text:
    S.E. IOWA COOPERATIVE ELECTRIC ASSOCIATION, Appellant, v. IOWA UTILITIES BOARD, Appellee, Office of Consumer Advocate and Mt. Pleasant Muncipal Utilities, Intervenors-Appellees.
    No. 99-1376.
    Supreme Court of Iowa.
    Sept. 6, 2001.

      Michael P. Joynt, Dennis L. Puckett, and Jill Mataya Corry of Sullivan & Ward, P.C., Des Moines, for appellant.
    Allan Kniep and Vicki Place, Des Moines, for appellee Iowa Utilities Board.
    Gary D. Stewart and Jennifer C. Easier, Des Moines, for intervenor-appellee Office of Consumer Advocate.
    Sheila K. Tipton of Dorsey & Whitney, L.L.P., Des Moines, for intervenor-appel-lee Mt. Pleasant Municipal Utilities.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   CADY, Justice.

This appeal requires us to determine whether economic considerations may constitute the sole basis for a finding by the utilities board that proposed electric transmission lines are necessary to serve a public use pursuant to Iowa Code section 478.4 (1995). In ruling on the petition for judicial review, the district court found the utilities board appropriately relied on resulting economic benefits in granting the electric transmission line franchises. Considering the discretion accorded to the utilities board in decisions of this nature, we agree with the district court that substantial evidence supported the agency’s decision. We affirm.

I. Background Facts and Proceedings.

Mt. Pleasant Municipal Utilities (MPMU) is a municipally owned electric utility serving residential and commercial electric customers in the city of Mt. Pleasant, Iowa. Instead of generating its own electricity, MPMU purchases wholesale electric power from IES Utilities Inc. (IES) and resells the power to its customers. Because MPMU does not have direct access to IES’ electric transmission system, it has to obtain power through a transmission line owned by Northeast Missouri Electric Power Cooperative (NEMO). MPMU must pay a “wheeling” fee for its use of the NEMO interconnection. A “wheeling” fee is a charge imposed on a utility for the use of another utility’s transmission facilities’ direct interconnection to electric power.

NEMO is an electric generation and transmission cooperative, and owns a transmission line that wheels wholesale electric power from a substation directly connected to IES’ transmission line. S.E. Iowa Cooperative Electric Association (S.E. Iowa) is a member and owner of NEMO. It is subject to an all-requirements wholesale power contract in which it must fulfill all of its customers’ energy requirements from NEMO. S.E. Iowa’s service territory surrounds Mt. Pleasant’s city limits.

Associated Consultants Engineers, Inc. (ACE) conducted a power source study for MPMU in 1994, to evaluate any potential alternatives to MPMU’s current wholesale power contract with NEMO. ACE found that MPMU would realize substantial cost savings if it could bypass NEMO’s transmission system and receive power directly from IES. MPMU would need to construct two new transmission lines in order to establish a direct connection between its own substations and IES’ transmission line. In addition, a new substation would need to be built in West Mt. Pleasant.

ACE estimated MPMU would save $1.371 million over a ten-year period. This estimate considered the construction costs of $800,000, and the projected ten-year wheeling fees of $2.171 million. In calculating the wheeling charges, ACE used the rate charged by NEMO in 1996 and assumed the rates would increase by three percent each year. Moreover, the transmission lines would be a long-term asset with a life beyond ten years. Thus, MPMU would realize additional economic benefits for an additional twenty to thirty years. Additionally, the Office of Consumer Advocate (OCA) performed a power source study, in which it also concluded the construction of the new lines would result in substantial wholesale power savings for consumers over an extended period of time.

Acknowledging the construction of additional lines would duplicate a segment of NEMO’s existing lines, MPMU attempted to negotiate a plan with NEMO in lieu of construction. However, NEMO rejected MPMU’s offer to purchase NEMO’s existing lines, as well as MPMU’s suggestion that NEMO waive or reduce the wheeling charges.

MPMU then accepted ACE’s recommendation, and entered into a new wholesale power purchase contract with IES. The terms of the agreement provided that IES would bear the responsibility for the construction of the new West Mt. Pleasant substation, while MPMU would construct the new lines at its own expense.

MPMU then filed two petitions for electric transmission line franchises in accordance with Iowa Code section 478.3. One line was for 0.90 miles, while the other was for 0.62 miles. In its petitions, MPMU cited the savings that would be passed on to its customers to demonstrate the lines were necessary to serve a public use. In addition, MPMU claimed the lines represented a reasonable relationship to comprehensive electric utility planning, as the two lines would connect MPMU to IES through the new substation.

S.E. Iowa filed a petition to intervene. It contended the proposed lines did not serve a public use nor did they represent a reasonable relationship to an overall plan of transmitting electricity in the public interest as required by section 478.4. S.E. Iowa urged the administrative law judge (ALJ) to deny MPMU’s petitions, arguing the lines would merely duplicate NEMO’s existing facilities and would not improve service reliability.

The ALJ granted S.E. Iowa’s petition to intervene and held an evidentiary hearing on MPMU’s franchise petitions. The OCA entered its appearance pursuant to section 475A.2. Although the OCA supported the granting of the franchises, it proposed a modified route.

The ALJ granted MPMU’s two petitions, and adopted the modified route proposed by the OCA. The ALJ based its decision on the evidence showing that MPMU would realize substantial economic benefits by means of the less expensive wholesale power it could obtain through the direct connection to the IES substation.

S.E. Iowa appealed the ALJ’s decision to grant the franchises to the Iowa Utilities Board (Board), and MPMU appealed the modification of its proposed route. S.E. Iowa’s motion to reopen the record was granted. At an evidentiary hearing, S.E. Iowa introduced evidence of a onetime forty percent reduction in NEMO’s wheeling rates for 1997 and of the circumstances surrounding NEMO and MPMU’s agreement to construct a back-up interconnection. Concluding this additional evidence did not affect the ALJ’s order, the Board affirmed the ALJ’s decision. In doing so, however, the Board modified the order so that the lines would be constructed in the manner requested by MPMU.

S.E. Iowa filed an application for rehearing with the Board, citing new evidence. In denying the rehearing, the Board ruled that even if new evidence existed, it supported the Board’s order. S.E. Iowa then petitioned for judicial review, which the district court subsequently denied.

S.E. Iowa appeals. It claims the Board erred in considering economic benefits as a sufficient basis for granting electric transmission line franchises under section 478.4, and in denying its application for rehearing.

II. Scope of Review.

Iowa Code section 17A.19(8) governs our review of administrative agency proceedings. Second .Injury Fund of Iowa v. Klebs, 539 N.W.2d 178, 179-80 (Iowa 1995). We limit our review to errors at law. Iowa Code § 17A.19(8)(e); Second Injury Fund of Iowa, 539 N.W.2d at 180. We will grant the requested relief if the petitioning party’s substantial rights have been prejudiced and the agency exceeded its statutory authority or abused its discretion. Iowa Code § 17A.19(8)(b), (g); Dico, Inc. v. Iowa Employment Appeal Bd., 576 N.W.2d 352, 354 (Iowa 1998); Northwestern Bell Tel. Co. v. Iowa Utils. Bd., 477 N.W.2d 678, 682 (Iowa 1991). Likewise, we will reverse or modify the agency’s decision if it is not supported by substantial evidence, considering the record in its entirety. Iowa Code § 17A.19(8)(f); Second Injury Fund of Iowa, 539 N.W.2d at 180. Evidence is substantial if a reasonable person would consider it sufficient to support the agency’s conclusions. Second Injury Fund of loica, 539 N.W.2d at 180; Northwestern Bell Tel. Co., 477 N.W.2d at 682. Thus, even if we find the record could support a different conclusion, we must affirm the agency’s decision if it is supported by substantial evidence. Northwestern Bell Tel. Co., 477 N.W.2d at 682; Eaves v. Bd. of Med. Exam’rs, 467 N.W.2d 234, 237 (Iowa 1991).

We afford considerable deference to the agency’s expertise, especially when the decision involves the highly technical area of public utility regulation. Equal Access Corp. v. Utils. Bd., 510 N.W.2d 147, 151-52 (Iowa 1993); Northwestern Bell Tel. Co., 477 N.W.2d at 682. Accordingly, we typically defer to the agency’s informed decision as long as it falls within a “zone of reasonableness.” Equal Access Corp., 510 N.W.2d at 151-52. Consequently, the majority of “disputes are won or lost at the agency level.” Northwestern Bell Tel. Co., 477 N.W.2d at 682 (citation omitted).

III. Economic Considerations.

Any person or company seeking to construct an electric transmission line must first petition the Board for permission. Iowa Code § 478.1. Iowa Code section 478.3 delineates the information that must be contained in the petition, including allegations that the proposed line is “necessary to serve a public use” and “represents a reasonable relationship to an overall plan of transmitting electricity in the public interest.” Id. § 478.3. However, the Board can waive the showing of any allegations that do not apply to a particular proposed line. Id.; see Fischer v. Iowa State Commerce Comm’n, 368 N.W.2d 88, 93-94 (Iowa 1985). Before the Board may grant a petition for an electric transmission line franchise, it must find the proposed line is “necessary to serve a public use and represents a reasonable relationship to an overall plan of transmitting electricity in the public interest.” Iowa Code § 478.4; Fischer, 368 N.W.2d at 97.

The Board in this case found MPMU’s two petitions conformed to the requirements of section 478.3. MPMU alleged the cost savings that would be passed on to its customers made the proposed lines necessary to serve a public use, and the new direct interconnection between IES and MPMU represented a reasonable relationship to a comprehensive electric utility plan. In granting MPMU’s franchise petitions, the Board essentially adopted MPMU’s allegations when entering its requisite findings. The Board found that although MPMU primarily relied on the resulting economic benefits to support its assertions, those benefits served as a sufficient basis for granting the franchises pursuant to section 478.4.

