author: GILBERT, Justice.

text:
    STATE of Minnesota, Respondent, v. Kevin Terrance HANNON, Appellant.
    No. C0-00-2013.
    Supreme Court of Minnesota.
    Dec. 20, 2001.
    Rehearing Denied Jan. 14, 2002.

      Leslie J. Rosenberg, Asst. State Public Defender, Minneapolis, for appellant.
    James B. Early, Asst. Atty. Gen., St. Paul, Roger S. Van Heel, Stearns County Atty., St. Cloud, for respondent.
   OPINION

GILBERT, Justice.

On June 20, 2000, a jury found appellant Kevin Terrance Hannon guilty of one count of premeditated first-degree murder, two counts of felony murder (kidnapping), one count of felony murder (arson), and one count of second-degree intentional murder. Appellant argues, among other things, that his federal and state constitutional rights were violated because the interrogating officers failed to cease the interrogation after appellant invoked his Miranda rights. As to this issue, we must decide whether the trial court clearly erred in finding that appellant made an equivocal request for counsel when, after the interrogating officers told the appellant that they believed he had killed Deborah Tolhurst, appellant stated “Can I have a drink of water and then lock me up — I think we really should have an attorney.” For the reasons stated herein, we reverse and remand for a new trial.

Around 9:00 p.m. on September 21,1999, a security guard working at the Clearwood Park Apartments located in St. Cloud, Minnesota, noticed black smoke rolling out of a window of apartment 304. The security guard immediately notified the police department and then went into the apartment building. After arriving in front of the door of apartment 304, the security guard was able to observe smoke coming from underneath the door. He pounded on the door and yelled to see if anyone was inside the apartment but received no response. The security guard then discovered that the door was unlocked and opened the door in an attempt to enter the apartment, but was unable to enter because he was immediately overcome by the smoke.

Firefighters arrived at the scene shortly thereafter. The firefighters saw smoke and flames coming from the third floor window, proceeded to the third floor, and discovered that the hallway was filled with smoke from floor to ceiling. They moved down the hallway with a fire hose and entered apartment 304. Once in the apartment, the firefighters located the fire, which was coming out of the bedroom along the ceiling and into the living room. They proceeded to spray water at the fire and then entered the bedroom, at which point one of the firefighters noticed a body lying on the floor in the bedroom. After the fire was extinguished, firefighters and police officers determined that the badly burned body was lying face down, with the victim’s arms crossed at the wrists behind the victim’s back just above the belt line. The victim was ultimately identified as Deborah Tolhurst.

After the fire was put out, the police received information that appellant lived in apartment 304 with Tolhurst and began looking for him. At around 6:45 p.m. on the next day, officers arrived at the Ger-maine Towers in downtown St. Cloud and asked the caretaker if he recognized appellant from the picture the officers showed him. The caretaker told the officers that he believed appellant was in the apartment of one of his tenants. The officers went to this apartment and found appellant hiding in the bedroom. He was then arrested and transported to the Stearns County Law Enforcement Center.

A detective with the Stearns County Sheriffs Department and an officer with the St. Cloud Police Department began interrogating appellant immediately after his arrest. They read appellant his Miranda rights and he signed a document indicating that he understood these rights. The officers then began questioning appellant. One of the officers told appellant that he smelled like alcohol and asked appellant if he was drunk. Appellant admitted that he had a couple of drinks, but told the officers that he did not believe he was drunk.

He initially explained that he lived with Tolhurst and claimed that the last time he saw her was around 5:30 p.m. on September 21, 1999 in her apartment. Appellant told the officers that he arrived at Tol-hurst’s apartment between 9:00 and 9:30 a.m. on September 21 after working all night. He then stated that Tolhurst’s brother and another man named Paul Mackey came to Tolhurst’s apartment around 6:00 or 7:00 p.m. Appellant told the officers that Tolhurst told him to leave and that he then went to a bar nearby named J.D. Beamer’s.

The officers then confronted appellant with information they had obtained from other people in the apartment complex about hearing appellant and Tolhurst engaged in a heated argument during the afternoon of September 21. Appellant admitted to arguing some with Tolhurst that day, but told the officers he did not remember it being a heated argument. As the officers questioned appellant, he repeatedly indicated that he did not know what the officers were talking to him about. After the officers finally told appellant that Tolhurst was dead, the following exchange took place:

Appellant: What are you saying here?
Detective: What are we saying? We’re saying that you took Deb’s life.
Appellant: You’re saying I killed Deb?
Detective: Absolutely. There’s no doubt about that. OK? We know that.
Officer: We know what happened.
Detective: We just need to know why you did that, OK? We know you did that. That’s not even a question here, Kevin. Understand that? We know that. We talked to a bunch of people here and — and we — we put the evidence together at the scene and it clearly points to you. OK? So, we need to know why. What was your — ?
Appellant: You think I killed her?
Detective: Did you — did you kill her because you were upset with her? Did you kill her because — ■
Appellant: You think I killed—
Detective: Kevin, it’s not that we think that, we know that. We need to know why you did that. That’s all, OK? Tha — it’s no question as to did you do that. That’s not a question here, Kevin, OK? So—
Appellant: Can I have a drink of water and then lock me up — I think we really should have an attorney.
Detective: We’ll get you a drink of water.
Appellant: I don’t want to talk anymore please. (Pause). This is — this is really wrong. This woman has scars all over her from this Paul Mackey. He’s callin’ her 50 times a week.
Detective: ‘Kay. If you want to talk to an attorney, you understand that we have to stop talking to you. OK? And — and then your side of this story will never be known. That’s your choice. That’s a choice you’re making.
Appellant: So, that means what?
Detective: That means we’re gonna put this thing together and we’re gonna convict you of murder.
Appellant: Of murder?
Detective: Absolutely. Yup.
Appellant: Convict me of murdering her?

(Emphasis added.) The interrogation continued and appellant made numerous statements regarding his involvement in Tolhurst’s death. Specifically, appellant admitted to hitting and kicking Tolhurst multiple times, knocking Tolhurst out, putting duct tape around her legs, and lighting a paper bag on fire and throwing it on top of her while stating “You need to burn, you bitch.” Appellant told the officers that he put the duct tape around Tol-hurst’s legs because she was kicking him. He also said that he only wanted to scare her when he lit the bag on fire and immediately patted the fire out. All of these admissions were recorded on videotape.

Appellant then gave a formal statement to the interrogating officers. He was not read his Miranda rights again before this statement was taken. In this formal statement, appellant again admitted to hitting and kicking Tolhurst multiple times, knocking her out, putting duct tape on her feet and mouth, and throwing a burning paper bag on her. He also admitted to grabbing Tolhurst by the throat, cutting telephone lines in Tolhurst’s apartment, and throwing the white shirt he had on when he was fighting with Tolhurst into the back of a pick-up truck parked outside of J.D. Beamer’s, the bar he went to after leaving Tolhurst’s apartment. The majority of this formal statement was videotaped, with the end of it being audiotaped after the videotape ran out. Appellant was subsequently indicted on four counts of first-degree murder and one count of second-degree intentional murder.

On February 17, 2000, an omnibus hearing was held to consider appellant’s motion to suppress the admission of all statements made after he requested an attorney and indicated that he did not want to talk anymore on the grounds that the police violated appellant’s right to counsel and his right to remain silent. The trial court concluded that, “[appellant’s] poorly enunciated statement, ‘[c]an I have a drink of water and then lock me up I think we really should have an attorney,’ is, if anything, an equivocal request for an attorney.” Citing State v. Robinson, 427 N.W.2d 217, 223 (Minn.1988), the court recognized that, since there was an equivocal request for counsel, the investigating officers were required to stop asking any more questions except those narrowly tailored to clarify appellant’s true desire with respect to counsel. The court concluded that, while the detective’s comment to appellant that his side of the story would never be known if he wanted to talk to an attorney was gratuitous and approached impermissible interrogation, it was still “narrowly designed to clarify [appellant’s] wishes with respect to counsel.” The court went on to find:

The Defendant did not indicate that he wanted an attorney at that juncture. Instead, he reinitiated the conversation by asking [the detective] a question of his own. The Court concludes that [the detective] could then respond to the Defendant’s inquiries and continue on with the interrogation. The Defendant’s re-initiation of the conversation, together with his choice not to respond to [the detective’s] clarifying inquiry, indicate to the Court’s satisfaction that the Defendant did not in fact invoke his right to counsel.

The court noted that the state admitted that appellant invoked his right to remain silent when he said, “I don’t want to talk anymore please.” However, the court found that appellant “voluntarily waived his right to silence when he re-initiated his conversation with the police by implicating Paul Mackey in the crime.” Based on these findings, the court denied appellant’s motion.

The state presented several witnesses at trial. One of Tolhurst’s neighbors in the apartment complex testified that she heard Tolhurst arguing with someone in Tol-hurst’s apartment between 5:30 and 6:00 p.m. on September 21. Another neighbor testified that she heard people arguing and banging noises coming from apartment 304 off and on between 6:00 and 7:30 p.m. on September 21. This witness testified that she heard “aggressive” yelling, but could not tell whose voices she heard or what was being said. One witness testified that appellant had, prior to September 21,1999, stated that he wanted to kill Tolhurst and another witness testified that, prior to September 21, 1999, appellant had stated that Tolhurst “makes me so mad that I could kill her.” Two other witnesses, both of whom were in the Stearns County jail with appellant following his arrest, testified that appellant told them he had beaten Tol-hurst and that he lit a bag on fire and threw it on top of her, one testifying that appellant knew Tolhurst was dead when he left the apartment. Another witness, Daniel Pick, testified that approximately nine months before Tolhurst died, appellant told Pick that if he were ever to kill anybody he would burn them and that his brother was a “bigwig” in the fire department who would cover up any evidence that did not get burned.

