author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Larry Joe KEETON, Appellant.
    No. 04-1738.
    Supreme Court of Iowa.
    March 3, 2006.
    Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, and Jennifer Miller, County Attorney, for appellee.
   CADY, Justice.

In this appeal, the defendant claims there was insufficient evidence to support the assault element of his conviction for second-degree robbery of a convenience store, during which the store clerk confronted him at the door of the store as he was attempting to exit following a theft. In resolving the issue, the State asks that we declare the crime of assault to be a general-intent offense and submits a well-researched and thorough brief to support its position.. We conclude substantial evidence supports the conviction and decline to consider the additional question raised by the State. We affirm the judgment and sentence of the district court.

I.Background Facts and Proceedings

On March 28, 2004, Larry Keeton entered a convenience store in Marshalltown and purchased a pack of cigarettes. When the store clerk opened the cash register drawer to make change, Keeton reached over the counter and grabbed the twenty-dollar bills from the register. He stated: “I’ll take that.” Keeton then attempted to exit the store, but the clerk rushed to the door and blocked his path by standing in front of the double doors. She also tried to grab the cash from Keeton’s hand as he approached, but he would not release the money from his hand. Their hands touched when she attempted to retrieve the money. Keeton then briefly backed away from the door and extended his arm. The clerk realized she could not keep him in the store until police arrived, and stepped aside to allow Keeton to leave the store. As he exited through the door, she snatched the hat from his head in anger. The incident was recorded by surveillance video.

Keeton was arrested and charged with robbery in the second degree in violation of Iowa Code section 711.1(1) (2003). He waived his right to a jury trial, and the case proceeded to a bench trial. The district court found Keeton guilty of second-degree robbery and sentenced him to a term of imprisonment not to exceed ten years.

Keeton appeals. He claims there was insufficient evidence presented at trial to support the assault element of robbery.

II. Standard of Review

‘We review sufficiency-of-the-evidenee claims for correction of errors at law. We uphold a verdict if substantial evidence supports it. ‘Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.’ Substantial evidence must do more than raise suspicion or speculation. We consider all record evidence not just the evidence supporting guilt when we make sufficiency-of-the-evidence determinations. However, in making such determinations, we also view the ‘evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence.’ ”

State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) (quoting State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005)).

III. Discussion

A sufflciency-of-evidence claim on appeal not only requires us to review all the relevant evidence, but also the governing law. Ultimately, we must apply the law to the evidence to determine if the evidence is sufficient to support the conviction.

Section 711.1 defines robbery as follows:

A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person’s escape from the scene thereof with or without the stolen property:
1. Commits an assault upon another.
2. Threatens another with or purposely puts another in fear of immediate serious injury.
3. Threatens to commit immediately any forcible felony.
It is immaterial to the question of guilt or innocence of robbery that property was or was not actually stolen.

Iowa Code § 711.1. The State charged Keeton under the first paragraph of the statute, commission of an assault. The State claimed at trial that Keeton committed an assault on the store clerk in furtherance of his escape from the convenience store.

We look to the definition of assault in section 708.1 to consider whether a robbery occurred under section 711.1(1). See State v. Spears, 312 N.W.2d 79, 80 (Iowa 1981). Section 708.1 provides, in relevant part:

An assault as defined in this section is a general intent crime. A person commits an assault when, without justification, the person does any of the following:
1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
3. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.

Iowa Code § 708.1. In this case, the State relied upon the first two alternatives of assault, and the district court found Kee-ton committed assault under both alternatives.

Although the State asks us to resolve the sufficiency-of-evidenee claim by considering section 708.1(l)-(2) to only require a general intent element, the specific issue on appeal in this case only requires us to decide if the evidence in the case satisfies the statutory elements of the crime of assault. This question can be decided without considering whether the statutory language used to define the crime of assault requires a specific or general intent. See In re M.S., 10 Cal.4th 698, 42 Cal.Rptr.2d 355, 896 P.2d 1365, 1383-84 (1995) (Mosk, J., concurring) (“Indeed, ‘specific intent’ and ‘general intent’ do not define criminal mental states. Rather, they are essentially ‘labels’ attached to particular crimes to identify them as admitting (‘specific intent’) or not admitting (‘general intent’) the defense of voluntary intoxication. There is no need to attach one of the labels here. The issue is not implicated before this court. Indeed, there is a need not to attach either label. ‘Specific intent’ and ‘general intent’ have been ‘ “notoriously difficult ... to define and apply,” ’ and ‘have proved to be mischievous.’” (Citations omitted.)); Scott A. Anderegg, Note, The Voluntary Intoxication Defense in Iowa, 73 Iowa L.Rev. 935, 935 (1988) (noting confusion regarding concepts of specific and general intent); see also Model Penal Code § 2.02, at 230 & n. 3 (1985) (stating the Model Penal Code employed four culpability distinctions in lieu of the specific-intent/general-intent dichotomy, “which has been such an abiding source of confusion and ambiguity in the penal law”).

We understand the need for answers to important legal questions faced by the bench and bar. However, fundamental principles of judicial restraint limit our role to deciding each case on the issues presented, and we refrain from deciding issues not presented by the facts. Williams, 695 N.W.2d at 30. We explained the need to resolve legal issues based on facts in Williams:

[W]e recognize the law to be an evolving process that often makes the resolution of legal questions a composite of several cases, from which appellate courts can gain a better view of the puzzle before arranging all the pieces. The wisdom of this process has been revealed time and again, and we continue to subscribe to it today;

Id.

Accordingly, we decline to revisit the issue whether assault is a general- or specific-intent crime in this case. Regardless of which label is attached to the offense, the State was still required to prove Kee-ton possessed the mens rea required by the statute, and we turn to decide if it did so. State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004) (“[R]egardless of whether assault is a specific intent or general intent crime, the State must prove by evidence beyond a reasonable doubt that the defendant intended his act to cause pain or injury to the victim or to result in physical contact that would be insulting or offensive to the victim.”); State v. Bedard, 668 N.W.2d 598, 601 (Iowa 2003) (“The intent elements discussed in Heard remain as part of the definition of the offense and continue to be matters that the State must prove by evidence beyond a reasonable doubt.”), cert. denied, 543 U.S. 932, 125 S.Ct. 336, 160 L.Ed.2d 234 (2004). The State had to prove that Keeton did an act he intended either: (1) to cause the clerk pain or injury, (2) to make insulting or offensive physical contact with the clerk, or (3) to make the clerk fear immediate painful, injurious, insulting, or offensive physical contact. Iowa Code § 708.1(1)- ■ (2). We turn to the evidence in the record that bears upon this intent element.

Keeton testified that he did not intend to touch, hurt, insult, or offend the clerk. However, intent required by the statute “may be inferred from the circumstances of the transaction and the actions of the defendant.” 21 Am.Jur.2d Criminal Law § 128, at 214-15 (1998); see also Taylor, 689 N.W.2d at 132 (“[A]n actor will ordinarily be viewed as intending the natural and probable consequences that usually follow from his or her voluntary act.” (citing Bedard, 668 N.W.2d at 601)).

We begin by considering the actions of the parties to the incident. The surveillance video of the incident offered into evidence at trial showed that the clerk blocked one of the double doors as Keeton tried to exit by standing in front of the door. After the clerk attempted to retrieve the money, Keeton moved in the direction of the other door to exit, and the clerk lunged in front of that door to block Keeton from leaving. Keeton then backed up and began to walk toward the clerk with his hand extended, holding the money. He then pulled his hand to his chest at the same time as the clerk moved off to the side of the doors to permit Keeton to exit.

This evidence could, support an inference of intent to place the clerk in fear of immediate physical contact that would be painful, injurious, insulting, or offensive. Similarly, the evidence could support an inference that the actions of Keeton were intended to result in physical contact which would be insulting or offensive to the clerk. Keeton wanted to leave the store, and his outstretched hand could evidence his intent to push the clerk out of his path.

Furthermore, the testimony of Keeton and the testimony of the clerk at trial provided further evidence of the intent to support the conviction under the statute. The clerk testified she felt Keeton was “bound and determined to keep the money,” and she realized there was “no way” she could keep him from leaving. While this testimony is not dispositive, these perceptions are properly considered in determining intent. See Spears, 312 N.W.2d at 81 (stating the fact that the victim “may or may not have been afraid of the victim is not dispositive” and that the focus of the assault statute is on the defendant, not the victim); 6 Am.Jur.2d Assault and Battery § 18, at 25 (1999) (“Some courts have held that the requisite intent can be inferred from evidence that the complainant was in fear of imminent serious bodily injury, and that he felt it was the defendant’s intention to so place him”). Moreover, Keeton acknowledged on cross-examination that he “would have pushed past [the clerk] and went out the door” if the clerk failed to move from the exit. Although Keeton tried to retract this testimony on redirect examination, it was nevertheless evidence of intent.

We conclude that the record, viewed in the light most favorable to the State, reveals substantial evidence to satisfy the intent element of the crime of assault under section 708.1(1) and (2). Furthermore, the same evidence supports the conclusion that Keeton committed an overt act in furtherance of that intent. See Iowa Code § 708.1 (requiring an act); Heard, 636 N.W.2d at 230 (“Assault requires an overt act.” (citing State v. Smith, 309 N.W.2d 454, 457 (Iowa 1981))); 6 Am.Jur.2d Assault and Battery § 24, at 29 (“When an assault is defined as an attempt to commit a battery, the overt act, to be sufficient to support a charge of assault, must be a direct, ineffectual act toward the commission of a battery. When an unequivocal purpose of violence is accompanied by any act which, if not stopped or diverted, will result in personal injury, the execution of the purpose to commit a battery has begun and is enough to constitute a criminal assault.”). The final element of assault— that Keeton had the apparent ability to do the act — is not disputed on appeal.

