text:
    In re Petition for DISCIPLINARY ACTION AGAINST David J. GHERITY, a Minnesota Attorney, Registration No. 140181.
    No. C5-87-1684.
    Supreme Court of Minnesota.
    Jan. 15, 2004.
    Rehearing Denied Feb. 23, 2004.

      Kenneth L. Jorgensen, Director, Betty M. Shaw, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Petitioner.
    David J. Gherity, Burnsville, MN, for Respondent.

       Gilbert, J., took no part in the consideration of decision of this case.

   OPINION

PER CURIAM.

In this lawyer discipline case, we conclude that respondent David J. Gherity was not denied due process in the disciplinary proceedings and that the referee’s findings of fact, and the conclusions drawn from those findings, are not clearly erroneous and are supported by the evidence. We also conclude that the appropriate discipline is indefinite suspension from the practice of law with no right to apply for reinstatement for a period of five years from date of this decision.

On June 20, 2001, Gherity was convicted in Hennepin County District Court of fifth-degree assault and disorderly conduct. He was sentenced to 90 days confinement, 75 days of which were stayed for one year on the conditions that he obtain a full chemical dependency evaluation, a mental health assessment, anger management counseling, and that he pay a fine and restitution and have no contact with the victims. The convictions, which were affirmed by the court of appeals, arose from an incident on October 29, 2000 in which Gherity assaulted his girlfriend by repeatedly kicking her in the hallway outside of her 26th floor apartment and when a neighbor attempted to intervene, Gherity also assaulted the neighbor by chasing him to the 26th floor balcony, forcing him against the railing with his hands around his throat, and then repeatedly punching him. State v. Gherity, No. C8-01-1086, 2002 WL 1837912 (Minn.App. Aug.13, 2002), rev. denied (Oct. 29, 2002).

As a result of Gherity’s convictions in district court, the Director of the Office of Lawyer’s Professional Responsibility filed a petition for disciplinary action, alleging that Gherity had engaged in professional misconduct in violation of Minn. R. Prof. Conduct 8.4(b) and (d). In the petition, the Director also requested revocation of the professional probation that had been imposed on Gherity for earlier professional misconduct violations. See In re Gherity, 464 N.W.2d 719, 720 (Minn.1991); In re Gherity, 446 N.W.2d 371, 371-72 (Minn.1989); In re Gherity, 424 N.W.2d 63, 63 (Minn.1988).

At the evidentiary hearing before the referee, Gherity requested a continuance, claiming that counsel he retained had failed to appear, despite numerous reminders. The Director opposed the continuance, noting that the hearing date had been known for some time. The referee indicated that his court reporter’s call to the counsel Gherity had earlier indicated he might retain had never been returned. Noting that counsel Gherity claimed to have retained had made no appearance in this matter and could not be reached at his office or by cell phone, the referee denied Gherity’s requests for a continuance of the evidentiary hearing or, in the alternative, court-appointed counsel. The referee also denied Gherity’s motion to dismiss the petition on grounds of investigatory misconduct by the Director’s office. The Director presented evidence at the hearing of Gherity’s June 2001 fifth-degree assault and disorderly conduct convictions, as well as evidence of Gherity’s past disciplinary record. Gherity testified, offering his explanation of the incident that resulted in his convictions for fifth-degree assault and disorderly conduct, and also offering explanations for prior misconduct that resulted in earlier convictions and professional discipline. He also asserted that he suffered from depression and a head injury resulting from a motorcycle accident 12 years before. He asked that his depression and head injury be considered mitigating factors.

The referee found that Gherity’s June ⅛01 convictions for fifth-degree assault and disorderly conduct constituted conclusive evidence of the conduct underlying those convictions and also conclusive evidence of professional misconduct in violation of Minn. R. Prof. Conduct 8.4(b) and (d). The referee also concluded that Gherity’s convictions violated professional probation imposed on Gherity in 1988 for disciplinary violations and continued for subsequent violations and that Gherity’s “extensive” prior discipline and criminal record constituted a “pattern of misconduct” and an aggravating factor. The referee also concluded that Gherity’s “last minute” claims of depression and a head injury were not sufficiently developed to constitute mitigating factors. The referee recommended that Gherity be disbarred.

Gherity, who was admitted to practice on October 15, 1982, has been publicly disciplined on three prior occasions and privately admonished twice. He was on professional probation from 1988 until suspended from practice on March 13, 2003, pending resolution of this matter.

In 1988, Gherity was placed on professional probation for two years after acknowledging in a stipulation with the Director that he had been found guilty following trial of violating an order for protection and that he had pleaded guilty to a charge of disorderly conduct for an unrelated incident. In re Gherity, 424 N.W.2d at 63. In 1989, his professional probation was extended to May 1991 when, by stipulation with the Director, Gherity admitted that he had failed to pay his attorney registration fee, had arrived late for a court proceeding and had failed to follow the terms of the professional probation ordered by this court in 1988. In re Gherity, 446 N.W.2d at 371-72. In November 1990, following allegations by the Director that he had failed to appear for a pretrial hearing on behalf of a client, had failed to return an unearned portion of a retainer when discharged by a client, and was involved in an altercation which resulted in minor injuries to two women, Gherity, again by stipulation with the Director, admitted the allegations and agreed to discipline which we subsequently ordered, modifying his professional probation and prohibiting him from practicing law unless he associated with attorneys accountable for Gherity’s actions. In re Gherity, 464 N.W.2d at 719-20. The stipulation and our order allowed Gherity to petition for an order terminating his probation upon presentation of clear and convincing evidence that he had successfully completed his criminal probation, had complied with all terms of his professional probation, and was psychologically fit to represent clients without supervision. Id. Following further stipulation between Gherity and the Director, we issued an order on March 20, 1991, modifying the terms of Gherity’s probation by allowing him to represent up to ten clients in his solo capacity. In 1992, Gherity received a private disciplinary admonition for filing an appeal without attaching a copy of the order appealed from and failing to correct the deficiency when requested by the clerk of appellate courts. In 1996, he again received a private disciplinary admonition for violating Minn. R. Prof. Conduct 4.4, by threatening at a hearing to reveal an alleged affair between an opposing party and her former employer. Gherity never petitioned this court for an order terminating professional probation first imposed in 1988 and his probation remained in effect until March 13, 2003, when he was suspended from practice pending resolution of this matter.

I.

We first address Gherity’s claim that he has been denied due process in the disciplinary proceedings. While disciplinary proceedings are not encumbered by technical rules and formal requirements, this court observes due process in exercising disciplinary jurisdiction. In re Gillard, 271 N.W.2d 785, 808 (Minn.1978). The charges to which an attorney must answer need to be sufficiently clear and specific and the attorney must be afforded an opportunity to anticipate, prepare and present a defense. Id.; In re Peterson, 260 Minn. 339, 345, 110 N.W.2d 9 (1961).

Gherity claims that his due process rights were violated because he was not given timely notice that the Director would seek disbarment. According to Gherity, the Director only requested disbarment after Gherity refused to sign a stipulation for indefinite suspension at the preliminary hearing. Gherity points out that disbarment was not specifically requested in the Director’s petition.

We have held that an attorney has a right to know the nature of the charges filed against him but we have never suggested that he has a due process right to know the exact discipline that will be requested by the Director following the evi-dentiary hearing. See In re Peterson, 260 Minn. at 345, 110 N.W.2d at 13 (“the charges of professional misconduct, though informal, should be sufficiently clear and definite * * * to afford the respondent an opportunity to prepare and present his defense”); In re Rerat, 232 Minn. 1, 4-5, 44 N.W.2d 273, 275 (1950) (discussing the importance of due process safeguards in attorney discipline cases). There is no dispute that Gherity had knowledge of the specific charges against him when he accepted service of the peti ■ tion on May 8, 2002. The petition recite^ that the Director sought an order “revolt; ing [Gherity’s] probation, suspending [Gherity’s] license to practice law or imposing otherwise appropriate discipline.” Our professional responsibility rules make clear that an attorney may be disbarred, suspended, placed on probation, reprimanded and/or required to pay costs upon conclusion of disciplinary proceedings. Rule 15(a), Rules on Lawyers Professional Responsibility (RLPR). We hold that even if the Director’s petition in disciplinary proceedings does not specifically state that disbarment is the discipline the Director is seeking, the attorney’s due process rights are not violated when the Director’s petition states that “appropriate discipline” is requested and our rules of professional responsibility specifically include disbarment as a discipline where appropriate.

