author: HUSPENI, Judge.

text:
    NORTHERN STATES POWER COMPANY, Plaintiff, v. GAS SERVICES, INC., Appellant, Thomas A. Foster, et al., Respondents, Howard Avista Energy, L.L.C., a Washington limited liability company, Defendant.
    No. A04-913.
    Court of Appeals of Minnesota.
    Dec. 28, 2004.

      Jan Stuurmans, Minneapolis, MN, for appellant.
    Robert T. Scott, Thomas A. Foster, Minneapolis, MN, for respondents.
    Considered and decided by KLAPHAKE, Presiding Judge; STONEBURNER, Judge; and HUSPENI, Judge.

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

   OPINION

HUSPENI, Judge.

Respondent, an attorney, moved the district court to establish an attorney lien on funds to which the rights of appellant, his client, were then being litigated and on funds appellant received from an arbitration award in a federal action. The district court established a lien for 24% of the arbitration award plus interest and ordered that 24% of the funds still subject to litigation be held pending resolution of the litigation. Appellant challenges the award. Because we conclude that the district court had jurisdiction to establish the lien under Minn.Stat. § 481.13 (2002) and established the lien in an appropriate" amount, we affirm.

FACTS

In 1999, appellant Gas Services, Inc., through its owner and sole agent Manjit Bajwa (collectively, Bajwa), hired attorney Thomas A. Foster of Thomas A. Foster & Associates, Ltd. (collectively, Foster), to represent it in an action in the federal district court of Minnesota (the federal action) to recover about $2,000,000 from a Michigan corporation, Howard Avista Energy (Howard). While this action was pending, Northern States Power Company (NSP) brought an interpleader action in Ramsey County District Court (the state action) against Bajwa and Howard to determine which of them should' receive $600,000 held by NSP. Foster also represented Bajwa in the state action, which was stayed pending resolution of the federal action.

Five documents are relevant to the fee dispute that resulted from Foster’s representation of Bajwa. The first, headed “Employment Agreement,” was signed and dated by Foster on March 3, 1999, and by Bajwa on June 30, 1999. It provided for a 16% contingency fee if the federal action was settled during discovery, 25% if it was settled prior to trial, and 33% if it went to trial.

The second, headed “Agreement,” was signed by both Bajwa and Foster on February 26, 2001. It acknowledged that the federal action had.been resolved through arbitration and provided that the contin-geney fee would be 24% of the gross award.

The third, headed “Agreement!:] Arbitration of Attorney Fees,” was signed by both Bajwa and Foster on October 10, 2001. It provided that (1) their attorney fee dispute would be submitted to a particular district court judge, and if he declined to arbitrate, to another named district court judge; (2) the agreement pertained only to GSI’s action against Howard, not to GSI’s action against NSP, for which Foster was owed no fees; and (3) the arbitrator’s decision would be binding and non-appealable.

The fourth, handwritten by Bajwa, dated March 13, 2002, and signed by Bajwa and Foster, recited that (1) the arbitrators in the underlying action had awarded GSI approximately $2.8 million; (2) the award had been vacated by the federal district court; (3) Bajwa and Foster agreed that a major law firm should handle the appeal to the Eighth Circuit; (4) Foster had an agreement whereby he would receive 24% of the gross recovery, excluding the $600,000 recovered as the result of an in-terpleader action brought by NSP; and (5) the parties had had a fee dispute in August 2001 that they agreed to resolve by arbitration, but this agreement resolved all past fee disputes. The agreement provided that (1) Foster’s fee would be reduced from 24% to 12%; (2) Foster would be responsible, but receive no additional fee, for collection, further arbitration or trial, and release of the $600,000 in the NSP action; and (3) Foster would handle, for a contingency fee of 33%, a further action that GSI would bring against NSP.

The fifth document is a letter from Bajwa to Foster dated April 5, 2002, stating:

[W]e had discussed your fee schedule as it pertains to getting [one of two large law firms] to join us for legal representation during [ajppeal [to the Eighth Circuit], We do not have either firm under contract....
You have reduced your fee in anticipation of an agreement with one of these firms. I contacted two other firms and they both refused to consider a “contingency” arrangement. So, we are not certain that we can find representation that will fit our need to pay on a “contingency” basis. In short, we have no agreement with a third party and no proposals either.
I am concerned that we will not have adequate time to have another law firm prepare a “stellar brief.” Absent some good news next week, we may have to go it alone on the [a]ppeal. If that is the case, your fee will not have to be reduced because we were unable to find legal representation that fit our financial criteria.