A Benton County Sheriffs Deputy testified that on the morning of September 22, 1999, he notified an investigator with the St. Cloud police department that he had found a white shirt with blood on it in the back of his truck that morning. The deputy testified that he believed the shirt had been placed in his pick-up truck the night before sometime between 8:30 and 11:00 p.m. while he was at J.D. Beamer’s. A waitress who worked at J.D. Beamer’s testified that she saw appellant in the bar between 1:00 and 3:00 p.m. on September 21. She also testified that the white shirt found in the back of the Benton County deputy’s truck was the same shirt appellant was wearing the afternoon of September 21. A bartender testified that appellant was wearing this white shirt on the afternoon of September 21, but that he was no longer wearing this shirt when she saw appellant in J.D. Beamer’s for the second time that day, which was sometime after 8:30 p.m. A lab report from the Minnesota Bureau of Criminal Apprehension (BCA) was admitted into evidence identifying the source of the blood on this shirt as that of Tolhurst.

Two employees of a Little Duke’s convenience store located near J.D. Beamer’s testified that appellant came into the store just before 11:00 p.m. on September 21 and bought a bottle of soda and used the phone. Another witness, who was on his porch with some friends on the evening of September 21, testified that appellant came up to the front of his house, which was located across from Little Duke’s, at around 11:00 p.m. that night. He stated that appellant asked if he could come into the house and indicated he was waiting for a cab that was going to show up at Little Duke’s. The witness testified that appellant left when his cab arrived. The cab driver also testified. He stated that he picked appellant up at Little Duke’s between 11:15 and 11:30 p.m. on September 21 and took him to the Germaine Towers.

Another witness called by the state, an investigator with the BCA, testified that three telephone cords were found cut in the apartment. Additionally, an investigator with the St. Cloud police testified that Tolhurst’s clothes had ethanol on them, and a broken whiskey bottle was found next to Tolhurst’s body as well as a nearly empty vodka bottle in the kitchen. A deputy state fire marshal also testified that the fire in the apartment originated at Tolhurst’s body, was consistent with the use of ethanol as an accelerant, and was intentionally set.

The medical examiner who conducted Tolhurst’s autopsy testified that Tolhurst’s arms were bound behind her back with duct tape and that she also had duct tape on her legs and around her neck. She testified that Tolhurst died from multiple traumatic injuries due to assault and that she was dead before the fire started. The injuries sustained by Tolhurst included facial and neck bruising, brain hemorrhaging, internal hemorrhaging around her neck consistent with manual strangulation, a broken hyoid bone, ten broken ribs, and thermal injuries from the fire.

The detective who interrogated appellant also took the stand and authenticated the videotape of appellant’s initial statement and appellant’s formal statement, the audiotape of the last part of appellant’s formal statement, and transcripts of both appellant’s initial and formal statements. The jury was then given transcripts of both of these statements, shown the videotape, and allowed to listen to the audiotape.

Appellant also took the stand. He testified that he was intoxicated when he arrived at his apartment on the night of September 21, 1999, and that he and Tol-hurst got into an argument. He also testified that Tolhurst began irritating him, and he decided to leave the apartment. He told the jury that Tolhurst prevented him from leaving by pulling on him and hitting him with a steel cane. He reacted to Tolhurst’s actions by pushing and hitting her. Next, appellant claimed that he saw Tolhurst without her wig on and observed blisters on the top of her head. He then claimed she told him that she was dying of AIDS. Appellant testified that he became scared and tried to keep Tolhurst away from him by hitting her with his elbow. He admitted to kicking Tolhurst and to duct taping her legs together, although he claimed he did so because she was kicking him.

Appellant then testified that he left the bedroom for a moment, came back into the bedroom, grabbed a bag off the dresser, lit it on fire, and threw it on top of Tolhurst. As he threw the bag he stated, “Burn in hell, you bitch.” Appellant then claimed that he patted the fire out right away. He acknowledged that he then left the apartment and did not call anyone for help. He also admitted that he knew Tolhurst was dead when he left the apartment, although he claimed he had neither planned nor intended to kill her.

Appellant testified that he went to J.D. Beamer’s after leaving the apartment. He admitted to throwing the white shirt into the bed of a pick-up truck that was parked outside the bar before going in. He claimed that he had not been wearing that shirt earlier in the day, but that he grabbed it when he was leaving Tolhurst’s apartment. Appellant then testified that he remembered most of what he did after leaving Tolhurst’s apartment, including going to Little Duke’s, calling a cab, and taking the cab to Germaine Towers. Appellant was subsequently found guilty of all five counts and sentenced to life without the possibility of parole.

Appellant asserts that he unequivocally invoked his right to counsel and that his federal and state constitutional rights were violated because the statements he made to the interrogating officers after invoking his right to counsel should have been suppressed. The state argues that the trial court did not err in finding that appellant did not in fact invoke his right to counsel.

I.

Under the Fifth Amendment to the United States Constitution, an accused must be informed of his right to counsel prior to custodial police interrogation. Miranda v. Arizona, 884 U.S. 486, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If an accused asserts his right to counsel, interrogation must cease unless the accused initiates further communication, exchanges, or conversations with the police and validly waives his earlier request for the assistance of counsel. Smith v. Illinois, 469 U.S. 91, 94-95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). The. United States Supreme Court has held that police interrogation need not cease unless the accused’s invocation of the right to counsel is clear and unequivocal. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). In order for a request to be deemed unequivocal, a suspect “ ‘must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney.’ ” State v. Munson, 594 N.W.2d 128, 139 (Minn.1999) (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350). However, we have continued to hold that the “stop and clarify” approach articulated in Robinson, 427 N.W.2d 217, is “an appropriate prophylactic measure to protect an accused’s rights against compelled self-incrimination under the Minnesota Constitution.” State v. Risk, 598 N.W.2d 642, 648 (Minn.1999) (citations omitted). According to the Robinson approach,

[P]olice are required to cease questioning an accused once he or she has made an ambiguous or equivocal statement that could reasonably be construed as an invocation of the accused’s right to counsel, except for narrow questions designed to clarify the accused’s true desires regarding counsel.

Risk, 598 N.W.2d at 648-49; see also State v. Bradford, 618 N.W.2d 782, 795-96 (Minn.2000) (reaffirming Robinson). We have recognized that this approach provides more protection than is required by the United States Constitution. Risk, 598 N.W.2d at 649.

In reviewing a trial court’s factual findings, including whether an accused invoked his right to counsel, we will uphold the court’s determination unless it is clearly erroneous. Munson, 594 N.W.2d at 139 (citing State v. Miller, 573 N.W.2d 661, 671 (Minn.1998)). Here, the court found that appellant’s statement “[c]an I have a drink of water and then lock me up — I think we really should have an attorney,” was an equivocal request for counsel.

During the interrogation, appellant repeatedly asked the interrogating officers what they were talking to him about before appellant was finally told that the officers believed he had killed Tolhurst. Appellant responded in his next three answers by asking either, “[y]ou’re saying I killed [Tolhurst]?” or “[y]ou think I killed [Tolhurst]?” After the detective responded to appellant’s third question, the detective stated to appellant that the police did not only think that he killed Tolhurst, but “we know that.” The detective then stated that the police wanted to know why appellant killed Tolhurst. Appellant responded by asking “Can I have a drink of water and then lock me up — I think we really should have an attorney.”

In Munson, we held that the statement “I think I’d rather talk to a lawyer,” coming almost immediately after the suspect was read his Miranda rights, constituted an unequivocal request for counsel. Munson, 594 N.W.2d at 139-40. We also recognized that the objective sufficiency of Munson’s invocation of his right to counsel was supported by the reaction of the interrogating officers to Munson’s request, namely the fact that the record indicated that they did not consider his request to be equivocal. Id. Here, the detective reacted to appellant’s statement regarding counsel by saying, “ ‘Kay. If you want to talk to an attorney, you understand that we have to stop talking to you. OK?” Like the officers in Munson, the detective’s reaction following appellant’s request for counsel further supports the objective sufficiency of appellant’s invocation of his right to counsel. We hold that the trial court clearly erred in finding that appellant’s request for counsel was equivocal. Appellant’s statement was sufficiently clear that a reasonable police officer under the same circumstances would have understood the statement to be a request for an attorney, and was therefore unequivocal. See Mun-son, 594 N.W.2d at 139. Because of this error, the remainder of the trial court’s analysis as to appellant’s invocation of his right to counsel was inappropriate because it was based on an erroneous finding that appellant only made an equivocal request for counsel.

II.

Once a suspect unequivocally invokes his right to counsel, ‘“courts may admit responses to further questioning only on finding that [the suspect] (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right invoked.’ ” Munson, 594 N.W.2d at 138-39 (quoting Smith, 469 U.S. at 95, 105 S.Ct. 490). These inquiries are separate; even if a suspect initiates further conversation, “the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” Oregon v. Bradshaw, 462 U.S. 1039, 1044-45, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); see also Munson, 594 N.W.2d at 141 (recognizing that Minnesota courts have held that the burden of proof with respect to the issue of whether the suspect waived his right to counsel falls squarely on the state).

Here, appellant requested a drink of water and then unequivocally invoked his right to counsel. The detective responded by telling appellant that the officers would get him a drink of water. Appellant then stated that he did not want to talk anymore, paused, and then made a statement about Paul Mackey. The detective then acknowledged appellant’s request for counsel by stating, “ ‘Kay. If you want to talk to an attorney, you understand that we have to stop talking to you. OK? And— and then your side of this story will never be known. That’s your, choice. That’s a choice you’re making.” It is clear from this response that the detective understood that appellant had just invoked his right to counsel. Despite this understanding, the detective proceeded to tell appellant that he had a choice to make, to which appellant responded by asking, “[so] that means what?”