We recognize, as did the ALJ and the Board in this case, that the Board has never before granted a petition for an electric transmission line franchise on economic considerations only. Although this is a case of first impression, this should not affect the deference we traditionally accord to the Board in public utility regulation cases. See Barron Elec. Coop. v. Pub. Serv. Comm’n of Wisconsin, 212 Wis.2d 752, 764, 569 N.W.2d 726, 732 (1997) (agency need not have addressed specific or similar issue to be entitled to deference). Our legislature gave the Board discretion to make decisions involving electric transmission lines, and we are not to question the wisdom of the legislature in doing so. See Race v. Iowa Elec. Light & Power Co., 257 Iowa 701, 707, 134 N.W.2d 335, 338 (1965); Iowa Ry. & Light Corp. v. Lindsey, 211 Iowa 544, 546-47, 231 N.W. 461, 462 (1930); see also 27A Am.Jur.2d Energy and Power Sources § 184, at 134 (1996). Moreover, we have frequently relied upon the Board’s expertise in interpreting Iowa Code chapter 478. See Fischer, 368 N.W.2d at 98; Race, 257 Iowa at 707-08, 134 N.W.2d at 338-39; see also Barron Elec. Coop., 212 Wis.2d at 766, 569 N.W.2d at 733 (commission had long history of interpreting statute). Furthermore, we acknowledge the Board has previously cited economic benefits as a sufficient basis for granting gas pipeline permits under Iowa Code section 479.12. See generally In re Ag Processing Inc., Docket No. P-835, Proposed Decision and Order Granting Permit, Sept. 16, 1996; In re United States Gypsum Co., Docket No. P-833, Proposed Decision and Order Granting Permit, Mar. 21, 1996; In re Sioux City Brick & Tile Co., Docket No. P-834, Proposed Decision and Order Granting Permit, Dec. 1, 1995. Although those cases have no precedential value for chapter 478 proceedings, they are a helpful analogy when considering the Board must find the proposed project will “promote the public convenience and necessity” before issuing a gas pipeline permit pursuant to section 479.12. See Iowa Code § 479.12.

In enacting chapter 478, the legislature intended to entrust the Board with the decision whether a public use existed and, if so, the necessity of the proposed line to serve the public use. Race, 257 Iowa at 707, 134 N.W.2d at 338. The underlying purpose of chapter 478 is to serve the public interest. See id.; see also 27A Am. Jur.2d Energy and Power Sources § 184, at 134 (“[t]he right to regulate electric companies is measured by the public interest”). We have already found the transmission of electricity to the public constitutes a public use as contemplated by section 478.4. See Race, 257 Iowa at 704, 134 N.W.2d at 337. Thus, the remaining issue to resolve is whether the lines proposed in this case were necessary to serve that public use.

We acknowledge that the current power structure between S.E. Iowa and MPMU provides reliable and adequate service to MPMU customers. If electric utility service only concerned reliability and adequacy, a new line would not be necessary. However, utility service also has a cost, which the user ultimately is responsible to pay. Consequently, we think cost savings are a legitimate consideration in determining whether the construction of transmission lines is necessary to serve a public use. See Davis v. Brit-tain, 92 Ariz. 20, 30, 373 P.2d 340, 347 (1962) (customer savings may serve as basis for finding that proposed electrical district constituted public use); Niagara Mohawk Power Corp. v. Pub. Serv. Comm’n, 218 A.D.2d 421, 429, 637 N.Y.S.2d 987, 991 (N.Y.App.Div.1996) (adequacy of existing service and ability to obtain reduced electricity prices are factors to consider in finding public need). Furthermore, there is no indication in section 478.4 that the legislature intended to preclude cost savings from the Board’s consideration. On the contrary, considering the broad standard of “public use” prescribed by the legislature, we find it contemplated the Board would consider economic factors. In addition, it is not uncommon for economic principles such as those used in cost-benefit analyses to be incorporated into legal principles unless the legislature has directed otherwise. See Thornhill v. Ford, 213 Miss. 49, 65, 56 So.2d 23, 30 (1952); see also Hansen v. City of San Buenaventura, 42 Cal.3d 1172, 1182, 233 Cal.Rptr. 22, 27, 729 P.2d 186, 192 (1986); Energy Ass’n of Neto York State v. Pub. Serv. Comm’n of New York, 169 Misc.2d 924, 936, 653 N.Y.S.2d 502, 512 (N.Y.Sup. Ct.1996); Stewart v. Pub. Serv. Comm’n, 885 P.2d 759, 773 (Utah 1994).

Moreover, cost savings can appropriately be used as a paramount factor in the construction of transmission lines. The consumer should not be held hostage by the adequacy and reliability of the existing service if comparative service can be obtained at a substantial cost savings. If comparable electric service is available to a community from a particular source at a lower cost than is provided by an existing source, and the existing source is unwilling to reduce its cost, the public is served by a law which allows them to obtain service at a lower cost. Nothing in section 478.4 indicates our legislature intended for those who first constructed transmission lines in a certain area to have legal protection from others wishing to establish lines in that same area. In fact, such a reading of the statute contravenes the objective of chapter 478 to protect the public interest, which purpose we strive to uphold when interpreting the language of section 478.4. See State v. Bartusek, 383 N.W.2d 582, 583 (Iowa 1986); N. Natural Gas Co. v. Forst, 205 N.W.2d 692, 695 (Iowa 1973).

The evidence also reveals the new power agreement between IES and MPMU will provide service comparable to that currently provided, especially if a back-up interconnection between NEMO and MPMU is established. Furthermore, the risk of power outages to MPMU customers is low. Additionally, MPMU’s proposed transmission system satisfies its duty to provide adequate and efficient service at a reasonable rate. 27A Am. Jur.2d Energy and Power Sources § 199, at 144. In effect, the Board in this case balanced all of these factors and determined the substantial benefits outweighed the costs and, consequently, justified the granting of MPMU’s franchise petitions. See Race, 257 Iowa at 708, 134 N.W.2d at 339 (commission found benefits to public outweighed objectors’ claims); see also Commonwealth Edison Co. v. Illinois Commerce Comm’n, 295 Ill.App.3d 311, 318, 319, 230 Ill.Dec. 184, 692 N.E.2d 1350, 1354-55 (1998) (commission applied balancing test to determine whether benefits exceeded costs or harms).

In engaging in this balancing test, the Board relied heavily upon the power source study conducted by ACE. We find the analysis in that study to be sufficiently rehable. We agree with the Board that the cost of the construction of the new IES substation was properly excluded from the ACE analysis, as IES agreed to incur that cost as a part of its agreement with MPMU. Likewise, other indirect project costs advanced by S.E. Iowa as inappropriately excluded by ACE, such as metering, relaying, and maintenance costs, were appropriately excluded. Even if these costs had been included, however, MPMU would still realize significant cost savings over a ten-year period. In addition, the three percent NEMO wheeling rate increase utilized by ACE was appropriate, as historical trend analysis is much more reliable than a one-time rate reduction. See In re Application by Rochester for an Adjustment of its Serv. Area Boundaries with People’s Coop. Power Ass’n, Inc., 556 N.W.2d 611, 616 (Minn.Ct.App.1996) (substantial evidence existed to support commission’s decision regarding wholesale rate increases). Furthermore, the ACE study does not account for the fact that the new transmission lines are long-term assets that will continue to reap benefits to MPMU and its customers for many years beyond the expiration of the initial ten-year period. See Fischer, 368 N.W.2d at 97 (consider factors other than forecast in assessing need for improved system). Nor does the ACE analysis consider the opportunities these lines will provide if the city of Mt. Pleasant experiences a surge in economic growth. See id. at 97-98 (proposed system would reasonably provide for existing as well as future needs).

Thus, considering the significant economic benefits extending to MPMU as a result of the new purchase power agreement with IES, we conclude the Board adhered to the mandates of the legislature in finding MPMU’s franchise petitions were necessary to serve a public use in accordance with section 478.4. Additionally, we conclude the proposed lines represent a reasonable relationship to an overall plan of transmitting electricity, as the two new lines will provide MPMU direct access to the IES power source. See id. Not only will the new lines permit MPMU to avoid wheeling charges, they will also provide MPMU with bargaining power in negotiating wholesale power agreements. See Commonwealth Edison Co., 295 Ill. App.3d at 321, 322, 230 Ill.Dec. 184, 692 N.E.2d at 1357 (consider whether utility could exploit a monopoly position over proposed system); Energy Ass’n of New York State, 169 Misc.2d at 935, 653 N.Y.S.2d at 512 (commission may consider monopolistic marketplace in rendering decision).

We realize that this decision will result in the duplication of a portion of NEMO’s existing lines. In the context of retail electric service, duplication is a legitimate consideration. Iowa Code § 476.25. In this area, our legislature has specifically declared a need for exclusive service areas to be established for specific utilities to provide electric service to avoid unnecessary duplication of facilities in the public interest. See id. However, the Board considered duplication as a factor, and found it was outweighed by the benefits. See Davis, 92 Ariz. at 30, 373 P.2d at 347 (“fact that ... district would be formed in an area now being served by other suppliers ... would not in any way negative a public use”); Northwestern Bell Tel. Co., 477 N.W.2d at 683 (board had authority to resolve dispute that proposed lines would duplicate existing connections); Kentucky Utils. Co. v. Farmers Rural Elec. Coop. Corp., 362 S.W.2d 498, 499 (Ky.1962) (duplication one of several factors to balance); 29 C.J.S. Electricity § 13(b), at 955 (1965) (same). Moreover, the legislature’s objective in enacting section 478.4 was not to prohibit the unnecessary duplication of transmission lines, as it was in enacting section 476.25. See Barron Elec. Coop., 212 Wis.2d at 772, 773, 569 N.W.2d at 736. On the contrary, section 476.25 specifically prohibits the unnecessary duplication of electric utility facilities, while section 478.4 makes no mention of unnecessary duplication of services. See Gulf Coast Elec. Coop., Inc. v. Clark, 674 So.2d 120, 121-23 (Fla.1996) (statute specifically commands agency to consider uneconomic duplication). The factors that drive section 476.25 do not necessarily apply to chapter 478 proceedings because the objectives of the two sections are different. Section 476.25 only concerns exclusive retail electric utility service areas, not transmission line franchising. If the legislature had wanted the Board to consider the mandates of section 476.25 when considering a petition filed pursuant to section 478.4, it would have said so. See Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 571 (Iowa 2000); Fed. Land Bank v. Sleister, 444 N.W.2d 504, 506 (Iowa 1989); see also Iowa Code § 478.32 (providing any company wishing to appeal Board’s decision is “entitled to the rehearing procedure provided in section 476.12”). Iowa’s exclusive electric service area scheme does not extend to wholesale energy suppliers. Thus, we are not to read unnecessary duplication into section 478.4 as a paramount consideration for the Board to balance in considering whether an electric transmission line franchise is necessary to serve the public use.