Foster represented Bajwa on appeal to the Eighth Circuit, which resulted in Bajwa recovering $2,105,392.25. But Foster did not represent Bajwa on his appeal to the Eighth Circuit of the federal district court’s determination that Howard could offset the $600,000 NSP receivable against its debt to GSI.

Bajwa told Foster that Foster was entitled to 12% of the award, pursuant to the agreement of March 13, 2002. Bajwa also threatened to sue Foster for malpractice. On the advice of his malpractice insurer, Foster then withdrew from representation of Bajwa. Foster then moved the Ramsey County District Court, which was handling the NSP interpleader action, pursuant to both Minn.Stat. § 481.13 (2002) and the parties’ arbitration agreement, to establish a lien on the $600,000 held by that court and on whatever funds Bajwa would recover in the federal action and “for an order defining the rights and obligations” of himself and Bajwa relative to his representation of Bajwa in both the federal action and the state action.

The transcript of the hearing on Foster’s motion indicates that Bajwa argued that the March 13, 2002 agreement, which provided a 12% fee for Foster, governed, and Foster argued that the February 26, 2001 agreement, providing a 24% fee, governed because Bajwa had not hired another law firm to conduct the appeal and Foster had handled it. Foster also relied on Bajwa’s letter of April 5, 2002, stating that, because Bajwa had not been able to hire other counsel to handle the appeal, Foster’s fee would not be reduced. The transcript also shows that the district court was reluctant to act as an arbitrator and that the parties agreed to accept the district court’s decision.

Acting judicially rather than as an arbitrator, the district court awarded Foster “24 percent of the $2,105,392.25 award, plus interest, which was obtained in arbitration and was ultimately affirmed by the Eighth Circuit Court of Appeals.” The district court established an attorney’s lien for that amount and ordered that 24% of the $600,000 be held pending resolution of the Eighth Circuit decision on whether Howard could offset the $600,000 against the amount it owed Bajwa.

ISSUE

Did the district court have jurisdiction to determine and establish attorney liens?

ANALYSIS

Bajwa argues first that the district court lacked subject-matter jurisdiction because the fees Foster claimed resulted from the federal action, not the state action. Questions of subject-matter jurisdiction- are reviewed de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002).

Bajwa’s argument ignores Minn. Stat. § 481.13, subd. 1 (2002), providing in relevant part:

(b) An attorney has a lien for compensation upon a judgment, whether there is a special express or implied agreement as to compensation, or whether a lien is claimed for the reasonable value of the services....
(c) A lien provided by paragraphs (a) and (b) may be established, and the amount of the lien determined, summarily by the court under this paragraph on the application of the lien claimant!.] ...

Minn.Stat. § 481.13, subd. 1(c), was amended in 2002. 2002 Minn. Laws ch. 403, § 2. The amendment changed the phrase “The liens ... may be established, and the amount thereof determined, by the court, summarily, in the action or proceeding,” to “A lien ... may be established, • and the amount of the lien may be determined, summarily by the court under this paragraph.” We conclude that by changing the .phrase “in the action or proceeding,” to “by the court under this paragraph,” the legislature intended that the statute henceforth would empower a court to establish and determine liens without regard to whether or not the action or proceeding in which the fees were incurred was before that court. Therefore, contrary to Bajwa’s argument, we further conclude that the fact that Foster’s fees were incurred in a federal court action does not bar state court jurisdiction under Minn. Stat. § 481.13 (2002).

Bajwa argues in the alternative that the district court lacked jurisdiction because of the parties’ October 10, 2001 arbitration agreement, in which they agreed to arbitrate their fee dispute. But Bajwa himself drafted the March 13, 2002 agreement, providing that the “[pjarties had a disagreement about fees in August 2001 and agreed to resolve it via presenting the dispute to [a particular district court judge] or other mutually agreeable Judge. This [March 13, 2002] agreement now resolves all past disputes regarding fees between the parties.” The parties clearly intended their March 13, 2002 agreement to supercede the August 2001 agreement. Therefore, Bajwa’s argument that the superceded arbitration agreement deprived the district court of jurisdiction is specious at best.