Gherity also argues that his due process rights were violated because his retained counsel did not attend the hearing nor assist him in preparation for the hearing. He claims that the referee improperly denied his request for a continuance and that the referee should have appointed counsel to represent him. We have rejected, however, the claim that an attorney facing disciplinary proceedings has the right to appointed counsel. See In re Peters, 332 N.W.2d 10, 17 (Minn.1983) (concluding no right to have counsel appointed because an action for discipline of an attorney is neither a criminal nor a civil procedure, but rather, an investigation by the court into the conduct of one of its own officers to determine his or her fitness to continue as a member of the profession). We conclude that Gherity’s due process rights were not violated by the referee’s denial of Gherity’s motion for a continuance of the hearing nor by the referee’s denial of his request for appointed counsel.

Gherity also argues that his due process rights were violated because of investigatory misconduct by the Directors office. Gherity alleges that the Directors office improperly contacted his psychologist and co-workers in Arizona and that the Director maintained ongoing contact with both the victim of the criminal assault and Gherity’s former girlfriend. Gherity argues that the referee should have dismissed the petition because of misconduct by the Director’s office. The Director asserts that the investigation was necessary and that the Director only disclosed information necessary to properly investigate the complaint and to prepare for the hearing. The Director is authorized by Rule 8(a), RLPR, to investigate claims of professional misconduct, and we conclude that Gherity’s claim of investigatory misconduct has no evidentiary support and is without merit.

II.

Gherity contends that the referee’s findings and conclusions are clearly erroneous and are not supported by the evidence. He argues that the crimes of fifth-degree assault and disorderly conduct are not crimes of moral turpitude that warrant discipline under our rules of professional responsibility, statutes, or case law. According to Gherity, because he was not convicted of felonies, there is no nexus between his- criminal conduct and his professional conduct as an attorney.

Allegations of professional misconduct must be proven by “full, clear and convincing evidence.” In re Ruhland, 442 N.W.2d 783, 785 (Minn.1989). A referee’s findings are not conclusive, but are subject to review on the record, where, a,s here, the hearing transcript is ordered. In re Jensen, 468 N.W.2d 541, 543-44 (Minn.1991); Rule 14(e), RLPR. On review, this court will uphold a referee’s factual findings, and the conclusions drawn from those findings, unless they are clearly erroneous. In re Pyles, 421 N.W.2d 321, 325 (Minn.1988).

A lawyer’s criminal conviction is conclusive evidence that the lawyer committed the conduct for which the lawyer was convicted. Rule 19(a), RLPR. It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Minn. R. Prof. Conduct 8.4(b). The comments to Minn. R. Prof. Conduct 8.4(b) provide that “offenses involving violence” are within this category and that “a pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.” Minn. R. Prof. Conduct 8.4 cmts. We hold that the referee’s factual findings and conclusions are not clearly erroneous and are supported by the evidence and that Gherity’s 2001 convictions for fifth-degree assault and disorderly conduct constitute conclusive evidence of the violent misconduct underlying those convictions and that Gherity’s violent misconduct, together with his prior discipline and criminal record, constitutes a pattern of misconduct and conclusive evidence of professional misconduct.

III.

We now consider the discipline that is appropriate. Gherity argues that the referees recommendation of disbarment is too severe and that the referee failed to consider mitigating factors such as Gherity’s depression, head injury, and -lack of disciplinary violations over several years.

In order to maintain public confidence in the legal profession, we will not hesitate to impose the strictest discipline available, including disbarment. In re Larsen, 459 N.W.2d 115, 120 (Minn.1990) (disbarring an attorney for misappropriation of funds). In determining appropriate discipline, we consider (1) the nature of the misconduct, (2) the cumulative weight of the rule violations, (3) the harm to the public, and (4) the harm to the legal profession. In re Terrazas, 581 N.W.2d 841, 845 (Minn.1998); In re Madsen, 426 N.W.2d 434, 436 (Minn.1988). An attorney’s prior disciplinary history is relevant when determining sanctions. In re Grzybek, 567 N.W.2d 259, 262 (Minn.1997) (citing In re Haugen, 543 N.W.2d 372, 375 (Minn.1996)). After a disciplinary proceeding, we expect “offenses involving to comprehensive ethical and professional behavior and where leniency has been shown once, this court is reluctant to do so again.” Id.

We also consider mitigating and aggravating circumstances in the imposition of discipline. In re Haugen, 543 N.W.2d at 375. We agree with the referee that Gherity’s lengthy disciplinary record and his failure to take responsibility for his actions are appropriate aggravating factors. See In re Kaszynski, 620 N.W.2d 708 (Minn.2001) (concluding that the refusal to acknowledge the wrongful nature of one’s actions and instead portraying oneself as a victim and repeatedly casting blame on others was an aggravating factor); In re Brehmer, 620 N.W.2d 554, 562 (Minn.2001) (citing multiple acts of misconduct, that the misconduct continued over a period of time, and that the misconduct was of the same type of misconduct for which the attorney had been previously disciplined as aggravating factors).

Gherity also challenges the referee’s conclusion that his depression and head injury are not mitigating factors. An attorney who claims mental or physical disability as mitigating factors must present clear and convincing evidence that he has the disability, that the disability caused the misconduct, that he is undergoing treatment for the disability and making progress in recovery and that the recovery has halted the misconduct and that the misconduct is not likely to reoccur. In re Albrecht, 660 N.W.2d 790, 795 (Minn.2003); In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983). Except for his own assertions, Gherity has not presented clear and convincing evidence of depression or a head injury, much less clear and convincing evidence that either depression or a head injury caused his misconduct. Also lacking is clear and convincing evidence of treatment for the disability or the prospect for recovery or that the treatment, if any, has halted the misconduct or that the misconduct is not likely to reoccur. We agree with the referee’s conclusion that Gherity’s claims of depression and a head injury were not sufficiently developed to constitute mitigating factors.

To determine proper discipline for attorney misconduct, we are assisted by considering similar cases. In re Klein, 609 N.W.2d 230, 232 (Minn.2000). Prior cases with unique factual settings are helpful “only through analogy and the facts of each individual case must be carefully examined.” Id. (quoting In re Boyd, 430 N.W.2d 663, 665 (Minn.1988)). While we afford great weight to the referee’s recommendation of appropriate discipline, we retain ultimate authority to determine the discipline that is appropriate. Id. at 233.

The referee recommends that Gherity be disbarred. We stop short of following that recommendation and instead, relying upon our prior decisions, order that Gherity be indefinitely suspended from the practice of law with no right to apply for reinstatement for a period of five years from the date of this decision. See id. at 234 (indefinitely suspending attorney with history of probation and disciplinary violations); In re Engel, 538 N.W.2d 906, 907 (Minn.1995) (indefinitely suspending attorney with prior disciplinary violations who failed to cooperate with investigations of Director).

We therefore order that David J. Gherity:

1. Be indefinitely suspended from the practice of law pursuant to Rule 15(a)(2), RLPR, with no right to apply for reinstatement for a period of five years from the date of this decision;
2. Comply fully with the requirements of Rule 18, RLPR, should he apply for reinstatement; and
3. Pay to the Director appropriate costs and disbursements pursuant to Rule 24, RLPR.

So ordered.

GILBERT, J., took no part in the consideration or decision of this case.

      . Minn. R. Prof. Conduct 8.4(b) states, it is professional misconduct to "commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.”

      . Minn. R. Prof. Conduct 8.4(d) states, it is professional misconduct for an attorney to "engage in conduct that is prejudicial to the administration of justice”

      . Minn. R. Prof. Conduct 4.4 states, “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”

      . Gherity is not licensed to practice law in Arizona, but resided there from 2000-2002.