We understand Keeton’s argument that he was only attempting to leave the store to complete his theft, not to commit an assault. Yet, this is not a case where proof of intent depends upon a single piece of evidence from which two reasonable inferences could be drawn. See State v. Truesdell, 679 N.W.2d 611, 618-19 (Iowa 2004) (“[W]hen two reasonable inferences can be drawn from a piece of evidence, we believe such evidence only gives rise to a suspicion, and, without additional evidence, is insufficient to support guilt.” (Citations omitted; emphasis added.)). The multiple actions of the participants in this case and the inferences derived from those actions, as well as their testimony, are together sufficient to support a finding of the intent element of an assault under our statutory definition. The success of Keeton’s claim at trial hinged on the facts as viewed by the fact-finder, and it is not for us to interfere with the finding made when supported by substantial evidence, even though the evidence may have also supported a finding favorable to the defendant. See Chrysler Fin. Co. v. Bergstrom, 703 N.W.2d 415, 418 (Iowa 2005) (“ ‘ “Evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” ’ ” (quoting Fischer v. City of Sioux City, 695 N.W.2d 31, 33-34 (Iowa 2005); citing 5 Am.Jur.2d Appellate Review § 666, at 340 (1995))); State v. Axline, 450 N.W.2d 857, 860 (Iowa 1990) (affirming because although the evidence could have supported a different conclusion than that reached by the district court, there was substantial evidence to support the conclusion actually reached).

Keeton does not challenge the sufficiency of the evidence on the other elements of robbery. Therefore, we need not consider them.

IV. Conclusion

We conclude there was substantial evidence presented at trial that Keeton committed an assault on the clerk. We affirm his conviction for robbery in the second degree.

AFFIRMED.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    In the Matter of the ESTATE OF Melba N. MARTIN, Deceased. Doyle D. Sanders, Individually, and as Attorney for Executor, Bankers Trust Company, N.A., Appellant.
    No. 04-0305.
    Supreme Court of Iowa.
    March 3, 2006.

      Michael A. Wunn and Doyle D. Sanders of Beving, Swanson & Forrest, P.C., Des Moines, and Steven W. Hendricks of Ker-sten Brownlee Hendricks, LLP, Fort Dodge, for appellant.
    C. Kevin McCrindle, Waterloo, and Paul P. Morf, Cedar Rapids, for amicus curiae Iowa State Bar Association.
    Thomas J. Miller, Attorney General, and Valencia Voyd McCown, Assistant Attorney General, for amicus curiae Iowa Department of Revenue and Finance.
    Everett H. Albers, Des Moines, for Blake Nex.
   CARTER, Justice.

Doyle B. Sanders, the attorney for the executor of the estate of Melba N. Martin, appeals from an order setting the maximum attorney fee that could be allowed the attorneys for the executor. Although the maximum fee for the executor, Bankers Trust Co., was calculated on the same basis, the executor has chosen not to appeal the determination of its fee.

The executor takes no position on the merits of Sanders’ appeal. The Iowa Department of Revenue and Finance (IDRF) has filed an amicus brief that favors upholding the district court’s fee order. The Iowa State Bar Association has filed an amicus brief urging reversal of that order. After reviewing the record and considering the arguments presented, we conclude that the district court erred in computing the maximum attorney fee payable to the executor’s attorneys. We reverse the order challenged on appeal and remand the case to the district court for a revised fee order consistent with this opinion.

The inventory in the estate was filed on October 22, 2003. On November 17, 2003, attorney Sanders appeared before the associate probate judge for an order setting fees for the executor and the executor’s attorneys. At this time, the recapitulation summary contained in the inventory showed a gross estate value of $747,594, which included 401k retirement annuities valued at $521,389 and payable to a designated beneficiary.

Based on the values shown in the inventory recapitulation, the associate probate judge fixed the maximum attorney fee for the executor’s attorney at $15,072. The court also examined time sheets presented by the attorney and concluded that the maximum fee should be the fee allowed. A similar fee was allowed to the executor.

When IDRF reviewed the Iowa inheritance tax return filed by the executor, it concluded that a substantial portion of the retirement annuities owned by the decedent and payable to a designated beneficiary on death were not subject to the inheritance tax. The annuities not subject to tax were those providing for installment payments to beneficiaries upon the decedent’s death that would be subject to income taxation. The value of these annuities was approximately $537,500. As a result of its conclusion that a large portion of the value attributed to the annuities is not subject to inheritance tax, IDRF determined that the deduction for attorney fees claimed by the executor should be reduced. IDRF recomputed the allowable attorney-fee deduction by computing the maximum fee allowed under Iowa Code sections 633.197 and 633.198 (2001), without consideration of the value of the retirement annuities not subject to inheritance tax.

IDRF subsequently advised the associate probate judge of the action it had taken with respect to the deduction claimed for the executor’s attorney fees. Upon receipt of that information, the associate probate judge revised its fee order of November 17, 2003, and recomputed the maximum fee for both the executor and the executor’s counsel based on the maximum fee that would have been allowable under sections 633.197 and 633.198 if the value of the retirement annuities not subject to inheritance tax was not considered in the fee calculation. This ruling resulted in both the executor and its counsel receiving approximately one-third of the fee originally approved by the court. Only the executor’s counsel has appealed from this ruling.

I. Scope of Review.

Factual issues in appeals from probate fee orders are reviewed de novo under Iowa Code section 633.33. Bass v. Bass, 196 N.W.2d 433, 435 (Iowa 1972); In re Estate of Cory, 184 N.W.2d 693, 696-97 (Iowa 1971). In interpreting the controlling statutory law pertaining to the allowance of attorney fees, we review the district court’s ruling to determine whether its interpretation is in accord with ours. In re Estate of Engelkes, 256 Iowa 213, 218-19, 127 N.W.2d 111, 114 (1964).

II. The Probate Court’s Ruling.

In fixing the maximum attorney fee allowable under sections 633.197 and 633.198, the associate probate judge concluded that, in determining the maximum fee for an executor or attorney, that fee is limited by a percentage of the value of “those assets taxable for Iowa inheritance tax.” The statutory provision that the court applied to reduce the fee previously approved was the following:

The tax imposed by this chapter shall not be collected:
5. On the value of that portion of installment payments which will be in-cludable as net income as defined in section 422.7 as received by a beneficiary under an annuity which was purchased under an employee[’]s pension or retirement plan.

Iowa Code § 450.4(5). This was the statute relied on by IDRF in exempting retirement annuities valued at $537,500 from inheritance tax.

III. The Issue on Appeal.

This appeal requires a search for the meaning of the words “the gross assets of the estate listed in the probate inventory for Iowa inheritance tax purposes,” contained in Iowa Code section 633.197. That statute provides:

Personal representatives shall be allowed such reasonable fees as may be determined by the court for services rendered, but not in excess of the following commissions upon the gross assets of the estate listed in the probate inventory for Iowa inheritance tax purposes, which shall be received as full compensation for all ordinary services:
For the first one thousand dollars, six percent;
For the overplus between one and five thousand dollars, four percent;
For all sums over five thousand dollars, two percent[;]
For purposes of this section, the gross assets of the estate shall not include life insurance proceeds, unless payable to the decedent’s estate.

Iowa Code § 633.197 (emphasis added). This statute, which applies to personal representatives, is also the measure of the maximum fee that may be allowed an attorney for the personal representative. Iowa Code § 633.198. The application of Iowa Code sections 633.197 and 633.198 in the computation of the maximum fees to be allowed was considered by us in In re Estate of Lynch, 491 N.W.2d 157 (Iowa 1992). In that case, we stated:

The maximum fee is calculated by applying the statutory schedule of fees to the gross assets of the estate as listed in the probate inventory for Iowa inheritance tax purposes. The gross assets of the estate listed in the probate inventory for inheritance tax purposes include all property passing by any method of transfer specified in Iowa Code section ⅛50.3, without reduction for the liabilities specified in Iowa Code section 450.12.

Lynch, 491 N.W.2d at 159 (emphasis added). In Lynch we were concerned with whether property passing to remainder-men of a trust created under the will of the decedent’s spouse should be considered to be property passing under any of the methods of transfer specified in Iowa Code section 450.3. Based on the determination that IDRF had made in that case, we concluded that it did not.

We are unable to discern any intimation in the Lynch decision that the gross assets of the estate that might be considered in calculating the maximum fee for the personal representative and attorney are limited to assets that actually generate a tax. We expressly stated that all property passing by any method of transfer specified in Iowa Code section 450.3 was to be considered for fee-calculation purposes. At this time, the administrative regulation defining gross estate for inheritance-tax purposes similarly included all property passing by any method of transfer specified in Iowa Code section 450.3. See Iowa Admin. Code r. 701 — SO.lCl)^) (1990). The present definition of “gross estate” in IDRF’s administrative regulations mirrors that which existed in the 1990 regulation.