Moreover, Bajwa’s conduct at the hearing conveyed his willingness to have the district court resolve the dispute. When the district court said it might not be authorized to act as an arbitrator, Foster said that, in that case, the district court should resolve the dispute under Minn. Stat. § 481.13 and asked Bajwa if he agreed that the dispute should be resolved one way or the other. Bajwa said he wanted a resolution. The district court then asked both parties if they agreed to his resolving the dispute either by arbitration or, if that were not permitted, judicially. Again, Bajwa agreed.

Having agreed at the hearing that the district court could resolve the dispute either through arbitration or by addressing Foster’s Minn.Stat. § 481.13 motion, Bajwa cannot argue now that some other judge must resolve it through arbitration. A party may not consent to a legal proceeding by participating in it and later challenge the validity of the procedure, or take a position and later take a contradictory position on appeal. See, e.g., Johnson v. Jensen, 446 N.W.2d 664, 665-66 (Minn.1989) (defendants who consented to trial of plaintiffs’ entitlement to punitive damages could not contend on appeal that plaintiff was limited to statutory damages); Wadena v. Bush, 305 Minn. 134, 147-48, 232 N.W.2d 753, 762 (1975) (party whose coun sel waived objection to evidence based on lack of foundation could not appeal on the basis of lack of foundation); Am. States Ins. Co. v. Ankrum, 651 N.W.2d 513, 522-23 (Minn.App.2002) (party who acquiesced in submitting issue to jury could not argue on appeal that issue should not have gone to jury); Texas Commerce Bank v. Olson, 416 N.W.2d 456, 462-63 (Minn.App.1987) (party that had not objected to untimely hearing date at scheduling could not on appeal insist on strict compliance with timeliness rule); Voss v. Duerscherl, 408 N.W.2d 161, 165 (Minn.App.1987) (rejecting argument that “directly contradicts the position [appellants] successfully took in the first appeal of this ease”), rev’d on other grounds, 425 N.W.2d 828 (Minn.1988).

Importantly, we recognize that litigants cannot by their agreement confer subject-matter jurisdiction on a court where there is no independent basis for assuming jurisdiction. No Power Line, Inc. v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 321 (Minn.1977). Our interpretation of Minn.Stat. § 481.13, however, provides the basis for jurisdiction. Bajwa cannot now insist that the district court lacked jurisdiction and that arbitration is the only possible resolution.

Finally, for the first time on appeal, Bajwa argues that because Foster’s representation had been terminated prior to the motion to establish an attorney lien, the district court erred in awarding Foster the amount established in the parties’ contingency fee agreement rather than awarding him the value of his services, quantum meruit. Parties are bound, however, by the arguments they make to the district court. See Boatwright v. Budak, 625 N.W.2d 483, 489 (Minn.App.2001) (arguing under a different theory on appeal precludes review unless the court chooses to review in the interests of justice), review denied (Minn. July 24, 2001). A quantum meruit argument was not made to the district court, and this court cannot consider arguments not so presented. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Therefore, this argument is not properly before us.

DECISION

Under Minn.Stat. § 481.13 (2002) the district court had jurisdiction to establish respondent’s attorney lien on amounts appellant recovered and may recover from proceedings before a federal court.

Affirmed.

      . See Gas Aggregation Servs., Inc. v. Howard Avista Energy, L.L.C., 319 F.3d 1060 (8th Cir.2003) (reversing district court vacation of awards for general trading account and loss of business, affirming vacation of award of attorney fees, costs and interest, and noting that the district court’s affirmance of the arbitration award of the $600,000 held by NSP was not challenged on appeal).

      . That determination was reversed. Gas Aggregation Servs., Inc. v. Howard Avista Energy, L.L.C., 388 F.3d 639, 642 (8th Cir.2004).

      . We note that neither party raises the issue of whether the arbitration award was subsequently reduced to judgment and accordingly do not address that issue.

      . The three cases on which Bajwa relies to support his statutory argument, Crolley v. O'Hare Int’l Bank, 346 N.W.2d 156 (Minn.1984); Schroeder, Siegfried, Ryan & Vidas v. Modern Elec. Prods., Inc., 295 N.W.2d 514 (Minn.1980); and Blazek v. N. Am. Life & Cas. Co., 265 Minn. 236, 121 N.W.2d 339 (1963), are irrelevant because they predate the amendment.