      . Gherity cites Minn.Stat. § 481.15 (2002), which provides grounds for the removal or suspension of an attorney. The discipline of an attorney, however, is for the judiciary to determine; attorney discipline is not controlled by the legislature. See In re Greathouse, 189 Minn. 51, 55, 248 N.W. 735, 737 (1933) ("It is well settled that a court which is authorized to admit attorneys has inherent jurisdiction to suspend or disbar them. This inherent power of the court cannot be defeated by the legislative or executive department. The removal or disbarment of an attorney is a judicial act.”)


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Dwane David PETERSON, Appellant.
    No. C7-02-487.
    Supreme Court of Minnesota.
    Jan. 22, 2004.

      Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, for Dwane David Peterson.
    Michael Hatch, State Attorney General, James B. Early, Office of the Attorney General, St. Paul, MN, Ross Arneson, Blue Earth County Attorney, Mankato, MN, for the State of Minnesota.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Dwane David Peterson was convicted of kidnapping and aggravated robbery, in violation of MinmStat. § 609.25, subd. 1 (2002) and Minn.Stat. § 609.245, subd. 1 (2002), and was sentenced by the trial court to consecutive prison terms of 78 and 48 months. The court of appeals affirmed the conviction against claims by Peterson that the failure to include instructions on the presumption of innocence, burden of proof and proof beyond a reasonable doubt in the final charge to the jury was reversible error. Concluding that the final charge given to the jury diluted the requirement that the state prove every element of a charged offense beyond a reasonable doubt and amounted to a denial of due process, we reverse and remand for new trial.

On July 19, 2001, as 78-year-old Robert Berg was getting into his car at the Man-kato public library parking lot, Peterson approached and handed Berg a note that said “I have a gun, and I know how to use it.” The handle of a gun, later identified as a pellet air gun, protruded from Peterson’s waistband. Peterson told Berg to “shove over,” got into the car and drove off.

While driving toward Minneapolis, Peterson stopped at a gas station in Jordan and as he was preparing to purchase gas at the pump, Berg escaped from the car and fled into the station. As Peterson approached the station “swinging” the gun, a station employee called 911. Peterson relinquished the gun once he entered the station and saw that the employee was talking to law enforcement authorities. Police arrived shortly and arrested Peterson.

Peterson was charged by complaint in Blue Earth County with kidnapping, first-degree aggravated robbery, theft of a motor vehicle, second-degree assault, and ter-roristic threats. At trial, shortly after the jury panel was chosen and sworn, the court advised the jurors that he was going to give them “some instructions to assist [them] in [their] participation in the trial.” The court then read to the jurors a series of instructions that included patterned instructions from Chapter 3 of the Jury Instruction Guide concerning the presumption of innocence and the definition of proof beyond a reasonable doubt. 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.02 and 3.03 (4th ed. 1999) (“Instructions to Jury at Close of Case”).

Midway through the instructions, .the court asked the bailiff to provide each juror with a written copy of the court’s remaining instructions in a document titled “State v. Dwane David Peterson: Law Regarding Charges.” The court explained to the jury that the written copy of the remaining instructions related to the law applicable to the charges, were “preliminary in nature” and would likely be altered. The court said: “I’m going to read this document to you so that it’s clearly stated on the record” and told the jurors to “follow along with me as I read it. You will not go ahead of me. That’s one danger[.] * * * I want to make sure that we go through it together.”

The court then completed its instructions by reading to the jury the document which consisted only of the statutory definitions of the offenses charged, the elements of each offense, instructions that each , element must, be proven beyond a reasonable doubt in order to return a guilty verdict, and additional instructions concerning questions on the guilty verdict forms. While reading the instructions, the court discovered an error in the special interrogatory for the use of a firearm and asked the jurors to “pencil in” the correction. The court advised the jurors that they were receiving copies of the “Law Regarding Charges” document so that they could “explore” the language and issues during the trial. The court also told the jurors that the instructions were a “work in progress” and that any changes to the instructions would be addressed at the end of the trial.

The “Law Regarding Charges” document that was distributed to the jury included a definition of a dangerous weapon that stated only that a firearm, whether loaded or unloaded, was a dangerous weapon. At the close of the state’s case, the court amended the definition to add that a firearm, “even if temporarily inoperable,” was a dangerous weapon, eliminating any defense aimed at casting doubt on the operability of the firearm. At the conclusion of the evidence, the court collected from the jury the “Law Regarding Charges” document.

Prior to closing arguments, the court proceeded with the final charge to the jurors. The court told the jurors that he was not going to repeat “everything said” previously but six copies of a document titled “Final Instruction to Jury Panel” would be made available during deliberations for “review” if the jurors “deem[ed] it necessary.” Those instructions not repeated included the presumption of innocence and the definition of proof beyond a reasonable doubt, “and the other things” the court had orally instructed on before opening statements.

The court continued its final charge to the jury, returning to the jurors their individual copies of the “Law Regarding Charges” document, with changes the court had made. The court said that it was going to “go through those in some detail, because obviously, that’s the crux of the issues here.” The court read from the document the elements of the offenses and related definitions but for four of the six offenses did not instruct that each element must be proved beyond a reasonable doubt, stating instead, “And to find him guilty you have to be convinced beyond a reasonable doubt, otherwise, he’s not guilty.” The court acknowledged having “second thoughts” about separating the definitions from the elements in the written instructions which required the court to retrieve relevant definitions from the back of the document while reading the elements to the jurors. After closing arguments, the court instructed the jurors as to the selection of a foreperson, the need for a unanimous verdict, and the deliberation process.

The jury found Peterson guilty as charged. The court entered judgments of conviction for one count of kidnapping and one count of first-degree aggravated robbery and imposed consecutive sentences of 78 months and 48 months. The court of appeals affirmed, concluding that although preliminary instructions were no substitute for essential instructions in the final charge, when viewed in their entirety, the instructions in this case were adequate. The court of appeals also concluded that the trial court’s amendment to the dangerous weapon definition was not an abuse of discretion.

I.

The trial court, in the final charge to the jury, has an obligation to clearly instruct the jurors on exactly what it is that they must decide. Rosillo v. State, 278 N.W.2d 747, 749 (Minn.1979). These instructions must be given orally. Minn. R.Crim. P. 26.03, subd. 18(5) (the court “shall state all matters of law which are necessary for the jury’s information in rendering a verdict and shall inform the jury that it is the exclusive judge of all questions of fact” (emphasis added)). Upon review, instructions are viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). Here, the court included instructions on reasonable doubt and presumption of innocence in the preliminary instructions given shortly after the jury was sworn but did not include those instructions in the final charge given orally after the close of evidence before the jury retired to deliberate; and the court failed to instruct the jury for four of the six offenses that each element must be proved beyond a reasonable doubt.

Preliminary instructions that inform jurors of their duty, the presumption of innocence, the burden of proof and other preliminary matters are aimed at aiding “the jury in comprehending the trial procedures and sequence to be followed.” Minn. R.Crim. P. 26.03, subd. 4. Preliminary instructions, however, do not relieve the court of its obligation to fully inform the jurors of the applicable law at the close of the evidence. United States v. Ruppel, 666 F.2d 261, 274 (5th Cir.1982); State v. Romanosky, 176 Ariz. 118, 859 P.2d 741, 742 (1993); Massey v. State, 270 Ga. 76, 508 S.E.2d 149, 151 (1998). “Reading a complete set of instructions after the evidence ensures that the jury hears and considers all the applicable law before deliberations.” State v. Nelson, 587 N.W.2d 439, 444 (S.D.1998); see also State v. Norris, 10 Kan.App.2d 397, 699 P.2d 585, 588 (1985) (“Instruction of the jury is one of the most fundamental duties of the court and it is only through their oral delivery that the court can be assured that the jury has actually received all of the instructions.”). While a verbatim copy of the written instructions delivered orally by the court may be taken to the jury room when the jury retires to deliberate, Minn. R.Crim. P. 26.03, subd. 18(4), in our view, such instructions are not intended to replace the oral delivery of instructions on “all matters of law which are necessary for the jury’s information in rendering a verdict.” Minn. R.Crim. P. 26.03, subd. 18(5).