There is no dispute that the retirement annuities excluded by the probate court in calculating the maximum attorney fee were property passing by a method of transfer specified in subparagraph (3) of Iowa Code section 450.3. As such, they fall within the agency’s own definition of gross estate contained in Iowa Administrative Code rule 701- — 86.1(1). Although another administrative regulation indicates that annuities qualifying for an exemption under Iowa Code section 450.4(5) are exempt from the inheritance tax, see Iowa Admin. Code r. 701 — 86.5(12), that regulation in no way declares that the exempted property is not part of the gross estate for Iowa inheritance tax purposes.

In describing another exemption contained in the Code, the legislature has stated that property passing to parents, grandparents, great-grandparents and other lineal descendants is exempt from tax “[i]n computing the tax on the net estate.” Iowa Code § 450.9. If an item is exempted from tax on the net estate, it must have been part of the gross estate. We think this principle applies equally to the exemptions contained in section 450.4. We note that some property passing under the decedent’s will in the present case was bequeathed for a charitable, educational, or religious purpose and was exempted by IDRF in the calculation of the inheritance tax pursuant to Iowa Code section 450.4(2). Notwithstanding that fact, IDRF did not contend that this property was not part of the gross estate for purposes of computing maximum allowable fees for the personal representative or attorney.

Although we have discussed administrative regulations of IDRF that, in our view, demonstrate that the agency’s definition of gross estate for inheritance-tax purposes does not materially vary from the definition adopted by this court in Lynch for fee-calculation purposes, that conclusion is not essential to our decision. IDRF is not entrusted with the responsibility of determining the correct application of section 633.197. It could alter its definition of gross estate for purposes of administering the revenue laws without affecting our determination of the assets to be included in the calculation of probate fees. Nor would legislative amendments of the revenue provisions that do not make reference to the fee situation necessarily alter our view of the correct base for calculating the maximum fees under sections 633.197and 633.198.

We are confident that it was the intent of the legislature in enacting section 633.197that the gross estate listed in the probate inventory for Iowa inheritance-tax purposes include all property passing under the methods of transfer set forth in section 450.3 without regard to whether the included property is subject to the inheritance tax. At the time section 633.197was enacted, property of the type at issue in the present case was includable under section 450.3(3) (1958), and this has not changed in subsequent versions of the statute. The legislature has shown that, if it wishes to exclude for fee-calculation purposes a type of transfer otherwise included under section 450.3, it will do so by specific legislation that speaks to the matter of the fee. See Iowa Code § 633.197 (gross assets used for fee calculation shall not include life insurance proceeds unless payable to decedent’s estate).

In sum, we hold in the present case that the retirement annuities not subject to inheritance tax were nonetheless includable in the gross assets to be considered in the calculation of the maximum fees payable under sections 633.197 and 633.198. The district court’s order excluding those assets from the fee calculation is reversed. The case is .remanded to that court for entry of a revised fee order consistent with this opinion.

REVERSED AND REMANDED.

      . Under Iowa law, attorneys are entitled to present fee claims to the probate court in their own right and need not rely on the personal representative to claim the fee on their behalf. In re Estate of Leighton, 210 Iowa 913, 915-16, 224 N.W. 543, 545 (1929). In the original fee order entered in the district court, a small portion of the attorney fee was allocated to California attorney Janie Beach; however, the amended fee order from which this appeal is taken only fixes a single attorney fee for the executor’s attorneys. We con-elude that attorney Sanders has standing to challenge the district court’s fee order on behalf of those attorneys entitled to share in the fee and is attempting to do so.

      . The validity of IDRF's adjudication of the attorney-fee deduction is not before us, as any challenge to that determination would have to be brought as a review of administrative action under Iowa Code chapter 17A.

      . In an amended inventory filed after the original fee order and in the Iowa inheritance tax return filed by the estate, the estate's gross value is shown to be $778,944, including annuities valued at $575,139. Obviously, the original fee order was based on the lower values contained in the original inventory. We are not entirely certain, however, which values were used in the amended fee order that is the subject of this appeal. Because the case is being remanded, the correct values can be settled by the district court when it revises its fee order pursuant to our directions.

      . In our Lynch decision, we referred to the special treatment provided in rule 7.2(2) of our probate rules for life insurance payable to a named beneficiary and joint tenancy property. The joint tenancy matter involves an issue of valuation, rather than an issue of exclusion from the gross estate. The provision in the probate rule excluding life insurance payable to a named beneficiary from the base for calculating the maximum executor fee or attorney fee appears to have been unwarranted prior to July 1, 1994, based on the broad definition of gross estate adopted in Lynch and approved in the present case. However, after July 1, 1994, the exclusion of life insurance payable to a named beneficiary is mandated by Iowa Code section 633.197 as amended by 1994 Iowa Acts chapter 1153, section 8; see also Iowa Code § 633.5.

      . In allowing a refund of inheritance tax previously paid by the beneficiaries in Lynch, IDRF concluded:
      "The issue is whether or not Kathryn C. Lynch ‘possessed’ the power of appointment on her death (or exercised it within the three years prior to her death) such that the corpus would pass via her estate either by will or by intestate succession. .In the very narrow and unique circumstances of this case, the Department concludes she did not 'possess' the power at death because: (1) no inter vivos transfer was attempted within the three years prior to her death; (2) her will did not act as an exercise of the power; (3) Donald's will did provide for contingent remaindermen in the case of non-exercise of the power; and (4) the corpus was not received by remaindermen under Kathryn’s will or from Kathryn through the laws of intestate succession. These re-maindermen received through Donald's will alone...."

        Lynch, 491 N.W.2d at 158-59 (citations omitted).

      . The current regulation provides:

        "Gross estate” as used for inheritance tax •purposes as defined in Iowa Code section 450.2 includes all those items, or interests in property, passing by any method of transfer specified in Iowa Code section 450.3 without reduction for liabilities specified in Iowa Code section 450.12.
      Iowa Admin. Code r. 701 — 86.1(1).

      . That statute provides:
      The tax hereby imposed shall be collected upon the net market value ... of any property passing as follows:

      3. By deed, grant, sale, gift or transfer made or intended to take effect in possession or enjoyment after the death of the grantor or donor.
      Iowa Code § 450.3.


author: EISENHAUER, J.

text:
    Jonathan BORLAUG, Plaintiff-Appellant, v. The CITY OF CEDAR FALLS, Iowa, and Black Hawk County, Iowa, Defendants-Appellees.
    No. 05-0847.
    Court of Appeals of Iowa.
    Jan. 19, 2006.

      Bruce J. Toenjes of Nelson & Toenjes, Shell Rock, for appellant.
    Bruce L. Gettman, Jr., and Michael J. Miller of Redfern, Mason, Dieter, Larsen & Moore, P.L.C., Cedar Falls, for appellee City.
    John T. McCoy of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellee County.
    Considered by SACKETT, C.J., and VOGEL and EISENHAUER, JJ.
   EISENHAUER, J.

The core question presented by this appeal is whether Black Hawk County and the City of Cedar Falls may be liable for enforcing a temporary no-contact order entered in a criminal domestic assault case. Jonathan Borlaug contends the enforcement of the order constituted a taking of private property entitling the property owner to compensation. The district court entered summary judgment in favor of the city and the county, and we affirm.

I. Facts and Prior Proceedings.

We recite the facts in a light most favorable to Borlaug. Vachon v. State, 514 N.W.2d 442, 443 (Iowa 1994).

At all times material to this action, Borlaug owned a house on Lincoln Street in Cedar Falls. In September 2002, he was charged with domestic assault. On September 14, 2002, the district court entered an order prohibiting him from having any contact with the complainant. The complainant and her minor child had been residing with Borlaug, with his consent, since March 2002. The effect of this order, which contained language stating the order had no effect on title to real or personal property, was to remove Borlaug from his Lincoln Street home. It is undisputed that neither the complaining witness nor her minor child had any property interest in the Lincoln Street home.

After the entry of the temporary no-contact order and accompanied by an officer from the Cedar Falls Police Department, Borlaug went to his property to obtain clothes, but the locks had been changed and his motorcycle had been damaged. Borlaug was informed he could not return to his home on his own and this was the only time the Cedar Falls Police Department would accompany, him to his home.

On September 23, 2002, Borlaug filed a motion to modify the no-contact order, seeking possession of his home. At the September 30 hearing on this motion, the assistant county attorney resisted Borlaug’s motion, citing the need to provide protection for victims of domestic abuse. The district court refused to modify the order, but scheduled the matter for a review hearing on October 11, 2002.

At the review hearing, the parties agreed the complaining witness would move. The district court modified the no-contact order, to place Borlaug in possession of his Lincoln Street home on October 17, 2002, at 7:00 a.m. When he returned to his home, it was damaged and property was missing.

On February 25, 2008, Borlaug pleaded guilty to simple assault and the court deferred judgment and placed him on unsupervised probation. On March 9, 2004, the court found Borlaug had successfully completed his probation, granted the deferred judgment, and dismissed the charges.

On September 13, 2004, Borlaug filed his petition, alleging the actions of the City of Cedar Falls and Black Hawk County amounted to a taking of his property and a trespass. He sought actual damages, punitive damages, and attorney fees. During discovery, he claimed property damage of $2,967.50, temporary food and lodging expenses of $800, and damages from mental anguish of $66,200. The defendants each moved for summary judgment, which the district court granted on April 19, 2005. Borlaug appealed on May 16, 2005.

II. Standard of Review.

We review a grant of summary judgment for the correction of errors of law. American Family Mut. Ins. Co. v. Corrigan, 697 N.W.2d 108, 111 (Iowa 2005).

