property damage to their home. The fire originated in the cargo compartment of the van. The van’s motor was not running at the time of the fire. Investigators concluded the likely cause of the fire was a failure of the propane tank and propane delivery system that fueled the self-contained TMU. The van was parked directly under the porch of the house and a foot or two away from the garage door opening. The fire spread to the wooden porch and garage, and ultimately to the rest of the residence, resulting in a total loss.

Customers filed a petition against Stea-matic seeking damages caused by the fire loss. State Farm refused to defend or indemnify Steamatic against the liability claim under its automobile policy. West Bend assumed the defense of Steamatic against the claim under its commercial general liability coverage. West Bend settled the customers’ claim by a payment of $242,000. West Bend incurred $30,050.88 in legal, expert, and investigatory fees in defending against the customers’ claim.

West Bend filed a petition in equity against State Farm, claiming State Farm breached its contract for refusing to defend or indemnify Steamatic and seeking a judgment against State Farm to compensate West Bend for its defense and indemnification of Steamatic against the customers. The parties submitted the matter to the district court for trial upon stipulated record. The parties submitted to the court a statement of undisputed facts, upon which the district court based its findings of fact. The district court concluded: (1) the TMU and the cargo van together are not a “vehicle” under Iowa insurance law;, and (2) the operation of the TMU is not a “use” of the vehicle under Iowa insurance law. Plaintiffs appeal.

Standard of Review. Neither party offered extrinsic evidence to interpret the State Farm policy language at issue. Therefore, the interpretation of the policy is a matter to be resolved by the court as a matter of law. Kalell v. Mutual Fire & Auto. Ins. Co., 471 N.W.2d 865, 866-67 (Iowa 1991). The district court’s interpretation of the policy is not binding on appeal. North Star Mut. Ins. Co. v. Holty, 402 N.W.2d 452, 454 (Iowa 1987).

The insurance policy must be construed as a whole; the words used must be given their ordinary, not technical, meaning to achieve a practical and fair interpretation. Holty, 402 N.W.2d at 454 (quoting Aetna Cas. & Sur. Co. v. Jewett Lumber Co., 209 N.W.2d 48, 49 (Iowa 1973)). Where the meaning of the terms in an insurance policy is susceptible to two interpretations, the one favoring the insured is adopted. Id.

State Farm Policy. We must first determine whether Steamatic’s State Farm automobile insurance policy covered the July 2, 1996 fire loss. If it did not, we need not address the remaining issues raised by West Bend. To make this determination, we must address the following: (1) whether the TMU and the van together are a “car” (“vehicle”) under Iowa insurance law and (2) whether the operation of the TMU is a “use” of the vehicle under Iowa insurance law.

The State Farm policy provides State Farm will:

1. pay damages which an insured becomes legally liable to pay because of:
(a) bodily injury to others; and
(b) damage to or destruction of property including loss of its use,
caused by accident resulting from the oumership, maintenance or use of your car, and
2. defend any suit against an insured for such damages with attorneys hired and paid by us. We will not defend any suit after we have paid the applicable limit of our liability for the accident which is the basis of the lawsuit.

(Emphasis added).

The policy defines “car” as “a land motor vehicle with four or more wheels, which is designed for use mainly on public roads.”

“Vehicle.” West Bend contends the TMU and cargo van together constitute a “vehicle” under Iowa insurance law because the TMU was permanently attached to the van, and thus became an integral part of it. We disagree.

In support of its contention, West Bend primarily relies upon Holty, and Schlueter v. Grinnell Mut. Reins. Co., 553 N.W.2d 614 (Iowa App.1996). In Holty, an auger permanently attached to Holty’s truck came loose and extended across the cen-terline of the road, injuring a motorcyclist forced off the road when the auger came loose. Holty, 402 N.W.2d at 453. Holty made a demand on North Star to defend him under his farm liability policy. Id. North Star filed a declaratory judgment action, requesting the court to construe the policy to exclude coverage and to find it had no duty to defend. Id. The supreme court concluded the auger was an apparatus attached to the truck, and therefore fit within the policy’s definition of motor vehicle. Id. at 455. It determined the truck, box, and auger constituted one motorized vehicle, and the movement of the auger depended on the truck’s movement and velocity to become a hazard. Id. Therefore, the accident was vehicle-related and arose out of Holt/s use of the truck, thereby excluding the accident from coverage under the terms of Holt/s farm liability policy with North Star. Id. at 455-56.

In Schlueter, a motorist hit a bale of hay that had fallen off a tractor atop a trailer hitched to a pickup truck driven by the insured. Schlueter, 553 N.W.2d at 615. The court concluded, “Although the accident here arose out of the use of a vehicle that is excluded under the policy, it also allegedly arose out of one or more concurrent non-vehicle-related acts.” Id. at 617. The court distinguished the case from Holty, explaining the dangerous instrumentality in this case, a hay bale, was not a permanent fixture on the motor vehicle, was separable from the vehicle, and had not become an integral part of the vehicle. Id. at 616-17.

The case before us lies somewhere between Holty and Schlueter. The State Farm policy’s definition of “car” is much more narrow than that in the policy at issue in Holty, and does not support the inclusion of the TMU within the definition. While the TMU was attached to the van, its power source — the propane system— was not. ■ The TMU, unlike the auger in Holty, did not depend on the movement or velocity of the van to become a hazard. Rather, it was merely a piece of equipment located in the van with its own power source. The accident in this case, like in Schlueter, arose out of a non-vehicle-related act, a malfunction in the propane system that fueled the TMU. The fact the TMU was attached to the van does not in and of itself render the TMU an “integral part” of the vehicle such that the TMU and the van together constitute a “vehicle” for the purposes of coverage under the State Farm policy. We conclude the van and the TMU together did not constitute a “vehicle” under Iowa insurance law. While we could end our analysis here, we find it useful and necessary to discuss whether the operation of the TMU is a “use” of the vehicle under Iowa insurance law.

“Use.” West Bend contends the van insured by State Farm functioned as a “steam cleaner on wheels.” Because Stea-matic employees could not perform their duties without the van equipped with the TMU, West Bend argues, the Steamatic employee was engaged in activity related to the use of the van at the time of the fire. To support its argument, West Bend relies on Simpson v. United States Fid. & Guar. Co., 562 N.W.2d 627 (Iowa 1997) (employee engaged in “use” of vehicle where truck was the employee’s “toolbox on wheels”).

We agree with the district court’s assessment Simpson “was analyzed specifically in the context of uninsured motorist coverage,” and therefore cannot be used in support of West Bend’s argument here. The court in Simpson considered the statutory provision relating to uninsured motorist coverage when construing the policy language at issue. Id. at 630. The terms of the policy were construed “in light of the purposes and intent of the applicable statute.” Id. Therefore, we find the Simpson court’s analysis inapplicable to the case at bar. As the district court explained:

The case at bar is not one where the plaintiff was injured walking to or from the vehicle; instead, the accident occurred because equipment necessary for Steamatic’s business operation malfunctioned and caused damage. To use an analogy, this is not a case where an employee was injured while walking back to the vehicle (“toolbox”) to retrieve a tool; instead, it is a case where a tool within the vehicle (“toolbox”) malfunctioned and exploded. This Court does not believe the Simpson Court holding was intended to extend to cases where “tools” located within the vehicle caused damage.