The presumption of innocence is a fundamental component of a fair trial under our criminal justice system. “One accused of crime has the right to have the jury take it to the jury room with them as the voice of the law.” Merrill v. United States, 338 F.2d 763, 768 (5th Cir.1964) (quoting Dodson v. United States, 23 F.2d 401, 403 (4th Cir.1928)). The presumption of innocence is “that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ ” In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The reasonable doubt standard of proof “provides concrete substance” for the presumption of innocence. Id. Accordingly, the Due Process Clause requires the state to prove every element of a charged offense beyond a reasonable doubt. Id. at 364, 90 S.Ct. 1068.

“It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” Winship, 397 U.S. at 364, 90 S.Ct. 1068; see also State v. Tibbetts, 281 N.W.2d 499, 500 (Minn.1979) (ordering a new trial when the jury instructions obscured and diluted the reasonable doubt standard). A constitutional defect in a jury instruction defining reasonable doubt requires automatic reversal of a conviction. Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Harmless error analysis is not possible in such a case because “the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings,” leaving the reviewing court only to speculate on its own as to “what a reasonable jury would have done.” Id.

Here, the final charge to the jury that was delivered orally included neither the presumption of innocence nor the definition of proof beyond a reasonable doubt. Instead, the court chose only to instruct the jury that “half a dozen copies” of instructions, which included the presumption of innocence and reasonable doubt, would be available for “review” during deliberations if the jurors “deem[ed] it necessary.” In going over the elements of the charged offenses, which the court referred to as the “crux of the issues here,” the court summarized the written instructions, thereby impermissibly elevating some of the instructions over others. The court also did not tell the jury that the reasonable doubt standard applied to each element of four of the six defined offenses. We hold that the final charge delivered orally to the jury obscured and diluted the state’s burden of proving all elements of each charge beyond a reasonable doubt and accordingly, Peterson was denied due process of law and is entitled to a new trial.

In light of our disposition, we need not address Peterson’s argument that he relied to his prejudice on the court’s instruction before opening statement defining “dangerous weapon,” although we note that generally, the use of preliminary instructions would not obviate the possibility or necessity of amending the instructions after the evidence is in. State v. Kirch, 322 N.W.2d 770, 774 (Minn.1982).

Reversed and remanded.

      . The CRIMJIGS are published by a committee of the Minnesota District Judges Association. The content of these guides does not control over statutory or case law. See State v. Burrell, 506 N.W.2d 34, 36 (Minn.App.1993) (citing Range v. Van Buskirk Constr. Co., 281 Minn. 312, 314 n. 3, 161 N.W.2d 645, 647 n. 3 (1968)). This court, however, recognizes the important role that the CRIMJIGS have in criminal jury trials, occasionally evaluating the language of the CRIMJIGS and recommending review by the Minnesota District Judges Association Committee on Criminal Jury Instruction Guides. See State v. Ihle, 640 N.W.2d 910, 917 n. 5 (Minn.2002); State v. Johnson, 310 N.W.2d 96, 97 (Minn.1981) (approving of CRIMJIG 7.08). The CRIM-JIGS are divided into two parts. The first part is comprised of general instructions and the second part consists of specific crimes and the elements needed to prove these crimes. See Minn. Dist. Judges Ass’n, supra at XI. In the general instructions, the CRIM-JIGS are further organized by those instructions that are to be given before the trial (Chapter 1), those that should be given during the trial (Chapter 2) and those that should be given at the close of case (Chapter 3). See id.

      . Each guilty verdict form included the question whether the offense was committed with a firearm, presumably because minimum sentences are mandated for certain offenses committed with a firearm. Minn.Stat. § 609.11, subd. 5 (2002).

      . Outside of the presence of the jury, the prosecutor advised the court that the firearm question on the guilty verdict form was not appropriate for the offenses of theft of motor vehicle or that of making terroristic threats; the court agreed, and indicated that a correction would be made at the end of the trial.

      . The Rules of Criminal Procedure permit the use of preliminary instructions that may also be given as to matters relating to burden of proof, presumption of innocence, the necessity of proof of guilt beyond a reasonable doubt, and the specific elements of any charge filed against the defendant. Minn. R.Crim. P. 26.03, subd. 4. The Rules also provide that "preliminary instructions need not be repeated.” Minn. R.Crim. P. 26.03, subd. 18(4). But we do not read Rule 26.03, subd. 18(4) as alleviating the court of its obligation to state "all matters of law which are necessary for the jury's information in rendering a verdict[.]” Minn. R.Crim. P. 26.03, subd. 18(5).

      . This case also demonstrates the pitfalls in the early distribution of individual copies of written instructions that are not a complete copy of the substantive preliminary instructions the court has verbally given, and also the pitfalls of distributing written instructions that turn out to be erroneous by the close of the evidence. As a general rule, prior to the close of evidence, the trial court is not in a position to comprehensively instruct the jurors as to the applicable law.


author: KALITOWSKI, Judge.

text:
    NOLAN AND NOLAN, a Minnesota Partnership, Appellant, v. CITY OF EAGAN, Respondent, MINNESOTA DEPARTMENT OF TRANSPORTATION, Respondent.
    No. A03-616.
    Court of Appeals of Minnesota.
    Dec. 30, 2003.

      Michael C. McCarthy, David F. Herr, Maslon Edelman Borman & Brand, LLP, Minneapolis, MN; and Howard A. Roston, Bruce D. Malkerson, Malkerson Gilliland Martin, LLP, Minneapolis, MN, for appellant.
    James G. Golembeck, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for respondent City of Eagan.
    Mike Hatch, Attorney General, Marsha Eldot Devine, Ann K. Bloodhart, Assistant Attorneys General, St. Paul, MN, for respondent Department of Transportation.

      Considered and decided by KALITOWSKI, Presiding Judge; HALBROOKS, Judge; and STONEBURNER, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant challenges the district court’s dismissal of both its mandamus action and its tort claims for failure to state a claim upon which relief can be granted, arguing that the district court erred by determining that: (1) appellant failed to state a takings claim; (2) appellant’s mandamus action failed because appellant had an adequate remedy at law; (3) as a matter of law appellant was prohibited from pursuing mandamus and tort claims simultaneously; and (4) the statute of limitations barred appellant’s trespass, nuisance, and negligent construction, design, maintenance, operation, and inspection claims.

FACTS

Appellant Nolan and Nolan, a Minnesota Partnership, owns and operates EZ Mini Storage on property abutting Sibley Memorial Highway in the City of Eagan. EZ Mini Storage rents space to tenants for the storage of personal property. Appellant has owned the property for more than 20 years. At approximately the same time appellant was constructing the storage business on its property, respondent Minnesota Department of Transportation (MnDOT) began constructing Sibley Memorial Highway. In connection with its construction, MnDOT constructed a storm sewer system.

In its complaint and petition for a writ of mandamus, appellant alleged that MnDOT and the City caused numerous incidents of flooding on appellant’s property, and that the flooding has been and will continue to be frequent, regular, and permanent. Specifically, appellant alleged that MnDOT and the City’s negligent design and construction of their storm sewer systems, and their failure to exercise reasonable care in the maintenance, repair, and operation of those systems caused the flooding. Appellant alleged its property most recently flooded on July 8, 2000, causing damage to its building, the building’s contents, and its tenants’ personal property.

On July 3, 2002, appellant filed a petition for a writ of mandamus, seeking an order requiring MnDOT and the City to initiate inverse condemnation proceedings. In the alternative, appellant filed a complaint alleging trespass, negligence, nuisance, and violation of due process. On November 27, 2002, the district court granted MnDOT’s motion to dismiss all of appellant’s claims against MnDOT for failure to state a claim upon which relief can be granted. The City remained a party. Subsequently, the City and appellant stipulated to dismiss the ease without prejudice and this appeal followed.

ISSUES

1. Did the district court err in dismissing appellant’s inverse condemnation claim on the pleadings?

A. Did appellant adequately state a takings claim?

B. Did the district court err in dismissing appellant’s taking claim on the ground that appellant had an adequate remedy at law?

C. Did the district court err in concluding that appellant could not pursue tort claims and a writ of mandamus simultaneously?