We will affirm the district court’s summary judgment for the defendants “if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Ratcliff v. Graether, 697 N.W.2d 119, 123 (Iowa 2005); see Iowa R. Civ. P. 1.981. We view the record in a light most favorable to the plaintiff, as the nonmoving party. Vachon, 514 N.W.2d at 443. A genuine issue of material fact exists if “reasonable minds could differ as to how a factual issue should be resolved.” Id. If reasonable minds could draw different inferences from the undisputed facts, summary judgment is inappropriate. Iowa R.App. P. 6.14(6)⅛). However, if the only dispute concerns the legal- conclusion to be drawn from undisputed facts, summary judgment is appropriate. Ratcliff, 697 N.W.2d at 123.

III. Discussion.

On appeal, Borlaug argues (1) the defendants’ actions were a compensable taking, of his property, requiring just compensation, see, e.g., Kelley v. Story County Sheriff, 611 N.W.2d 475 (Iowa 2000), and (2) the district court was wrong in concluding the defendants had immunity.

In granting the motions for summary judgment, the district court concluded each of the defendants is immune to Borlaug’s suit. Although the bulk of the district court’s rulihg focused on the immunity question, it further' opined Borlaug sued the wrong defendant and also stated the actions of the defendants “have not damaged plaintiff as he indicates.” These two statements' sufficiently address the merits of-Borlaug’s takings claim to preserve it for our review.

We assume, solely for purposes of this discussion, that Borlaug’s property was “taken” by someone or something and he is entitled to just compensation. That being said, we cannot conclude either of these defendants’ actions constituted such a taking.

The law enforcement personnel at issue arrested Borlaug after receiving reports he had committed an assault, an accusation to which he eventually pleaded guilty and received a deferred judgment. They subsequently removed Borlaug from his home (where the complainant had been residing for several months with Borlaug’s consent) pursuant to a temporary no-contact order entered in the pending domestic assault case. They indicated to Borlaug that all law enforcement personnel would enforce the order in the future. In simply acknowledging they would follow and enforce a district court order, we cannot see how the law enforcement personnel employed by either of the defendants engaged in any compensable taking of Borlaug’s property.

Borlaug complains about the defendants’ “policy” of enforcing the plain language of domestic abuse no-contact orders. The no-contact order here was facially valid and contained nothing that would cause any of the defendants’ employees to have any doubts about any aspect of its legality. In fact, the order was on a form adopted by our supreme court. Frankly, we cannot imagine the alternate world that Borlaug describes, in which law enforcement personnel would be empowered to make their own independent assessments of the propriety or enforceability of facially valid court orders.

In our view, Gigliotti v. Redevelopment Authority, 362 F.Supp. 764 (W.D.Pa.1973), is instructive. There, a sheriff enforced a writ removing the plaintiffs from a parcel of real property after the completion of eminent domain proceedings. In part, the Gigliotti plaintiffs alleged the entity asserting the power of eminent domain did not pay sufficient compensation, and named the sheriff as a defendant for enforcing the writ. The federal district court dismissed the complaint against the sheriff, noting “he was merely acting pursuant to direction of the court in the execution of a writ.” Gigliotti, 362 F.Supp. at 766. We reach the same conclusion. If a com-pensable taking did in fact occur in the case before us, the liability for just compensation would be borne by an entity (or entities) other than the two named defendants.

To the extent that the assistant county attorney in Borlaug’s criminal case can be considered responsible for any alleged taking, we conclude, although she appears to have been employed by Black Hawk County, she was acting as the attorney for the State of Iowa in a criminal proceeding commenced in the name of the State of Iowa. See, e.g., Iowa Code § 331.756(1), (2) (2005). For that reason, the acts of the assistant county attorney cannot be attributed to Black Hawk County in determining whether any acts of the county constituted a compensable taking.

Having examined the facts in a light most favorable to Borlaug, we cannot conclude he generated a genuine issue of material fact as to whether any action of the City of Cedar Falls or Black Hawk County resulted in what we assume to be a com-pensable taking. Having concluded his takings claims against the defendants must fail for this reason, we need not consider Borlaug’s remaining arguments for reversal.

As to Borlaug’s common law causes of action, the district court’s determination of immunity is correct. No further discussion is necessary. Iowa R.App. P. 6.24(2).

IV. Conclusion.

We have considered all issues presented and affirm the judgment of the district court.

AFFIRMED.


author: /s/Helen M. Meyer Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST David L. McCORMICK, a Minnesota Attorney, Registration No. 259500.
    No. A05-1270.
    Supreme Court of Minnesota.
    March 7, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action and a supplementary petition for disciplinary action alleging that respondent David L. McCormick committed professional misconduct warranting public discipline, namely, neglect of client matters, failure to' communicate with clients, and failure to cooperate with the Director, in violation of Minn. R. Prof. Conduct 1.3, 1.4, 3.4(c), 8.4(d), and 8.1(a)(3), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Because respondent failed to respond to the petition for disciplinary action or the supplementary petition for disciplinary action, 'the allegations against him are deemed admitted. Respondent has entered into a stipulation with the Director under which he waives his rights under Rule 14, RLPR. The parties jointly recommend that the appropriate discipline is suspension for 90 days, effective 14 days from the date of this order, pursuant to Rule 15, RLPR. The stipulation does not waive the reinstatement hearing provided for in Rule 18, RLPR.

This court has independently reviewed the file. We conclude that respondent’s admitted neglect of client matters, failure to communicate with clients, and failure to cooperate with the Director requires that, should respondent be reinstated to the active practice of law, he be placed on two years’ supervised probation.

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

IT IS HEREBY ORDERED that respondent is suspended for 90 days, effective 14 days from the date of this order. Respondent may petition for reinstatement up to 30 days before the expiration of the 90-day period. Should respondent petition for reinstatement to active practice, respondent shall comply with the provisions of Rule 18(a)-(e), RLPR. Upon rem-statement, respondent shall be subject to two years’ supervised probation under the following conditions:

a. Respondent shall cooperate fully with the Director’s office in its efforts to monitor compliance with his probation, and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for the release of information and documentation to verify compliance with the terms of his probation.

b. Respondent shall abide by the Minnesota Rules of Professional Conduct.

c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of his probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director shall appoint a supervisor. Until a supervisor has signed a consent to.supervise, respondent shall, on the first day of each month, provide the Director with an inventory of active client files. Respondent shall make active client files available to the. Director upon request.

d. Respondent shall cooperate fully with the supervisor in his or her efforts to monitor compliance with his probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor, by the first day of each month during probation, an inventory of all active client files. With respect to each active client file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.

e. Respondent shall institute and maintain office procedures that ensure there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters respondent is handling, that will ensure respondent regularly reviews each and every file and completes legal matters on a timely basis, and that will ensure respondent attends all court hearings, appearances, and trials on behalf of clients.

f. Respondent shall comply with Rule 26, RLPR, requiring notice of his suspension to clients, opposing counsel, and courts.

g. Respondent shall successfully complete the professional responsibility portion of the bar examination within one year of this order, pursuant to Rule 18(e), RLPR.

h. Respondent shall satisfy all continuing legal education requirements, pursuant to Rule 18(e), RLPR.

i. Respondent shall pay $900 in costs, pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice

      . Citations are to the Minnesota Rules of Professional Conduct as they read prior to the amendments that took effect October 1, 2005, and the Rules on Lawyers Professional Responsibility as they read prior to the amendment that took effect September 1, 2005.


author: ANDERSON, RUSSELL A., Chief Justice.

text:
    Gail LEWIS-MILLER, Respondent, v. Christopher ROSS, Appellant.
    No. A04-2224.
    Supreme Court of Minnesota.
    March 9, 2006.

      Paul A. Banker, Christine M. Middleton, Meghan M. Elliott, Lindquist and Vennum, PLLP, Minneapolis, MN, for Appellant.
    Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg PA, Melissa D. Froehle, Central Minnesota Legal Services, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Appellant Christopher Ross, the father of two minor children currently ages 11 and 3, sought dismissal of a petition by respondent Gail Lewis-Miller, the children’s maternal aunt, for custody of the children under Minn.Stat. § 257C.03 (2004). The district court dismissed the petition without an evidentiary hearing. The court of appeals reversed and remanded for an evidentiary hearing. Concluding that the petition for third-party custody was valid and that the allegations, if true, would satisfy the requisite statutory criteria, we affirm.

■ In October 2003, the children’s mother passed away suddenly. Shortly before her death, she dictated and signed a note stating that she wanted her sister, Lewis-Miller, and Ross to have joint physical and legal custody of her children.

About two months later, on December 14, 2003, Lewis-Miller filed a petition for sole legal and physical custody of the children, asserting interested-third-party status under Minn.Stat. § 257C.03 and alleging that the children were in physical and emotional danger. Specifically, Lewis-Miller alleged that she had a substantial relationship with the children and further alleged that Ross and his friends engaged in recreational drug use in the children’s presence, that he and the children had been evicted from their apartment because of illicit drug activities, and that he was preparing to relocate the family outside of Minnesota, a move that Lewis-Miller thought was against the children’s best interests. In response, Ross filed an answer and counter-petition denying most of Lewis-Miller’s allegations and seeking permanent sole legal and physical custody of the children.

In January 2004, Hennepin County Child Protection Services (Child Protection) contacted Ross regarding concerns about his older child’s excessive absenteeism from school. Child Protection also received a report from a social worker with concerns that Ross was not meeting the children’s basic needs and was using drugs. Following an investigation, Child Protection ultimately made a finding of “no maltreatment” on May 19, 2004, but also determined that child-protection services were needed and assigned a child-protection worker to Ross’s case file.