We agree with the district court’s application of Keppler v. American Family Mut. Ins. Co., 588 N.W.2d 105 (Iowa 1999), to this case. In Keppler, a child entered the back of Keppler’s van while it was parked at a flea market, and was bitten by Keppler’s dog. At the time of the incident, the parked van was not moving, the engine was not running, and the keys were not in the ignition. Id. at 106. At issue was coverage under Keppler’s American Family automobile insurance policy, which provided coverage for injury “due to the use of a car.” The court concluded “due to” required a causal connection between the injury and the use of the vehicle. Id. Because Keppler’s van “had nothing to do with the biting of the child, beyond providing the site where it happened,” the court concluded no coverage was provided for Keppler’s loss. Id. “[T]he words 'due to’ cannot be stretched to situations where there is no connection between the injury and a vehicle being — at least remotely— used as such. Keppler’s van was not in any manner functioning as a vehicle at the time. So there was no connection between the injury and the use of a vehicle.” Id. at 107.

In the case before us, as in Keppler, the van was not running at the time of the incident. The fire damage occurred when the van was parked with its motor off. A malfunctioning propane system caused the fire. The propane system was not permanently attached to the van and did not rely on the van for its operation. The van had nothing to do with the fire, “beyond providing the site where it happened.” See id. at 106. Without the requisite causal connection between the use of the van as such and the fire, the State Farm policy provides no coverage for the loss. We conclude the operation of the TMU is not a “use” of the vehicle under Iowa insurance law.

Remaining Issues. We need not address the remaining issues raised by West Bend, due to our conclusion the State Farm policy does not apply to cover the loss at issue in this case. To the extent issues raised by West Bend are not addressed, we find them without merit.

AFFIRMED.

HUITINK, J., takes no part.

      . Due to problems with the ignition of the van, Steamatic had run a wire into the van to enable its engine to be started by touching the TMU’s battery. On at least ten times prior to July 2, 1996, the Steamatic employee had to start the van by crossing a wire from the van's ignition to the TMU’s battery. We note, however, the operation of the TMU did not rely in any way on the van for power.

      . The policy defined motor vehicle as “a land motor vehicle, trailer, or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto)...." Holty, 402 N.W.2d at 453.


author: /s/ Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Mark Alan LEVINE, an Attorney at Law of the State of Minnesota.
    No. C5-01-512.
    Supreme Court of Minnesota.
    April 10, 2001.
   ORDER

On December 12, 2000, respondent Mark Alan Levine pled guilty to one count of conspiracy to commit mail and wire fraud. The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent’s criminal conduct violated Minn. R. Prof. Conduct 8.4(b) and (c) and that disbarment is warranted.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is disbarment.

This court has independently reviewed the file and approves the jointly recommended disposition.

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

IT IS HEREBY ORDERED that respondent Mark Alan Levine is disbarred from the practice of law, effective immediately, and that he pay $900 in costs pursuant to Rule 24, Rules on Lawyers Professional Responsibility.

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: STRINGER, Justice.

text:
    STATE of Minnesota, Respondent, v. Michael Charles STEWART, Appellant.
    No. C6-00-234.
    Supreme Court of Minnesota.
    April 19, 2001.

      Chad Michael Oldfather, Assistant State Public Defender, Minneapolis, for Appellant.
    Mark Nathan Lystig, Assistant Ramsey County Attorney, Mike Hatch, Minnesota Attorney General, St. Paul, for Respondent.
   OPINION

STRINGER, Justice.

Appellant Michael Charles Stewart was indicted and tried in Ramsey County District Court on counts of first- and second-degree murder for the killings of Amanda Carlson-Bey, Carlson-Bey’s unborn child, and the two-year old son of appellant and Carlson-Bey, Jereau Carlsoh. At trial appellant testified that he killed Carlson-Bey and Jereau in a fit of rage after Carlson-Bey disclosed that she was HIV-positive. The trial court granted appellant’s request for a jury instruction on first-degree manslaughter (heat of passion) with respect to the deaths of Carlson-Bey and her unborn child, but denied the same request with respect to Jereau, concluding that under Minn.Stat. § 609.20 the heat-of-passion element was not transferable from the provocateur to a third person. The jury acquitted appellant on counts of first- and second-degree murder of Carlson-Bey and the unborn child but found him guilty of first-degree manslaughter (heat of passion) of Carlsqn-Bey and the unborn child. The jury also found appellant guilty of first- and second-degree murder of Jereau. Appellant now appeals his first-degree murder conviction contending that the trial court erred in refusing to instruct the jury on first-degree manslaughter (heat of pas.sion) as to the killing of Jereau. We affirm the conviction but on different grounds.

Appellant and Carlson-Bey were sexually intimate from approximately October 1995 to January 1996. When Carlson-Bey tested positive for the HIV virus in February 1996 she named appellant as a person with whom she had had sexual contact. A Minnesota Department of Health official notified appellant in April 1996 that he had been exposed to someone who tested positive for HIV. According to the health official, appellant was “a bit shocked about the exposure but said that he would deal with it as best he [could].” Appellant subsequently tested negative for HIV, although it is unclear from the record precisely when he was tested. He testified at trial that he intended to have the HIV test the next day after meeting with the health official but he also told police on the day of the murders that he was tested for HIV “a year ago,” a date several months after learning of his potential exposure. At trial he claimed that his statement to the police referred to a 1997 test for chlamydia that he believed was a test for sexually transmitted disease in general. The record is clear however, that appellant did test negative for HIV and that he did not have sex with Carlson-Bey after that time. The assistant medical examiner confirmed that Carlson-Bey was HIV-positive at the time of her death.

About a year after Jereau was born on August 4, 1996, Carlson-Bey initiated a proceeding to establish paternity and alleged that appellant was the _ father. A blood test later indicated that appellant was a presumed father. In a judicial proceeding on May 7, 1998 appellant was adjudged Jereau’s father and was ordered to pay child support in the amount of $337 per month. Appellant told his girlfriend that he did not mind paying the child support payment but he thought it was high and that he had found a second job to earn enough to compensate for his child support obligations. He later asked child support officials if he could lower the payment partly because he believed that his payment was being used to support Carlson-Bey’s new boyfriend. A friend of Carlson-Bey testified that Carlson-Bey told her that appellant was upset at having to pay child support for a child he only recently learned was his. Appellant also told his girlfriend that he was embarrassed by Jereau because Carlson-Bey was white and appellant is black.