2. Did the district court err in concluding the statute of limitations barred all of appellant’s tort claims?

ANALYSIS

When reviewing a dismissal for failure to state a claim upon which relief can be granted, an appellate court must only determine whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). This court accepts the facts in thé complaint as true and makes all reasonable and favorable inferences in favor of the plaintiff. Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 275-76 (Minn.App.1998). Whether the plaintiff can prove the facts alleged is immaterial. Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn.App.2001), review denied (Minn. Feb. 19, 2002). An appellate court will not uphold a dismissal for failure to state a claim “if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” Martens v. Minnesota Mining & Mfg. Co., 616 N.W.2d 732, 739-40 (Minn.2000) (citing N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963)).

I.

The Minnesota Constitution requires the government to compensate a property owner when it takes the owner’s property. Minn. Const, art. 1, § 13. A “taking” is any interference “with the possession, enjoyment, or value of private property.” Minn.Stat. § 117.025, subd. 2 (2002). When the government has taken property without formally using its eminent domain powers, the property owner has a cause of action for inverse condemnation. Alevizos v. Metro. Airports Comm’n of Minneapolis & St. Paul, 298 Minn. 471, 477, 216 N.W.2d 651, 657 (1974).

Actions for inverse condemnation must be brought to the court through an action in mandamus. Thomsen v. State, 284 Minn. 468, 474, 170 N.W.2d 575, 580 (1969). A district court reviewing a petition for a writ of mandamus must decide whether a taking of property has occurred in the constitutional sense. Gibson v. Comm’r of Highways, 287 Minn. 495, 498-99, 178 N.W.2d 727, 730 (1970). While either party may request a jury trial on the issues of fact, the court ultimately decides whether a taking has occurred. Alevizos v. Metro. Airports Comm’n, 317 N.W.2d 352, 359-60 (Minn.1982).

A. Did appellant adequately plead a takings claim?

Appellant argues that the district court erred by concluding it failed to state a takings claim. Appellant contends that its claim of frequent, regular, and permanent flooding in its complaint was sufficient to survive a motion to dismiss on the pleadings. We agree.

“Whether occasional flooding is of such frequency, regularity, and permanency as to constitute a taking and not merely a temporary invasion for which the landowner should be left only to a possible recovery of damages is a question of degree, and each case must stand on its own peculiar facts.” Nelson v. Wilson, 239 Minn. 164, 172, 58 N.W.2d 330, 335 (1953) (concluding that a taking occurred where state’s construction of dams resulted in periodic flooding and land remained wet and flooded for several years). Flooding is permanent if it imposes “a servitude of indefinite duration,” even if intermittent. Spaeth v. City of Plymouth, 344 N.W.2d 815, 822 (Minn.1984) (citations omitted). Thus, intermittent flooding may, under some circumstances, constitute a taking. See id. (concluding that flooding by construction of storm water holding pond constituted a taking where landowner’s property had remained flooded for past three years and it appeared likely flooding would continue); Caponi v. Carlson, 392 N.W.2d 591 (Minn.App.1986) (concluding that a taking occurred where city utilized landowner’s land as a storm water holding pond, land was permanently flooded, and landowner had no use of property), reviewed denied (Minn. Oct. 29, 1986); see also Wilson v. Ramacher, 352 N.W.2d 389, 394-95 (Minn.1984) (allowing landowner to amend complaint to include inverse condemnation claim where landowner claimed the city’s diversion of surface waters rendered his land unfit to use).

Other cases have concluded that intermittent flooding did not constitute a taking. See Vern Reynolds Constr., Inc. v. City of Champlin, 539 N.W.2d 614, 619 (Minn.App.1995) (concluding that because evidence indicated all parties viewed drainage easement as temporary, landowner had tort claim rather than inverse condemnation claim), revieiu denied (Minn. Dec. 20, 1995). But, significantly, this case was decided on summary judgment and judgment on mandamus, not on the pleadings. Id. at 615.

Here, the district court concluded that appellant’s claims of flooding failed to rise to the level of a taking. But the district court’s conclusion is not supported by the pleadings, which must be accepted as true. The pleadings allege: (1) MnDOT and the City caused numerous incidents of flooding; (2) the flooding has and will be frequent, regular, and permanent; and (3) the last incident of flooding occurred on July 8, 2000. Because it is possible that appellant could produce some evidence consistent with appellant’s theory to grant the relief demanded, we conclude that the district court erred in finding that appellant failed to state a takings claim.

B. Must appellant’s mandamus action be dismissed because appellant had an adequate remedy at law?

Appellant also argues that the district court erred in dismissing its petition for a writ of mandamus on the ground that appellant’s alternative tort claims indicated that appellant had an adequate remedy at law. We agree.

“Mandamus is an extraordinary legal remedy awarded, not as a matter of right, but in the exercise of sound judicial discretion and upon equitable principles.” County of Swift v. Boyle, 481 N.W.2d 74, 77 (Minn.App.1992) (quoting State ex rel. Hennepin County Welfare Bd. v. Fitzsimmons, 239 Minn. 407, 422, 58 N.W.2d 882, 891 (1953)), review denied (Minn. Mar. 26, 1992). On appeal, this court will reverse a district court’s order on an application for mandamus relief “only when there is no evidence reasonably tending to sustain the trial court’s findings.” Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn.App.1995). When the district court’s decision on a petition for a writ of mandamus is based solely on a legal determination, this court reviews that decision de novo. Demolition Landfill Servs., LLC v. City of Duluth, 609 N.W.2d 278, 280 (Minn.App.2000), review denied (Minn. July 25, 2000).

Appellant argues that the district court erred in dismissing the mandamus action on the pleadings because appellant had an adequate legal remedy for its alleged injuries. Before a writ of mandamus may be issued, a petitioner must establish: (1) an official has failed to exercise a duty required by law; (2) due to this failure, petitioner is specifically injured by a public wrong; and (3) there is no adequate alternative legal remedy. Coyle, 526 N.W.2d at 207. Here, the district court concluded that appellant was not entitled to mandamus because appellant had an adequate remedy at law, in part because appellant sought damages for trespass, nuisance, and negligence. But appellant petitioned for mandamus to compel MnDOT to initiate inverse condemnation proceedings. And if the district court determined that the flooding did not rise to the level of a taking, it sought remedies for trespass, nuisance, and negligence. Appellant asserts, and we agree, that legal remedies are necessarily inadequate if a taking occurred. Because we have determined that appellant has adequately pled a takings claim, we conclude that the court erred in dismissing the mandamus action on the ground that appellant had an adequate legal remedy.

C. Can appellant simultaneously pursue a takings claim and tort claims?

Appellant argues that the district court erred in concluding that it was not entitled to mandamus because it pursued mandamus and tort claims simultaneously. We agree. As discussed above, mandamus is not available if an adequate legal remedy exists. Minn.Stat. § 586.02 (2002). Minnesota law further provides that:

[n]o pleading or written allegation, other than the writ, answer, and demurrer, shall be allowed. They shall be construed and amended, and the issues tried, and further proceedings had, in the same manner as in a civil action. The demurrer need not be noticed for argument, but the issues raised thereby may be disposed of as are other objections to the pleadings.

Minn.Stat. § 586.08 (2002). Thus, the statute provides that pleadings or other written allegations are not permitted in a mandamus proceeding. But the statute is silent on whether a petitioner can jointly petition for mandamus, and alternatively, file a separate complaint alleging tort claims. However, the statute provides that further proceedings should be conducted “in the same manner as in a civil action.” Minn.Stat. § 586.08. And Minn. R. Civ. P. 8.05 provides, in relevant part: “A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds or both.”

While no case has directly addressed this issue, we conclude that caselaw indicates that a petitioner can properly pursue mandamus and tort claims simultaneously. See Wilson, 352 N.W.2d at 394 (stating that “[a] landowner whose property has been flooded by the alleged actions of a municipality has several possible remedies or causes of action, such as negligence, nuisance, trespass, and inverse condemnation”); see also City of Minneapolis v. Meldahl, 607 N.W.2d 168, 172 (Minn.App.2000) (finding that appellant had not made an inverse condemnation claim even when court liberally construed pleadings); City of Maple Lake v. Am. States Ins. Co., 509 N.W.2d 399, 404 (Minn.App.1993) (stating that in any takings claim “the possibility will exist that the claim could have been cast in terms of trespass or nuisance” (citing Alevizos, 298 Minn. at 483-84 n. 1, 216 N.W.2d at 660)), review denied (Minn. Feb. 24, 1994).