As discussed above, the trial court erroneously held that appellant made an equivocal request for counsel. Under these facts, the court also erred in concluding that the detective asked an appropriate clarifying question, because along with the detective’s comments related to stopping the interrogation if appellant wanted an attorney, the detective also warned appellant that, as a consequence of appellant talking to an attorney, his “side of [the] story [would] never be known.” The court found that appellant’s “re-initiation of the conversation” after the detective’s question “manifested a voluntary, knowing and intelligent intention on the part of the [appellant] to proceed without assistance of counsel.” The court reasoned that this reinitiation occurred when appellant asked a “question of his own,” which question presumably was “[s]o that means what?” However, this question posed by appellant was prompted by the detective’s improper comments to appellant before counsel had been made available. The Supreme Court in Edwards strongly reiterated that “additional safeguards are necessary when the accused asks for counsel.” Edwards, 451 U.S. at 484, 101 S.Ct. 1880. We agree with this principle and hold that the additional safeguards necessary when an accused asks for counsel were not present in this case and that the interrogating officers failed to limit their questions to ones designed to clarify the appellant’s desires regarding the presence of counsel.

We recognize that the trial court also found that appellant reinitiated the conversation with police with his statement about Paul Mackey when considering whether appellant waived his right to remain silent. Even if we assume without deciding that this statement also constituted a reinitiation by appellant for purposes of the Edwards analysis relating to requests for counsel, we still must consider whether a valid waiver of the right to counsel occurred. See Bradshaw, 462 U.S. at 1046,103 S.Ct. 2880.

In proving that a valid Miranda waiver took place, a “heavy burden” rests on the state to demonstrate that the accused knowingly, intelligently, and voluntarily waived his right to counsel. State v. Linder, 268 N.W.2d 734, 735 (Minn.1978) (quoting Miranda, 384 U.S. at 475, 86 S.Ct. 1602). On appeal, we review the trial court’s findings of fact as to the circumstances surrounding a suspect’s statements for clear error. See Miller, 573 N.W.2d at 672. However, we make an independent determination, on the basis of the facts as found, of whether the state has shown by a fair preponderance of the evidence that the suspect’s waiver was knowing, intelligent, and voluntary. State v. Dominguez-Ramirez, 563 N.W.2d 245, 252 (Minn.1997) (citing Linder, 268 N.W.2d at 735). Because the trial court found that appellant never invoked his right to counsel, it concluded that it need not address whether a voluntary waiver of the right to counsel occurred. Nevertheless, the court did make findings of fact as to the circumstances surrounding appellant’s statements, and we must independently determine whether, based on these findings of fact, appellant knowingly, intelligently, and voluntarily waived his right to counsel.

After appellant made the statement about Paul Mackey, the detective told appellant that if he wanted to talk to an attorney his “side of [the] story [would] never be known.” When appellant asked the detective what he meant, the detective told appellant that the police were going to “put this thing together and [convict appellant] of murder.” We conclude that the detective’s statements were designed to induce appellant to continue talking and were improper. Other than the fact that appellant made a further statement, there is nothing in the record to indicate that appellant waived the right to counsel he had invoked. Even if appellant’s statement constituted an initiation of further conversation under Edwards, this statement cannot, by itself, suffice to show a waiver of appellant’s asserted right to counsel. See Bradshaw, 462 U.S. at 1045, 103 S.Ct. 2880. Accordingly, based on the totality of the circumstances, we hold that the state failed to prove by a fair preponderance of the evidence that appellant knowingly, intelligently, and voluntarily waived his right to counsel. Therefore, his subsequent statements were admitted in error.

III.

As we recognized in Munson, a determination that the trial court erred in admitting a defendant’s statements does not end our analysis. Munson, 594 N.W.2d at 143. Appellant’s conviction may stand notwithstanding a violation of his federal or state constitutional rights if the admission of the statements was harmless beyond a reasonable doubt. Id.; see also Risk, 598 N.W.2d at 650. An error is harmless beyond a reasonable doubt only if the verdict was “surely unattributable” to the error. State v. McDonough, 631 N.W.2d 373, 384 (Minn.2001). In deciding this issue, the question we must answer is “ ‘[w]hat effect did the jury’s hearing [the defendant’s] statement ⅜ ⅜ * actually have on the guilty verdict rendered?’ ” State v. Day, 619 N.W.2d 745, 750 (Minn.2000) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)). In other words, the weight of the evidence must be so overwhelming that a reasonable jury would have arrived at the verdict without the prejudicial evidence. Juarez, 572 N.W.2d at 291.

Here, appellant’s statements to the interrogating officers introduced at trial provided evidence that linked appellant to this crime. There were no eyewitnesses to the crime itself and neither witness who testified about hearing an argument coming from Tolhurst’s apartment on September 21, 1999, could identify appellant’s voice as one of the voices. Appellant’s statements implicated him as being in the apartment and arguing with Tolhurst at or about the time of her death. His statements farther identified him as the person responsible for all of Tolhurst’s injuries, for taping her legs together, for starting the fire in her apartment, and as the owner of the white shirt that was found with Tolhurst’s blood on it. These statements constituted significant admissions almost amounting to a full confession. They substantially corroborated the circumstantial evidence of the murder, including the motive, mode, opportunity, and time. In the state’s case-in-chief, appellant’s statements were presented to the jury in five different ways: transcripts of both appellant’s initial statement and appellant’s formal statement, a videotape of both statements, and an audiotape. These statements were introduced by the state to support its theory that appellant intended to kill Tolhurst, with intent to kill being a requisite element of each charged offense, and were also used to support the state’s case as to the two counts of intentional murder while committing a kidnapping and one count of intentional murder while committing arson. Under these facts, we hold that the admission of appellant’s statements made after he invoked his right to counsel was not harmless beyond a reasonable doubt and appellant is entitled to a new trial.

Reversed and remanded for a new trial.

      . Appellant also argues that (1) his federal and state constitutional rights to a fair trial were denied because the prosecutor used a peremptory challenge to exclude the only minority person examined as a potential juror; (2) the trial court erred by allowing a convicted felon to testify that appellant had talked about how to cover up a crime; and (3) the trial court erred by not instructing the jury on the lesser-included offense of second-degree felony murder. Because we reverse and remand for a new trial on the ground that appellant was improperly denied his right to counsel, we need not decide the other issues.

      . Even if appellant’s request for an attorney was equivocal, the trial court clearly erred in holding that the detective's comments constituted a clarifying question designed to determine appellant’s true desires with respect to counsel, as authorized by Risk. Risk, 598 N.W.2d at 650. Rather, the detective’s statement that appellant's “side of [the] story [would] never be known” implied that appellant had to make a choice between either talking to an attorney and never having his side of the story known or continuing to talk with the officers.


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    Steven Joel SEVERSON, f/k/a Steven Joel Camacho, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. CX-01-1302.
    Supreme Court of Minnesota.
    Dec. 20, 2001.
    Steven Joel Severson, Stillwater, Appellant pro se.

      Michael A. Hatch, Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, By: Jean E. Burdorf, Assistant County Attorney, Minneapolis, for Respondent.
   OPINION

BLATZ, Chief Justice.

On November 16, 1995, a Hennepin County jury found appellant Steven Joel Severson, who was then known as Steven Joel Camacho, guilty of first-degree murder. Severson appealed to this court, arguing that the trial court erred by admitting two inculpatory statements and by permitting him to discharge his attorney and appear pro se. State v. Camacho, 561 N.W.2d 160, 168 (Minn.1997). We affirmed his conviction. Id. In April 2001, Severson filed a pro se petition for post-conviction relief under Minn.Stat. § 590.01 (2000), arguing, among other things, that the state engaged in prosecutorial misconduct during its closing argument. The postconviction court denied relief without holding an evidentiary hearing, finding that the claims were procedurally barred because they were raised or could have been raised on direct appeal. Severson now appeals to this court under Minn.Stat. § 590.06 (2000), claiming that he was improperly denied an evidentiary hearing and that statements made by the prosecutor during closing arguments constitute reversible error. We affirm.

When reviewing a postconviction decision, this court’s role is limited to determining whether there is sufficient evidence to sustain the findings of the post-conviction court. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). A postconviction court’s decision will not be disturbed absent an abuse of discretion. Id. at 250, 243 N.W.2d at 740.

On appeal from the postconviction order, Severson argues that the state “misstated the law to the jury” during its closing arguments by saying, “[t]he [lesser-included] charges are further opportunities of the defendant to escape responsibilities. Murder in the second degree should not be a consideration.” This statement is actually a synthesis of two separate statements made in the state’s closing argument. The first statement was made after the state summarized its case regarding premeditation and inconsistencies in Severson’s testimony: “These [lesser-included offenses] are opportunities' — -further opportunities of the defendant to escape responsibility for his actions, to mitigate responsibility for what he did that night, and I’m going to talk ⅝ * * about these lesser offenses.” The second statement, which is found three pages later in the trial transcript, dealt with the weight of the evidence supporting the first-degree murder charge:

Before you can consider murder in the second degree, you’re going to have to wipe away all of that evidence. You’re going to have to say it’s not true, it didn’t happen. It’s not there. And, that ain’t justice, folks.
Murder in the second degree should not be a consideration. You should not mitigate his responsibility, but call it like it is. Tell the truth.

Each statement, when examined in its proper context, appears to address the jury’s responsibility as trier of fact and the overwhelming weight of the evidence indicating Severson’s guilt. Nonetheless, we do not need to determine whether the state engaged in prosecutorial misconduct if Severson failed to raise the issue in his direct appeal and is barred from raising it in his petition for postconviction relief.

Where a direct appeal has already been taken, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” Knaffla, 309 Minn. at 252, 243 N.W.2d at 741; Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Severson was present when the state made its closing arguments, and any prosecutorial misconduct would have been apparent from the transcript. Therefore, the claim of prosecutorial misconduct was clearly known at the time of Severson’s direct appeal. Nonetheless, Severson^ — who was represented by counsel on appeal — failed to raise the issue in his direct appeal. See Camacho, 561 N.W.2d at 168.