Meanwhile, on February 26, 2004, the district court assigned to the child custody proceeding ordered the parties and Hen-nepin County Family Court Services (Court Services) to engage in an Early Neutral Evaluation (ENE), an alternative dispute resolution process with an evaluative component. Pending the outcome of the ENE process, the district court granted Ross temporary sole legal and physical custody of the children, subject to visitation with Lewis-Miller. By separate order, the court appointed a guardian ad litem.

On March 26, 2004, after the ENE process faltered, the district court ordered a formal custody evaluation through Court Services. Pursuant to this order, a family-court evaluator contacted the child-protection worker assigned to Ross’s case. According to the family-court evaluator’s report, the child-protection worker informed her of the reports Child Protection had received regarding Ross, told her that Ross had twice failed to appear for a court hearing, had refused drug testing and had made himself generally difficult to contact. The child-protection worker also said that he was closing Ross’s case file because of Ross’s noncomplianee and Court Services’ involvement.

On July 30, 2004, Court Services submitted a report to the district court detailing what it had learned from Child Protection, but making no recommendation on custody, explaining that Child Protection should make parental-fitness determinations, not Court Services. Court Services closed its case file pending further instructions from the district court and recommended that the case be referred back to Child Protection or to juvenile court.

On August 12, 2004, Lewis-Miller filed a motion for immediate temporary sole legal and physical custody of the children, pursuant to MinmStat. § 257C.03, together with an affidavit again alleging illicit drug activities and academic, emotional, and physical endangerment, including a failure to provide the basic medical and nutritional needs of the children. Ross responded with a motion to dismiss and again requested permanent sole custody. In support of his motion, Ross filed an affidavit denying Lewis-Miller’s allegations and other documents tending to show, among other things, that he had obtained appropriate medical care for his children.

On August 24, 2004, the guardian ad litem submitted her report to the district court, initially noting her observation that the children had a close relationship with both Ross and Lewis-Miller. The guardian reported that it appeared that Ross was trying to provide for his children, but the guardian also made note of Ross’s noncompliance with drug testing requests, the older child’s excessive absenteeism from school, and other indications of physical neglect. The guardian recommended that Ross’s petition for permanent custody be denied pending further assessment of endangerment issues, and the guardian further recommended periodic monitoring for drug use and academic attendance, with a transfer of temporary custody to Lewis-Miller if concerns in those areas persisted.

On August 26, 2004, at a preliminary hearing on Lewis-Miller’s motion, Ross admitted to the district court that he was currently using marijuana and, occasionally, crack cocaine, but he also said that he never exposed the children to drug use. Following the hearing, the court ordered Ross to undergo a chemical-dependency evaluation through Court Services. Following this evaluation,' on September 10, 2004, Court Services submitted a report to the court giving its diagnostic impression of chemical dependency and recommending outpatient treatment. The evaluator also noted that Ross failed to respond to the evaluator’s drug-testing requests.

The parties argued the pending motions at a hearing on September 15, 2004. After the hearing, the district court denied Lewis-Miller’s motion for temporary relief and dismissed her petition for third-party custody. The court determined that Lewis-Miller lacked standing because she had failed to establish that she had a substantial relationship with the children and that she also had failed to establish any of the endangerment factors by clear and convincing evidence, as required by Minn. Stat. § 257C.03, subd. 7(a)(1). The court vacated all previous orders, including the award of temporary visitation rights to Lewis-Miller, and ordered that the children remain in Ross’s custody.

Lewis-Miller appealed, challenging the district court’s interpretation of Minn.Stat. § 257C.03 and asserting that based on the record she was entitled to an evidentiary hearing. The court of appeals agreed, concluding both that Lewis-Miller had shown a substantial relationship with the children and that the district court had misconstrued the requirements of Minn. Stat. § 257C.03. Lewis-Miller v. Ross, 699 N.W.2d 9, 13-14 (Minn.App.2005). The court of appeals explained that Minn.Stat. § 257C.03 contemplates a two-stage process. In the first stage, a petitioner seeking custody as an interested third party is required to state and allege certain facts and to support these allegations with competent evidence. Lewis-Miller, 699 N.W.2d at 13. If the petition satisfies this standard, the petitioner is entitled to an evidentiary hearing to establish interested-third-party status by clear and convincing evidence. Id. at 13-14. We granted Ross’s petition for review.

I.

Appellate review of custody determinations is generally limited to determining whether the district court has abused its discretion. In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn.2002). However, the interpretation and construction of statutes are questions of law that this court reviews de novo. Turner v. Mut. Serv. Cas. Ins., 675 N.W.2d 622, 624 (Minn.2004).

Minnesota Statutes § 257C.03 governs the procedure for petitioning for child custody as an interested third party. This procedure features two sets of requirements. First, subdivision 2 instructs that “[a] petition for custody * * * must state and allege” that the petitioner satisfies 15 listed conditions. Minn.Stat. § 257C.03, subd. 2(a). This petition must be “verified by the petitioner” and its allegations must be “established by competent evidence.” Minn.Stat. § 257C.03, subd. 2(b). Second, subdivision 7 requires that “[t]o establish that an individual is an interested third party,” an individual must both “prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party” and “show by clear and convincing evidence” one of the following three child-endangerment factors:

(i) the parent has abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent;
(ii) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both; or
(iii) other extraordinary circumstances

Minn.Stat. § 257C.03, subd. 7(a). Dismissal of the petition is mandated if the petitioner fails to establish an endangerment factor or that placement of the child with the petitioner is in the best interests of the child. Minn.Stat. § 257C.03, subd. 8(a).

Ross takes the position that the statute, as written, requires dismissal of an interested-third-party petition if the petitioner has failed to satisfy the evidentiary burden of Minn.Stat. § 257C.03, subd. 7(a). Lewis-Miller takes the position that the statute contemplates a two-step process in which the petitioner who satisfies the requirements of Minn.Stat. § 257C.03, subd. 2 would be entitled to an evidentiary hearing and discovery, by means of which the petitioner would have the opportunity to meet the higher standards of Minn.Stat. § 257C.03, subd. 7.

When interpreting legislative enactments, we must presume that the legislature intended its statutes to be “effective,” and not productive of “absurd * * * or unreasonable” results. Minn.Stat. § 645.17 (2004). That by its very terms Minn.Stat. § 257C.03 requires the establishment of certain elements of interested-third-party-status by clear and convincing evidence and other elements by a preponderance of the evidence, with mandatory dismissal on findings that certain elements have not been established, clearly shows that the statute contemplates evidentiary hearings for third-party custody proceedings. As a practical matter, however, a reasonable construction of the statute would allow the district court discretion to dismiss a third-party custody petition without an evidentiary hearing if the petition and accompanying affidavits alleged facts which, if taken as true, would not be sufficient to satisfy the criteria of Minn.Stat. § 257C.03, subd. 7(a). Conversely, if the petition and affidavits alleged facts which, if proven, would satisfy the statutory criteria, the court would then schedule an evi-dentiary hearing. In this manner, it may be said that the statutory scheme contemplates a two-stage process.

As the court of appeals observed, this two-stage process is consistent with typical custody-modification proceedings in which the district court, in consideration of affidavits submitted in support of the motion for modification, reviews the documents and schedules a hearing if the movant alleges fact which, if true, would justify modification. See, e.g., Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981) (“It is our view that a reasonable construction of the statute would be to require the trial court to deny a motion for modification of a custody order unless the accompanying affidavits set forth sufficient justification, if the facts alleged therein are true, for the modification.”); In re Weber, 653 N.W.2d 804, 809 (Minn.App.2002) (“If the moving party’s affidavit does not allege facts that, if true, would provide sufficient grounds for modification, the court need not grant an evidentiary hearing.”); Smith v. Smith, 508 N.W.2d 222, 226 (Minn.App.1993) (“The district court then reviews the moving party’s affidavits, taking the alleged facts to be true, and determines whether a prima facie case has been made.” (citing Nice-Petersen, 310 N.W.2d at 472)).

In summary, we believe the court of appeals’ two-step process for third-party-child custody proceedings represents a practical system that is consistent with the statutory intent to provide evidentiary hearings when warranted by the pleadings and accompanying documents and also consistent with the statutory framework for custody modifications in general. We therefore hold that a party commencing a third-party child custody proceeding by valid petition and supporting affidavits is entitled to an evidentiary hearing when the facts alleged, if proven, would satisfy the criteria of Minn.Stat. § 257C.03, subd. 7(a).

II.

Ross also asks us to determine the meaning of “competent evidence” for purposes of Minn.Stat. § 257C.03, subd. 2(b). The meaning of that term in the context of third-party child custody proceedings was neither litigated below nor passed on by the district court, and we decline to address the issue. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (“A reviewing court must generally consider ‘only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.’ ” (quoting Thayer v. American Financial Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982))). The allegations in the petition were personally verified and, according to any of the definitions proposed by the parties, established by competent evidence. If true, the allegations would satisfy the criteria of Minn.Stat. § 257C.03, subd. 7(a). Accordingly, we remand the matter to the district court for an evidentiary hearing.

Affirmed and remanded.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this matter.

      . The Minnesota Court of Appeals has held that an interested-third-party petitioner must show that "a substantial relationship between the petitioner and the child * * * exists when the petitioner petitions for custody.” In re Kayachith, 683 N.W.2d 325, 327 (Minn.App.2004).