In Wilson, after determining that the landowner’s negligence and trespass claims were barred, the court expressed regret that the landowner had not included an inverse condemnation claim in his complaint. Wilson, 352 N.W.2d at 394-95 (“Unfortunately, plaintiffs complaint, notwithstanding its verbosity, neither alleges a taking nor asks for inverse condemnation.”). The court granted the landowner leave to amend his complaint to include an inverse condemnation claim, which necessarily included a petition for mandamus. Id. at 395; see Thomsen, 284 Minn. at 474, 170 N.W.2d at 580 (concluding that actions for inverse condemnation must be brought through an action in mandamus).

Judicial efficiency and economy also persuade us that a landowner should be able to seek inverse condemnation by petitioning for mandamus, and alternatively, file a complaint, particularly where, as here, it is uncertain whether the landowner will be successful in establishing that a taking occurred. Because of the Minnesota Supreme Court’s decision in Wilson and the interests of judicial efficiency, we conclude that a petitioner is permitted to simultaneously pursue an inverse condemnation claim by way of a petition for mandamus, and alternatively, tort claims.

II.

Appellant contends the district court erred in concluding all of its tort claims were barred by the statute of limitations provision in Minn.Stat. § 541.051 (2002). The statute provides in relevant part:

(a)Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property ... shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury ... nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for the intended purpose.
(b) For purposes of paragraph (a), a cause of action accrues upon discovery of the injury ...
(c) Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.

Minn.Stat. § 541.051, subd. l(a)-(c).

A party seeking application of a statute of limitations, which is an affirmative defense, bears the burden of establishing that the claims are time-barred as a matter of law. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn.1988). Construction and applicability of a statute of limitations is a question of law, which appellate courts review de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998). This court construes Minn.Stat. § 541.051 narrowly, but still gives effect to the plain language of the statute. Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977) (superseded by statute on other grounds as stated in O’Brien v. U.O.P., Inc., 701 F.Supp. 714 (D.Minn.1988)).

Here, the district court concluded that appellant’s tort claims were barred by the statute of limitations because appellant was required to bring a tort action within two years of the discovery of the flooding damage, or in any event, no more than ten years after the completion of the construction of the storm sewer system. Appellant first argues that Minn.Stat. § 541.051 does not apply here because the alleged flooding does not arise from a “defective and unsafe condition.” We disagree.

The question of whether injury to property arises out of a defective or unsafe condition is one that turns on the individual facts alleged in the complaint. Griebel v. Andersen Corp., 489 N.W.2d 521, 523 (Minn.1992). Appellate courts consider the phrase “defective and unsafe” collectively. Id. An improvement to real property is deemed defective and unsafe if it is incomplete, faulty, dangerous, and/or insecure. Id.; Fiveland v. Bollig & Sons, Inc., 436 N.W.2d 478, 480 (Minn.App.1989), review denied (Minn. Apr. 24, 1989). The Minnesota Supreme Court has implicitly found that flooding caused by a storm sewer system constitutes a defective and unsafe condition by determining that the statute of limitations applied to claims of negligent design and construction of these systems. See Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554, 555 (Minn.1982); Ocel v. City of Eagan, 402 N.W.2d 531, 534 (Minn.1987). Therefore, we conclude that appellant’s complaint alleged a defective and unsafe condition.

We also conclude that a storm sewer system is an improvement to real property as contemplated by Minn.Stat. § 541.051. Improvement is defined as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor and money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396, 400 (Minn.App.1997) (citing Pac. Indem. Co., 260 N.W.2d at 554). In determining that the statute of limitations applied to claims of negligent design and construction of storm sewer systems, the Minnesota Supreme Court has implicitly found that storm sewer systems constitute improvements to real property. See Capitol Supply Co., 316 N.W.2d at 555; Ocel, 402 N.W.2d at 534.

Appellant also contends that the district court erred in finding that Minn.Stat. § 541.051 applies to owners of real property. We disagree. Minn.Stat. § 541.051, subd.l(c), provides: “Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.” Appellant construes this language to mean that claims against a property owner can never fall within the statute of limitations provision of Minn.Stat. § 541.051, subd. 1(a). But by the statute’s plain language, only claims of negligent maintenance, operation or inspection against a property owner are outside the statute of limitations provision.

Because the statute of limitations applies to appellant’s negligent design and construction claims, and more than ten years have elapsed since substantial completion of Sibley Memorial Highway, we conclude that the district court properly dismissed these claims.

But we conclude that the district court erred in dismissing appellant’s negligent maintenance, repair, and operation claims. Appellant alleges in its complaint that the flooding was caused both by MnDOT’s negligent design and construction of the storm sewer system and its failure to exercise reasonable care following the construction. As noted above, the district court must construe appellant’s complaint as true. Because respondent bears the burden of showing appellant’s claims are time-barred, and because appellant may be able to produce some evidence consistent with its theory, to support the relief demanded, we conclude that the district erred in dismissing appellant’s negligent maintenance, operation, and inspection claims.

Appellant also argues that the district court erred in dismissing its nuisance and trespass claims. We disagree. Claims of nuisance and trespass arising out of a defective condition of an improvement to real property are governed by the statute of limitations in. Minn.Stat. § 541.051 rather than the six-year statute of limitations in Minn.Stat. § 541.05 (2002). See Minnesota Mut. Fire and Cas. Co. v. Retrum, 456 N.W.2d 719, 722 (Minn.App.1990) (citing Fagerlie v. City of Willmar, 435 N.W.2d 641, 644 (Minn.App.1989); Ford v. Emerson Elec. Co., 430 N.W.2d 198, 200-01 (Minn.App.1988), review denied (Minn. Dec. 16, 1988)).

The two-year limitations period under Minn.Stat. § 541.051 “begins to run when an actionable injury is discovered, or with due diligence, should have been discovered, regardless of whether the precise nature of the defect causing the injury is known.” Indep. Sch. Dist. No. 775 v. Holm Bros. Plumbing and Heating, Inc., 660 N.W.2d 146, 150 (Minn.App.2003) (citation omitted). “[W]hen reasonable minds may differ about the discovery of the injury or condition, the issue is one for the trier of fact.” Metro. Life Ins. Co. v. M.A. Mortenson Co., 545 N.W.2d 394, 399 (Minn.App.1996), review denied (Minn. May 21, 1996) (citation omitted).

Here, appellant alleged numerous incidents of frequent, regular, and permanent flooding “over the years” with the most recent occurring on July 8, 2000. We must accept these facts as true. Thus, on the pleadings, the court can determine as a matter of law that the flooding was or should have been discovered within the limitations period. We conclude the district court did not err in dismissing these claims on the pleadings.

DECISION

Appellant stated a takings claim by alleging frequent, regular, and permanent flooding. Further, because determining whether flooding constitutes a taking is a fact-specific inquiry, appellant could simultaneously pursue mandamus, and alternatively, tort claims. Therefore, the district court erred in dismissing appellant’s inverse condemnation claim. The ■ district court also erred in dismissing appellant’s negligent maintenance, repair, and operation claims by concluding that the statute of limitations provision of Minn.Stat. § 541.051, subd. 1(a), barred these claims. But the district court properly determined that appellant’s negligent construction and design, trespass and nuisance claims are barred by Minn.Stat. § 541.051, subd. 1(a).

Affirmed in part, reversed in part, and remanded.


author: G. BARRY ANDERSON, Judge.

text:
    Eunice TANEY, et al., Respondents, v. INDEPENDENT SCHOOL DISTRICT NO. 624, Appellant.
    No. A03-370.
    Court of Appeals of Minnesota.
    Jan. 13, 2004.