Carlson-Bey moved to Chicago with Jereau in June 1998 but returned to St. Paul in October 1998 to visit her mother, Roberta Carlson. Carlson-Bey was pregnant at the time. Appellant testified that Carlson-Bey called him from her mother’s apartment approximately two weeks before October 21, 1998 and, after missing one scheduled appointment, he agreed to visit Carlson-Bey and Jereau on October 21 after he got off work. Appellant arrived at the apartment around 9:00 a.m. and played with Jereau. While he sat on the couch with Jereau watching television, Carlson-Bey, who was seated next to him in a chair, told him that she was either HIV-positive or had AIDS. Appellant testified that he jumped up and hit Carlson-Bey in the face. Carlson-Bey yelled something like “What are you doing?,” ran into the kitchen and returned with a knife. Appellant testified that he wrestled the knife from Carlson-Bey, then threw her into the chair and stabbed her repeatedly. Appellant testified that “I just lost it. Rage, I guess. * * * I tried to be a good person. I worked my whole life just to be a good person, to help a lot of people. And then someone tells me I have AIDS, or HIV, and, again, it just blew me — blew me — I can’t explain this rage, the emotions.”

After stabbing Carlson-Bey, appellant picked up Jereau, put him on the sofa, put his hand over Jereau’s mouth and stabbed him repeatedly. Appellant testified that he does not remember stabbing Jereau but he told the police and his girlfriend that he put his hand over Jereau’s mouth to keep him from crying and told the police he feared Jereau’s crying would attract people. After the killings appellant stated that he put the knife in the pouch pocket of his sweatshirt, went down the stairs to his car and threw the knife into a garbage can. The unborn child died from oxygen deprivation as a consequence of Carlson-Bey’s death.

The jury trial proceeded in two phases. The first phase related to whether appellant committed the crimes for which he was charged and the second phased related to whether a mental illness or mental deficiency relieved appellant of criminal responsibility. At the end of the first phase appellant requested that the judge instruct the jury to consider first-degree manslaughter (heat of passion) with respect to the death of all three victims. The trial court granted appellant’s request with respect to the death of Carlson-Bey and the unborn child but ruled that appellant was not entitled to a heat-of-passion jury instructiqn relating to the killing of Jereau:

While there * * ⅜ appears to be no case law on this specific topic in Minnesota, the court is persuaded by cases in other jurisdictions which indicate that there is no transference of the heat-of-passion element from the person who provokes the assailant to a third party who is not involved in the provocation. And for that reason the court believes that a Manslaughter instruction is not appropriate with respect to Jereau * * *.

The jury acquitted appellant on counts of first- and second-degree murder for the killing of Carlson-Bey and the unborn child but convicted him of first-degree manslaughter (heat of passion) of Carlson-Bey and the unborn child and first- and second-degree murder of Jereau.

Appellant contends that the trial court erred in denying the requested instruction because Minn.Stat. § 609.20 allows a crime committed against a third party not involved in the provocation to be committed in a heat of passion. We review the issue de novo as a question of law. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

Minnesota Statutes § 609.20 provides:

Whoever does any of the following is guilty of manslaughter in the first degree * * *: (1) intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation***.

The state would construe “another” in the phrase “such words or acts of another” to mean only the victim. Appellant contends that the term “another” plainly includes persons other than the victim and that, if the meaning is not plain, “another” should be so construed because the primary concern in first-degree manslaughter (heat of passion) is not who provoked thé heat of passion but whether the assailant acted under the influence of extreme emotional distress. In support appellant cites at length our decision in State v. Boyce, where we focused on the emotional status of the defendant in determining whether a homicide is murder or manslaughter in the first degree. 284 Minn. 242, 254-55, 170 N.W.2d 104, 112 (1969).

We construe the word “another” according to its common and approved usage unless it is defined in statute or has acquired a special meaning. Minn.Stat. § 645.08(1) (2000). “Another” is not defined in the manslaughter statute or elsewhere in the Criminal Code, but the term is used in the first-degree murder statute to distinguish an intended victim from the person the defendant is accused of killing. Minn.Stat. § 609.185(1) (2000) (stating that a person is guilty of first-degree murder who “[clauses the death of a human being with premeditation and with intent to effect the death of the person or of another ⅝ ⅜ *») “Another” commonly signifies a person “different or distinct from the one first named or considered.” Webster’s Third New International Dictionary 89 (1976).

The fundamental question we must resolve is whether the legislature intended that the “another person” in reference to the victim and the “another” in reference to the provocateur must be the same person. The plain wording of the statute suggests that the legislature did not intend them to be the same person. If it did, the reference to the second “another” — the provocateur — would have been “the other person,” or some other words clearly establishing that the provocateur and the victim must be the same person. Failing to do so, and using the term “another” in referring to the provocateur, we are led to the conclusion that they may be different persons.

The statutory history of the adoption of section 609.20 leads to the same conclusion. The statute was adopted in 1963 as part of the revised criminal code soon after the American Law Institute adopted the Model Penal Code. Act of Aug. 1, 1963, ch. 753, art. 1, 1963 Minn. Laws 1185, 1200 (codified at Minn.Stat. § 609.20). The Model Penal Code provided that criminal homicide constituted manslaughter when the murder was committed “under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse ⅜ ⅜ * determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” Model Penal Code, § 210.3 (1980). A comment on section 609.20 by the Advisory Committee on Revision of the Criminal Law. referred with approval to the focus of the Model Penal Code on the extreme mental state of the assailant rather than on who provoked the assailant, with respect to the heat-of-passion manslaughter charge. Advisory Committee on Revision of the Criminal Law, Proposed Minnesota Criminal Code, § 609.20, comment (1962). The history of section 609.20 thus further supports our conclusion that the victim and the provocateur need not be the same person and that the mitigating consequences of heat of passion, provoked by one party, may be transferred to assaultive conduct toward someone other than the provocateur.

While we conclude that section 609.20 permits the transference of heat of passion from a provocateur to a victim who is not a provocateur, our inquiry does not end there, as we must determine if it was error for the trial court to deny a heat-of-passion instruction with respect to the killing of Jereau.

An instruction on a lesser-inelud-ed offense should be given when the offense in question is an included offense and a rational basis exists for the jury to convict the defendant of the lesser-included offense and acquit the defendant of the greater crime. State v. Brocks, 587 N.W.2d 37, 40 (Minn.1998). First-degree manslaughter is a lesser-included offense of fust-degree murder. Id. at 41. The issue then is whether as a matter of law a rational basis exists for a jury to convict appellant of first-degree manslaughter with respect to the killing of Jereau and acquit him of first- or second-degree murder. See State v. Griffin, 518 N.W.2d 1, 3 (Minn.1994) (“The issue for us, an appellate court * * * is the legal issue of whether defendant’s testimony was so unworthy of belief that no rational jury would be entitled to believe it.”).

Appellant’s intentional killing of Jereau may be mitigated to first-degree manslaughter if (1) the killing was committed in the heat of passion; and (2) the passion was provoked by such words or acts of another as would provoke a person of ordinary self-control under the circumstances. Brocks, 587 N.W.2d at 41. The first element is subjective and the second element is objective. State v. Buchanan, 431 N.W.2d 542, 549 (Minn.1988).