      . Ross does not contest the court of appeals' determination that Lewis-Miller sufficiently demonstrated a substantial relationship with the children.

      . See also Minn.Stat. § 257C.03, subd. 4 (explaining that in certain instances parties can agree to not have hearings); Minn.Stat. § 257C.02 (2004) (incorporating by, reference the provisions in Chapter 518); Minn.Stat. § 518.168 (2004) (explaining that custody hearings should receive scheduling priority, shall be conducted without a jury, and at the court's request, the record may be sealed).


author: HUSPENI, Judge.

text:
    Sherry Lea RUSH, Appellant, v. Tasha Lee JOSTOCK, et al., Respondents.
    No. A05-714.
    Court of Appeals of Minnesota.
    March 7, 2006.

      Charles J. Suk, Beth K. Bussian, Suk Law Firm, Ltd., Rochester, MN, for appellant.
    Lee L. LaBore, LaBore, Giuliani, Cos-griff, & Yiltoft, Ltd., Hopkins, MN, for respondents.
    Considered and decided by PETERSON, Presiding Judge, HALBROOKS, Judge, and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

Appellant challenges (1) the damage award of the jury and (2) the trial court’s denial of a motion for new trial or conditional additur, and argues that the trial court erred in (a) admitting testimony that appellant was malingering, (b) failing to submit to the jury appellant’s proposed instruction regarding payment of medical bills, (c) accepting the jury verdict in which there was no award for past or future pain and suffering, (d) failing to award a collateral source offset in the amount of total automobile insurance premiuhjs, and (e) concluding that respondents were the prevailing party and awarding costs and disbursements to them. We affirm in part, reverse in part, and remand.

FACTS

A vehicle driven by respondent Tasha Jostock rear-ended one driven by appellant Sherry Rush. Appellant sued Jostock and the owner of the vehicle, Jostock’s mother, respondent Cindy Jostock, claiming that she suffered cervical spinal injuries. Respondents’ offer of judgment pursuant to Minn. R. Civ. P. 68 in the amount of $35,000 was rejected by appellant, and a jury trial followed. Prior to trial, respondents admitted liability; the sole issue before the jury was damages.

In answer to appellant’s initial interrogatories concerning expert witnesses and expected defenses, respondents stated that experts had yet to be identified, that discovery was continuing, and that defenses were as yet unknown. Subsequently, appellant was examined by respondents’ expert, Dr. Stephen Kazi, on two occasions. After the first examination, Dr. Kazi noted that appellant displayed two of five Wad-dell’s signs, which indicated “probable presence of symptom magnification and functional overlay.” Over objection by appellant, Dr. Kazi conducted a second examination, after which he concluded that appellant displayed one of five Waddell’s signs.

In a deposition conducted by appellant, at which Dr. Kazi was questioned about his findings, respondents produced a copy of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Dr. Kazi recognized the DSM-IV as a learned treatise, whereupon respondents’ counsel read specific sections relating to malingering. When asked, Dr. Kazi opined that appellant was malingering or exaggerating her symptoms of pain.

When appellant subsequently sought supplementation of discovery, respondents answered that all information they intended to rely on had been provided to appellant. Regarding possible impeachment evidence, respondents indicated they could make that determination only when the testimony of appellant or other witnesses had been presented.

Appellant, through a motion in limine prior to trial, sought to exclude testimony of Dr. Kazi regarding Waddell’s signs and the DSM-IV interpretation of those signs. Appellant argued that Waddell’s signs were clinically insignificant in cases involving cervical pain; that in order for Wad-dell’s signs to be of significance, three of five must be present, which was not the case here; that respondents had never identified the DSM-IV as a treatise which was to be used in the proceeding; and that respondents had failed to qualify Dr. Kazi, an orthopedist, as qualified to testify about the contents of the DSM-IV. The trial court, in denying appellant’s motion in li-mine, declared that the issue was not one of admissibility but one of the weight to be given by the jury to Dr. Kazi’s opinions.

In a posttrial motion for new trial or conditional additur and amended findings of fact and conclusions of law, appellant claimed that respondents’ counsel made improper and unsolicited comments during voir dire, that there was passion or prejudice demonstrated in the jury verdict, that the verdict was unsupported by evidence, that Dr. Kazi should not have been allowed to testify about the DSM-IV, that appellant’s proposed jury instruction regarding payment of medical bills should have been given, that the court’s collateral source offset decision was erroneous, that the court erred in awarding respondents costs and disbursements, and that the court erred in refusing to allow appellant to tax her costs and disbursements. Appellant’s motion was denied in its entirety, and this appeal followed.

ISSUES

I. Did the trial court commit prejudicial error when it allowed the admission of Dr. Kazi’s testimony concerning his medical findings?

II. Did the trial court abuse its discretion by not giving appellant’s proposed jury instruction with regard to payment of medical bills?

III. Did the trial court abuse its discretion when it denied appellant’s motion for a new trial or conditional additur?

IV. Did the trial court err in determining that appellant was not entitled to recover her total premiums for automobile insurance for the two-year period immediately preceding the accident?

V. Did the trial court err when it awarded costs and disbursements to respondents and denied appellant costs and disbursements?

ANALYSIS

I.

Absent an erroneous interpretation of the law, the question of whether to admit evidence is within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Id. at 46 (quotation omitted). The standard of review of the admissibility of expert testimony is determined under a two-pronged analysis. Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn.2000).

Whether a particular principle or technique satisfies the first prong, general acceptance in the relevant scientific field, is a question of law that [appellate courts] review de novo. District court determinations under the second, prong, foundational reliability, are reviewed under an abuse of discretion standard, as are determinations of expert witness qualifications and helpfulness.

Id. (citation omitted).

Appellant argues that the testimony of Dr. Kazi concerning Waddell’s signs and the DSM-IV was misleading and highly prejudicial; that the Waddell’s signs are clinically insignificant because they are used to detect non-organic physical signs of low back pain not cervical spine pain; that the DSM-IV is used to diagnose psychiatric issues and Dr. Kazi is not a psychiatrist; and that in order for the "Waddell's test to be significant, a patient must show a minimum of three positive Waddell’s signs, and she displayed only one or two.

“The competency of a witness to provide expert medical testimony depends upon both the degree of the witness’ scientific knowledge and the extent of the witness’ practical experience with the matter which is the subject of the offered testimony.” Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn.1983). After a thorough review of the evidence, we conclude that the trial court did not abuse its discretion by permitting Dr. Kazi to testify regarding Wad-dell’s signs. In resolving this issue as one of weight, not admissibility, the trial court noted the ability of - appellant to 'cross-examine Dr. Kazi in order to diminish his credibility. That opportunity was exercised.

Appellant also argues that the trial court erred in admitting Dr. Kazi’s testimony with reference to the DSM-IV because respondents'failed to disclose their intent to use the DSM-IV and because Dr. Kazi is not qualified to render a psychiatric diagnoses' based on that publication. We agree with the conclusion of the trial court that it should have come as no surprise to appellant that respondents would present evidence on malingering, including reference to the DSM-IV. Dr.-Kazi’s independent medical examination report referred to the defense of malingering; during his deposition, he recognized the DSM-IV as a learned treatise. When asked, he indicated agreement with the signs for malingering identified in that treatise. There is nothing in the record, however, to indicate that Dr. Kazi relied on the DSM-IV in reaching his conclusion that appellant had not sustained any permanent injury. To the contrary, the record supports a determination that his conclusion was based on physical examinations of appellant, x-rays and MRIs of appellant, medical records, and the medical expertise and experience of Dr. Kazi. We see no error in the trial court’s decisions regarding the admissibility and scope of the testimony of Dr. Kazi.

II.

Appellate courts will not reverse a trial court’s decision regarding jury instructions unless the instructions constituted an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). Trial courts are allowed considerable latitude in selecting the language in jury instructions. Id. 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).

Appellant requested that the following instruction be given to the jury: “Regarding the subject of medical bills, you need not worry about whether some of the medical bills were paid by other sources. As the judge, I will see to it that no one is paid twice for the same thing.” The trial court denied appellant’s request, and instead instructed the jury that past damages for health care could be awarded “up to the time of your verdict,” that damages for loss of earnings could be awarded “from the time of injury to date,” and cautioned the jury to “not consider the fact that [appellant] actually received her salary for all or part of the time in deciding lost value of [her] working time.” On appeal, appellant argues that the jury was confused about its role in determining a reasonable value for her damages and was tainted by testimony elicited by respondents regarding prior compensation given to her by third parties. It is her contention that her proposed instruction would have clarified any confusion.

During deliberations, the jury posed a question to the court asking whether any insurance company had paid appellant’s health care and diagnostic expenses. The court responded that the jury was to decide what health care and diagnostic expenses were directly related to the accident and that the court would handle all other concerns. Appellant argues that the jury’s question demonstrates misunderstanding; that the jury was attempting to determine the amount of money to be awarded, not the value of appellant’s damages; and that the failure of the jury to award damages for past and future pain and suffering cannot be reconciled with its awards for past medical expenses and wage losses.

We conclude that appellant’s argument regarding jury instructions lacks merit and that the instructions given were sufficient. Any possible confusion was clarified by the court’s answer to the jury’s question. Additionally, during closing arguments, appellant’s counsel, without objection from respondents, informed the jury

that the judge is going to ensure that there are no double payments.... The judge is going to deduct anything that has already been paid ... don’t consider whether [appellant was] paid or not.... Don’t worry, because the judge is going to make sure that there aren’t any improper payments and so forth. She’s going to deduct anything that has been paid, so that’s not going to be an issue.