      Scott Ballou, Patrick M. Biren, Brown-son & Ballou, P.L.L.P., Minneapolis, MN, for appellant.
    Kermit N. Fruechte, Richard L. Carlson, Hunegs, Stone, LeNeave, Kvas & Thorton, P.A., Minneapolis, MN, for respondents.
    Considered and decided by KLAPHAKE, Presiding Judge; WILLIS, Judge; and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Respondent, Eunice Taney, brought a personal injury action against appellant, Independent School District No. 624(ISD). After a two-day jury trial, ISD moved for a directed verdict on the issue of negligence. The district court denied the motion. The jury returned a special verdict finding both parties causally negligent; the jury apportioned fault for the accident at 32% for Taney and 68% for ISD.

After the district court ordered judgment, ISD brought post-trial motions seeking judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. ISD also asserted that Taney was barred from using a negligence theory because the statute of limitations pertaining to improvements to real property, Minn. Stat. § 541.051 subd. 1 (2002), had expired.

The district court denied ISD’s motions and this appeal follows.

FACTS

On December 15, 1998, Taney and her daughter-in-law attended Taney’s granddaughter’s choir program at Sunrise Park Middle School (Sunrise). ISD owns and operates Sunrise. Sunrise was built in 1958. In 1992, in order to comply with the building code so that ISD could use Sunrise as a middle school, ISD remodeled the building. On November 5, 1993, the city of White Bear Lake’s Department of Building Inspection issued a certificate of occupancy that stated, “[A]t the time of issuance [Sunrise] was in compliance with the various ordinances of the city regulating building construction or use.”

The evening of December 15, 1998, was Taney’s first visit to Sunrise. On that night, ISD blocked off two of Sunrise’s three hallways; the third hallway led directly to the gymnasium where the concert was held. But there were neither signs nor guides directing visitors to the choir program. Taney and her daughter-in-law searched Sunrise for several minutes without finding the concert.

Taney and her daughter-in-law then came to a set of glass double-doors that led into an interior courtyard. Through the glass doors, Taney could see lights and people in the hallway on the other side of the courtyard, so Taney assumed that the concert was on the other side of the courtyard.

Taney pushed open one of the doors to the courtyard and stepped outside. Taney testified that when she opened the door and stepped outside the lights and' the people in the hallway across the courtyard distracted her. At the threshold of the door was a nine-inch drop-off; Taney stepped through the door, fell as a result of the drop-off, and broke her hip when she landed on the ground. Taney’s hip injury required surgery.

The weather on the night of Taney’s fall was temperate; there was no snow on the ground. The courtyard is two hundred feet long and eighty feet wide; it does not have a sidewalk or artificial lighting, but on the night of the accident, some light from inside the building illuminated the yard.

At trial, Taney’s expert witness, an architect, testified that (1) the nine-inch drop-off outside the doors violated the Uniform Building Code; (2) the sudden drop-off was a safety hazard because people do not expect such a steep drop-off outside doorways; (3) the sudden drop-off should have provided warning of the hazard to ISD, therefore, ISD should have had warning signs at the doors; (4) the door Taney opened was equipped with a “panic bar,” which is hardware that is required on all exit doors of Sunrise; (5) the doors cannot be locked; and, (6) the “panic bar” doors to the courtyard were installed in a remodeling project in 1992.

ISD admits that during the 1992 remodeling project, it replaced the old interior doors at Sunrise with the “panic bar” door that Taney opened. But ISD contends that remodeling projects at the school have never changed the elevation of the' step where Taney fell. Further, ISD argues that between the remodeling project in 1992, and Taney’s accident in 1998, no one had been injured while stepping into the courtyard, and ISD had not received any complaints about the drop-off into the courtyard.

At the close of evidence, ISD moved for a directed verdict on the issue of negligence based on a violation of the Uniform Building Code; the district court denied the motion. Thereafter, ISD requested a jury instruction that the jury could not consider evidence of a building code violation as evidence of negligence; the district court denied this request. The district court did, however, instruct Taney’s counsel that, during closing arguments, he could not argue that a violation of the Uniform Building Code was evidence of negligence. The district court did allow Taney’s counsel to argue that Taney’s expert witness based his determination that ISD was negligent on his training and forty years of experience.

ISSUES

I. Was the evidence sufficient to support the jury’s finding of negligence?

II. Were Taney’s claims against ISD barred by Minn.Stat. § 541.051 subd. 1, the statute of repose pertaining to improvements to real property?

III. Did the district court abuse its discretion when it refused to issue an instruction that the jury could not consider violations of the Uniform Building Code in determining whether ISD was negligent?

ANALYSIS

Standard of review for JNOV

This court reviews the denial of a motion for JNOV de novo. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). But where the district court has denied JNOV, the appellate court must affirm the denial “if, in the record, ‘there is any competent evidence reasonably tending to sustain the verdict.’ ” Id. (quoting Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn.1984)). Further, the reviewing court views the evidence in the light most favorable to the prevailing party; this court will not set aside the verdict if it is sustainable on “any reasonable theory of the evidence.” Fitzsimmons, 582 N.W.2d at 224. In fact, the evidence must be practically conclusive that the verdict was incorrect in order for this court to set that verdict aside. Id.

Standard of review for granting a new trial

Rule 59 of the Minnesota Rules of Civil Procedure governs motions for a new trial. According to Rule 59:

Rule 59.01. Grounds
A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:
(a) Irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial;
(g) The verdict, decision, or report is not justified by the evidence, or is contrary to law; but, unless it be so expressly stated in the order granting a new trial, it shall not be presumed, on appeal, to have been made on the ground that the verdict, decision, or report was not justified by the evidence.

The district court has the discretion to grant a new trial, and this court will not disturb that decision absent a clear abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990). On appeal, the verdict will not be disturbed “unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn.App.1992), review denied (Minn. Apr. 29, 1992).

I.

Possessors of land owe entrants a duty to exercise reasonable care in maintaining that land. Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). Further, possessors of land have an ongoing duty to inspect and maintain their property so that unreasonably dangerous conditions will be discovered; the possessor then must either remedy the condition or provide entrants adequate warning of the condition. See Bonniwell v. St. Paul Union Stockyards Co., 271 Minn. 233, 238, 135 N.W.2d 499, 502-503 (1965).

Landowners generally do not owe entrants a duty to warn or protect them from risks that are open and obvious. Wiseman v. N. Pac. Ry. Co., 214 Minn. 101, 107, 7 N.W.2d 672, 675 (1943). Landowners must, however, protect entrants from dangerous conditions on the land, even open and obvious conditions, if there is a reasonable expectation that the entrant’s attention will be distracted from the danger. Lincoln v. Cambridge-Radisson Co., 235 Minn. 20, 23, 49 N.W.2d 1, 3 (1951). In fact, “where there is some distraction or other reason which will excuse the failure to see that which is in plain sight, it can be said that a person has exercised that degree of care required of an ordinarily prudent person.” Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 206, 203 N.W.2d 841, 845 (1973) (holding three defendants jointly liable for injuries sustained by respondent who tripped over a one and a quarter inch riser in a photo booth). Further, a condition that is obvious during the day may not be obvious at night. See Betzold v. Sherwin, 404 N.W.2d 286, 289 (Minn.App.1987) (holding that an open stairwell that was visible during the day was not an open, obvious, and dangerous condition in the darkness), revieiu denied (Minn. June 25, 1987).

Here, the jury found that ISD negligently cared for and maintained Sunrise. The jury found that this negligence was the direct cause of Taney’s accident on December 15, 2003. In light of the facts presented at trial, including: (1) that Taney had never been at Sunrise before; (2) that ISD did not place signs directing visitors to the concert; (3) that ISD did not have personnel available to direct visitors to the concert; (4) that there was a nine-inch drop-off outside the doors; (5) that ISD did not either repair the drop-off or affix a sign warning visitors of the drop-off outside the doors; and (6) that Taney’s attention was directed at the lights and people across the courtyard, it was not unreasonable for the jury to conclude either that (a) the nine-inch drop-off was an open and obvious dangerous condition, but that Taney’s attention was distracted from the danger, or (b) that the nine-inch drop-off, which would have been open and obvious to Taney during the day, was not obvious at night. Because Taney set forth a reasonable theory of ISD’s negligence and because the evidence in the record was “competent evidence reasonably tending to sustain the verdict,” the district court correctly denied ISD’s motion for JNOV. See Fitzsimmons, 582 N.W.2d at 224.