While the person whose conduct provokes an assailant’s heat of passion may be someone other than the victim, a heat of passion that provokes an assailant to kill the provocateur will not necessarily satisfy the subjective or objective elements of heat-of-passion manslaughter as to other victims. The evidence as to whether the assailant killed the victim in the heat of passion and the factors that support a conclusion that a person of ordinary self-control would have been provoked under the same circumstances to kill the provocateur may differ and may not be sufficient to support the same conclusion with respect to another. Therefore the two-part test for manslaughter is applied sepa^ rately as to the killing of each victim.

We conduct an independent review of the record as a whole to determine whether a rational basis exists for a jury to conclude that appellant killed Jereau in the heat of passion and whether there were words or acts sufficient to provoke a person of ordinary self-control to act as appellant did. Brocks, 587 N.W.2d at 41. As to the subjective element, we look for a heat of passion that “clouds a defendant’s ‘reason and weaken[s] his willpower.’ ” Id. (quoting Boyce, 284 Minn. at 254, 170 N.W.2d at 112). Anger alone is not heat of passion. Brocks, 587 N.W.2d at 41.

Our inquiry into whether appellant killed Jereau in the heat of passion begins with the observation that appellant’s testimony demonstrates that he did not have a close emotional attachment to Jereau. He visited Jereau only two or three times before Carlson-Bey and Jereau moved to Chicago and missed two scheduled appointments to see them after they returned to Minneapolis. A“ friend of Carlson-Bey’s testified that Carlson-Bey told her that appellant was upset at having to pay child support for a child he only recently learned was his. Appellant testified that he did not mind paying child support but he told his girlfriend that he thought the payment was high and took a second job to compensate for his child support obligations. Appellant’s girlfriend testified that appellant was embarrassed by Jereau because appellant is black and Carlson-Bey was white.

As to where the evidence of the actual killing leads regarding appellant’s claim of heat of passion, he remembers lifting Jer-eau onto the sofa after he killed Carlson-Bey but does not remember stabbing him. He told his girlfriend however, that after he killed Carlson-Bey he saw Jereau crying and put his hand over Jereau’s mouth and stabbed him. Appellant also told the police that Jereau was crying loudly and that he stabbed Jereau because he was worried Jereau’s crying would attract the attention of others. Appellant testified that after he killed Jereau he put the knife into his sweatshirt pocket, went to his car, put the knife into a bag and threw the bag into a garbage can.

Appellant’s admissions as to why and how' he killed Jereau and his conduct after the killings have none of the characteristics of the outrage and loss of self-control that we associate with the heat of passion — they do not demonstrate the clouded reason or weakened willpower we referenced in Boyce. What they do demonstrate is an assailant — in a rational, calculating and controlled emotional state of mind — attempting to avoid detection for the crime he just committed. Based on this record, we conclude as a matter of law that there is no rational basis for a jury to find that appellant killed Jereau in the heat of passion. Because we reach this conclusion, there is no need to inquire into whether heat of passion was reasonably provoked.

We hold that while the trial court erred in ruling that there is no transference of heat of passion from the provocateur to a third-party victim who is not a provocateur, it did not err in denying appellant a jury instruction on manslaughter in the first degree (heat of passion) with respect to the killing of Jereau.

Affirmed.

      . The jury found at tire end of the second phase that appellant was not relieved of criminal responsibility because of mental illness or deficiency.

      . The "properly of another” is defined in section 609.556, for the purposes of damage and trespass to property, to mean "a building or other property ⅜ * * in which a person other than the accused has an interest * * ⅜.” Minn.Stat. § 609.556, subd. 2 (2000).

      . We recognized the importance of the defendant's mental state in Boyce. 284 Minn., at 254-55, 170 N.W.2d at 112. "[I]t is the emotional status of the defendant which is of primary importance in determining whether a homicide is murder or manslaughter in the first degree.”

      . We also note that the transfer of intent to kill another human being is a recognized doctrine in our criminal code. See State v. Ford, 539 N.W.2d 214, 229 (Minn.1995).


author: STONEBURNER, Judge

text:
    Rodney C. HORTON, Appellant, v. TOWNSHIP OF HELEN, McLEOD COUNTY MINNESOTA, Respondent.
    No. C4-00-1480.
    Court of Appeals of Minnesota.
    April 3, 2001.

      Francis J. Eggert, Winsted, MN, (for appellant).
    Peter B. Tiede, Nancy A. Proffitt, Mur-nane, Conlin, White & Brandt, P.A., St. Paul, MN, (for respondent).
    Considered and decided by TOUSSAINT, Chief Judge, STONEBURNER, Judge, and PORITSKY, Judge.

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

   OPINION

STONEBURNER, Judge

Appellant Rodney Horton appeals from summary judgment granted to respondent Township of Helen on his petition for a ■writ of mandamus to compel the township to establish a cartway pursuant to Minn. Stat. § 164.08, subd. 2 (2000). The township’s motion was based on the merits and on the assertion that the district court lacked subject-matter jurisdiction because Horton should have appealed directly to this court. The district court had jurisdiction, and because the township’s denial of the petition was not clearly against the evidence, based on an erroneous theory of law, or arbitrary, capricious and against public interest, we affirm.

FACTS

The parties do not dispute the following facts. Appellant Rodney C. Horton owns real property located in the Township of Helen (township) in McLeod County. Horton’s property is directly adjacent to a township road. Horton petitioned the township for a cartway (historically, a rough roadway for carts but not carriages or other spring-vehicles) to connect his land with the township’s road, pursuant to Minn.Stat. § 164.08, subd. 2 (2000).

Following a hearing, the township (acting through the town board) denied Horton’s petition. Horton then petitioned the district court for a writ of mandamus to compel the township to grant his petition. The township moved for summary judgment. The district court found that material issues of fact existed, denied the motion for summary judgment, and remanded the action with directions that the township establish an “appealable record” so that the mandamus issue could be determined as a matter of law.

At the hearing after remand, Horton submitted several exhibits in support of his request, and audience members and members of local county agencies spoke on the issue. The hearing focused, in part, on whether Horton had access to his property from the township road. Horton stated that he could access the property by means of a horse, a snowmobile, or all-terrain vehicle, but argued that this was not effective access. He also argued that his access was less than two rods in width. After some discussion, the township continued the hearing to accommodate a viewing of the property with Horton and other affected landowners. After viewing the property, the township reconvened the hearing and voted to deny Horton’s cart-way petition. The township made the following findings to support the denial:

At the point of road right-of-way there is 33 feet
There is access that has been used by Horton ⅝ ⅜ ⅜
Horton is not landlocked
Offer was made for an easement but was not accepted by Horton
The laws were in place regarding the driveway when the land was purchased
The Buyer must beware.

Based on this record, the township again moved for summary judgment, arguing: (1) the district court did not have jurisdiction because Horton should have proceeded by petition for writ of certiorari to this court; (2) mandamus relief was inappropriate; and (3) no evidence indicated the township’s decision was arbitrary or capricious, or contrary to applicable law. The district court granted the motion without comment. Horton appeals.

ISSUES

I. Did the district court have subject-matter jurisdiction?

II. Was the township’s refusal to grant the cartway clearly against the evidence, based on an erroneous theory of law, or arbitrary and capricious and against the public’s best interest?