There was no prejudice to appellant when the court denied her proposed jury instruction. The intent of the proposed instruction was relayed to the jury through instructions given hy the court and during closing arguments of counsel. The trial court’s decision as to the jury instructions was not an abuse of discretion.

Finally, appellant urges that the jury award of zero damages for past and future pain and suffering could only have been the result of passion and prejudice. Again, we disagree. Evidence at trial and arguments of counsel demonstrate that such award was within the province of the jury-

III.

Appellant next argues she is entitled to a new trial or conditional additur because the verdict of the jury was perverse, inadequate, not supported by the evidence, and therefore must have been motivated by mistake, passion, and/or prejudice.

An appellate court “will not set aside a jury verdict on an appeal from a district court’s denial of a motion for a new trial ‘unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to. the verdict.’ ” Navarre v. S. Washington County Schools, 652 N.W.2d 9, 21 (Minn.2002) (quotation omitted). Generally, a new trial on damages will be granted only where the verdict is so inadequate or excessive that it “could only have been rendered on account of passion or prejudice.” Flanagan v. Lindberg, 404 N.W.2d 799, 800 (Minn.1987) (quotation omitted); see also Minn. R. Civ. P. 59.01(e). A trial court has the broadest possible discretion to determine whether a new trial should be granted based on an inadequate award of damages. Its decision will not be reversed “absent a clear abuse of that discretion and the existence of the most unusual circumstances.” Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn.App.1988) (quotation omitted), review denied (Minn. May 4, 1988). Similarly, whether to grant additur rests almost wholly within the trial court’s discretion. Krueger v. Knutson, 261 Minn. 144, 158, 111 N.W.2d 526, 535 (1961). ,

Appellant relies on Walser v. Vinge, 275 Minn. 230, 146 N.W.2d 537 (1966), to support her argument. In Walser, no award was made for pain or suffering or for wage loss, despite testimony regarding plaintiffs two surgeries and inability to work as efficiently as before the accident. 275 Minn. at 231, 146 N.W.2d at 538. Medical experts testified that the plaintiff sustained a permanent disability to his back resulting in 20% loss of function. Id. at 233, 146 N.W.2d at 539. The district court denied plaintiffs request for a new trial, and the supreme court reversed, stating that a jury, where it awarded pecuniary damages and liability is established, is “bound to take into consideration all of the' elements of damage which are proved.” Id. at 235, 146 N.W.2d at 540. A jury should “take into consideration proven damages resulting from pain and suffering, loss of wages, and impairment of earning,capacity.” Id.

Appellant’s reliance on Walser is misplaced. Unlike that case, where there was no award for’ wage los's and where there was compelling testimony of permanent injury, appellant here was awarded wage loss damages, and objective evidence of permanent injury, similar to that in Wal-ser, was absent. Physical examinations of appellant showed normal muscle reflexes, extension, and -rotation. All CT scans, MRIs, EMGs, and x-rays were normal. No surgery was performed as a result of the accident. One of her neurological examinations showed no abnormalities. A second neurological examination was “completely normal” and “no motor weakness” was found.

. Of critical importance in this case was the emphasis of respondents on the defense of malingering. The jury was free to accept or reject that defense. The record indicates that the defense was found credible. The trial court did not err in denying appellant’s motion for new trial or conditional additur.

IV.

Appellant next argues that the trial court erred in determining that there would be no offset against any reduction in the jury damage award for full automobile insurance premiums paid by her during the two-year period immediately preceding the accident. The court made no award; respondents concede, however, that appellant is entitled to an offset for amounts she paid for her Personal Injury Protection (PIP) coverage.

Statutory construction and the application of statutes to the undisputed facts of a case involve questions of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998); O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). Minn.Stat. § 548.36 (2004) states, in pertinent part:

Subd. 1. Definition. For purposes of this section, “collateral sources” means payments related to the injury or disability in question made to the plaintiff, or on the plaintiffs behalf up to the date of the verdict, by or pursuant to:
(1) a federal, state, or local income disability or Workers’ Compensation Act; or other public program providing medical expenses, disability payments, or similar benefits;
(2) ... automobile accident insurance or liability insurance that provides health benefits or income disability coverage; ...
(3) a contract or agreement ... to provide, pay for, or reimburse the costs of hospital, medical, dental or other health care services; or
(4) a contractual or voluntary wage continuation plan ... intended to provide wages during a period of disability....
Subd. 2. ... [W]hen damages include an award to compensate the plaintiff for losses .... [t]he court shall determine:
(1) amounts of collateral sources that have been paid for the benefit of the plaintiff or are otherwise available to the plaintiff as a result of losses ...; and
(2) amounts that have been paid ... by ... plaintiff or members of the plaintiffs immediate family for the two-year period immediately before the accrual of the action to secure the right to a collateral source benefit that the plaintiff is receiving as a result of losses.
Subd. 3. ... (a) The court shall reduce the award by the amounts determined under subdivision 2, clause (1), and offset any reduction in the award by the amounts determined under subdivision 2, clause (2).

Interpretation of the interplay between subdivision 1(2) and subdivision 2(2) of the statute is critical to the narrow issue we must decide here. Is the amount subject to setoff under subdivision 2(2) the full automobile insurance premiums paid for the two years preceding the accident, or are only the PIP premiums entitled to be set off? This is an issue of first impression in Minnesota.

A. History

Prior to the enactment of Minh.Stat. § 548.36, the common-law'collateral-source rule directed courts on how to reduce a plaintiffs damage award when personal-injury costs were paid by a third party other than a defendant;' Imlay v. City of Lake Crystal, 453 N.W.2d 326, 331 (Minn.1990). Minn.Stat. § 548.36 was adopted in 1986, in an effort to “abrogate a plaintiffs common law right to be over-compensated and ... prevent double recoveries in many circumstances by requiring the deduction from the verdict of certain benefits received by a plaintiff.... [T]he primary goal of section 548.36 is to prevent double recoveries by plaintiffs....” Id.

B. Legislative Intent

“When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation omitted). “A statute should be interpreted, whenever possible, to give effect to all of its provisions; ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Id. (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). This court is to “read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Id.

Turning initially, and briefly, to , Minn. Stat. § 548.36, subd. 1(2), the Minnesota Supreme Court has found that section to be “poorly written” and “ambiguous,” noting that the language could be construed as “providing for one, two, three or four different types of collateral source benefits.” Imlay, 453 N.W.2d at 334. The court, however, did not further interpret the statute, but instead stated that the legislature “may wish -to reexamine [the subsection] to clarify its intentions.” Id. To date that reexamination has not occurred.

The parties here do not dispute, however, the propriety of including sums received from “automobile accident insurance or liability insurance' that provides health benefits or income disability coverage” as a collateral source benefit to be deducted from a damage award. And this court agrees with that inclusion. Our inquiry at this point must be how to give proper effect to the requirement of subdivision 3(a) that an offset be made to.reduction of benefits received from that collateral source. That offset will either include all insurance premiums, whether they be for liability, collision, comprehensive, or other type of coverage, or it will be limited to only those premiums paid to provide health or income disability benefits.

When a court finds a statute ambiguous, it must “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). “The legislature’s intent may be ascertained by considering, inter alia, the occasion and necessity of the law, the circumstances under which it was enacted, the mischief to be remedied, the object to be obtained and the consequences of a particular interpretation.” City of St. Paul v. Spencer, 497 N.W.2d 305, 307 (Minn.App.1993), review denied (Minn. Apr. 20, 1993). Our review of the -legislative history of Minn.Stat. § 548.36 did ;not aid us in discerning the intent of the legislature.

C. Caselaw

While we find no Minnesota case-law to assist this court in resolving the narrow question before us, that of foreign jurisdictions informs our inquiry. See In re Cooke’s Estate, 207 Minn. 437, 446, 292 N.W. 96, 101 (1940) (stating decisions in other states have persuasive authority only and are entitled to such consideration as their reasoning merits).

In Jones v. Riley, 263 Conn. 93, 818 A.2d 749, 752-53 (2003), the parties stipulated that the plaintiff could not purchase certain medical pay coverage without purchasing an entire automobile liability policy. Thus, the plaintiff argued that she was entitled to a collateral offset for the total of premiums she paid to secure the entire policy. Jones, 818 A.2d at 753. The defendant argued that the offset should be limited to the premium amount attributable to medical coverage. Id. The trial court agreed with plaintiff. The Supreme Court of Connecticut disagreed, and interpreted statutory language strikingly similar to that in Minnesota as providing an offset only for the amount paid to secure a collateral source benefit received as a result of personal injuries. Id. at 754. The Jones court reasoned that if it was to award the entire amount paid to secure the automobile insurance coverage, plaintiff would be reimbursed for amounts paid to purchase liability, collision, and comprehensive coverage, resulting in a windfall recovery. Id. at 755. The court concluded that “[i]t cannot reasonably be contended that benefits paid out under the liability, collision or comprehensive coverage provisions of an automobile insurance policy are ‘health ... or other similar insurance benefits,’ or that they serve as payment or reimbursement” for health care services under the statute. Id. at 755 n. 5. The court reasoned that the statute allows for reimbursement for the premiums paid for collateral source benefits received; plaintiff received medical benefits and was only entitled to offset medical payment premiums. Id. The court recognized that the purpose of the collateral source statute was to prevent plaintiffs from recovering a windfall and double recovery, and that by limiting a plaintiffs offset to only amounts paid for medical benefits coverage, the court ensured that the plaintiff was not overly compensated for her injuries. Id. at 755-56. Finally, the court reasoned that if plaintiff were allowed to recover entire automobile insurance premiums, a wide disparity in the size of offsets would result due to variation in the value of vehicles and in the amount of liability, collision, and/or comprehensive coverage a policyholder chooses to purchase. Id. at 757-58.