IV. Application for Rehearing.

S.E. Iowa contends the Board erred in denying its application for rehearing, claiming it had acquired new evidence that would materially affect the Board’s order. The alleged new evidence suggested MPMU had entered into a wholesale power contract with a supplier other than IES. S.E. Iowa argued this “new” evidence would substantially change the Board’s analysis concerning the proposed economic benefits that would result from the construction of the new lines. However, in denying the rehearing application, the Board ruled it had been aware of the opt-out provision of MPMU’s agreement with IES which would permit MPMU to change suppliers after December 31, 2001. In fact, the Board had found this provision, together with the construction of the new lines, strengthened MPMU’s bargaining power to negotiate with suppliers for more favorable rates. In its initial order, the Board had found an important economic benefit to be the bargaining power. MPMU would obtain through the creation of the new lines. Thus, this alleged new evidence was yet another example of the economic benefits MPMU would realize through the granting of the electric transmission line franchises. Consequently, this evidence supported the Board’s rationale and the rehearing application was appropriately denied.

V. Conclusion.

We conclude the utilities board may base its finding that a proposed electric transmission line is necessary to serve a public use on economic considerations alone. We find the district court correctly upheld the Board’s decision to grant MPMU’s petitions for electric transmission line franchises under Iowa Code section 478.4. Additionally, S.E. Iowa’s application for rehearing was properly denied by the Board.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF APPLE VALLEY, Respondent, v. Barbara R. BURNS, Petitioner.
    No. C9-01-822.
    Supreme Court of Minnesota.
    Aug. 31, 2001.
    Review Denied Oct. 16, 2001.
   ORDER

By order filed August 7, 2001, this Court dismissed two petitions for review filed by Barbara R. Burns in the above-entitled case. On August 24, petitioner Burns filed what is essentially a motion for reinstatement of the petitions and for other relief. One of the petitions, mailed on July 30, 2001, and received by the Clerk of Appellate Courts on August 2, 2001, was dismissed as untimely because it was filed 31 days after the court of appeals decision was filed on June 29, 2001. Petitioner correctly points out that July 29 was a Sunday and therefore the petition was timely mailed on the 31st day, July 30.

An additional deficiency noted in the August 7 order concerning that petition was the failure of petitioner to file either the required filing fee or a motion for leave to proceed in forma pauperis. Instead, petitioner attempted to incorporate by reference a motion for in forma pauper-is relief filed while the matter was pending in the court of appeals. In her latest motion, petitioner again attempts to incorporate by reference the previously-filed motion for in forma pauperis relief. To avoid further delay in the unusual circumstances of this case, the court will treat petitioner’s in forma pauperis motion as filed in this court. However, petitioner is cautioned that this court does not consider motions filed in other proceedings or in other courts, including the court of appeals, and merely incorporated by reference in documents filed with this court, and will not do so in the future.

Based upon the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for review of the June 29, 2001 order of the court of appeals filed by Barbara R. Burns on July 30, 2001, be, and the same is reinstated. Respondent has twenty days from the date of this order to respond to the petition.

IT IS FURTHER ORDERED that the motion of petitioner Burns for waiver of the filing fee is granted solely for the purpose of this petition for review of the June 29, 2001 decision of the court of appeals.

IT IS FURTHER ORDERED petitioner’s motion is in all other respects denied and the August 7, 2001 order of this court remains in effect except as expressly modified herein.

BY THE COURT

Kathleen A. Blatz Kathleen A. Blatz Chief Justice


author: Russell A. Anderson Associate Justice

text:
    Jan WILMES, Respondent, v. WAL-MART STORES, INC., and Insurance Co. of State of Pennsylvania/AIG (Claims administered by Claims Management), Relators, and 1) Rice County District One Hospital, 2) Back in Action, Intervenors.
    No. C1-01-1107.
    Supreme Court of Minnesota.
    Sept. 12, 2001.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 14, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

Russell A. Anderson Associate Justice


author: /s/ James H. Gilbert, Associate Justice

text:
    Darrell PERSEKE, Relator, v. KLEESPIE TANK & PETROLEUM, and North River Insurance Co./Crum & Foster, Respondents, Kleespie Tank & Petroleum, and Valley Forge Insurance Co./CNA Insurance Co., Respondents.
    No. C7-01-964.
    Supreme Court of Minnesota.
    Sept. 13, 2001.
    DeAnna M. McCashin, Alexandria, for employer-relator.
    Kathy A. Endres, Minneapolis, for respondents Kleespie Tank and Valley Forge Insurance/CNA.
    Nicole B. Surges, Minneapolis, for respondents Kleespie Tank and North River Ins. Company/Crum & Foster.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed May 10, 2001, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

BY THE COURT:

/s/ James H. Gilbert, Associate Justice


author: Kathleen A. Blatz Chief Justice

text:
    Marcia A. KILBOURNE, Plaintiff, v. PROJECT NET, INC., d/b/a Superior Services, Defendant. Project Net, d/b/a Superior Services, Plaintiff, v. Marcia Kilbourne, Defendant.
    No. C0-01-1504.
    Supreme Court of Minnesota.
    Sept. 14, 2001.
   ORDER

Plaintiff Project Net, d/b/a Superior Services has moved under Rule 113.03 of the General Rules of Practice for consolidation of the above-entitled cases, presently pending in Dakota and Washington County District Courts. The parties have stipulated to consolidation and to assignment of the case to the Washington County District Court. These cases involve the same parties and common questions of law and fact. The interests of the parties and the judiciary in the efficient administration of justice will be served by adjudication of these cases in one forum. Therefore a single judge will be appointed to hear the cases as authorized by Rule 113.03. The issues of change of venue of the Dakota County case and formal consolidation will be left to the assigned judge.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that pursuant to Minn. R. Gen. Prac. 113.03 and Minn.Stat. §§ 480.16 and 2.724 (2000), the Honorable J. Kenneth Maas of the Tenth Judicial District, having consented, is appointed to hear and decide all matters, including pretrial and trial proceedings, in the above-entitled cases.

BY THE COURT:

Kathleen A. Blatz Chief Justice


author: Paul H. Anderson Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Charles T. NIXON, an Attorney at Law of the State of Minnesota.
    No. C8-01-536.
    Supreme Court of Minnesota.
    Sept. 19, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition and supplementary petition for disciplinary action alleging that respondent Charles T. Nixon has committed professional misconduct warranting public discipline, namely, failing to communicate with clients, failing to return client files, collecting a filing fee from a client in a marriage dissolution action and thereafter failing to file the marital termination agreement, and failing to promptly respond to the district ethics committee investigator and the Director during their investigations in violation of Minn. R. Prof. Conduct 1.3,1.4, 8.1(a) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that it would be appropriate to transfer respondent to disability inactive status, subject to the following conditions:

a. That the reinstatement hearing provided for in Rules 18 and 28(d), RLPR, not be waived.
b. That further proceedings on the Director’s petition and supplementary petition for disciplinary action be held in abeyance while respondent is on disability inactive status.
c. That as a part of any reinstatement proceeding under Rules 18 and 28, RLPR, the allegations of misconduct in the Director’s petition and supplementary petition, having been admitted by respondent, shall be considered and a recommendation as to the appropriate disciplinary sanction be made to the court at that time.

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

IT IS HEREBY ORDERED that respondent Charles T. Nixon is transferred to disability inactive status subject to the agreed-upon conditions set forth above.

BY THE COURT:

Paul H. Anderson Associate Justice


text:
    Kay L. SOULE, Respondent, v. FOREST LAKE CLINIC d/b/a Allina Medical Group, Self-Insured/Gallagher Bassett Services, Relators, Medica Choice for HRI, Intervenor.
    No. C1-01-1155.
    Supreme Court of Minnesota.
    Sept. 27, 2001.
    Douglas J. Brown, Brown & Carlson, PA, Minneapolis, for relator.
    Richard S. Eskola, Moore, Halsey & Eskola, LLC, Fridley, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 11, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney ■fees.

BY THE COURT:

Joan Ericksen Lancaster Joan Ericksen Lancaster Associate Justice


author: GILBERT, Justice.

text:
    In re the Marriage of James Richard HUNTSMAN, petitioner, Appellant, v. Zenith Annette HUNTSMAN, f/k/a Zenith Annette Morgan, Respondent.
    No. C1-00-1923.
    Supreme Court of Minnesota.
    Oct. 4, 2001.

      James Richard Huntsman, pro se.
    Law Offices of Brad C. Eggen, Brad C. Eggen, Minneapolis, for respondent.
   OPINION

GILBERT, Justice.

This appeal arises from the marital dissolution of appellant James Richard Huntsman and respondent Zenith Annette Huntsman. Review of the underlying claims is not before this court. We granted review to decide the narrow question of whether the provision in Minn. R. Civ.App. P. 104.01, subd. 2, for the commencement of the appeal period applies where judgment has been entered on the order disposing of a proper and timely post-decision motion. The court of appeals held that it does not and dismissed the appeal as untimely. We reverse.

On April 23, 1998, appellant served his wife, the respondent, with a summons and a petition for dissolution of their marriage. The parties were able to reach a settlement on child custody, child support, marital property, debt, and attorney fees, but went to trial on spousal maintenance and related issues. On January 12, 2000, the district court issued its Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment and Decree. A copy of the order was entered as the judgment on January 14. Both sides moved to amend that judgment, and respondent moved for a new trial. The court heard arguments from the parties, and issued an Amended Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment and Decree on August 30, 2000. On September 1, the district court administrator entered a copy of that order as an amendment to the original judgment. On September 7, appellant was served by facsimile with notice of the August 30 order; a copy was mailed the same day.