ANALYSIS

On appeal from summary judgment, we review the record to determine whether there are any genuine issues of material fact, and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted); Oak Park Dev. Co. v. Snyder Bros. of Minn., Inc., 499 N.W.2d 500, 504 (Minn.App.1993). We view the evidence in favor of the party against whom summary judgment was granted. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). To defeat a motion for summary judgment, the “nonmoving party must offer significant probative evidence tending to support its complaint.” Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn.App.1989) (citation omitted). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted). This court will affirm a grant of summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn.App.1995).

I. Subject-Matter Jurisdiction

Horton sought a writ of mandamus from district court -after the township denied his petition for a cartway. The township argues that the district court did not have subject-matter jurisdiction. We review the issue of subject-matter jurisdiction de novo. Federal-Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 96 (Minn.App.1996), review denied (Minn. Aug. 20,1996). The township claims that the district court lacked subject-matter jurisdiction because the township’s decision to grant or deny a cartway petition constitutes a quasi-judicial function, reviewable only by writ of certiorari to this court. We disagree. The establishment of a cartway constitutes quasi-legislative action. See Rask v. Town Bd. of Hendrum, 173 Minn. 572, 574, 218 N.W. 115, 116 (Minn.1928) (indicating question of whether cartway should be established is “one of policy, legislative in its nature”); see, e.g., Lafayette Land Co. v. Village of Tonka Bay, 305 Minn. 461, 463, 234 N.W.2d 804, 805 (1975) (“It has long been the rule in this state that the decision of whether to open a street is vested in the legislative discretion of the municipality.”); Lieser v. Town of St. Martin, 255 Minn. 153, 158, 96 N.W.2d 1, 5 (1959) (recognizing town board “acts in a legislative capacity” when it acts on petition for town road). Certiorari to this court is an “extraordinary remedy” only available to review judicial or quasi-judicial proceedings and actions. Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn.1981). It is not available to review legislative actions. Id.

The township also argues that establishment of a cartway is discretionary, as opposed to mandatory, and that a writ of mandamus will not compel performance of a discretionary action. The township is mistaken; where the statutory conditions exist, the establishment of a cartway is mandatory, not discretionary:

The settled construction of the statute is that it is the mandatory duty of a town board to establish a cartway upon petition of a landowner where the statutory conditions exist ⅝ * ⅜.

State ex rel. Rose v. Town of Greenwood, 220 Minn. 508, 514, 20 N.W.2d 345, 348 (1945). Where a petitioner satisfies all the criteria under the cartway statute, a town board must establish a cartway. Here, Horton failed to demonstrate that his access to the public road was less than two rods (33 feet) in width.

Because establishment of a cartway is a quasi-legislative action, certiorari to this court is not appropriate for review of denial of a cartway petition. Horton properly sought review by way of petition for a writ of mandamus to the district court.

II. Denial of Horton’s petition for a cartway.

Under Minnesota law, if a landowner petitions for a cartway, a township must establish the cartway if the landowner’s access to a public road is less than two rods (33 feet) in width or the landowner’s property is landlocked:

Upon petition presented to the town board by the owner of a tract of land containing at least five acres, who has no access thereto except over the lands of others, or whose access thereto is less than two rods in width, the town board by resolution shall establish a cartway at least two rods wide connecting the petitioner’s land with a public road.

MinmStat. § 164.08, subd. 2(a) (2000) (emphasis added); see Minn.Stat. § 645.44, subd. 16 (2000) (stating “ ‘[s]hair is mandatory”). A town board that grants or refuses a cartway petition acts in a legislative capacity and will be reversed on appeal only when (1) the evidence is clearly against the decision, (2) an erroneous theory of the law was applied, or (3) the town board acted arbitrarily and capriciously, contrary to the public’s best interest. Lieser, 255 Minn, at 159, 96 N.W.2d at 5-6; Rask, 173 Minn. at 574, 218 N.W. at 116. “When judicially reviewing a legislative determination, the scope of review must necessarily be narrow.” Sun Oil Co. v. Village of New Hope, 300 Minn. 326, 333, 220 N.W.2d 256, 261 (Minn.1974). Generally, this court will affirm even though, we may have reached a different conclusion. Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 669 (Minn.1984).

Here, the township made findings and determined that Horton fails to qualify for a cartway because “[a]t the point of road right-of-way there is 33 feet,” and “Horton is not landlocked.” Horton has not presented any evidence to dispute the township’s finding that the area where his property meets the township road is 33 feet wide. The evidence also supports the township’s determination that Horton is not required to cross neighboring properties to access the township’s'road. Given our deference to the township’s decision in these matters, we conclude that the township’s refusal to grant Horton’s petition is not clearly against the evidence, based on an erroneous theory of law, or arbitrary and capricious and against the public’s best interest. The district court did not err in granting summary judgment to the township and denying Horton’s petition for a writ of mandamus to compel the township to establish the cartway.

DECISION

The district court had jurisdiction, but summary judgment for the township was appropriate where the township’s denial of Horton’s petition for a cartway was not clearly against the evidence, based on an erroneous theory of law, or arbitrary, capricious or against the public’s best interest.

Affirmed.

      . Horton argues that the district court erred in granting the township’s motion without findings of fact and conclusions of law, but provides no authority for this proposition. Under the Minnesota Rules of Civil Procedure, the district court is not required to make findings of fact in granting or denying a motion for summary judgment. Minn. R.Civ.P. 52.01. In the absence of findings, this court may nevertheless affirm summary judgment if "the record is reasonably clear and the facts not seriously disputed.” Bettes v. Fuel-Scott, 415 N.W.2d 409, 411 (Minn.App.1987) (quoting Roberson v. Roberson, 296 Minn. 476, 478, 206 N.W.2d 347, 348 (1973)). Horton also argues it was error for the district court to allow the township to 'file a second summary judgment motion. This argument, too, is without merit.

      . Horton argued, and the township concedes, that his property line ends at the center of the township road and that at that point it is narrower than 33 feet. Horton, however, does not access the road at its center. The evidence supports the township’s finding of 33 feet at Horton’s point of access to the road.


author: SCHUMACHER, Judge KALITOWSKI, Judge

text:
    STATE of Minnesota, Appellant, v. Jeremiah John TREI, Respondent.
    No. C3-00-1857.
    Court of Appeals of Minnesota.
    April 10, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Michael K. Riley, Sr., Nicollet County Attorney, Jerold M. Lucas, Chief Deputy County Attorney, St. Peter, MN, (for appellant).
    Mark D. Nyvold, St. Paul, MN, (for respondent).
    Considered and decided by SCHUMACHER, Presiding Judge, KALITOWSKI, Judge, and STONEBURNER, Judge.
   OPINION

SCHUMACHER, Judge

Appellant State of Minnesota challenges the district court’s order dismissing the charge of first-degree assault brought against respondent Jeremiah John Trei. We reverse and remand for trial.