Severson’s claim, moreover, does not fall into one of the exceptions to this rule. This court has held that an issue is not barred from a petition for postconviction relief if either the claim is so novel that the legal basis was not available on direct appeal, or the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal and fairness requires its consideration. Dukes, 621 N.W.2d at 251 (citing Roby v. State, 531 N.W.2d 482, 484 (Minn.1995)). With regard to the first exception, the claim of prosecutorial misconduct is not novel. Prosecutorial misconduct cases abound, and Severson has not cited any change in this area of law since his trial. Additionally, Severson has not stated any facts that could lead this court to conclude that he did not deliberately and inexcusably fail to raise the issue on direct appeal, and that fairness dictates the court’s consideration of his claim on its merits. Accordingly, because Severson did not raise this claim on direct appeal, the postconviction court did not abuse its discretion in holding that he was barred from raising the issue in his petition for postconviction relief.

Severson also claims that he was entitled to an evidentiary hearing on his postconviction petition. While Minn.Stat. § 590.04, subd. 1 (2000), generally requires a prompt hearing, it allows the postconviction court to deny both a hearing and a petition if “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Id. Given that the claim of prose-cutorial misconduct could not be considered under Knaffla, the postconviction court did not abuse its discretion in denying Severson a hearing.

The order of the postconviction court is affirmed.


author: HALBROOKS, Judge.

text:
    STATE of Minnesota, Respondent, v. Mark Christian PALMER, Appellant.
    No. C9-01-559.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, Elk River, MN, for respondent.'
    John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, KALITOWSKI, Judge, and KLAPHAKE, Judge.
   OPINION

HALBROOKS, Judge.

Appellant Mark Palmer, an employee of Quick Silver Express Courier, challenges his conviction of possession of a handgun without a permit under Minn.Stat. § 624.714, subd. 1 (1998). He asserts that because his vehicle is his place of business, the exception stated in Minn.Stat. § 624.714, subd. 9(a) (1998), which allows possession of a handgun without a permit in one’s “place of business,” is applicable. Because we conclude that the exception contemplates a fixed-location business and not a vehicle, we affirm.

FACTS

Appellant is employed as a courier for Quick Silver Express Courier. His duties require that he spend 95% of his workday in his car, using a phone and computer he paid for to conduct his work.

On February 8, 2000, an officer from the Elk River Police Department learned of a felony warrant for appellant’s arrest. The officer saw appellant leave his house and subsequently stopped him in his car. In the ensuing inventory search, the officer found a loaded, uncased Beretta .32 pistol in an unfastened bag on appellant’s front seat. Appellant did not have a permit for possession of the gun.

Appellant was charged with possession of a handgun without a permit under Minn.Stat. § 624.714, subd. 1(a) (1998). He moved to dismiss for lack of probable cause, on the ground that the exception stated in Minn.Stat. § 624.714, subd. 9(a) (1998), applies because, given the nature of his employment, his vehicle is his “place of business.” The trial court denied the motion, finding that the exception applies only in the context of a fixed-location business. Pursuant to State v. Lothenbach, 296 N.W.2d 854, 858 (Minn.1980), the parties stipulated to the facts and tried the case to the court. The trial court convicted appellant. This appeal follows.

ISSUE

Is appellant’s vehicle his “place of business” for purposes of the handgun-permit exception in Minn.Stat. § 624.714, subd. 9(a) (1998)?

ANALYSIS

Appellant asserts that he is not required to have a permit for his handgun because, as a courier, his vehicle is his “place of business.” Statutory construction is a question of law subject to de novo review. State v. Taylor, 594 N.W.2d 533, 535 (Minn.App.1999). Minn.Stat. § 624.714, subd. 1(a) (1998), provides in part that

[a] person, other than a law enforcement officer * * ⅜ who carries, holds or possesses a pistol in a motor vehicle, ⅜ * * or on or about the person’s clothes or the person, or otherwise in possession or control in a public place or public area without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor.

Subdivision 9 of the statute provides for certain exceptions to the general rule, including the following:

(a) To keep or carry about the person’s place of business, dwelling house, premises or on land possessed by the person a pistol.

Minn.Stat. § 624.714, subd. 9(a) (1998).

The scope of the exception in subdivision 9(a) (the “place of business” exception) presents this court with a statutory interpretation of first impression. “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2000). To that end, this court construes statutory language in context rather than defining each word in isolation. Taylor, 594 N.W.2d at 535. Further, we construe exceptions to firearm statutes “narrowly to avoid negating the general rule that a permit is required to carry a handgun and [to] protect the public interest.” State v. Poupard, 471 N.W.2d 686, 691 (Minn.App.1991).

Appellant contends that a plain reading of the statute results in the conclusion that there is no fixed-location requirement. In support, he argues that the statute recognizes that some businesses are mobile, such as traveling cooks, journalists, etc. In addition, appellant argues that if the legislature intended a “fixed-location” condition, it would have included it as other jurisdictions have. Finally, appellant argues that because individuals associated with mobile businesses have just as much need for protection as those with fixed-location businesses, the intent of the statute would be served by including them within the exception to the permit requirement.

We disagree with appellant’s interpretation of the statute. First, the statutory language itself indicates an intent to limit “place of business” to a fixed location. Reading the subsection in its entirety creates a context of permanency, as the other specified locations (i.e., dwelling, premises, and land possessed) are all of a permanent, fixed nature. This, in turn, implies that “place of business” contemplates a permanency as well. Moreover, the title of subdivision 9 refers to “[cjarrying pistols about one’s premises,” which strongly implies a fixed location. See, generally, Lecy v. Sage Co., 460 N.W.2d 102, 105 (Minn.App.1990) (holding that statutory title may be considered although it is not determinative of legislative intent), revieiv denied (Minn. Oct. 25, 1990). As a result, a fair reading of the statutory language results in the conclusion that mobile businesses are not within the exception to the permit requirement.

In addition, this court’s previous interpretations of the statute suggest that mobile businesses should not be included in the exception. As previously noted, Minn. Stat. § 624.714 (1998) is a statute of general prohibition, and, accordingly, any exceptions are narrowly construed. This court previously considered a similar claim in the context of a challenge to a different exception to the permit requirement. In State v. Linville, we held that the exception in MinmStat. § 624.714, subd. 9(c), which allows permitless transporting of a pistol between a person’s dwelling and place of business, must be narrowly construed to apply only to circumstances when the two locations are in reasonable proximity to each other. State v. Linville, 598 N.W.2d 1, 3 (Minn.App.1999). There, we expressed concern that reading the exception to allow permitless possession of a handgun regardless of the distance traveled or the directness of the route of travel contravenes the statutory intent. Here, both the statutory intent and the possible repercussions remain the same.

Finally, reading this statute with a fixed-location condition would be consistent with several other courts’ interpretations of similar statutes. United States v. Waters, 73 F.Supp. 72, 73-74 (D.D.C.1947), case certified, 84 U.S.App.D.C. 127, 175 F.2d 340, 343 (D.C.Cir.1948), appeal dismissed, 335 U.S. 869, 869, 69 S.Ct. 168, 93 L.Ed. 413 (1948); People v. Brooks, 87 Mich.App. 515, 275 N.W.2d 26, 26 (1978); Lattimore v. State, 65 Tex.Crim. 490, 145 S.W. 588, 590 (1912). Therefore, we narrowly construe the exception and exclude mobile businesses from its application.

DECISION

The district court properly denied appellant’s motion to dismiss because the place-of-business exception to the statute requiring a permit to possess a handgun applies only to a fixed-location business.

Affirmed.

      . See Ala.Code § 13A-11-73 (1975) ("No person shall carry a pistol * * * except on his land, in his own abode or fixed place of business * * *.") (emphasis added); 18 Pa. Cons. Stat. Ann. § 6106(a) (2000) ("[A]ny person who carries a firearm * * * except in his place of abode or fixed place of business * * *.") (emphasis added). The current Pennsylvania statute does not differ in any relevant or material way from the statute in effect at the time of the offense.


author: TOUSSAINT, Chief Judge.

text:
    UNITED MIGRANT OPPORTUNITY SERVICES, INC., Appellant, v. DODGE COUNTY PLANNING COMMISSION, et al., Respondents.
    No. C1-01-1396.
    Court of Appeals of Minnesota.
    Dec. 10, 2001.

      Caren L. Schurhammer, Schurhammer & Johnson, P.A., Faribault, MN, (for relator).
    Paul Donald Reuvers, Iverson Reuvers, LLC, Bloomington, MN, (for respondents).
    Considered at Special Term and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and KLAPHAKE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Relator United Migrant Opportunity Services, Inc. applied for a conditional use permit (CUP) to operate a migrant camp in rural Dodge County. On June 12, 2001, respondent Dodge County Board of Commissioners (the county board) approved relator’s application with conditions. Relator filed this certiorari appeal, on August 17 challenging those conditions. The county board moves to dismiss the appeal as untimely, under a Dodge County zoning ordinance. Because relator timely obtained and served the writ under Minn. Stat. §§ 606.01-02 (2000), the county board’s motion to dismiss is denied.

DECISION

In the absence of an adequate method of review or legal remedy certiora-ri is the proper method to obtain judicial review of the quasi-judicial decisions of administrative bodies. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992). County authority for planning, development, and zoning is governed by Minn. Stat. §§ 394.21-.37 (2000). Chapter 394 does not provide for district court review of a county board’s CUP decision. As a result, review of a county board’s decision on a CUP is obtainable only through a writ of certiorari to this court. Neitzel v. County of Redwood, 521 N.W.2d 73, 76 (Minn.App.1994), review denied (Minn. Oct. 27, 1994).