Appellant filed his notice of appeal on November 6, 2000 — 60 days after receiving notice of the order, but 66 days after the amended judgment was entered. His notice of appeal stated it was from the January 12 and August 30 orders. Respondent moved the court of appeals to dismiss the appeal on the grounds that appellant had not appealed from a final judgment or an appealable order.

The court of appeals noted that even though appellant’s notice of appeal had referred only to the January 12 and August 30 orders, he had included copies of both the January 14 judgment and the September 1 amended judgment. Huntsman v. Huntsman, No. Cl-00-1923 at 2 (MinnApp. Dec. 27, 2000) (unpublished interim order). Citing our opinion in Kelly v. Kelly, 371 N.W.2d 193, 196 (Minn.1985), the court of appeals held that the appeal should be liberally construed as an appeal from the judgments. Huntsman at 2. The court of appeals construed the appeal as from the amended judgment and concluded that even though the time to appeal the January 14 judgment was tolled by post-decision motion, the period to appeal the September 1 amended judgment was unaffected and expired 60 days after its entry. Id. at 2-3. Because appellant had filed his notice of appeal more than 60 days after entry of the September 1 judgment, the court of appeals dismissed it as untimely. Id. at 3.

Resolution of the jurisdictional issue before us requires interpretation of Minnesota Rule of Civil Appellate Procedure 104.01. Because the interpretation of court rules presents a question of law, our review is de novo. Madson v. Minnesota Min. & Mfg. Co., 612 N.W.2d 168, 170 (Minn.2000). Rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action,” Minn. R. Civ. P. 1, and should be given liberal construction so as to effectuate that purpose. Komberg v. Komberg, 542 N.W.2d 379, 384 (Minn. 1996). This court also liberally construes the contents of notices of appeal in favor of their sufficiency. Kelly, 371 N.W.2d at 195.

An amendment to Rule 104.01, effective on January 1, 1999, and therefore applicable to this case, provided:

Unless otherwise provided by law, if any party serves and files a proper and timely motion of a type specified immediately below, the time for appeal of the order or judgment that is the subject of such motion runs for all parties from the service by any party of notice of filing of the order disposing of the last such motion outstanding. This provision applies to a proper and timely motion: (c) to alter or amend the judgment under Minn. R. Civ. P. 52.02; [or] (d) for a new trial under Minn. R. Civ. P. 59 * * *.

Minn. R. Civ.App. P. 104.01, subd. 2. Notices of appeal filed before the disposition of post-decision motions are considered premature: not only do they not divest the district court of jurisdiction, they are given no effect and must be filed anew “within the time prescribed to appeal the underlying order or judgment, measured from the service of notice of filing of the order disposing of the outstanding motion.” Id., subd. 3. The amendment also created a 60-day period to appeal from both judgments and appealable orders unless otherwise provided by statute. Id., subd. 1.

The policy underlying these rule changes was to clarify when parties can file appeals, and to provide consistent means for district courts to consider all pending motions without losing jurisdiction by a premature appeal. As we discussed in Madson, the amendments to rule 104.01 were intended to solve the problem we confronted in Marzitelli v. City of Little Canada, 582 N.W.2d 904 (Minn.1998). See generally Madson, 612 N.W.2d at 171 (citing Marzitelli, 582 N.W.2d at 904). Under the unamended version of rule 104.01, the district court’s jurisdiction to decide post-decision motions terminated when the time for appeal ran or when an appeal was filed. Id. (citing Marzitelli, 582 N.W.2d at 907). Parties had to file timely appeals and then apply to the appellate court for a stay of appeal to allow time for the district court to decide post-decision motions. Id. (citing Marzitelli, 582 N.W.2d at 907). Rule 104.01 was changed to “simplify practice” in the hopes of creating “less confusion”, about the timing of appeals. Minn. R. Civ.App. P. 104.01 advisory committee’s cmt. (1998 amendment).

Once the time to appeal has been tolled by a proper and timely post-decision motion, it commences upon service of notice of filing of the order disposing of the last post-decision motion outstanding, not the prior entry of an amended judgment. The rule clearly states that “the time for appeal of the order or judgment that is the subject of [a proper and timely] motion runs for all parties from the service by any party of notice of filing of the order disposing of the last such motion outstanding.” Minn. R. Civ.App. P. 104.01, subd. 2. The text of the amended rule does not expressly address circumstances in which an amended judgment is entered before a party serves notice of the order disposing of the final post-decision motion, but amended judgments never restart an appeal period that has been tolled by subdivision 2. Appeals from amended judgments are premature, and therefore void, if the notice of appeal is filed before the last tolling motion is resolved. Id., subd. 3. Further, construing subdivision 1 of rule 104.01 to end the period to appeal 60 days after an amended judgment that has been entered during the tolling period would create situations where parties have contradictory, unpredictable, or completely foreclosed periods to appeal. Cf. Marzitel-li, 582 N.W.2d at 904-07. Such a construction would undermine our policy of preserving the right to appeal, simplifying practice, and lessening confusion. See Madson, 612 N.W.2d at 171; Minn. R. Civ.App. P. 104.01 advisory committee’s cmt. (1998 Amendment); cf. Komberg, 542 N.W.2d at 384. To restart the appeal period with entry of amended judgment— when the rule expressly provides that it starts with service of notice of the order disposing of the final post-decision motion — would create a trap for the unwary; the purpose of the amendments was to eliminate, not create, such traps. Because the amendments to rule 104.01 were intended to facilitate a single appeal that encompasses original and post-decision rulings, an appeal that is timely under subdivision 2 can cover the original judgment, appropriate post-decision orders, and amendments to the judgment.

The court of appeals liberally construed appellant’s notice of appeal as an appeal from the January 14 and September 1 judgments. As we recognized in Kelly, “a notice of appeal is sufficient if it shows an intent to appeal and the order appealed from apprises the parties of the issues to be litigated on appeal.” 371 N.W.2d at 195-96. Because the orders identified in the notice of appeal were identical to the judgments entered, the notice sufficiently apprised respondent of the issues to be litigated on appeal. The court of appeals was correct when it held that the time to appeal the January 14 judgment was tolled, but erred in concluding that appellant’s time to appeal was only a function of the date of the amended judgment rather than when respondent served notice of the filing of the order disposing of the last post-decision motion outstanding.

We hold that the court of appeals erred in granting respondent’s motion to dismiss. The parties’ proper and timely post-decision motions to amend the judgment, and respondent’s proper and timely motion for a new trial, tolled both the time to appeal from the original judgment and the time to appeal appropriate post-decision orders and judgments entered pursuant to those orders. See Minn. R. Civ.App. P. 104.01, subd. 2(c), (d). As a result, appellant’s notice of appeal was timely until November 6 — 60 days after the service of notice.

Reversed and remanded to the court of appeals.

      . Minnesota Rules of Civil Procedure 5.02 allows service of orders by "transmitting a copy by facsimile machine to the attorney or party's office; or by mailing a copy to the attorney or party * * *. Service by facsimile is complete upon completion of the facsimile transmission.” Minn. R. Civ. P. 5.02. Appellant would have had an additional 3 days to file his notice of appeal if it had only been mailed, Minn. R. Civ. P. 6.05, but — as we discuss below — his appeal from notice served by fax- was still timely.


author: HALBROOKS, Judge.

text:
    STATE of Minnesota, Respondent, v. David William SHERBROOKE, Appellant.
    No. CX-01-120.
    Court of Appeals of Minnesota.
    Sept. 25, 2001.

      Mike Hatch, Attorney General, St. Paul; and Charles C. Glasrud, Stevens County Attorney, Bruce W. Klopfleisch, Assistant County Attorney, Morris, for respondent.
    Jay D. Carlson, Fargo, ND, for appellant.
    Considered and decided by HANSON, Presiding Judge, WILLIS, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant argues the district court erred in finding that he violated Minn.Stat. § 169.80, subd. 2 (1998), by unlawfully operating an overly wide vehicle on a state highway. Appellant contends that an airplane is not a “vehicle” for purposes of the traffic-safety statutes and that federal regulations preempt state law in the area of aircraft operation. Because the statute is not preempted by federal regulations and the term “vehicle” is defined broadly enough to include an airplane, we affirm.

FACTS

Appellant David W. Sherbrooke, a landscaper, flew his aircraft to visit a job site near State Highway 59. The airplane had a wingspan of 33 ⅜ feet and was designed for short takeoffs and landings. Although there was no emergency or bad weather, appellant landed the airplane on the highway and then immediately taxied off the road surface.

State Trooper Greg Peterson saw the aircraft parked off the road approximately ten minutes later. Peterson contacted the highway patrol district office and advised appellant that he would be mailed a notice of the appropriate statutory violation. Peterson allowed appellant to take off, using the highway as a runway. Approximately one month later, appellant was mailed a citation for operating an overly wide vehicle in violation of Minn.Stat. § 169.80 (1998).

Appellant moved the district court to dismiss the complaint. He argued that Peterson lacked probable cause to issue a citation because the statute does not include aircraft. The court dismissed appellant’s motion, finding that the statutory definition of a vehicle included aircraft.

The case was submitted on stipulated facts for a bench trial According to the stipulation, appellant’s aircraft requires approximately 200 feet of runway to take off and 300 feet to land. The court found appellant guilty of violating Minn.Stat. § 169.80 and imposed a fine of $385, but stayed imposition pending this appeal.

ISSUES

1. Did the district court err by refusing to dismiss for lack of probable cause?

2. Does federal aviation law preempt state traffic-safety law?

ANALYSIS

I.

“A dismissal for lack of probable cause is appealable if it is based on a legal determination such as the interpretation of a statute.” State v. Larkin, 620 N.W.2d 335, 336 (Minn.App.2001) (citation omitted). As with other legal determinations, such a dismissal is reviewed de novo. State v. Linville, 598 N.W.2d 1, 2 (Minn. App.1999).

Under Minnesota law,
[i]t is a misdemeanor for a person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on a highway a vehicle or vehicles of a size or weight exceeding the [statutory] limitations * * *.