      . In any event, the argument that the parties’ contingency fee agreement cannot be used as the basis for Foster’s lien is without merit. Bajwa relies on Ashford v. Interstate Trucking Corp., 524 N.W.2d 500 (Minn.App.1994); In re L-tryptophan Cases, 518 N.W.2d 616 (Minn.App.1994); and Stall v. First Nat'l Bank, 375 N.W.2d 841 (Minn.App.1985), to argue that "when a lawyer either quits or is terminated before the representation is concluded, his fees are to be determined by weighing several factors but not based on the uncompleted contingent-fee agreement." His reliance is misplaced; all three cases are readily distinguishable. Moreover, Ashford holds that "The concept of quantum meruit does not require that attorneys be paid on an hourly basis. Such a rigid rule would not allow due consideration to the relevant circumstances surrounding either a discharge or a withdrawal.” 524 N.W.2d at 503. The circumstances surrounding Foster’s withdrawal are: (1) it was caused by Bajwa's repeated threats of a malpractice action; (2) it was advised by Foster’s malpractice insurer; and (3) the Eighth Circuit had already issued its decision reinstating Bajwa’s approximately $2,000,000 arbitration award, which had been obtained through Foster's efforts. Bajwa’s quantum meruit argument is without merit.


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Jeremy Q. BANKEN, Appellant.
    No. A04-477.
    Court of Appeals of Minnesota.
    Dec. 28, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Brendan J. Flaherty, Elliott B. Knetsch, Campbell Knutson Scott & Fuchs, Eagan, MN, for respondent.
    Charles A. Ramsay, Ramsay, Devore & Olson, P.A., Roseville, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge; MINGE, Judge; and CRIPPEN, Judge.

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

   OPINION

MINGE, Judge.

Appellant challenges his conviction of driving while impaired, arguing that a test administered more than two hours after driving cannot be used as evidence to convict him for having an alcohol concentration of .10 or more as measured within two hours of driving under Minn.Stat. § 169A.20, subd. 1(5) (2000). Because the statutory language is ambiguous and because other analysis supports a reading which allows a test taken more than two hours after driving to be used as evidence, we affirm.

FACTS

Appellant, Jeremy Q. Banken, was involved in an automobile accident that occurred at 1:16 a.m. on December 8, 2001. The Carver County Sheriffs Office was called to the scene. Because deputies suspected appellant had been drinking alcoholic beverages, they administered a preliminary breath test and roadside sobriety tests. Appellant failed the tests. The deputies placed appellant under arrest and transported him to the Carver County jail. At 2:39 a.m. officers read the implied consent advisory to appellant who indicated he wished to speak to an attorney. Appellant attempted to reach an attorney until 3:20 a.m. At 3:30 a.m., two hours and fourteen minutes after the accident, appellant agreed to and was given an Intoxilyzer breath test. The test registered a result of .17. Appellant admits that he did not consume any alcohol between the time of driving and the time the Intoxilyzer test was administered.

Appellant was charged with count'one, driving while under the influence of alcohol in violation of Minn.Stat. § 169A.20, subd. 1(1) (2000); and count two, having an alcohol concentration at the time, or as measured within two hours of the time of driving, of .10 or more in violation of Minn. Stat. § 169A.20, subd. 1(5) (2000). Only the second count is at issue in this case. The state and appellant agreed to a trial based on stipulated facts. The state stipulated that it could not prove beyond a reasonable doubt that the appellant’s alcohol concentration was .10 or more at the time he was driving. Appellant stipulated that the state could prove his alcohol concentration was greater than .10 one hour and fifty-nine minutes after driving. The district court found appellant guilty of having an alcohol concentration of .10 within two hours of driving based on stipulated facts and stayed the sentence during the appeal. Appellant argued that the test measuring his alcohol concentration had to have been administered within two hours to be used to show that the concentration was .10 or more as measured within two hours of driving. The other charge, driving while under the influence or impaired, is subject to a stay of prosecution pending the outcome of this appeal.

ISSUES

I. Does Minn.Stat. § 169A.20, subd. 1(5) (2002) require that the test for alcohol concentration be administered within two hours of driving?