The appeal period and the acts required to invoke appellate jurisdiction in cases reviewable by certiorari are governed by the applicable statute. Minn. R. Civ.App. P. 115.01. Because the county board is not a statewide agency, this appeal is governed by the general certiorari statute, Minn.Stat. §§ 606.01-06 (2000). See Heideman v. Metro. Airports Comm’n, 555 N.W.2d 322, 323-24 (Minn.App.1996) (holding that Minn.Stat. §§ 606.01-06 applies to certiorari appeals from decisions by local government agencies).

The statute mandates issuance of the writ within 60 days after the party applying for the writ received due notice of the proceeding sought to be reviewed. Minn. Stat. § 606.01 (2000). The parties shall apply to the court of appeals for the writ. Id. The issued writ must be served on the adverse party within the 60-day appeal period. Minn.Stat. § 606.02 (2000).

Relator obtained and served the writ on August 17, which was the 60th day after relator received notice of the county board’s decision on June 18. The county board does not dispute that relator complied with the requirements of Minn.Stat. §§ 606.01-02. Nevertheless, the county board argues that a county zoning ordinance, rather than Minn.Stat. §§ 606.01-.02, governed the time for relator to obtain and serve a writ of certiorari. The ordinance states that all appeals from the decision of the county board relating to a CUP shall be filed within 30 days of the board’s decision with a “court of competent jurisdiction.” Dodge County, Minn., Zoning Ordinance § 1807(2)(k) (1995). Because this court is the court of competent jurisdiction to issue a writ of certiorari, the county argues that, pursuant to the ordinance, relator was required to obtain the writ within 30 days of the county board’s decision.

In support of its argument that the statutory time to obtain a writ of certiorari may be limited by county ordinance, the county board cites Toby’s of Alexandria Inc. v. County of Douglas, 545 N.W.2d 54 (Minn.App.1996), review denied (Minn. May 21, 1996). In Toby’s, a CUP applicant challenged the district court’s order dismissing its complaint for lack of subject-matter jurisdiction. Id. at 55. This court reversed, holding that the district court had subject-matter jurisdiction to review the county board’s CUP decision because a county ordinance properly authorized review, consistent with the enabling statute. Id. at 56. The enabling statute sets out procedures for county zoning and specifically provides that counties may go beyond the features set forth in the enabling statute. Minn.Stat. § 394.25, subd. 1 (2000). This court concluded that the enabling statute “does not preclude counties from directing methods of appeal.” Toby’s, 545 N.W.2d at 56 (emphasis added).

Toby’s is distinguishable because the Dodge County zoning ordinance does not change the method of appeal, but rather purports to reduce the time to obtain a writ of certiorari from this court from 60 to 30 days. Because section 606.01 provides that the party seeking certiorari review “shall” apply to the court of appeals for the writ, the statute establishes a mandatory procedure for certiorari review in this court. Heideman, 555 N.W.2d at 324. Certiorari in Minnesota is not a common-law writ, but a statutory remedy, and the statutory provisions are strictly construed. State ex rel. Ryan v. Civil Serv. Comm’n, 278 Minn. 296, 301, 154 N.W.2d 192, 196 (1967).

Although a county has authority to promulgate an ordinance changing the method of judicial review of a CUP decision to an appeal to district court, the county does not have authority to limit the statutory time period to obtain a writ of certiorari from this court. This court has jurisdiction because relator timely obtained and served the writ of certiorari in accordance with Minn.Stat. §§ 606.01-.02.

Motion to dismiss appeal denied.


author: WILLIS, Judge.

text:
    Angela COLLINS, et al., Appellants, v. MINNESOTA SCHOOL OF BUSINESS, INC., Respondent.
    No. C7-01-690.
    Court of Appeals of Minnesota.
    Dec. 10, 2001.

      Mark V. Steffenson, Scott A. Wold, Hen-ningson & Snoxell, Ltd., Brooklyn Center, for appellants.
    John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, PLLP, St. Paul; and Albert A. Garcia, Jr., David L. McCormick, Garcia & Associates, PA, Minneapolis, for respondent.
    Considered and decided by WILLIS, Presiding Judge, LANSING, Judge, and HARTEN, Judge.
   OPINION

WILLIS, Judge.

Appellants challenge the district court’s denial of attorney fees under the Minnesota private-attorney-general statute, arguing that they are entitled to fees because their statutory causes of action benefited the public. By notice of review, respondent argues that (1) the offer of judgment is unenforceable and (2) appellants cannot recover attorney fees because appellants cannot show that they prevailed on their statutory claims. Because we conclude that the offer of judgment is enforceable and that appellants were the prevailing parties in their statutory claims, we affirm on those issues. But because the district court erred in denying in its entirety appellants’ request for attorney fees under the private-attorney-general statute, we reverse in part and remand for a determination of reasonable attorney fees.

FACTS

Appellants are 21 former students of respondent Minnesota School of Business. In March 1997, appellants sued respondent for claimed damages arising out of their enrollment in respondent’s sports-medicine-technician program. Appellants claimed they were induced to enroll in respondent’s program as a result of statements that were false, misleading, and confusing. Appellants’ complaint alleged (1) fraud, (2) negligent misrepresentation, (3) breach of contract, and (4) violations of the Prevention of Consumer Fraud Act, the False Statement in Advertisement Act, and the Deceptive Trade Practices Act.

Before trial, respondent made an offer of judgment for $200,000 “together with any cost and disbursement allowed by the District Court.” Appellants accepted the offer and filed an application with the district court for an award of costs and disbursements, including attorney fees, under the private-attorney-general statute, Minn. Stat. § 8.31, subd. 3a (2000).

Appellants sought $135,920.75 in costs and disbursements, of which $128,832 represented attorney fees. The district court awarded $7,088.75 in costs and disbursements and denied appellants’ request for attorney fees. This appeal follows.

ISSUES

I. Is respondent’s offer of judgment enforceable?

II. Did appellants prevail on their statutory claims?

III. Did the district court abuse its discretion in denying in its entirety appellants’ request for attorney fees under the private-attorney-general statute?

ANALYSIS

I.

Rule 68 offers of judgment are to be construed according to ordinary contract principles. See Goodheart Clothing Co. v. Laura Goodman Enter’s, Inc., 962 F.2d 268, 272 (2d Cir.1992); Stinson v. Clark Equipment Co., 473 N.W.2d 333, 335 (Minn.App.1991) (holding that “a valid Rule 68 offer of judgment, when accepted, is a contract”) (citations omitted), review denied (Minn. Sept. 13, 1991). Where the offer of judgment is plain and unambiguous on its face, “its meaning must be derived from the four corners of the document.” Foster v. Kings Park Central Sch. Dist., 174 F.R.D. 19, 23 (E.D.N.Y.1997). Interpretation of a contract is a question of law, which this court reviews de novo. See Empire State Bank v. Devereaux, 402 N.W.2d 584, 587 (Minn.App.1987).

In Marek v. Chesny, 473 U.S. 1, 9, 105 S.Ct. 3012, 3016, 87 L.Ed.2d 1 (1985), the Supreme Court held that when a statute provides that “costs” include attorney fees, then attorney fees are to be included as costs for purposes of rule 68. Waiver of the right to attorney fees “must be clear and unambiguous.” See Foster, 174 F.R.D. at 24 (citing Erdman v. Cochise Cty., 926 F.2d 877, 880-81 (9th Cir.1991)). When a party makes an offer of judgment, the party “should state his intentions clearly, and any failure to do so will be at his peril.” Chambers v. Manning, 169 F.R.D. 5, 8 (D.Conn.1996).

Respondent offered to allow judgment to be entered against it and in favor of appellants in the amount of $200,000, “together with any cost and disbursement allowed by the District Court.” Respondent contends that it did not intend for its offer to include attorney fees. But the private-attorney-general statute, Minn. Stat. § 8.31, subd. 3a (2000), the statute under which appellants sought attorney fees, provides that an injured party may “recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney’s fees.” The plain wording of the statute leads to the conclusion that, for purposes of the private-attorney-general statute, “costs and disbursements” include attorney fees. If respondent intended that its offer of judgment would not include attorney fees, it had to expressly and clearly state such an intention. See Foster, 174 F.R.D. at 24; Chambers, 169 F.R.D. at 8. Respondent’s offer of judgment is clear and unambiguous on its face, it does not operate to exclude attorney fees, and it was accepted by appellants during the ten-day period when it was irrevocable. Therefore, respondent’s offer of judgment is enforceable.

II.

Respondent also contends that appellants are not entitled to attorney fees because they cannot show that they prevailed on their statutory claims. Respondent argues that because appellants brought three common-law claims, which do not authorize an award of attorney fees, and three statutory claims, which do authorize an award of attorney fees, it is impossible to determine on which claims appellants prevailed, and, therefore, attorney fees are not recoverable.

We find no Minnesota cases that address the issue of whether a party has prevailed on all claims when the party accepts an offer of judgment in a suit involving multiple claims, and particularly, whether such a party is entitled to attorney fees when, as here, some of its claims authorize an award of attorney fees and some do not. But a federal district court has addressed this issue. See Foster, 174 F.R.D. 19. In Foster, the plaintiff filed suit against his employer for unlawful age and disability discrimination under the American with Disabilities Act, 42 U.S.C. § 12101; the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Age Discrimination in Employment Act, 29 U.S.C. 621; and related state law. See Foster, 174 F.R.D. at 22. The employer served an offer of judgment, offering to allow judgment to be entered against it in the amount of $14,000, “with costs accrued to date,” and the plaintiff accepted the offer. Id. The plaintiff moved for an award of attorney fees and costs. Id.