Minn.Stat. § 169.80, subd. 1(a) (1998). With the exception of a vehicle owned by a political subdivision used for transporting sewage, any vehicle over 102 inches in width exceeds the statutory limitation and is considered overly wide. Id. at subd. 2(a) (1998).

We disagree with appellant that Peterson lacked probable cause to cite him for violation of Minn.Stat. § 169.80 (1998). While probable cause requires something more than mere suspicion, it requires less than the evidence necessary for conviction. State v. Camp, 590 N.W.2d 115, 119 n. 9 (Minn.1999). The standard for probable cause is an objective one that does not look to the subjective knowledge or intent of the officer, particularly knowledge of the law. See State v. Pleas, 329 N.W.2d 329, 332-33 (Minn.1983). Rather, probable cause requires that there are sufficient facts “such that under the circumstances a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed.” State, Lake Minnetonka Conservation Dist. v. Homer, 617 N.W.2d 789, 796 (Minn.2000) (alteration in original) (quotation omitted). The criminal-procedure rules do not require that a citation refer to any particular statute. Minn. R.Crim. P. 6.01, subd. 3. Even in a formal complaint, an error in citation would be considered a defect of form, not of substance. State v. Owens, 268 Minn. 321, 325, 129 N.W.2d 284, 287 (1964). Thus, the issue is whether Peterson had probable cause to believe that appellant had committed an illegal act, not whether or not Peterson could cite the specific statutory section. We agree with the district court that Peterson had probable cause to believe appellant had committed an unlawful act.

Next, appellant argues that the statute is inapplicable because an aircraft does not fit the definition of a “vehicle.” The traffic-safety statute defines “vehicle” as

every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

Minn.Stat. § 169.01, subd. 2 (1998).

Appellant correctly notes that the overwidth statute is part of Minnesota’s Highway Safety Act, and aircraft do not normally travel on state highways. But the legislature intended to regulate any mode of transportation used on state highways, “whether or not specifically contemplated at the time the statutes were enacted.” Boschee v. Duevel, 530 N.W.2d 834, 839 (Minn.App.1995), review denied (Minn. June 14, 1995). We have consistently interpreted the term “vehicle” in the broadest sense possible with the understanding that if the legislature intended a narrower definition, it would adopt one. E.g., id. at 840 (an inline skater falls under the definition of “vehicle”); Melby v. Comm’r of Public Safety, 367 N.W.2d 527, 528 (Minn. 1985) (a snowmobile falls under the definition of “vehicle”). Allowing aircraft to land without cause on state highways presents an obvious hazard, conflicting with the purpose of Minn.Stat. ch. 169 (1998) to promote traffic safety. Therefore, we hold that aircraft are included in the definition of vehicle.

Appellant also argues that his aircraft registration ought to be considered a special permit and thus exempt him from the overwidth statute. See Minn.Stat. § 169.80, subd. 1 (allowing specially-permitted vehicles to be exempt for width requirements). He contends that “special permits” are not defined in the statute and since aircraft must be registered under Minn.Stat. § 360.60 (1998), his registration should be construed as a special permit. But MinmStat. § 169.86 defines special permits and specifies which vehicles may be permitted, and there is no mention of aircraft or aircraft registration within this provision. We do not need to look to the aircraft-registration statute to determine what is a special permit under MinmStat. § 169.86. See Minn.Stat. § 645.17(2) (2000) (requiring courts to read a statute so that it is “effective and certain”).

Finally, appellant accuses the district court of “administrative ruling making” without the benefit of legislative authority. Appellant contends that the district court usurped legislative power by expanding a traffic-safety statute to include aircraft. We disagree. “It is emphatically the province and duty of the judicial department to say what the law is.” State, City of Minneapolis v. Reha, 483 N.W.2d 688, 696 (Minn.1992) (Gardebring, J. dissenting) (quoting Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803)). The district court, therefore, had the duty to interpret the overwidth statute. We conclude that the district court did not err in finding that appellant was guilty of unlawfully operating an overly wide vehicle on a public highway.

II.

Appellant also contends that federal law preempts the state from regulating air traffic. Whether Minnesota’s regulatory power is preempted by federal law is a question of law, and, thus, our review is de novo. In re Speed Limit for Union Pacific R.R. Through City of Shakopee, 610 N.W.2d 677, 682 (Minn.App. 2000). We begin with the assumption that the “ ‘historic police powers of the [spates’ are not to be eclipsed unless to do so was ‘the clear and manifest purpose of Congress.’ ” Dahl v. Charles Schwab & Co., 545 N.W.2d 918, 922 (Minn.1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). Preemption can be express or implied, but where it is implied,

congressional intent to do so must be clearly inferred, either from the extent of federal involvement or from the scope of the federal interest; and even then the state will be preempted only to the extent that state regulation “actually conflicts” with federal law.

State by Minn. Public Lobby v. Metro. Airports Comm’n, 520 N.W.2d 388, 390 (Minn.1994) (quotation omitted). “[A] federal agency acting within the scope of its congressionally delegated authority has the power to preempt state law through its regulations.” Follmer v. Duluth, Missabe & Iron Range Ry. Co., 585 N.W.2d 87, 90 (Minn.App.1998) (citation omitted).

Appellant argues that because federal law so dominates air traffic, it preempts any state law over aircraft. He points to a federal regulation concerning careless or reckless operation of an aircraft, arguing that this language preempts state law. See 14 C.F.R. § 91.13 (2000).

Both the Minnesota Supreme Court and the U.S. Supreme Court have discussed whether federal aviation statutes and regulations preempt state law. In striking down a municipal curfew on takeoffs, the Supreme Court noted that

[fjederal control [over aviation] is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls.

City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633-34, 93 S.Ct. 1854, 1860, 36 L.Ed.2d 547 (1973) (quotation omitted). Although “[c]ontrol of noise is of course deep-seated in the police power of the [s]tates,” the Court held that the federal noise-control statute left “no room for local curfews or other local controls.” Id. at 638, 93 S.Ct. at 1862. Similarly, the Minnesota Supreme Court held that the Minnesota Pollution Control Agency could not regulate airport noise because state regulations were preempted by federal law. Metro. Airports Comm’n, 520 N.W.2d at 393. As the Supreme Court noted, allowing state-by-state regulations to control air traffic would be “totally inconsistent with the objectives of the federal statutory and regulatory scheme” because such regulations “would cause a serious loss of efficiency in the use of the navigable airspace.” Burbank, 411 U.S. at 627-28, 93 S.Ct. at 1857 (quotation omitted).

But as the district court and the state point out, Burbank and related cases concern a nuisance especially problematic for aircraft — noise—and allowing local control over noise would impede the federal scheme for air traffic. Id. at 628, 93 S.Ct. at 1857 (“The aircraft and its noise are indivisible * * *.” (quotation omitted)). Merely because a state law touches on some aspect of the airline industry does not necessarily mean that it is preempted by federal law. See Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th Cir. 1990) (“We see no conflict between a city’s regulatory power over land use, and the federal regulation of airspace, and have found no case recognizing a conflict.”); cf. Dahl, 545 N.W.2d at 922 (federal preemption of state police powers must be “clear and manifest”). For example, the Court held that the Airline Deregulation Act of 1978, 49 U.S.C. § 1305(a)(1) (1994), does not

channel into federal courts the business of resolving, pursuant to judicially fashioned federal common law, the range of contract claims relating to airline rates, routes, or services.

Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 232, 115 S.Ct. 817, 825, 130 L.Ed.2d 715 (1995). Other state courts have found that laws criminalizing unsafe operation of an aircraft are not preempted by federal law. See Delta Air Lines, Inc. v. Air Line Pilots Ass’n, 861 F.2d 665, 672 (11th Cir. 1988) (noting that “courts have consistently upheld” state laws criminalizing drinking while operating an aircraft); People v. Valenti, 200 Cal.Rptr. 862, 865 (Cal.Super.1984) (examining state law criminalizing unsafe use of an aircraft); Ward v. State, 280 Md. 485, 374 A.2d 1118 (1977) (examining state law criminalizing drinking while operating an aircraft). States have also prohibited aircraft from landing in certain areas without running afoul of federal law. See, e.g., Gustafson v. City of Lake Angelus, 76 F.3d 778, 789-90 (6th Cir.1996) (finding municipal ordinance restricting use of seaplanes was not preempted by federal aviation law, particularly because of a lack of regulatory or statutory authority); Condor Corp., 912 F.2d at 219 (finding a city’s refusal to allow construction of a heliport did not violate federal law).

Similarly, we hold that federal law does not bar Minnesota from regulating the operation of aircraft on our highways and streets. Federal law regulates air traffic in the nation’s skies and on runways in our nation’s airports, but just because a piece of land could be used for a runway does not subject it to the federal government’s control. Condor Corp., 912 F.2d at 219. Once a state designates property to be used as an airport, that property becomes subject to federal control. Gus-tafson, 76 F.3d at 783 (distinguishing federal regulation “of the airspace over the United States and the regulation of aircraft in flight * * * from the regulation of the designation of plane landing sites, which involves local control of land * * * use”).

Restricting aircraft from operating on highways as overwide vehicles does not impede the federal interest in timely and efficient air travel. Because the federal regulation is silent as to operating an aircraft for non-emergency landings on public roads, state law ought to apply. Therefore, we agree with the district court and hold that federal law does not preempt states from regulating the operation of an aircraft on a state highway.

DECISION

The district court did not err in its findings that appellant unlawfully operated an overly wide vehicle and that federal aviation law does not preempt state over-width limitations.

Affirmed.

      . We note that the case before us deals with an aircraft using a public highway for non-emergency purposes. Minnesota law allows aircraft to make forced landings for emergencies "on the lands or waters of another, without the other’s consent," and provides remedies for damages caused by a forced landing. Minn.Stat. § 360.012, subd. 3 (2000).


author: R.A. RANDALL, Judge

text:
    STATE of Minnesota, Respondent, v. Tom KORTKAMP, Appellant.
    No. C1-01-250.
    Court of Appeals of Minnesota.
    Sept. 25, 2001.