FACTS

On the evening of June 3, 2000, Officer Dennis McKinney of the North Mankato Police Department received a repoi’t that Trei had committed a domestic assault and had stolen a car. McKinney discovered that Trei lived in an apartment building within McKinney’s patrol area. McKinney waited in the parking lot of the apartment complex on the chance that Trei would return to his home. Eventually, Trei drove into the parking lot, exited his vehicle, and went into the building.

Trei then came out of the building, at which point McKinney approached him and asked to see his identification. Trei responded that he had no identification. McKinney then asked Trei to accompany him to his cruiser so that McKinney could identify Trei in connection with an incident that had occurred at Madison Lake. Upon learning this information, Trei immediately uttered a profanity and ran into the apartment building.

McKinney gave chase and knocked on the door to the apartment that Trei had just entered. A female, later identified as Trei’s sister, opened the door and asked McKinney what was going on. McKinney twice asked where the person was who had just run into the apartment. McKinney took one step into the apartment and spotted Trei approximately 10 to 15 feet to his right, holding 2 large kitchen knives. Trei was holding the knives roughly at the height of his head with the blades pointing down. Trei took two quick steps toward McKinney while uttering the phrase, “bring it on, f* * *er,” and moving the knives in an up-and-down motion. When Trei had come within about eight feet of McKinney, McKinney drew his gun, told Trei to stop, and ordered him to drop the knives. Trei stopped but did not drop the knives and continued to handle them in the same way as before.

At that point, another person, later identified as Troy Brandsgaard, emerged from the kitchen. Trei began pacing back and forth with the knives still in hand. McKinney instructed both Brandsgaard and Trei’s sister to stay away from Trei. McKinney again ordered Trei to lay down his weapons. Brandsgaard also attempted to persuade Trei to lay down his weapons. Eventually, Trei acceded and threw down the knives.

The prosecutor charged Trei with violating several criminal statutes, including Minn.Stat. § 609.221, subd. 2(a) (1998), assault in the first degree. On Trei’s motion, the district court held a hearing to determine whether to dismiss this count based on lack of probable cause. The district court determined, based on the above-stated facts, that it was “probable” that Trei “produced the knives with the intent to cause fear in the officer of immediate harm or death.” The district court found these facts “insufficient” to demonstrate that Trei “used or attempted to use deadly force” and therefore dismissed the count of assault in the first degree for lack of probable cause. The state appealed pursuant to Minn.R.Crim.P. 28.04.

ISSUE

Did the trial court err in dismissing the count of assault in the first degree for lack of probable cause?

ANALYSIS

When the state appeals a pretrial order under Minn.R.Crim.P. 28.04, a reviewing court will reverse only if the state demonstrates clearly and unequivocally that the district court erred in its judgment and, unless reversed,- the error will have a critical impact on the outcome of the trial. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn.1987). Dismissal of a complaint satisfies the critical impact requirement. State v. Dendy, 598 N.W.2d 4, 6 (Minn.App.1999), review denied (Minn. Sept. 28, 1999); see also State v. Vanado, 582 N.W.2d 886, 889 & n. 1 (Minn.1998) (dismissal of criminal complaint following suppression of evidence satisfies critical impact requirement). Thus, we examine for clear error the propriety of the district court’s application of the statutes at issue to the undisputed facts of this case.

Probable cause exists where the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is.guilty of a crime. State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978). In addressing a probable cause challenge, the court must determine whether, given the facts disclosed by the record, it is fair and reasonable to require the defendant to stand trial. State v. Florence, 306 Minn. 442, 457, 239 N.W.2d 892, 902 (1976). That is, whether the facts appearing in the record “would preclude the granting of a motion for a directed verdict of acquittal if proved at trial.” Id. at 459, 239 N.W.2d at 903. When considering a directed verdict, the trial court must determine

whether, as a matter of law, the evidence is sufficient to present a fact question for the jury’s consideration. In making this decision, the court must view the credibility of the evidence, and every inference which may fairly be drawn therefrom, in favor of the adverse party.

Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn.1980) (citations omitted).

Here, Trei is charged with assault in the first degree. Specifically, he is accused of

assaulting] a peace officer ⅜ * ⅜ by using or attempting to use deadly force ⅜ * * while the officer ⅜ * ⅜ is engaged in the performance of a duty imposed by law, policy, or rule * * *.

Minn.Stat. § 609.221, subd. 2(a) (1998). For the purposes of the statute, the term “deadly force” has a particular definition. Id., subd. 2(c)(2) (1998) (cross-referencing to Minn.Stat. § 609.066). Deadly force is defined as

force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm.

Minn.Stat. § 609.066, subd. 1 (1998).

There is no dispute that Trei made a quick movement toward McKinney with knives in hand while uttering words to the effect that he wished to engage McKinney in combat. Had Trei carried out the attack to completion, there can be little doubt that it would have constituted “deadly force” within the statutory meaning of the term. But when McKinney drew his gun, Trei stopped short of doing so. The district court examined the undisputed facts and concluded that, most likely, Trei’s actions constituted a threat rather than an attempt to use deadly force. The district court determined that the evidence on the record was insufficient to conclude that Trei had made an attempt to use deadly force.

In deciding whether there exists probable cause to hold a defendant over for trial, the trial court is not to invade the province of the jury. State v. Hegstrom, 543 N.W.2d 698, 703 (Minn.App.1996) (trial court’s determination that probable cause was lacking was error where trial court made determination that properly belonged to jury), review denied (Minn. Apr. 16, 1996); State v. Tolbert, 488 N.W.2d 11, 13 (Minn.App.1992) (same); State v. Poupard, 471 N.W.2d 686, 690 (Minn.App.1991) (same). A person is guilty of an attempt to commit a crime if that person takes a “substantial step,” beyond mere preparation, toward commission of the crime with criminal intent. Minn.Stat. § 609.17, subd. 1 (1998).

Here, McKinney testified that Trei wielded deadly weapons while charging toward McKinney. Based on this testimony, a jury could reasonably conclude that Trei’s initial movements toward McKinney constituted an intentional “substantial step” toward the use of deadly force, regardless of the fact that Trei cut off the attack prematurely upon seeing McKinney’s weapon. See Davis v. State, 595 N.W.2d 520, 526 (Minn.1999) (evidence sufficient to support conviction for attempted murder where defendant made stabbing motion toward victim, although victim was not actually injured because blade had broken off); State v. Peterson, 262 N.W.2d 706, 707 (Minn.1978) (evidence was sufficient to support conviction for attempted rape where defendant grabbed victims and gave chase when they ran away, ending pursuit only upon seeing police car). Thus, probable cause exists as to whether Trei made an attempt to use deadly force against McKinney.

DECISION

The district court erred in dismissing the count of assault in the first degree for lack of probable cause. Whether Trei actually committed the offense is an issue for the jury to decide.

Reversed and remanded.

KALITOWSKI, Judge

(dissenting)

I respectfully dissent. The issue here is whether a jury could find that Trei assaulted McKinney by using or attempting to use deadly force. In determining whether an act constitutes “deadly force,” the Minnesota Supreme Court in Johnson v. Morris, 453 N.W.2d 31, 38 (Minn.1990), cited with approval section 3.11 of the Model Penal Code, which states:

A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.