The court in Foster noted that the term “costs,” as applied in rule 68 offers of judgment, refers “to all costs properly awardable under the relevant substantive statute,” and “where the statute defines costs to include attorney’s fees, * * * such fees are to be included as cost for purposes of Rule 68.” Id. at 23 (quoting Marek, 473 U.S. at 9, 105 S.Ct. at 3016). The court determined that the American with Disabilities Act did not authorize an award of attorney fees but that under the Rehabilitation Act, a prevailing party may be awarded reasonable attorney fees as part of the costs. See 29 U.S.C. § 794a(b) (2000). In determining whether the plaintiff qualified as a prevailing party, the court stated:

Where there are multiple claims, only some of which give rise to a claim for attorney’s fees, parsing out an appropriate fee award may prove difficult.

Foster, 174 F.R.D. at 25 (citing Bridges v. Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir.1996)). The court concluded by stating that the rules regarding whether a party is a “prevailing party” apply “to cases which conclude with the plaintiffs acceptance of a Rule 68 offer of judgment.” Foster, 174 F.R.D. at 25. The court determined that the plaintiff was entitled to an award of attorney fees.

We find Foster to be instructive here. Although appellants brought multiple claims and only some of those claims authorize an award of attorney fees, appellants were the prevailing parties when they accepted respondent’s offer of judgment, and they are entitled to an award of attorney fees under the private-attorney-general statute.

Costs and disbursements are only-awarded to prevailing parties. See Minn. Stat. §§ 549.02,.04 (2000) (providing that prevailing party in lawsuit is entitled to recover costs and disbursements from non-prevailing party); see also Borchert v. Maloney, 581 N.W.2d 838, 840 (Minn.1998) (holding that for purposes of determining entitlement to award of costs and disbursements, “[t]he prevailing party in any action is one in whose favor the decision or verdict is rendered and judgment entered.”); Quade & Sons Refrigeration, Inc. v. Minn. Mining & Mfg. Co., 510 N.W.2d 256, 260 (Minn.App.1994), review denied (Minn. Mar. 15, 1994). Here, the district court did not make a specific finding that appellants were the prevailing parties. But the circumstances imply such a determination: judgment was entered for appellants; the district court awarded appellants $7,088.75 in costs and disbursements; and the district court denied appellants’ request for attorney fees, not on the ground that they were not prevailing parties but because the court found that their cause of action had not benefited the public at large. Further, the district court made no finding that appellants were the prevailing parties on some of their claims but not on others, and the offer of judgment does not offer judgment to be entered on some claims but not on others.

We conclude that the district court determined that appellants were the prevailing parties, that this determination was not error, and that appellants were the prevailing parties on all of their claims.

III.

Appellants argue that the district court erred by denying their request for attorneys fees under the private-attorney-general statute on the ground that their statutory causes of action did not benefit the public. A district court’s decision on whether to award attorney fees will not be reversed absent an abuse of discretion. See State by Humphrey v. Alpine Air Prods., 490 N.W.2d 888, 896 (Minn.App.1992), aff'd, 500 N.W.2d 788 (Minn.1993).

The private-attorney-general statute provides that “any person injured by a violation of any of the laws referred to in subdivision 1,” including the Prevention of Consumer Fraud Act, Minn.Stat. §§ 325F.68-.70 (2000); the False Statement in Advertisement Act, Minn.Stat. § 325F.67 (2000); and, indirectly, the Deceptive Trade Practices Act, Minn.Stat. § 325D.44 (2000); “may bring a civil action and recover damages, together with costs and disbursements, including ⅜ ⅞ * reasonable attorney’s fees.” Minn.Stat. § 8.31, subds. 1, 3a. The statute permits an award of attorney fees “only to those claimants who demonstrate that their cause of action benefits the public.” Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000).

We conclude that the district court abused its discretion by denying appellants’ request for attorney fees in its entirety. Respondent promoted its sports-medicine-technician program through television advertisements and sales presentations. As a result of appellants’ lawsuit, respondent stopped its television advertisements and changed the program’s name and curriculum. Although we find no published Minnesota cases that set forth a standard for determining whether a party’s cause of action benefits the public, as required by Ly, we note that federal courts have consistently held that the prevention of false or misleading advertising is a public benefit. See, e.g., Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 826 (7th Cir.1999) (recognizing public interest in prevention of misleading advertisements); Transclean Corp. v. Bridgewood Servs., Inc., 134 F.Supp.2d 1049, 1056 (D.Minn.2001) (stating that public interest is furthered by elimination of deceptive advertising); Novartis Consumer Health, Inc. v. Johnson & Johnson Merck Consumer Pharm. Co., 129 F.Supp.2d 351, 369 (D.N.J.2000) (stating that there is public interest in preventing misleading advertisements); Dentsply Int’l, Inc. v. Great White, Inc., 132 F.Supp.2d 310, 326 (M.D.Pa.2000) (stating that there is public interest in truthful advertising).

We hold similarly here. Respondent advertised its program to the public at large. But for appellants’ lawsuit, an indefinite class of potential consumers might have been injured in the same manner as were appellants. Our conclusion does not, therefore, turn on the number of plaintiffs in this action. See Ly, 615 N.W.2d at 310-14 (considering private-attorney-general statute and cause of action arising from one-on-one transaction; essential element is whether cause of action was a public benefit); Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 719 P.2d 531, 538 (1986) (determining whether private dispute involves public interest). We conclude that it is appropriate for appellants to recover attorney fees under the private-attorney-general statute. Accordingly, the district court abused its discretion by denying appellants’ request for attorney fees in its entirety, and we remand for a determination of reasonable attorney fees. While we express no opinion on the amount of attorney fees to be awarded on remand, the district court should consider the factors set forth in State, by Head v. Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (1971), and Liess v. Lindemyer, 354 N.W.2d 556, 558 (Minn.App.1984) (stating that attorney fee award under private-attorney-general statute is intended to eliminate financial barriers to the vindication of plaintiffs rights and to provide incentive for counsel to act as private attorney general, and “must take into account the degree to which the public interest is advanced by the suit”).

DECISION

We conclude that respondent’s offer of judgment is enforceable and appellants were the prevailing parties. But because appellants’ claims did benefit the public, the district court erred in denying in its entirety appellants’ request for attorney fees under the private-attorney-general statute. We remand to the district court for a determination of appellants’ reasonable attorney fees.

Affirmed in part, reversed in part, and remanded.

      . Federal rule 68 is substantially similar to Minnesota’s rule 68, although the federal rule uses the term “costs,” while the Minnesota rule uses "costs and disbursements.” See Fed.R.Civ.P. 68; Minn. R. Civ. P. 68.


author: G. BARRY ANDERSON, Judge.

text:
    Tamera BEEHNER, Appellant, v. CRAGUN CORPORATION, Respondent, Outback Trail Rides, Inc., Respondent.
    No. C3-01-640.
    Court of Appeals of Minnesota.
    Dec. 11, 2001.

      Richard A. Williams, Jr., Williams & Iversen, P.A., Roseville, MN, for appellant.
    Jerome R. Klein, Candlin & Heck, Bloomington, MN, for respondent Cragun Corporation.
    Robert G. Haugen, Johnson & Lindberg, P.A., Minneapolis, MN, for respondent Outback Trail Rides, Inc.
    Considered and decided by ANDERSON, Presiding Judge, PETERSON, Judge and AMUNDSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant Tamera Beehner, injured during a horseback trail ride, challenges the district court’s grant of summary judgment to ride operator Outback Trail Rides and to Cragun’s resort, from whom appellant purchased a ticket for the ride. Appellant argues that the trial court (1) erred by finding an exculpatory agreement, releasing Outback from liability for ordinary negligence, enforceable; (2) erred by failing to submit the issue of Outback’s greater-than-ordinary negligence to a jury; (3) abused its discretion by refusing to grant a continuance so that she could complete discovery; and (4) erred by finding that respondent Cragun and respondent Outback were not engaged in a joint enterprise or a joint venture. Given that the exculpatory clause was enforceable, that appellant had ample time to conduct discovery before the summary judgment hearing, and that no evidence submitted indicates a joint enterprise between respondents Cragun and Outback, we affirm on those issues. Because there are issues of material fact as to whether respondent Outback’s conduct was greater-than-ordinary negligence, we reverse and remand for a jury trial on that issue.

FACTS

On August 14, 1998, appellant Tamera Beehner checked into Cragun’s, a resort owned and operated by respondent Cra-gun. Shortly thereafter, appellant purchased a ticket from Cragun’s to go on a guided horseback ride the following morning. Respondent Outback Trail Rides organized and conducted the ride. Appellant charged the ticket to her Cragun’s bill. The following day, Cragun’s transported appellant to the ride site.

At the site, Outback required appellant to sign a “Horse Rental Agreement and Liability Release Form for Individuals.” The contract read, in part:

Liability Release. I AGREE THAT: In consideration of THIS STABLE allowing my participation in this activity, under the terms set forth herein, I, the rider, for myself and on behalf of my child and/or legal ward, heirs, administrators, personal representatives or assigns, do agree to hold harmless, release and discharge THIS STABLE, its owners, agents, employees, officers, directors, representative, assigns, members, owners of premises and trails, affiliated organizations, insurers, and others acting on its behalf (hereinafter collectively referred to as “ASSOCIATES”), of and from all claims, demands, causes of action and legal liability, whether the same be known or unknown, anticipated or unanticipated, due to THIS STABLE’s and/or ITS ASSOCIATES’ ordinary negligence; and I do further agree that except in the event of THIS STABLE’s gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action, against THIS STABLE and ITS ASSOCIATES as stated above in this clause, for any economic and non-economic losses due to bodily injury, death, property damage sustained by me and/or my minor child and/or legal ward in relation to the premises and operations of THIS STABLE to include riding, handling or otherwise being near horses owned by or in the care, custody and control of THIS STABLE, whether on or off the premises of THIS STABLE.