      Mike Hatch, Attorney General, St. Paul; and Michael K. Kearney, Colosimo, Patch-in, Aronson, Kearney, Lindell & Brunfelt, Ltd., Virginia, for respondent.
    Thomas Kortkamp, Mt. Iron, pro se.

      Considered and decided by RANDALL, Presiding Judge, TOUSSAINT, Chief Judge, and PARKER, Judge.

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

   OPINION

R.A. RANDALL, Judge

Appellant challenges his misdemeanor conviction of obstructing access to a parking space designated for physically disabled persons in violation of Minn.Stat. § 169.346, subd. 1 (2000). The state also challenges the timeliness of appellant’s brief. Because we conclude that there was insufficient evidence to support appellant’s conviction, we reverse.

FACTS

Appellant Tom Kortkamp was convicted of obstructing access to a parking space designated for physically disabled persons in violation of Minn.Stat. § 169.346, subd. 1 (2000). The district court found him guilty because the undisputed facts demonstrated that Kortkamp’s vehicle was partially covering the yellow striped zone painted on the ground adjacent to the designated parking space. Kortkamp appeals from his conviction.

ISSUES

I. Did appellant fail to timely file his brief?

II. Was the statute under which appellant was charged unconstitutionally vague?

III. Was there sufficient evidence to support appellant’s conviction?

ANALYSIS

I. Timeliness of Appellant’s Brief

The state argues that Kortkamp improperly filed his brief pursuant to Minn. R.Crim. P. 28.02, subd. 10, which states that an appellant “shall serve and file the appellant’s brief * * * within 60 days after delivery of the transcript.” The transcript was delivered on March 12, 2001, and because Kortkamp’s brief was filed on May 15, 2001, the state contends that Kortkamp’s brief was untimely.

Initially, it should be noted that the state did not follow proper procedure for challenging the timeliness of Kortkamp’s brief. Such issues' should normally be raised by motion rather than in a party’s brief, and the record does not demonstrate that the state made such a motion. See Sanifill, Inc. v. Kandiyohi County, 559 N.W.2d 111, 114 n. 1, (Minn.App.1997) (stating party’s challenge to untimely brief should be brought by motion under Minn. R. CivApp. P. 127).

Addressing the merits of this issue, the state incorrectly focused on the date Kortkamp’s brief was received by the clerk’s office. Based on the applicable rules of appellate procedure, the pertinent date for calculating Kortkamp’s briefing deadline is the date on which the court reporter delivered the transcript to this court. Kortkamp was required to serve and file his brief within 60 days after the transcript was delivered. See Minn. R.Crim. P. 28.02, subd. 10 (stating appellant must serve and file brief within 60 days after transcript delivery). Because the record indicates that the court reporter delivered the transcript by mail on March 12, 2001, three days are added to Kortkamp’s briefing period. See Minn. R. Civ.App. P. 125.03, (stating three days are added to response period after mailing); see also Minn. R. Civ.App. P. 131.01, subd. 1 (stating three days are added to appellant’s briefing period in civil appeals when transcripts are delivered by mail). Starting with March 13 as day one, Kortkamp’s 63 day briefing period ended on May 14 rather than May 11 as suggested by the state.

“Service by mail is complete on mailing * * *. Minn. R. Civ.App. P. 125.03. Filing is timely if “the papers are deposited in the mail within the time fixed for filing.” Minn. R. Civ.App. P. 125.01. Because the record indicates that Kortkamp’s brief was postmarked on May 14, which was within the allowable briefing period, Kortkamp’s brief was timely filed.

II. Vagueness

Kortkamp argues that the statute under which he was charged is unconstitutionally vague because the statute does not specifically discuss yellow painted zones located adjacent to parking spaces designated for physically handicapped persons. This is an issue of statutory construction, which is a question of law subject to de novo review. See Baker v. State, 590 N.W.2d 636, 638 (Minn.1999) (applying de novo review to issue of statutory construction).

The governing statute states:

Parking spaces reserved for physically disabled persons must be designated and identified by the 'posting of signs incorporating the international symbol of access in white on blue and indicating that violators are subject to a fine of up to $200.

Minn.Stat. § 169.346, subd. 2(a) (2000) (emphasis added). It is a misdemeanor for a person who is neither physically disabled nor transporting another who is physically disabled to park a motor vehicle in or obstruct access to a designated and reserved space or an area designated as a transfer zone for disabled persons. Minn. Stat. § 169.346, subds. 1, 3 (2000).

Every law is presumed to be constitutionally valid. Minn.Stat. § 645.17(3) (2000). A person who challenges a statute as unconstitutionally vague must demonstrate that the statute is unconstitutional beyond a reasonable doubt. State v. Robinson, 539 N.W.2d 231, 237 (Minn.1995). A penal statute must

define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1986) (quoting Kolender v. Lawson, 461 U.S. 362, 357, 103 S.Ct. 1865, 1858, 75 L.Ed.2d 903 (1983)). At the vagueness doctrine’s core

is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.

State v. Hipp, 298 Minn. 81, 89, 213 N.W.2d 610, 615 (1973) (quoting Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972)). If a vagueness challenge does not involve a First Amendment freedom, then it must be “examined in light of the facts at hand.” State v. Becker, 351 N.W.2d 923, 925 (Minn.1984). “Unless the statute proscribes no comprehensible course of conduct at all, it will be upheld.” Id.

Kortkamp has failed to demonstrate that the governing statute is unconstitutionally vague beyond a reasonable doubt. Although the statute does not specifically address the yellow striped zones adjacent to designated parking spaces, it plainly proscribes parking in a parking space designated for physically disabled persons or obstructing designated transfer zones, and it does not encourage arbitrary or discriminatory enforcement. The statutory language is sufficiently definite so that ordinary persons can understand what conduct is prohibited. See State v. Willenbring, 454 N.W.2d 268, 270 (Minn.App. 1990) (stating challenged statute’s somewhat general language does not make it unconstitutionally vague), review denied (Minn. May 30, 1990). Thus the statute is not unconstitutionally vague beyond a reasonable doubt.

III. Sufficiency of the Evidence

Kortkamp argues that the evidence was insufficient to support his conviction because (1) a physically disabled person’s vehicle was not parked in the designated space at the time the officer issued Kort-kamp’s citation, and (2) he did not know he had parked on the yellow stripes until after the officer issued him a citation.

In considering a claim of insufficient evidence, a court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction,” sufficiently supports the fact-finder’s verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989).

The district court found that

[t]he statutes that relate to handicap [parking zones] do make it a crime to obstruct access to the handicap zone for the purpose of its use. There is nothing in the statute that I could find relative to the painting of marks [next to the designated parking space]. However, I think we do know that a yellow curb means you can’t park there and that yellow hacks painting means you cannot park your vehicle there on a road. And I don’t know where that is in the statute, but I think it’s pretty clear that you can’t do that.

The district court could find nothing in the statute dealing with the yellow diagonal zones because the statute is silent on this issue. Neither the Virginia city ordinances nor the governing state statute specifically addresses the yellow striped zone painted adjacent to a parking space designated for physically disabled persons. The picture of the scene shows only that the wheels of Kortkamp’s vehicle were touching the yellow diagonal zone, but the actual designated parking space was not obstructed. There was no sign posted to indicate that parking in the yellow diagonal zone was prohibited. Cf. Minn. R. 1341.0428, subps. 3, 4 (1999) (stating access aisles for designated parking spaces shall have van-accessible sign mounted below white on blue sign to discourage parking in them). First, we disagree with Kortkamp’s assertions that the lack of a disabled person’s vehicle in the designated space is relevant. The government can enforce handicapped-parking-zone regulations whether another vehicle is present or not. Second, we reject Kort-kamp’s assertion that he cannot be found guilty because he claims “he did not know” that he had parked on yellow stripes until after he received his ticket. You can inadvertently park in a no-parking zone, but that does not relieve you of liability.

Having said that, we conclude that the evidence was insufficient to support his conviction because the controlling statute does not prohibit parking in the yellow diagonal zone adjacent to the designated parking space.

DECISION

Because there is no applicable city ordinance or state statute that prohibits parking in a yellow diagonal zone adjacent to a parking space designated for physically disabled persons, the evidence was insufficient to support Kortkamp’s conviction for obstructing a designated parking space.

Reversed.

      . The incident occurred in Virginia, MN.


author: KALITOWSKI, Judge KLAPHAKE, Judge

text:
    Geralyn S. ENGLER, Respondent, v. Beverly J. WEHMAS, Appellant.
    No. C9-01-528.
    Court of Appeals of Minnesota.
    Sept. 25, 2001.

      Mark D. Streed, David E. Scouton, Meshbesher & Spence, Ltd., Woodbury, MN, (for respondent).
    Eric J. Magnuson, Jan M. Gunderson, Piper L. Kenney, Diane B. Bratvold, Rider, Bennett, Egan & Arundel, Minneapolis, MN, (for appellant).
    Considered and decided by KALITOWSKI, Presiding Judge, KLAPHAKE and STONEBURNER, Judges.
   OPINION

KALITOWSKI, Judge

Respondent Geralyn S. Engler brought an action against appellant Beverly J. Wehmas based on an accident that resulted in severe injuries to respondent’s son. Respondent claimed negligent infliction of emotional distress based on her fear for her own safety, the fear she felt for her son’s safety, and the distress she suffered as a result of witnessing injuries to her son. Appellant moved for partial summary judgment, arguing that Minnesota caselaw does not allow for damages for negligent infliction of emotional distress based on either fear for the safety of a third person or witnessing injuries to a third person. The district court denied the motion and certified the question to this court.

FACTS

On April 17, 1997, respondent Geralyn Engler, Brent Renner, and respondent’s two sons, Jacob and Jeffrey, were driving eastbound on 221st Avenue in Oak Grove, Minnesota. When four-and-a-half-year-old Jeffrey stated that he needed to go to the bathroom, Renner pulled to the side of the rural gravel road. Jeffrey walked about 25 feet to the tree line along the ditch so that he was not visible from the road. Respondent stayed alongside the ditch side of the rear passenger door.