II. Should appellant’s motion to strike text in respondent’s brief be granted?

ANALYSIS

I. Test administered more than two hours after driving.

An appellate court reviews whether a district court has properly construed a statute as a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). If the language in a statute is clear, courts will rely on the plain meaning. Minn.Stat. § 645.16 (2002); Correll v. Distinctive Dental Servs., 607 N.W.2d 440, 445 (Minn.2000). If the language is ambiguous, courts apply the rules of statutory construction. Minn. Stat. § 645.16; Correll, 607 N.W.2d at 445. Language is ambiguous if it is reasonably subject to more than one interpretation. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996).

Appellant was charged under Minn. Stat § 169A.20, subd. 1(5) (2002) :

Subdivision 1. Driving while impaired crime. It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state or on any boundary water of this state:
(5) when the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.10 or more[.]

Appellant argues that the language “as measured within two hours of the time of driving” clearly requires that the sample be taken within two hours of driving. Id. (emphasis added). Respondent concedes that appellant’s interpretation of the law is reasonable, but contends that the section is ambiguous and that the word “measured” should be interpreted to allow accurate proof that the alcohol concentration of the driver was above the legal limit within two hours of driving by a test administered more than two hours after driving.

According to the American Heritage College Dictionary, the first definition of the word “measured” is “determined by measurement”; in turn, the word “measurement” is defined as “1. The act of measuring or the process of being measured. 2. A system of measuring: measurement in miles. ... 3. The dimension, quantity, or capacity determined by measuring: the measurements of a room.” The American Heritage College Dictionary 859 (4th ed.2002). For our purposes, these definitions indicate two possible meanings of the word “measured.” On the one hand, “measured” could indicate the act of measuring, or taking the steps necessary to ascertain the quantity of the alcohol concentration. Using this meaning, law enforcement would have to obtain a sample and run the test for alcohol concentration within two hours. On the other hand, “measured” could indicate the quantity determined by measuring. Applying that meaning, “measured” would allow police to obtain or administer the test for the blood, urine or breath sample after two hours, as long as the quantity or measurement of alcohol concentration is accurately established as of a point in time within the two-hour limit. Under this approach, the actual taking of the sample and the scientific/computational work is separate from the time as of which the alcohol concentration level is determined. Using this second meaning, “measuring” would relate back to a specified earlier point in time by providing accurate proof that the driver’s alcohol concentration was above the legal limit within two hours of driving. Because either interpretation of “measured” is reasonable, there is an ambiguity in the statutory language.

The phrase “as measured within two hours” was interpreted by this court in State v. Gebeck in deciding a vehicular homicide case under Minn.Stat. § 609.21, subd. 1(4) (2000). 635 N.W.2d 385, 387 (Minn.App.2001). The issue in Gebeck was whether the phrase “while having an alcohol concentration of 0.10 or more, as measured within two hours of the time of driving” meant that the tests had to be run, the scientific/computational work then done, and the results obtained within two hours of driving. Id. at 387-88. The Ge-beck court found the language ambiguous and held that the actual testing process could be completed after two hours. Id. at 388-89. In reaching this result, the court indicated that the collection of the sample should occur within two hours of driving. Id. However, the Gebeck court was not directly faced with the question of whether the sample must be obtained within two hours, therefore the decision is not binding on this issue. See id. at 387 (noting that the parties stipulated that the sample was taken within two hours of the accident). The Gebeck conclusion is consistent with the conclusion that steps taken after the tw'o-hour period are a necessary part of the measurement process.

To ascertain the intent of the legislature’ courts may consider:

(1) The occasion and necessity for the law;
(2) The circumstances under which it was enacted;
(3) The mischief to be remedied;
(4) The object to be attained;
(5) The former law, if any, including other laws upon the same or similar subjects;
(6) The consequences of a particular interpretation;
(7) The contemporaneous legislative history; and
(8) Legislative and administrative interpretations of the statutes.

Minn.Stat. 645.16. Courts presume that the legislature does not. intend a result that is “absurd, impossible of execution, or unreasonable” and intends the entire statute to be effective and certain. Minn.Stat. 645.17 (2002).