Before the ride began, appellant heard an Outback employee refer to a dog standing near the horses as Outback’s “new adopted dog.” The dog accompanied the horses as the ride began, despite attempts by Outback employees to make the dog return. On the trail, a horse, not appellant’s, stepped on the dog. Shortly thereafter, appellant’s saddle girth loosened, and her saddle began to slip. To keep from falling, appellant rode her horse next to a tree, which she leaned against for support as she called out to the guide for assistance. As appellant held onto the tree, the dog approached and frightened appellant’s horse, which shied and threw appellant to the ground, permanently injuring her foot and leg.

On April 26, 2000, appellant filed a complaint against Outback and Cragun, alleging negligence in the operation of the trail ride. Appellant served discovery requests on Outback on the same day, but Outback did not respond to the requests until late October, 2000. On November 10, 2000, Outback moved for summary judgment, alleging that the exculpatory agreement released it from any liability arising from its alleged negligence related to the operation of the trail ride. Cragun joined Outback’s motion on the ground that no joint venture or joint enterprise existed between them sufficient to extend Outback’s potential liability to Cragun. The district court granted summary judgment in favor of Outback and Cragun. The district court found that the release was enforceable; that no issues of material fact existed as to Outback’s alleged gross negligence; that the action was ripe for summary judgment without further dis-covei-y; and that Cragun’s could not be held liable for Outback’s alleged negligence.

This appeal followed.

ISSUES

I. Did the district court err by finding that an exculpatory clause, signed by appellant and releasing Outback from ordinary negligence liability arising from the operation of the trail ride, was enforceable?

II. Did the district court err by granting summary judgment and concluding as a matter of law that there were no material facts in dispute concerning Outback’s greater-than-ordinary negligence?

III. Did the district court abuse its discretion by refusing to grant appellant’s request for a continuance to conduct further discovery?

IV. Did the district court err by finding as a matter of law that respondent Outback and respondent Cragun wore not involved in a joint venture or a joint enterprise?

ANALYSIS

On appeal from summary judgment, we must determine whether there are any material issues of fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). When reviewing summary judgment, this court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). If we find that material issues of fact need to be determined, we must remand the case to the district court without deciding the legal issues. Caledonia Cmty. Hosp. v. Liebenberg Smiley Glotter & Assocs., 308 Minn. 255, 258-59, 248 N.W.2d 279, 281 (1976).

I.

Appellant challenges the district court’s conclusion that her claim is barred by the exculpatory clause, which appellant claims is unenforceable as against public policy.

Minnesota recognizes the validity of exculpatory clauses, but they are disfavored and “strictly construed against the benefited party.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn.1982). An exculpatory clause may be unenforceable if (1) it is ambiguous in scope or purports to release a party from liability for intentional, willful, or wanton acts; (2) there was a disparity of bargaining power between the parties to the agreement; or (3) the type of service being offered or provided by the exculpated party is either a public or an essential service. Id. at 923.

An exculpatory clause is ambiguous when it is susceptible to more than one reasonable construction. See Collins Truck Lines, Inc. v. Metro. Waste Control Comm’n, 274 N.W.2d 123, 126 (Minn.1979). Appellant argues that the portion of the exculpatory clause releasing Outback from liability for ordinary negligence is ambiguous and overbroad because it is not limited to negligence related to the premises and operations of the stable. Instead, appellant argues, the clause purports to encompass negligent acts committed by Outback employees any time and anywhere. The exculpatory clause is one sentence long. Appellant’s interpretation disregards the second half of the sentence, which contains language limiting the scope of exculpation.

[P]hrases found in a contract should not be interpreted out of context, but rather * * * given a meaning in accordance with the obvious purpose of the * * * contract as a whole.

Kauffman Stewart, Inc., v. Weinbrenner Shoe Co., 589 N.W.2d 499, 502 (Minn.App.1999) (quotation omitted) (second ellipsis in original).

The exculpatory clause is not susceptible to more than one reasonable interpretation. Appellant’s interpretation unreasonably isolates one part of the clause and disregards the obvious purpose of the clause as a whole, which is to release respondent Outback from liability for ordinary negligence arising from the stable premises and operations. The exculpatory clause is neither overbroad nor ambiguous in scope; nor does it purport to release Outback from greater-than-ordinary negligence.

Appellant argues in the alternative that the exculpatory clause is unenforceable because there was a disparity of bargaining power between herself and respondent Outback. A disparity of bargaining power in a liability release may exist where the services provided are necessary or unavailable elsewhere; where there is a compulsion to participate in the activity; and where there is no opportunity to negotiate the terms of the exculpatory agreement. Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 730 (Minn.App.1986), review denied (Minn. Oct. 29, 1986).

We can find no Minnesota case holding that a liability release in a contract for recreational activity was unenforceable due to a disparity of bargaining power. See Schlobohm, 326 N.W.2d at 925 (health club membership); Malecha, 392 N.W.2d at 730 (skydiving lessons). Horseback riding is not a necessary activity, and the record does not suggest that Outback’s services were unavailable elsewhere. Appellant was not compelled to participate in the trail ride; she was a voluntary participant. See Schlobohm, 326 N.W.2d at 925 (finding no disparity in bargaining power where plaintiff “voluntarily applied for membership in [the health club] and acceded to the terms of membership”); Ma-lecha, 392 N.W.2d at 730 (finding no compulsion when skydiver “had the choice to either make the jump subject to the Skydiving Club’s rules or to forego it”).

Appellant argues that she was forced to accept the release on a “take it or leave it” basis just before beginning her ride. But “[p]roof that [appellant] had no opportunity to negotiate the terms of [an] exculpatory agreement is not enough to show a disparity of bargaining power.” Malecha, 392 N.W.2d at 730. Appellant’s reliance on Bunia v. Knight Ridder, 544 N.W.2d 60 (Minn.App.1996), review denied (Minn. May 9, 1996), and Walton v. Fujita Tourist Enters. Co., 380 N.W.2d 198 (Minn.App.1986), review denied (Minn. Mar. 21, 1986) is misplaced. In these cases, plaintiffs were compelled to sign exculpatory clauses in agreements to obtain services or consideration necessary to their livelihoods. See Bunia, 544 N.W.2d at 63 (invalidating exculpatory clause in newspaper carrier’s contract with newspaper where consideration (income) was essential and where carrier assented to clause from a position of inferior bargaining power); Walton, 380 N.W.2d at 201 (invalidating exculpatory clause in familiarization trip contract between travel agent and airline organizing trip due to disparity of bargaining power where airline had virtual monopoly on such trips, and where services provided were unique, unavailable elsewhere, and of a practical professional necessity to travel agents). There was no similar disparity of bargaining power between appellant and Outback.

Appellant argues that the district court erred by determining that horseback riding is not a necessary or public service. A necessary or public service, for the purpose of interpreting exculpatory clauses, is a service subject to public regulation or of practical necessity for some members of the public. Schlobohm, 326 N.W.2d at 925-26. Relying on Walton and Bunia, appellant argues that the district court erred by not recognizing that horseback riding was of a practical necessity to her as an individual. But the contracts in Walton and Bunia were related to the plaintiffs’ livelihoods. See Bunia, 544 N.W.2d at 63; Walton, 380 N.W.2d at 201. Here, the contract is for recreational services, which were not necessary to appellant.

Respondent Outback does not provide a service typically thought suitable for public regulation, as do, for instance, common carriers, hospitals, doctors, and employers. Schlobohm, 326 N.W.2d at 925. In Schlo-bohm, the supreme court cited a Tennessee case for the proposition that renting horses and saddles is not a public service. Id. at 926 (citing Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960)). Appellant has failed to show that the exculpatory clause implicates a public or essential service.

Because the exculpatory clause is not ambiguous, not the result of a disparity in bargaining power, and not for a public or essential service, the clause is enforceable as consistent with public policy.

Next, appellant argues that the exculpatory clause is unenforceable for lack of consideration because the release was not presented to her at the time she paid for the trail ride. The release, appellant claims, is not a modification to the original contract, but an additional, independent contract that stands alone and must be supported by independent consideration. Respondent argues that the release is a modification to the original agreement and that a contract modification does not require new consideration if it is made while the contract is still executory and there has been no breach.

This court has held that an exculpatory agreement signed after a fee to participate in a recreational activity has been paid is part of the same transaction and is therefore enforceable without additional consideration other than permission to participate in the activity. Malecha, 392 N.W.2d at 731. In Malecha, the plaintiff paid the fee for five hours of skydiving lessons and a parachute jump. Id. at 728. Just before the jump, he signed a release. This court wrote that

regardless of when the agreement was given to Malecha to sign, it is supported by adequate consideration. * * * Male-cha paid a course fee and waived his right to sue the Skydiving Club for its negligence in exchange for the training course and the opportunity to sky jump. We do not consider that the exculpatory agreement was a separate transaction requiring additional consideration.

Id. at 731 (citation omitted). The situation here is identical to Malecha. The exculpatory agreement signed by appellant is supported by consideration and enforceable.

II.

Appellant argues even if the release shields Outback from liability for ordinary negligence, respondent Outback’s negligence was gross, or wanton and willful. Outback, therefore, cannot be released. Appellant contends that respondent Outback’s conduct relating to the presence of the dog on the trail ride and her slipping saddle during the ride constituted greater-than-ordinary negligence, and therefore creates genuine issues of material fact precluding summary judgment. In a dispute over the applicability of an exculpatory clause, summary judgment is appropriate only when it is uncontested that the party benefited by the exculpatory clause has committed no greater-than-ordinary negligence. See Arrowhead Elec. Coop. v. LTV Steel Mining Co., 568 N.W.2d 875, 880 (Minn.App.1997) (remanding for trial where issue of material fact existed as to willful conduct of party benefited by exculpatory clause). Thus, summary judgment is appropriate here only if Outback’s conduct does not, as a matter of law, rise to the level of gross negligence or wanton and willful misconduct.