Subsequently, appellant Beverly Weh-mas approached westbound on 221st Avenue. Appellant lost control of her car and it veered towards the ditch where Jeffrey was emerging from the wooded area. Respondent thought appellant’s car was going to hit her and run into Renner’s car. Instead, the car missed respondent and struck Jeffrey, throwing him ten feet in the air. Jeffrey sustained severe injuries, including permanent scarring and disfigurement. Since the accident, respondent claims to suffer from depression, posttrau-matic stress disorder, and other mental and physical ailments.

In July 1999, respondent commenced a lawsuit against appellant claiming negligent infliction of emotional distress arising from her fear for her own safety, her fear for her son’s safety, and the distress caused by witnessing her son’s serious injuries. On December 5, 2000, appellant renewed an earlier motion for summary judgment, asking the district court to dismiss respondent’s claims for emotional distress based on fear for or injuries to her son. In the alternative, appellant asked the district court to certify the question of whether respondent may recover for emotional distress based on that claim. The district court denied appellant’s motion for summary judgment and certified, pursuant to Minn. R. Civ.App. 103.03(h), the following question:

Where the plaintiff has asserted a claim for negligent infliction of emotional distress and is found to have:
1. been in the “zone of danger” of physical impact;
2. experienced a reasonable fear for her own safety; and
3. demonstrated physical manifestations of emotional distress,
may the plaintiff also recover damages for emotional distress caused by her fear for the safety of her son and from witnessing her son’s injuries.

ISSUES

1. Is the certified question important and doubtful?

2. May respondent recover damages for emotional distress arising from witnessing an accident from within the zone of danger, caused by appellant’s negligence, which caused her fear for her son’s safety and resulted in severe injuries to her son?

ANALYSIS

I.

Both parties assert that the district court’s certified question is “important and doubtful.” We agree. This court may hear an appeal from a denial of a motion for summary judgment “if the trial court certifies that the question presented is important and doubtful.” Minn. R. Civ. App. P. 108.03(h) (2000); Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 883 (Minn.2000). Whether a question is important and doubtful raises a legal question and is subject to de novo review by this court. Jostens, 612 N.W.2d at 883.

In determining if a question is important, we balance a number of factors. Id. at 884. A question is increasingly important if it has statewide impact, reversal is likely, lengthy proceedings will be terminated, and a district court’s incorrect ruling will inflict substantial harm on the parties. Id. A question is decreasingly important if it will be affirmed, a trial will moot the issue, reversal will not terminate the action, and reversal would not relieve the parties of a significant burden. Id. But each factor does not warrant equal consideration. Id. “[A] great deal of importance should be placed on whether reversal of the question will terminate the proceedings.” Id.

Here, while our decision on the certified question presented does not terminate the proceedings, it substantially reduces appellant’s responsibility for damages. By answering the certified question in the negative respondent may not present evidence relating to her son’s injuries. This will greatly reduce the scope of the proceedings and affect the amount and type of damages respondent may claim. We thus conclude the issue presented here is important.

“A question is properly certified as doubtful if there is no controlling precedent.” Id. (citation omitted).

That the question is one of first impression is not, however, of itself sufficient to justify certification as doubtful; the question should be one on which there is substantial ground for a difference of opinion.

Id. at 886 (quotation omitted). Because there is no direct controlling caselaw on this issue and other jurisdictions are split on whether to allow recovery for negligent infliction of emotional distress based on the injury to a family member, we conclude that the question presented is doubtful.

Because the certified question presented is both important and doubtful, we grant review.

II.

Appellant contends that the district court erred in denying her motion for summary judgment and in concluding that respondent can recover for her emotional distress arising from appellant’s negligent conduct against respondent’s son.

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). Here, there are no material facts in dispute, thus our review is de novo.

The elements necessary to maintain a claim for negligence are (1) duty; (2) breach of that duty; (3) that the breach of duty be the proximate cause of plaintiffs injury; and (4) that [the] plaintiff did in fact suffer injury.

Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996) (citation omitted). Courts have added three additional requirements for the tort of negligent infliction of emotional distress: a plaintiff must show she

(1) was within a zone of danger of physical impact; (2) reasonably feared for her own safety; and (3) suffered severe emotional distress with attendant physical manifestations.

K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn.1995). Moreover, “[c]ourts historically have been concerned about the reliability of emotional distress claims and have limited liability for those claims.” Carlson v. Illinois Farmers Ins. Co., 520 N.W.2d 534, 535 (Minn.App.1994) (citing Restatement (Second) of Torts § 436A cmt. b (1965)) (other citation omitted).

Both parties agree that all the required elements of a claim for negligent infliction of emotional distress are present here, and it is not disputed that respondent can go forward with her claim for the damages she suffered based on her fear for her own safety.

But no Minnesota case has addressed whether a plaintiff within the zone of danger can recover for emotional distress arising from witnessing an injury to a plaintiffs child. Although not controlling, the discussion of negligent infliction of emotional distress claims in Stadler v. Cross, 295 N.W.2d 552 (Minn.1980), is instructive. In Stadler, the Minnesota Supreme Court held that a plaintiff could not bring an action for intentional infliction of emotional distress for damages based on the injuries to the plaintiffs child because the plaintiff was not in the zone of danger. Id. at 553. In discussing why Minnesota applies the zone-of-danger test, the court mentioned problems with limitless liability to tortfeasors.

A person’s liability for the consequences of her or his actions cannot be unlimited. The limits imposed must be as workable, reasonable, logical, and just as possible. If the limits cannot be consistently and meaningfully applied by courts and juries, then the imposition of liability would become arbitrary and capricious.

Id. at 554. Moreover, the court raised policy concerns about a rule that would allow recovery of damages for negligent infliction of emotional distress for a plaintiff who witnesses injuries to an immediate family member:

what if the third person was the plaintiffs beloved niece or nephew, grandparent, flaneé, or lifelong friend, as dear to the plaintiff as her more immediate family?

Id. at 555.

In addition to Stadler, we are also mindful of a recent decision of this court that held that a “plaintiff cannot recover for negligent infliction of emotional distress arising from witnessing the death of a friend” even when the plaintiff is inside the zone of danger. Carlson, 520 N.W.2d at 535. In discussing where to draw a line for liability, the Carlson court suggested that:

[w]hile the tortfeasor had a duty to protect both Carlson and her Mend from physical harm because they were passengers in his car, he had no duty to protect Carlson from distress arising from the fate of her Mend.

Id. at 537. The court further concluded that if it were to find otherwise, the tort-feasor’s liability would be out of proportion to the tortfeasor’s culpability. Id.

Applying the holdings of Sta-dler and Carlson, we conclude that Minnesota appellate courts have been reluctant to extend liability to third persons in negligent infliction of emotional distress cases. In addition, Minnesota has never held that a tortfeasor has a duty to protect a person within the zone of danger from witnessing harm to a family member. Thus, this court would be creating new law in Minnesota if we were to hold that respondent could recover damages for the emotional distress she suffered as a result of witnessing her son’s injuries. See Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, 421 (1969) (stating that allowing the recovery of damages for emotional distress based on an injury to a third party is the creation of new law). Because it is not the function of this court to create new law, we answer the certified question in the negative. See Stubbs v. N. Mem’l Med. Ctr., 448 N.W.2d 78, 80-83 (Minn. App.1989) (refusing to create a cause of action that had not been recognized by the courts or established by the legislature because “[t]he function of this court is primarily decisional and error correcting, rather than legislative or doctrinal”).

DECISION

Notwithstanding the fact that she was within the zone of danger, respondent is not entitled to damages for the emotional distress she suffered as a result of either fearing for her son’s safety or witnessing her son’s injury.

Certified question answered in the negative.

KLAPHAKE, Judge

(dissenting)

I respectfully dissent. Although I agree that the certified question is important and doubtful, I disagree with the majority’s conclusion that respondent should not be allowed to recover emotional distress damages based on the fear she experienced for her son’s safety and based on the anxiety and distress she suffered upon witnessing her son sustain serious injuries. Because respondent was undisputedly in the “zone of danger” and sustained emotional distress damages based on fear for her own safety, she should also be able to present evidence on the emotional distress she sustained as a result of witnessing injury to her child. I would therefore answer the certified question in the affirmative.

I do not believe that in so ruling, we would be “creating new law in Minnesota.” A cause of action for negligent infliction of emotional distress has existed in Minnesota since 1892. See Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 50 N.W. 1034 (1892) (allowing recovery by woman who suffered miscarriage after cable car on which she was riding narrowly avoided collision with another car). This cause of action has been limited over the years to require that a successful plaintiff be within the zone of danger of physical impact, reasonably fear for his or her own safety, and suffer severe emotional distress with attendant physical manifestations. K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn.1995). These limitations act as safeguards to insure the genuineness of claims based on emotional distress. See id. at 559 (noting courts have required objective component to insure stability and predictability in disposition of emotional distress claims).

Contrary to the majority’s characterization of the claims presented here, respondent does not seek to recover damages based on her son’s injuries: she seeks damages based on the emotional distress she has suffered. This is not, as the majority concludes, an attempt to create new law. Indeed, the case cited by the majority is easily distinguishable because the plaintiff in that case was not in the zone of danger and merely witnessed the accident in which her child was injured. See Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, 421 (1969) (refusing to recognize “entirely new cause of action” based on mother’s witnessing car striking child, when mother sustained no physical impact in accident and did not fear for her own safety). The unique fact situation presented here may make this a “case of first impression,” but it does not make this a case in which we are being asked to make new law or create a new cause of action not yet recognized in Minnesota.

To the contrary, this case presents the logical extension of the two cases cited by the majority, Stadler v. Cross, 295 N.W.2d 552 (Minn.1980), and Carlson v. Illinois Farmers Ins. Co., 520 N.W.2d 534 (Minn. App.1994). In Stadler, 295 N.W.2d at 554, the supreme court held that a mother could not bring an action for intentional infliction of emotional distress for damages based on injuries to her child because the mother was not in the zone of danger. The court was concerned with the problems that such limitless liability would impose on tortfeasors. Id. Here, recovery should be allowed because respondent was in the zone of danger and feared for her own safety as well as her son’s. This case thus draws a bright-line rule and provides the “workable, reasonable, logical, and just” limits found to be necessary in Sta-dler. See id.