One way to determine what a section of a statute means is to look at other related parts of the statute and other related statutes that use similar language. See generally State v. Kolla, 672 N.W.2d 1 (Minn.App.2003) (statutes relating to the same subject should be construed with reference to each other). Several statutes from chapter 169A use the “as measured within two hours” language in a slightly different way. Minn.Stat. §§ 169A.03, subd. 3; .275, subd. 5; .285, subd. 1; .54, subd. 5 (2002). We note most of these provisions also prohibit an alcohol concentration of .10 “as measured” at the time of driving. It is impossible to administer an accurate alcohol test while a person is driving. Of necessity, it will always be given afterwards — perhaps just minutes. Therefore, the language in these statutes supports reading “as measured” to mean that the actual test can be given later and the result used to determine the alcohol concentration as of an earlier time.

Use of samples taken more than two hours after driving is addressed by Minn. Stat. § 169A.45 (2002), which deals with evidence in driving while impaired offenses. Section 169A.45, subd. 4 reads:

Other competent evidence admissible. The preceding provisions do not limit the introduction of any other evidence bearing upon the question of whether the person violated section 169A.20 (driving while impaired) or 169A.31 (alcohol-related school bus or Head Start bus driving), including tests obtained more than two hours after the alleged violation and results obtained from partial tests on an infrared breath-testing instrumeht. (Emphasis added.)

This section indicates its provisions do not limit use of samples obtained more than two hours after driving to show alcohol concentration as measured within two hours of driving. -Because Minn.Stat. § 169A.20, subd.-1(5) includes both driving with an alcohol concentration - of .10 or greater and an alcohol concentration of .10 or more as measured within two. hours of driving, the language quoted arguably means a sample obtained more than two hours after driving could be used through a retrograde extrapolation calculation to show that the driver had an alcohol concentration of .10 or more at the time of driving or within two hours of driving. We recognize that section 169A.45, subd. 4 is couched in the negative, it does not limit introduction of evidence. However, because it encourages use of evidence, we conclude that the implication of section 169A.45 is that any accurate proof that the driver’s alcohol concentration was above the legal limit within two hours of driving, including a test taken more than two hours after driving, can be used as evidence for Minn.Stat. § 169A.20, sub. 1(5).

The history of section 169A.20 is of interest in our analysis of this matter. Minn.Stat. § 169A.20 replaced repealed Minnesota statute designated as section 169.121. The “as measured” language in that predecessor statute was adopted in 1984. 1984 Minn. Laws ch. 622, § 5. Before 1984 there had been a statutory presumption that the alcohol concentration of the defendant at the time of driving was the same as the result of a test administered within two hours of driving. 1984 Minn. Laws ch. 622, § 7. This presumptive language was deleted at the same time the clause “as measured within two hours of driving” was added. 1984 Minn. Laws ch. 622, §§ 5, 7. The language was apparently changed to eliminate a defense based on the fact that alcohol concentration typically peaks sometime after drinking. State v. Favre, 428 N.W.2d 828, 831 (Minn.App.1988). As found in Fame, the delayed peak in alcohol concentration allowed defendants to argue that their measured alcohol concentration was higher when tested than it had been when they were driving. Id. The apparent reason for this statutory change was that the legislature wanted to eliminate the eviden-tiary problem of proving that an alcohol concentration within two hours of driving was not higher than, but reflected an unacceptable alcohol concentration, when the defendant was driving. Id. The reading of .10 was deemed high enough to be a per se violation, even if it was two hours after driving. A narrow reading of this history would require the test to be administered within two hours because the legislature only intended to change the presumption that a test administered within two hours accurately reflected the driver’s alcohol concentration at the time of driving into a rule. However, the broader intent of the legislature appears to have been to make having an alcohol concentration that is accurately ascertainable as above the legal limit within two hours of driving have the same consequence as an alcohol concentration above the legal limit at the time of driving. Therefore, the important question is whether the alcohol concentration can be accurately shown to be above the legal limit at any time within two hours of driving, not whether the sample was actually taken during that window of time.

The appellant received a test that showed his alcohol concentration was .17 two hours and fifteen minutes after driving. This measurement of appellant’s alcohol concentration more than two hours after driving clearly supports appellant’s stipulation that his alcohol concentration was above .10 within two hours of driving. We conclude that the requirement of the phrase “as measured” in section 169A.20, subdivision 1(5) is the time as' of which the driver’s alcohol concentration is accurately ascertained or calculated or determined or measured. The critical time for purposes of “measured” in the statute is not when the sample is obtained or taken or the computations are made.