Model Penal Code § 3.11(2) (Proposed Official Draft 1962).

It is undisputed that at no time was Trei closer than eight feet from McKinney and that at all times the blades of'the knives in Trei’s hands were pointed downward. On these facts the district court properly concluded that while Trei threatened to assault McKinney, as a matter of law a jury could not find that Trei assaulted McKinney by using or attempting to use deadly force. I would affirm the district court.


author: HANSON, Judge.

text:
    Jeffrey T. WALKER, Individually and as Mayor of Cohasset, City of Cohasset and J.R. Properties, a Minnesota Partnership, Respondents, v. ITASCA COUNTY AUDITOR Robert Zuehlke; St. Louis County Auditor Gordy McFaul; Aitkin County Auditor Alice Dotzler; Cook County Auditor Carol Gresczyk; Lake County Auditor Steven McMahon; Crow Wing County Auditor Roy Luukkonen; and State of Minnesota, Appellants.
    No. C9-00-1863.
    Court of Appeals of Minnesota.
    April 10, 2001.

      Phillip R. Krass, Krass Monroe, P.A., Bloomington, MN, for respondents.
    Michael A. Hatch, Minnesota Attorney General, Bradford S. Delapena, Assistant Attorney General, James W. Neher, Assistant Attorney General, St. Paul, MN, for appellants.
    Considered and decided by HARTEN, Presiding Judge, CRIPPEN, Judge, and HANSON, Judge.
   OPINION

HANSON, Judge.

Taxpayers challenge the constitutionality of the Taeonite Tax Relief Area Fiscal Disparities Act, MinmStat. §§ 276A.01-09 (2000), contending that it violates the uniformity clause of the Minnesota Constitution. Minn. Const, art. X, § 1. The district court found the act unconstitutional and the state and the affected counties appeal. We reverse.

FACTS

In 1941, the Minnesota Legislature established the taeonite production tax, which was imposed in lieu of local property taxes. Minn.Stat. § 298.22 (1941). Under the initial law, three-fourths of the revenue generated by the taeonite production tax was redistributed among local taxing districts to replace preempted property tax revenues.

In 1969, the legislature created the Tac-onite Tax Relief Area (“TTRA”), consisting of all areas within a school district containing a municipality that had a particular valuation of unmined iron ore or a qualifying taeonite facility. Minn.Stat. § 273.134 (2000). The resulting area covers all or part of Aitkin, Cook, Crow Wing, Itasca, Lake, and St. Louis counties. Under related statutory provisions, taeonite production tax revenues are pooled and distributed among TTRA municipalities in a variety of forms, including property-tax subsidies, funding of public schools and community-development grants from the Iron Range Resources and Rehabilitation Board. See Minn.Stat. §§ 273.136, 298.22, .28, 471.58 (2000). This revenue sharing was designed to promote economic diversity in Minnesota’s iron range. The funds collected and distributed under the taconite production tax are a major source of revenue to the governmental units in the TTRA, with annual proceeds approaching $95 million in 1999.

In 1996, the Minnesota Legislature passed the Taconite Tax Relief Area Fiscal Disparities Act (the “Range Act”), as an extension of the regional revenue sharing scheme. See Minn.Stat. §§ 276A.01-.09 (2000) (codifying .1996 Minn. Laws ch. 471, art. 11). Under the Range Act, a municipality that is within the TTRA (and is thus a recipient of the shared taconite production tax) must contribute 40% of the revenues derived from the annual growth in its commercial-industrial property tax base to a regional pool. Every TTRA municipality then receives a distribution from the regional pool based largely upon its population. Municipalities experiencing no growth in property tax base make no contribution to the fund, but still receive a distribution; municipalities experiencing growth in property tax base may well contribute more to the pool than they receive in distributions. The effect is a redistribution of tax revenues throughout the region based upon the legislature’s recognition that commercial-industrial growth throughout the TTRA has benefited from, and perhaps was produced by, the sharing of the taconite production tax revenues.

Respondents challenge the constitutionality of the Range Act, alleging that it violates the uniformity clause of the Minnesota Constitution (Minn. Const, art. X, § 1) because the burdens imposed on the taxpayers in some municipalities far outweigh the benefits received. The district court agreed, ordered that the implementation of the Range Act cease and stayed its order pending final resolution of this issue on appeal.

ISSUE

Did the district court err in holding that the Taconite Tax Relief Area Fiscal Disparities Act violates the uniformity clause of the Minnesota Constitution?

ANALYSIS

The review of a challenge to the constitutionality of a statute is a question of law and this court need not adhere to the district court’s judgment. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993). State statutes receive the benefit of a presumption of constitutionality, and the judicial power “to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). In fact, the party seeking a ruling of unconstitutionality must prove “beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.” Id. Particular caution is necessary when ruling upon the constitutionality of an exercise of the legislature’s power of taxation:

Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.

Village of Burnsville v. Onischuk, 301 Minn. 137, 151, 222 N.W.2d 523, 531 (1974) (quotation omitted) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 41, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16 (1973)), appeal dismissed, 420 U.S. 916, 95 S.Ct. 1109, 43 L.Ed.2d 388 (1975) (emphasis added).

The uniformity clause of the Minnesota Constitution requires that taxes enacted by the legislature “shall be uniform upon the same class of subjects.” Minn. Const. art. X, § 1. The court has required uniformity with respect to both the levy and distribution of taxes. City of Jackson v. Jackson County, 214 Minn. 244, 247, 7 N.W.2d 753, 755 (1943). Like the equal protection clause of the Fourteenth Amendment of the United States Constitution, the uniformity clause serves to “prohibit substantial inequality in the apportionment of taxes.” Wagner v. Commissioner of Taxation, 258 Minn. 330, 334, 104 N.W.2d 26, 29 (1960). A tax statute is constitutional if it is based upon “a reasonable relationship to the apportionment of the taxes and the benefit to be derived by that segment of our population required to bear the financial burden.” Visina v. Freeman, 252 Minn. 177, 195, 89 N.W.2d 635, 650 (Minn.1958).

The Minnesota Supreme Court has previously considered the constitutionality of a similar fiscal disparities taxation law in Onischuk. There, the supreme court reversed a judgment that the Metropolitan Fiscal Disparities Act of 1974 (“MFDA”) was unconstitutional under the uniformity clause. 301 Minn. at 154, 222 N.W.2d at 533. The MFDA requires municipalities in the seven-county Twin Cities metropolitan area to contribute 40% of the increased revenue derived from growth in commercial-industrial property tax base to a regional pool from which all municipalities receive distributions based largely upon their population. Minn.Stat. § 473F.07 (2000). In finding the MFDA constitutional, the supreme court expanded the traditional concept of tax benefit:

The fiscal disparities statute is a bold and imaginative departure from conventional devices for balancing the benefits and burdens of taxation. * * * [W]e are quick to concede that a strict application of our prior decisions would require us to lean strongly for affirmance. * * * Nevertheless, we are today dealing with a viable, fluid, transient society where traditional concepts of what confers a tax benefit may be too parochial.