Gross negligence is “very great negligence or absence of even slight care, but [it is] not equivalent to wanton and willful” conduct. Ackerman v. Am. Family Mut. Ins. Co., 435 N.W.2d 835, 840 (Minn.App.1989) (quotation omitted). Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril. See Bryant v. N. Pac. Ry. Co., 221 Minn. 577, 585, 23 N.W.2d 174, 179 (1946).

Appellant presents sufficient evidence to create a material issue of fact concerning whether respondent Outback’s conduct in allowing the dog to accompany the horseback riders was grossly negligent or willful and wanton misconduct. The release states that “domestic animals” can “scare a horse, cause it to fall, or react in some other unsafe way,” indicating that Outback was aware of the risk created by a dog’s presence close to the horses. Appellant heard an Outback employee refer to the dog as “our new adopted dog” and witnessed Outback employees attempt unsuccessfully to prevent the dog from accompanying the riders. The record reflects that the dog was not removed from the trail until it had been stepped on by another horse and caused appellant’s horse to throw her to the ground. A jury could reasonably conclude that Outback’s failure to remove the dog, an acknowledged risk to the riders’ safety, from the proximity of the horses constituted greater-than-ordinary negligence.

Relying on Malecha, the district court held that appellant’s accident fell within the scope of the release, because falling off a horse is precisely the kind of accident that happens while horseback riding. See Malecha, 392 N.W.2d at 731 (holding accidents involving an integral aspect of an activity are presumptively within the scope of a release governing the activity). Appellant convincingly distinguishes Male-cha, arguing that in Malecha, the issue was whether the release covered the kind of accident that occurred. Here, appellant argues, the issue is whether the release covers the degree of respondent Outback’s negligence. We agree.

Appellant acknowledges that the risk created by the dog was of the type contemplated by the release, which specifically mentions the risk created by domestic animals. Appellant also recognizes that the dog’s presence on the trail would be within the release’s scope if due to Outback’s ordinary negligence in failing to keep a stray dog not under Outback’s control away from the horses. But appellant argues that the degree of Outback’s negligence with respect to the dog was greater than ordinary and is therefore outside the scope of the release. Outback had apparent control over the dog, knew the risk the dog posed to the riders’ safety, and nonetheless allowed the dog to accompany the riders. Given these facts, viewed in the light most favorable to appellant, a jury could reasonably find that Outback committed greater-than-ordinary negligence by allowing the dog to accompany the horses.

Because there is an issue of material fact concerning whether respondent Outback’s failure to restrain the dog constituted greater-than-ordinary negligence and whether, therefore, this conduct was within the scope of the exculpatory clause, the district court erred in granting summary judgment on this issue.

Appellant also alleges that Outback committed greater.-than-ordinary negligence when it failed to prevent appellant’s saddle from slipping and when it failed to tell appellant her guide’s name, making it impossible for appellant to get the guide’s attention when appellant’s saddle began to slip.

The risk of saddle slippage is contemplated by the release, which provides that “[s]addle girths ⅜ * * may loosen during a ride” and advises riders to notify the guide if the girths loosen. But unlike the dog risk, there is no issue of material fact with respect to Outback’s degree of negligence involving the saddle slippage. The record contains no evidence that Outback’s conduct in contributing to the risk posed by the slipping saddle was greater-than-ordinary negligence. Nor does the record show that appellant’s ignorance of the guide’s name effectively prevented her from getting the guide’s attention. The district court appropriately granted summary judgment on the saddle issue.

III.

Appellant challenges the district court’s refusal to continue the hearing on respondents’ summary judgment motion. Appellant requested the continuance to conduct further discovery and argued that Outback moved for summary judgment after withholding discovery for an unreasonable period of time, making it impossible for appellant to develop material factual issues necessary to oppose the motion. Outback concedes that it was late in responding to appellant’s discovery requests, but argues that appellant had ample time to conduct discovery in the two months between Outback’s responses and the summary judgment hearing.

The district court made no findings on this issue, but did not defer its decision or grant a continuance.

Absent an abuse of discretion, the district court’s decision whether to continue a summary judgment motion to permit further discovery will not be reversed on appeal. Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn.App.1997), review denied (Minn. Feb. 19, 1998). In general, district courts should grant continuances liberally, particularly if the party opposing summary judgment had insufficient time to complete discovery; only “the most extreme circumstances” justify a denial. Rice v. Perl, 320 N.W.2d 407, 412 (Minn.1982) (quotation omitted). A district court may grant a continuance (1) if the party requesting the continuance has been diligent in obtaining and seeking discovery prior to requesting the continuance; and (2) if the party seeking the continuance has a good-faith belief that material facts will be uncovered. Id.

The record suggests that appellant was not diligent in pursuing discovery prior to requesting the continuance. Appellant served discovery and her complaint on respondent Outback on April 26, 2000. Appellant received no response from respondent Outback until October 30, 2000, despite repeated requests and a threat to move to compel production. Outback served the motion for summary judgment on November 10, 2000. The court heard the summary judgment motion on January 8, 2001.

The record reasonably supports the conclusion that Outback’s conduct during discovery was dilatory, provocative, and intended to impede appellant’s attempt to develop her case. But the appropriate focus under Rice is on appellant’s diligence, not respondent’s lack thereof. The record suggests that appellant made no effort, between the time Outback served its discovery in early November, 2000, and the date of the summary judgment hearing (January 8, 2001), to conduct further discovery. The record does not indicate that appellant attempted to take depositions or conduct any other form of discovery during this time. Appellant did not ask for a continuance until December 28, 2000, nearly two months after receiving discovery from Outback.

Appellant believed, apparently in good faith, that material facts concerning the interpretation of the exculpatory clause, and the degree of Outback’s negligence, would be uncovered by further discovery. But contract interpretation is a question of law, not fact, and it is not clear how additional discovery would have developed material facts relevant to interpreting the exculpatory clause.

Appellant attributes her failure to pursue discovery before requesting a continuance wholly to Outback’s delay in ■ responding to appellant’s initial discovery requests. But appellant offers no reason why this delay prevented her from conducting discovery between early November 2000, when she received Outback’s discovery, and January 8, 2001, when the summary judgment motion was heard.

Outback failed to cooperate with discovery, but the appropriate remedy to this failure is to make a motion to compel discovery. Put most simply, appellant did not diligently address respondent Outback’s alleged abuse of the discovery process.

We therefore conclude the district court did not abuse its discretion by denying appellant’s request.for a continuance. See Gradjelick, 627 N.W.2d at 715 (upholding district court’s refusal to grant continuance for further discovery where appellants failed to attempt to take depositions over a five-month period).

IV.

Appellant argues the district court erred by finding that the release entitled respondent Cragun to any legal benefit accorded respondent Outback. Appellant argues that Outback and Cragun were engaged in a joint venture or a joint enterprise and that Cragun is therefore liable for any negligence committed by Outback.

Courts apply the joint venture or joint enterprise doctrine “when necessary to impute negligence between two entities that otherwise have no legal relationship.” Stelling v. Hanson Silo Co., 563 N.W.2d 286, 290 (Minn.App.1997) (citation omitted). Whether a joint venture or a joint enterprise exists is a question of law, which this court reviews de novo. See Weber by Sanft v. Goetzke, 371 N.W.2d 611, 616 (Minn.App.1985), review denied (Minn. Sept. 16,1985).

Here, appellant has the burden of proving a joint enterprise or a joint venture between Outback and Cragun. See Rehnberg v. Minn. Homes, Inc., 236 Minn. 230, 234-37, 52 N.W.2d 454, 457-58 (1952); Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d 653, 657-58 (Minn.App.1992), review denied (Minn. Dec. 15, 1992);

A joint venture exists where there is (1) contribution of resources by both parties; (2) joint proprietorship and control over the subject matter of the property engaged in the venture; (3) sharing of profits by express or implied agreement; and (4) an express or implied contract showing joint venture. Powell v. Trans Global Tours, Inc., 594 N.W.2d 252, 256 (Minn.App.1999). A joint enterprise exists where there is (1) a mutual undertaking for a common purpose and (2) a right to a voice in the direction and control of the means used to carry out the common purpose. Id.

Appellant argues that Cragun and Outback both contributed time, skill, money, and property to the trail-ride venture; that they had an express or implied contract; and that they shared profits. Respondent Cragun argues that there was no joint venture because Outback owned all the horses and equipment, hired the employees, and conducted the rides. We agree.

By an arrangement between Cragun and Outback, Cragun’s guests purchased tickets from Cragun for trail rides conducted by Outback. The charge for the rides appeared on the guests’ Cragun’s bill. Cragun’s presumably then paid Outback. Cragun transported the guests to the Outback site.

There is no evidence in the record that Cragun had any control or direction over the horses, the trails, the guides, or any other aspect of Outback’s business. Some level of joint control is required to satisfy the second element of both the joint venture and the joint enterprise tests. See id. (finding tour operator not liable for hotel’s negligence under joint venture or joint enterprise theories where hotel and operator exerted no control over each other’s business).

DECISION

The district court did not err by finding that the exculpatory clause signed by appellant before her horse ride was enforceable as consistent with public policy and supported by consideration. The district court did not abuse its discretion by refusing to grant appellant’s request for a continuance of the summary judgment motion. The district court did not err by finding that no joint venture or joint enterprise relationship existed between respondent Outback and respondent Cragun. We therefore affirm on these issues. But we conclude that appellant established a genuine issue of material fact sufficient to defeat summary judgment as to whether Outback’s conduct in permitting the dog to accompany the riders was greater-than-ordinary negligence. Accordingly, we reverse the district court and remand this issue for trial.

Affirmed in part, reversed in part, and remanded.