II.

Minn.Stat. § 541.051 subd. 1 provides, in pertinent part:

No action by any person in ... tort.. for bodily injury ... arising out of the defective and unsafe condition of an improvement to real property.. shall be brought against ... the owner of the real property more than two years after discovery of the injury ... nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for the intended purpose.

Here, appellant argues that the ten-year statute of repose on the “improvement to real property” has run because the entrance to the courtyard has not been remodeled or improved since Sunrise was built in 1958. Essentially, appellant contends that even though ISD replaced the interior doors leading to the courtyard, the drop-off into the courtyard is not part of the doorway, but rather, part of the courtyard.

Respondent argues that the drop-off outside the double-doors is part of the doorway where the accident occurred. Respondent contends that the 1992 remodeling, that included the installation of the “panic bar” doors, constituted an improvement of the entryway to the courtyard. Respondent argues that the statute of limitations and the ten-year statute of repose should run from the 1992 remodeling date rather than the year of original construction.

The Minnesota Supreme Court defines an improvement to real property as:

[A] permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.

Kloster-Madsen, Inc. v. Tafi’s, Inc., 308 Minn. 59, 63, 226 N.W.2d 603, 607 (1975) (quoting Webster’s Third New International Dictionary, p. 1138 (1971)) (deciding the meaning of “improvement” in the context of mechanic liens); see also Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977) (applying the same definition of “improvement” in the context of Minn.Stat. § 541.051)).

This court has expanded on the high court’s definition of an improvement, holding “that in order for an improvement to be a permanent addition to or betterment of real property, it must be integral to and incorporated into the building or structure on the property.” Ritter v. Abbey-Etna Mach. Co., 483 N.W.2d 91, 93 (Minn.App.1992) (citing In Sartori v. Harnischfeger Corp., 432 N.W.2d 448 (Minn.1988)), review denied (Minn. June 10, 1992). Although there is no Minnesota case law that directly addresses the issue of whether remodeling constitutes an improvement to real property, a survey of extant precedent in the area of improvement indicates that remodeling does, indeed, rise to the level of “improvement.” See generally, Sartori, 432 N.W.2d at 452 (concluding that overhead rail crane at a mining facility constituted an improvement); Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554, 555 (Minn.1982) (concluding implicitly that a storm sewer system constituted an improvement); Pacific Indem., 260 N.W.2d at 554 (holding that the installation of a furnace constituted an improvement to real property); Horvath v. Liquid Controls Corp., 455 N.W.2d 60, 63 (Minn.App.1990) (holding that a change in an excess flow valve was “a design change in an improvement to real property”), review denied (Minn. July 13, 1990); Citizens Sec. Mut. Ins. Co. v. Gen. Elec. Corp., 394 N.W.2d 167, 170 (Minn.App.1986) (holding that the installation of light fixtures constituted an improvement), review denied (Minn. Nov. 26, 1986); Kemp v. Allis-Chalmers Corp., 390 N.W.2d 848, 850-51 (Minn.App.1986) (concluding that electrical transformer at industrial plant constituted an improvement). We conclude that for the purposes of Minn.Stat. § 541.051, the substantial remodeling of real property in the direct vicinity of an accident constitutes an improvement, not a repair, to that property.

In 1992, ISD remodeled Sunrise to bring the building up to code so that ISD could use Sunrise as a school. Because the 1992 remodeling, including the installation of the “panic bar” doors in the entryway to the courtyard, was a permanent, integral addition that: (1) enhanced the capital value of Sunrise; (2) involved the expenditure of both labor and money to complete; and, (3) was designed to make the property more useful and valuable by bringing it up to code, the statute of repose for improvements to real property began running in 1992, and at the date of the incident in 1998, had not yet expired. See Kloster-Madsen, 303 Minn. at 63, 226 N.W.2d at 607 (quotation omitted); Ritter, 483 N.W.2d at 93. Taney’s suit was, therefore, timely under Minn.Stat. § 541.051, subd. 1.

III.

District courts are allowed considerable latitude in selecting the language of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). This court will not reverse a district court’s decision unless the instructions constituted an abuse of discretion. See id. (concluding that appellant failed to demonstrate that the district court’s instructions were an abuse of discretion). In fact, where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn.App.1990), review denied (Minn. May 11, 1990). Further, even if this court finds error in the district court’s instructions, we will not reverse unless the error is prejudicial. Lewis v. Equitable Life Assurance Soc’y of the United States, 389 N.W.2d 876, 885 (Minn.1986).

Here, rather than affirmatively challenging an erroneous instruction, ISD challenges the district court’s refusal to give an instruction that ISD requested. ISD contends that Bills v. Willow I Apartments entitled ISD to an instruction that the jury could not consider testimonial evidence that ISD violated the Uniform Building Code as evidence of ISD’s negligence. See 547 N.W.2d 693 (Minn.1996). But ISD’s reliance on Bills is misplaced; Bills does not address the issue of jury instructions. Instead, Bills discusses a landlord’s, alleged violations of the Uniform Building Code and whether such violations were evidence of negligence per se. Id. at 694. Bills concludes that a plaintiff may not establish a defendant’s negligence per se if the plaintiff fails to offer evidence that (1) defendant has notice of the building code violation; (2) defendant has failed to take reasonable steps to remedy that violation of the building code; (3) the legislature designed that building code to prevent the type of injury the plaintiff suffered; and, (4) the violation in question is the proximate cause of the accident. Id. at 695.

Here, the district court did not abuse its discretion by refusing to instruct the jury that ISD’s violation of the Uniform Building Code did not constitute negligence. Because the district court’s instructions fairly and correctly stated the duties of landowners to entrants and the law of negligence in Minnesota, we affirm the district court’s decision, and deny ISD’s request for a new trial. See Alevizos, 452 N.W.2d at 501.

DECISION

Because the record supports the jury’s finding of negligence, we affirm the district court’s denial of ISD’s motion for JNOV. Further, because we hold that the substantial remodeling here is an improvement to real property, we affirm the district court’s determination that Minn.Stat. § 541.051 subd. 1, the statute of repose governing Taney’s action for personal injury, had not expired at the time of her fall. Finally, because the district court’s instructions fairly and correctly stated the law, we deny ISD’s motion for a new trial.

Affirmed.

      . Although the parties' briefs refer to the issue of the ‘statute of limitations,’ in this case, the potential limitation on the action is more properly referred to as a ‘statute of repose.’ A statute of limitation is distinguishable from a statute of repose because
      [w]hile statutes of limitation are sometimes called “statutes of repose,” the former bars right of action unless it is filed within a specified period of time after [the] injury occurs, while "statute of repose” terminates any right of action after a specific time has elapsed, regardless of whether there has as yet been an injury.

        Black’s Law Dictionary 927 (6th ed.1990); see also Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 (Minn.1988) (distinguishing statutes of limitation from statutes of repose).

      . Appellant argues that the Minnesota Supreme Court set forth the test for an "obvious” condition in Munoz v. Applebaum’s Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972). In Munoz, appellant slipped in a pool of water in respondent’s store and was injured. Id. at 921. The pool of water was 20 feet square and a quarter of an inch deep. Id. at 921-22. Further, all the witnesses, except appellant, conceded that the pool was in plain view. Id. The Minnesota Supreme Court held, in light of these facts, that “the test is not whether the injured party actually saw the danger, but whether it was in fact visible.” Id. at 922. Munoz is easily distinguishable from the present case because (1) the dangerous condition that Taney encountered was far less obvious than the dangerous condition in Munoz; and (2) Munoz lacked the element of the “distracting circumstance” found in this case.

      . At oral argument before this court, respondent's attorney argued that, under Minnesota law, the district court should have permitted him to argue to the jury that evidence of a building code violation could be considered in the negligence analysis. But because respon1 dent did not file a notice of review on the issue, we decline to reach the merits of that argument here. See Minn. R. Civ.App. R. 106 (stating respondent may obtain review of district court ruling by filing notice of review); Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793 (Minn.1986) (affirming this court's refusal to address issue raised by respondent where respondent failed to file a notice of review).