Onischuk, 301 Minn. at 152, 222 N.W.2d at 532. The court recognized that

the benefits conferred on residents of a particular municipality because of the location of commercial-industrial development within its boundaries may far exceed the burdens imposed on that municipality by virtue of the additional cost of servicing and policing the particular development which has located there.

Id. at 153, 222 N.W.2d at 532. The court combined this recognition with its acceptance of the theory it found embedded in the MFDA:

[Tjhe residents of highly developed commercial-industrial areas * * * enjoy direct benefits from the existence of adjacent municipalities which provide open spaces, lakes, parks, golf courses, zoos, fairgrounds, low-density housing areas, churches, schools, and hospitals.

Id. In addition, the court placed significant emphasis on its need to defer to the legislature on matters of taxation, because the legislature “enjoys a familiarity with the problems of fiscal disparities which is denied the courts.” Id. at 153, 222 N.W.2d at 533. The court concluded:

The presumption of constitutionality which the statute enjoys has not been overcome by an explicit demonstration that its application results in a “hostile and oppressive discrimination” against the residents of particular units of government.

Id. at 153-54, 222 N.W.2d at 533.

In finding the Range Act unconstitutional, the district court focused too narrowly upon the factual environment in Onischuk. The district court found that the Taconite Tax Relief Area does not possess the social and economic integration and interdependence that inspired the Onischuk court to extend the traditional concept of tax benefits for the metropolitan area. We find this factual distinction unavailing. While the municipalities within the TTRA do not derive similar benefits from social or economic integration, they do derive substantial benefits from the sharing of the taconite production tax, sufficient to justify the burdens imposed by the Range Act.

The district court ignored the benefits from the sharing of taconite production taxes, concluding they were derived from “unrelated legislation.” This was erroneous.

First, the TTRA and the Range Act are not “unrelated.” To the contrary, the legislative history makes it clear that the Range Act was a natural outgrowth of the TTRA — the sharing of the taconite production tax revenue finances the economic development efforts that help produce the growth in the commercial-industrial property tax base.

Second, the Minnesota Supreme Court has already held that the benefits of sharing the taconite production tax may be used to support an extension, in separate legislation, of revenue sharing within the TTRA. In United States Steel Corp. v. State of Minnesota, 324 N.W.2d 638, 645 (Minn.1982), the court held that the additional burdens imposed on the TTRA municipalities, by distributing local ad valo-rem property taxes to the Iron Range Resources and Rehabilitation Board under a 1974 legislative extension of the regional revenue sharing scheme (Minn.Stat. § 273.02 (2000)), were justified by the benefits received from sharing taconite production taxes. The court noted:

As all parties agree, the traditionally rigid standards governing what constitutes burdens and benefits have been considerably relaxed in this state and elsewhere in recent years.

Id. at 644. The court also quoted Onischuk in concluding that the distribution of property taxes was constitutional under the uniformity clause:

[W]e are of the opinion that it is no longer necessary for units of government providing tax revenue to receive the kind of tangible and specific benefits to which our court has previously referred in order to satisfy the uniformity clause.

Id. at 645 (quotation omitted).

There is no question that taxpayers in the TTRA have benefited greatly from taconite production tax revenues. The essential question before us is whether the benefits derived from an existing tax can be considered to justify the burdens of a new tax. We find ample guidance from the Onischuk and United States Steel Corp. decisions to conclude that they can and that the Range Act, as an outgrowth of taconite production tax revenue sharing, satisfies the uniformity clause of the Minnesota Constitution.

DECISION

The district court erred in holding that the Taconite Tax Relief Area Fiscal Disparities Act, Minn.Stat. §§ 276A.01-09 (2000), was unconstitutional under the uniformity clause of the Minnesota Constitution.

Reversed.


author: PER CURIAM.

text:
    2001 ND 63
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael E. KELLER, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Michael E. Keller, Respondent.
    No. 20010068.
    Supreme Court of North Dakota.
    March 28, 2001.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On March 16, 2001, an Application for Interim Suspension of Michael E. Keller (Keller), a person admitted to the Bar of North Dakota, and supporting Affidavits with attached exhibits, were filed under Rule 3.4, North Dakota Rules for Lawyer Discipline (N.D.R. Lawyer Discipl.) by Loralyn K. Hegland, Assistant Disciplinary Counsel for the Disciplinary Board of the Supreme Court. The Affidavit indicates that complaints have been filed against Keller by clients who have not been informed that Keller’s license to practice law was suspended, effective December 31, 2000, for noncompliance with rules regarding Continuing Legal Education as required by N.D.R. Lawyer Dis-cipl. 6.3.

[¶ 2] On March 22, 2001, a .Supplemental Affidavit in Support of Application for Interim Suspension with attached exhibits was filed by Paul W. Jacobson, Disciplinary Counsel for the Disciplinary Board of the Supreme Court. The Supplemental Affidavit indicates that Keller was attorney in fact for the administration of seven quarters of land on behalf of Michael Moore and his three sisters. The Supplemental Affidavit further alleges that renters of two quarters had paid Keller $22,576 in 1999 and 2000 and taxes on the land of $15,677.98 for 1999 and 2000 are unpaid. The Supplemental Affidavit asserts that there is less than $1000 in the Michael Moore account leaving a substantial sum unaccounted for.

[¶ 3] On March 28, 2001, Keller filed an Affidavit and Response to Application for Interim Suspension. Keller’s Affidavit admits that he did not inform Gregary L. Atchley (Atchley) of Keller’s suspension because he believed he could comply with the Continuing Legal Education requirements and be reinstated in a short time period, but found it was more difficult than expected. Keller asserts that he will immediately forward Atchley’s file to him. Further, Keller’s Affidavit admits that he did not inform Michael Moore (Moore) of his suspension because he did not perform legal work for Moore. Keller asserts that he will provide Moore with notice and forward his file to him within 10 days. Keller further asserts that he plans to close his office by mid-April 2001 and that he will be notifying his clients of his suspended status and make their files available to them within 10 days. Under these circumstances, Keller does not believe he presents a substantial threat of irreparable harm to the public.

[¶ 4] The Application requests immediate suspension of Keller’s certificate of admission to the Bar of North Dakota and appointment of a professional trustee under Rule 6.4, N.D.R. Lawyer Discipl. The Court considered the matter, and

[¶5] ORDERED, Michael E. Keller’s certificate of admission to the Bar of the State of North Dakota is suspended under Rule 3.4, N.D.R. Lawyer Discipl., effective immediately and until further order of this Court, pending disposition of the proceedings predicated upon the conduct giving rise to the Application.

[¶ 6] FURTHER ORDERED, Assistant Disciplinary Counsel promptly apply to the presiding judge of the Northeast Central Judicial District for a professional trustee as provided in Rule 6.4 N.D.R. Lawyer Discipl.

[¶ 7] Dated at Bismarck, N.D., this 28th day of March, 2001.

[¶ 8] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.