In Carlson, 520 N.W.2d at 538, this court held that a plaintiff cannot recover for negligent infliction of emotional distress arising from witnessing the death of a friend, even when that plaintiff was inside the zone of danger. This court reasoned that the tortfeasor, the driver of the car in which the plaintiff and her friend were riding, “had no duty to protect [the plaintiff] from distress arising from the fate of her friend” and that to impose such a duty would render the tortfeasor’s liability out of proportion to his culpability. Id. at 537. Again, making a tortfeasor liable for the distress suffered by a mother, herself in danger, at witnessing injury to her child, places limits on liability that are workable and in proportion to culpability.

As recognized by at least one commentator, allowing respondent to recover fully for the emotional distress she has suffered is consistent with basic negligence principles, as set out in Minnesota case law and the Restatement of Torts. See Michael K. Steenson, The Anatomy of Emotional Distress Claims in Minnesota, 19 William Mitchell L.Rev. 1, 11-15 (1993). Professor Steenson offers the following analysis:

The plaintiff was in the zone of danger. She reasonably feared for her own safety. She suffered severe emotional distress that was the product of fear for herself or the safety of a family member. The distress resulted in physical harm within the meaning of [existing Minnesota cases discussing proximate cause]. Because emotional harm and resultant physical injury were foreseeable under the circumstances, it is irrelevant if the defendant was unable to foresee the exact manner of occurrence.

Id. at 13. Section 436 of the Restatement further supports recovery for these types of damages:

(1) If the actor’s conduct is negligent as violating a duty of care designed to protect another from a fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability.
(2) If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.
(3) The rule stated in Subsection 2 applies where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate family occurring in his presence.

Restatement (Second) of Torts § 436 (1965). One of the comments to subsection 3 explains:

The reason for this exception to the general rule that there cannot be recovery for emotional disturbance, or its consequences, arising from the peril of a third person lies in the fact that the defendant, by his negligence, has endangered the plaintiffs own safety and threatened him with bodily harm, so that the defendant is in breach of an original duty to the plaintiff to exercise care for his protection.

Id., cmt. f.

Thus, the concerns voiced by Minnesota courts in prior cases limiting recovery of emotional distress damages are simply absent here. There is no danger that respondent’s claims are not reliable or genuine because she has met the limits set out by Minnesota courts to “lead to reasonable and consistent results”: she was within the zone of danger, feared for her own safety, and has exhibited physical manifestations caused by her emotional distress. See K.A.C., 527 N.W.2d at 555.

I would therefore answer the certified question in the affirmative and allow respondent to present evidence on her emotional distress, whether caused by fear for her own safety or for her son’s safety, or by the distress or anxiety she experienced upon witnessing her son being severely injured by another’s negligence.


author: HALBROOKS, Judge

text:
    The YEAR 2001 BUDGET APPEAL OF Lyle LANDGREN, Pipestone County Sheriff, Petitioner, Appellant, v. PIPESTONE COUNTY BOARD OF COMMISSIONERS, Respondent.
    No. CX-01-618.
    Court of Appeals of Minnesota.
    Sept. 25, 2001.

      Gregory R. Anderson, Anderson Larson Hanson & Saunders, P.L.L.P., Willmar, MN, for appellant.
    Scott T. Anderson, Ratwik Roszak & Maloney, P.A., Minneapolis, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge, KLAPHAKE, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge

The county sheriff challenged a resolution by the county board, contending that the funding for the sheriffs budget was inadequate. He personally served notice of appeal on the county auditor pursuant to Minn.Stat. § 387.20, subd. 7 (2000). The district court dismissed the appeal for lack of jurisdiction on the ground that, under Minn. R. Civ. P. 4.02, a party to the action may not serve the summons. Because the district court correctly interpreted the rule, we affirm.

FACTS

On December 26, 2000, respondent Pipe-stone County Board of Commissioners passed its annual budget, which included the budget for the sheriffs office. Pursuant to statute, a sheriff may challenge the portion of the county budget relating to the sheriffs office by serving the county auditor with a notice of appeal within 15 days after the budget resolution. Minn. Stat. § 387.20, subd. 7 (2000). On January 4, 2001, appellant Sheriff Lyle Landgren personally delivered the notice of appeal to the county auditor.

Respondent moved to dismiss, arguing that, due to insufficient service of process, the district court lacked personal jurisdiction. After a hearing, the court found that the Minnesota Rules of Civil Procedure apply to a budget appeal and that, under rule 4.02, the sheriff, as a party to the action, cannot properly serve process. Because there was insufficient service of process, the court held that it lacked personal jurisdiction and dismissed the case without prejudice. Even though' the dismissal was without prejudice, because of statutory time restraints, appellant had no opportunity to re-serve. Therefore, the order amounts to a dismissal with prejudice, which is appealable. Stransky v. Indep. Sch. Disk No. 761, 439 N.W.2d 408, 409 (Minn.App.1989), revieiv denied (Minn. July 12,1989).

ISSUES

1. Did the district court err in holding that a sheriff who is a party to an action can not serve process?

2. Did the district court err in dismissing the budget appeal for lack of personal jurisdiction?

ANALYSIS

I.

Appellant argues that neither the language nor the purpose of Minn. R. Civ. P. 4.02 prohibits the sheriff from personally serving process in a budget appeal.

Whether service of process is proper is a question of law reviewed de novo. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App.1992), review denied (Minn. July 16, 1992). Interpretation of the rules of civil procedure is also a question of law, which this court reviews de novo. Barrera v. Muir, 553 N.W.2d 104, 108 (Minn.App.1996), review denied (Minn. Oct. 29,1996).

The initiation of an action in a Minnesota court requires a plaintiff to follow the procedures in the Minnesota Rules of Civil Procedure. Minn. R. Civ. P. 4.01. Generally, a party is prohibited from making personal service. See Minn. R. Civ. P. 4.02, 4.03. Specifically, Minn. R. Civ. P. 4.02 provides:

[T]he sheriff or any other person not less than 18 years of age and not a party to the action, may make service of a summons or other process.

Appellant argues that the final conjunctive phrase of the rule — “and is not a party to the action” — applies only to “any other person” and not to the sheriff. Thus, appellant argues that a sheriff, even if a party to the action, is not prohibited from serving process. But appellant’s argument is without legal basis, and adoption of appellant’s interpretation of the rule would lead to absurd results. Under appellant’s interpretation, a sheriff with an interest in the litigation could serve the adverse party. Thus, a sheriff could serve an opposing party in a civil suit or a spouse in a dissolution action. Such possibilities run counter to the purpose of rule 4.02, which is “to eliminate bias, acrimony and possible oppression which is inherent in litigation.” Lewis v. Contracting NW, Inc., 413 N.W.2d 154, 155 (Minn.App.1987) (affirming dismissal when pro se party personally served opposing party); see also Stransky v. Indep. Sch. Dist. No. 761, 439 N.W.2d 408 (Minn.App.1989) (service of notice of contest challenging results of school-bond-issue election was improper, as it was made by a person challenging election who was party to action), review denied (Minn. July 12, 1989).

Appellant notes that his grievance is with the county board, yet the statute directs him to serve the county auditor. Therefore, appellant argues, service by the party-sheriff in these circumstances does not compromise the rule’s purpose. But ignoring the nonparty rule whenever another procedural rule or statute eliminates “possible acrimony” by directing service to a party’s agent leads to inconsistent application of the rule. See, e.g., Minn.Stat. § 387.20, subd. 7 (2000) (directing service to the county auditor); Minn. R. Civ. P. 4.03(b)-(e) (explaining how to serve process on entities). Accordingly, making an exception here under rule 4.02 appears incongruous with interpreting the procedural rules to create consistency for all civil actions. Leek v. Am. Express Prop. Cas., 591 N.W.2d 507, 508-09 (Minn.App.1999) (noting that rules concerning the “commencement of an action should be construed * * * to provide a single, uniform course of procedure” applicable to all civil actions (citation omitted)), review denied (Minn. July 7,1999).

In this case of first impression, our interpretation both supports the purpose behind rule 4.02 and, as the district court noted in its decision, is consistent with the rulings and long-standing policies in other jurisdictions. See, e.g., Knott v. Jarobe, 58 Ky. 504 (1859) (a sheriff cannot serve a writ when he is the plaintiff of record, even if he has no interest in the suit); Stewart v. Magness, 42 Tenn. 310, 313 (1865) (“we conclude that if the Sheriff is a party to the record, or is interested in the suit, he is incompetent to act, and in such case the execution of process by him or his deputy, is unlawful and void”).

“ ‘Service of process in a manner not authorized by the rule is ineffective service.’ ” Lundgren v. Green, 592 N.W.2d 888, 890 (Minn.App.1999) (quoting Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn.1997)), review denied (Minn. July 28, 1999). Because the sheriff was a party to the action and served process on the adverse party, the district court did not err in finding ineffective service and a violation of rule 4.02.

II.

As an alternative argument, appellant contends that any error in service was technical and that dismissal was improper because the service of process satisfied the requirements of due process. But timely service on adverse parties has long been jurisdictional. Hansing v. McGroarty, 433 N.W.2d 441, 442 (Minn.App.1988), review denied (Minn. Jan. 25, 1989). Therefore, “[i]f service of process is invalid, the district court lacks jurisdiction to consider the case, and it is properly dismissed.” Leek, 591 N.W.2d at 509 (citations omitted);' see also Winkel v. Eden Rehab. Treatment Facility, Inc., 433 N.W.2d 135, 137 (Minn. App.1988) (service of process ineffective if not in a manner authorized by rule 4). Although the application of the rule in this case creates a harsh result, this court has stated that.“there is no exception to the nonparty rule without authorization by the Minnesota Rules of Civil Procedure.” Lewis, 413 N.W.2d at 157. Therefore, because we hold that service of process was insufficient, the court lacked jurisdiction and correctly dismissed the action.

DECISION

The district court does not have jurisdiction to consider a budget appeal because the sheriff personally served process in violation of Minn. R. Civ. P. 4.02. The district court did not err in dismissing the budget appeal for lack of personal jurisdiction when service of process was ineffective.

Affirmed.