In McKenna v. Carlson, the District Court of Appeals of Florida was also faced with the issue of whether a claimant was entitled to an offset for the entire amount of automobile insurance premiums or only the amount attributable to PIP coverage. 771 So.2d 555, 556 (Fla.Dist.Ct.App. 5th Dist.2000). The trial court found that the claimant was entitled to offset the amount attributable to his PIP and collision premiums. Id. at 557. The district court of appeals agreed as to the PIP premium, but disagreed as to that for collision coverage. Id. at 558. The court reasoned that the plaintiffs cost to secure collision or liability coverage was not directly related to benefits received as a result of injury. Id.

Similar to the statute in Jones, Minn. Stat. § 548.36, subd. 1, defines a collateral source as a payment “related to the injury or disability in question.” We conclude that any offset applied to the reduction of damages in this ease must be related to the injury. Here, only appellant’s PIP premiums are related to her injuries. Liability, collision, and comprehensive premi-urns are not. Also similar to the statute in Jones, Minn.Stat. § 548.36, subd. 1(2), further defines a collateral source as “payments related to the injury or disability in question ... pursuant to: ... health, accident and sickness, or automobile accident insurance or liability insurance that provides health benefits or income disability coverage.” (Emphasis added.) There is nothing in this language to indicate that insurance premiums paid for property damage, such as collision, comprehensive, and certain liability insurance, are to be offset against reduction of an award. Furthermore, Minn.Stat. § 548.36, subd. 1(1), (3), (4), as set forth above, all emphasize health and disability benefits as collateral sources.

We find the analysis of the Jones and McKenna courts persuasive, and their interpretation of statutory language similar to that in Minnesota sound. We interpret Minn.Stat. § 548.36, subd. 3(a), to exclude an offset for premiums paid to secure liability, collision, and/or comprehensive cov7 erage. Allowing appellant’ to offset her reduction in damages by the premiums she paid for these coverages would thwart the purpose of the statute and provide a windfall, to her. The offset must be limited to premiums attributable to appellant’s PIP coverage, and we remand to enable the trial court to award that offset.

V.

Lastly, appellant argues that the trial court erred when it concluded that because the net damages award of $13,404.97 was less than respondents’ offer under Minn. R. Civ. P. 68 of $35,000, appellant was not entitled- to her costs and disbursements and respondents were entitled to theirs. Appellant also argues that she was the prevailing party. The district court found otherwise. This court reviews a- district court’s legal determinations regarding rule 68 offers of judgment de novo. Vandenheuvel v. Wagner, 690 N.W.2d 753, 754 (Minn.2005).

■ Under rule 68, “any party may serve upon an- adverse party an offer to allow judgment to be entered to the effect specified in the offer or to pay or accept a specified sum of money, with costs and disbursements then accrued.” Minn. R. Civ. P. 68. Respondents did just that; they offered appellant $35,000, including costs and disbursements, but did not specify the amount of those costs and disbursements.

Appellant argues first that respondents’ offer of judgment did not meet the requirements of rule 68; that the offer must be for a specific amount of money in addition to costs and disbursements then accrued. Appellant argues that respondents’ offer was for a lump sum which included costs and disbursements, and the lack of specificity makes it impossible to compare the offer with the final judgment.

Appellant’s argument is not persuasive. We note initially that there is support in both federal and Minnesota caselaw for the proposition that a lump sum offer stating that costs and disbursements are included in the specified sum, is valid. Marek v. Chesny, 473 U.S. 1, 6, 105 S.Ct. 3012, 3015, 87 L.Ed.2d 1 (1985); Hallow v. Filiyaro, 526 N.W.2d 631, 633 (Minn.App.1995). In its findings in this case, the trial court explained that the net award was composed of $6,877.82 for medical expenses, $1,527.15 for wage loss expenses, and $5,000 for future' medical expenses. It was possible for both the trial court and the parties themselves to compare the offer and final judgment. Appellant could have easily calculated how much of the $35,000 would have covered her costs and disbursements; she had a record of what those costs and disbursements totaled. Award of costs and disbursements to respondents was proper.

Appellant’s reliance on Borchert v. Maloney, 581 N.W.2d 838 (Minn.1998), to support her argument that respondents did not comply with rule 68 requirements is misplaced, although Borchert does lend persuasive support for appellant’s argument that she was the prevailing party in this case and is, therefore, entitled to recover her costs and disbursements. In Borchert, the defendant’s rule 68 offer was rejected and the case was tried to a jury. 581 N.W.2d at 839. The net award to plaintiff was lower than defendant’s offer and plaintiff was ordered to pay defendant’s costs and disbursements. Plaintiff was allowed, however, to recover her own costs and disbursements also. Id. On appeal, this court ruled that “[wjhere a plaintiff rejects a Rule 68 offer of settlement by a defendant and [ultimately] receives a judgment less favorable than the [Rule 68] offer, the plaintiff is denied costs and disbursements.” Id. at 839 (alteration in original) (quotation omitted). On review, the Minnesota Supreme Court disagreed, holding that plaintiff is entitled to her costs and disbursements. Id. at 841. In rendering its decision, the conflict between Minnesota Statutes chapter 549 and Minn. R. Civ. P. 68 was addressed as follows:

The conflict arises because, under the statute, the prevailing party in a lawsuit is entitled to recover his or her costs and disbursements while, under the rule, when a party makes a Rule 68 offer which is rejected and the judgment finally entered is less favorable to the offeree than the Rule 68 offer, the offer-ee must pay the offeror’s costs and disbursements.

Id. at 839.

The court recognized that it must first identify the prevailing party, concluding that a plaintiff who did not prevail was not entitled to any costs and disbursements. Id. The court stated that in identifying the prevailing party, “the general result should be considered, and inquiry made as to who has, in the view of the law, succeeded in the action.” Id. at 840 (quoting Haugland v. Canton, 250 Minn. 245, 254, 84 N.W.2d 274, 280 (1957)). In concluding that the plaintiff was the prevailing party, the Borchert court reasoned that although the defendant was successful to some degree, in that the judgment against him was more favorable than the rule 68 settlement offer he made, the plaintiff had prevailed on the merits in the underlying action. Id.

The Borchert court next addressed whether rule 68 precluded plaintiff from recovering her costs and disbursements. Id. The court concluded that it did not, because “Rule 68 does not specifically state that the offeree is ... responsible for her own costs and disbursements.” Id. The court further explained, “[i]f the rule was intended to prevent an offeree who prevails on the lawsuit’s merits from recovering her costs and disbursements even though the judgment entered was less than the Rule 68 offer, it would specifically say so, as does Fed.R.Civ.P. 68.” Id.

In applying the rationale of Borchert to the facts of this case, we reach the same conclusion as reached by that court. Appellant was awarded $13,404.97. She was the prevailing party in the underlying action. Her receipt of an award less than respondents’ rule 68 offer should not prevent her, as. the prevailing party, from recovering her own costs and disbursements. As noted by the Borchert court, permitting a plaintiff to recover her own costs and disbursements, while also being required to pay those of defendant, gives effect to both the statute and the rule, the effect of the latter payment pursuant to rule 68 serves as a powerful incentive for a plaintiff to reach settlement, even though she may ultimately recover her own costs and disbursements under, the statute if she prevails on the merits of the action. Id. at 841. We reverse the decision of the trial court that appellant was not entitled to recover costs and disbursements and remand to enable the court to assure that recovery.

DECISION

The trial court did not abuse its discretion by allowing the testimony of respondents’ expert, and properly instructed the jury on damages. The evidence supports the jury verdict, and the trial court did not err in denying appellant’s new trial or conditional additur motion. The trial court failed to award appropriate offsets to collateral source reductions of the jury award to appellant and also erred in determining that appellant was not the prevailing party in this action and was not entitled to her costs and disbursements.

Affirmed in part, reversed in part, and remanded.

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

      . .Waddell’s signs are five in number and are considered signifiers of non-organic' source of ■ low back pain when three or more of the signs are present.

      . Further support for the trial court's decision regarding admission of the testimony of Dr. Kazi is reflected in the record. Dr. Kazi has 36 years' experience in the practice of medicine, is board certified by the American Board of Orthopedic Surgery and the ‘ American Board of Neurological and Orthopedic Surgery with emphasis on the spine, and is licensed to practice medicine in 11 states. Further, appellant's own physician administered Waddell’s test, although no positive signs of malingering were found.

      . During cross-examination, without objection, appellant was questioned about wage loss. On redirect, questions by appellant's own counsel regarding wage loss were objected to by respondents. The trial court sustained those objections and cautioned appellant’s counsel that he was approaching inquiry about benefits other than wage loss.

      . The zero damage award for pain and suffering is supported, at least in part, by the closing argument of appellant's own counsel, who stated:
      If you [believe] [Dr.] Kazi, if that's the way you look at things, then ... it’s a zero for future pain, suffering, [and] disability. In other words, you don’t believe anything [appellant] has told you and you don’t believe anything that [appellant’s] doctors told her and told you and you don’t believe what’s in the Mayo Clinic medical record. And if that’s the case, you will put zero.