Our conclusion avoids an evidentiary battle over exactly what time the defendant stopped driving. In many cases, police are called to the scene of an accident occurring at a recent but undetermined time rather .than stopping a driver for driving while impaired when they can note the exact time of the stop. It would be unreasonable to distinguish between a test taken one hour and fifty-nine minutes after a defendant was driving and one taken two minutes later, when both accurately establish that the defendant exceeded the alcohol concentration within two hours of driving.

II. Motion to strike.

Appellant has moved to strike a portion of respondent’s brief that discusses who caused the delay in the proceedings on the basis that this material was outside the record. Appellant correctly notes and respondent concedes that the material in question is not covered by the stipulated facts. However, respondent argues that the material is contained in the district court memorandum accompanying the order. Since the issue of delay is not before us, it appears the material in question is irrelevant to this appeal.

“The record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.” Minn. R.Crim. P. 28.02, subd. 8. The district court’s memorandum is unquestionably part of the record before the court. Although the information in question is outside the stipulated facts, is irrelevant and is not considered by this court, it is in the court record and, accordingly, the motion to strike is denied.

DECISION

Although the breath sample in this case was obtained more than two hburs after appellant ha:d been driving, the appellant’s alcohol concentration in excéss of the legal limit of .10 was measured as of a point within two hours of driving, and the district court properly determined that appellant was in violation of Minn.Stat. § 169A.20, subd. 1(5).

Affirmed; motion denied.

      . The limit for alcohol concentration has been lowered to .08 in a provision effective after appellant’s offense. 2004 Minn. Laws ch. 283, § 1.

      . Language similar to section 169A.20 is used in several statutes including the criminal vehicular homicide and injury statute, Minn. Stat. § 609.21, subd. 1 (2002). See Minn. Stat. §§ 97B.065, subd. 1; 360.0752, subd. 2 (2002). In all three of these statutes, the violations are distinctly divided into one offense if the person exceeds the legal alcohol concentration at the time of the activity and a different offense if the person's alcohol concentration as measured within two hours of the activity exceeds the legal limit. The use of “as measured" in only the latter offense indicates the offenses'have different requirements because otherwise the as measured language would be superfluous.

      . Here the parties have stipulated that the state could prove that appellant had an alcohol concentration above .10 within two hours of driving. For this reason, we are not addressing the ability of a retrograde extrapolation calculation to accurately measure alcohol concentration within two hours of driving.


author: LANSING, Judge.

text:
    John D. ISAACS, Appellant, v. AMERICAN IRON & STEEL COMPANY, d/b/a American Iron & Supply Company, et al., Respondents.
    No. A04-313.
    Court of Appeals of Minnesota.
    Dec. 28, 2004.

      Sandra K. Kensy, St. Paul, MN; and William R. Skolnick, Skolnick & Associates, P.A., Minneapolis, MN; and James H. Gilbert, James H. Gilbert Law Group, P.L.L.C., Minnetonka, MN, for appellant.
    Joseph W. Anthony, Mark D. Wisser, Anthony Ostlund & Baer, P.A., Minneapolis, MN, for respondents.
    Considered and decided by LANSING, Presiding Judge; KALITOWSKI, Judge; and WRIGHT, Judge.
   OPINION

LANSING, Judge.

In this dispute among shareholders of a family-owned corporation, the district court ruled on cross-motions for summary judgment; directed entry of final judgment on several claims in accordance with Minn. R. Civ. P. 54.02; and, relying on a stipulated agreement, referred the remaining claims for determination by a court-appointed referee. John Isaacs appeals the summary-judgment dismissal of his claims for relief under Minn.Stat. §§ 302A.467 and .751 (2002) for improper and prejudicial conduct in violation of corporate bylaws. Although we analyze the issues differently from the district court, we conclude that dismissal was appropriate and affirm as modified. We decline to address John Isaacs’s motion to strike and motion to vacate. We also decline to address Mindy Odegard and Fred and Rhea Isaacs’ motion to dismiss.

FACTS

Fred Isaacs owns fifty-four percent of American Iron & Steel Company. Fred Isaacs’s son, John Isaacs, owns the remaining forty-six percent. Before July 2002, American Iron had two board members — Fred and John Isaacs. John Isaacs was also employed with American Iron and has held the positions of president, CEO, COO, and treasurer.

At the July 2002 shareholder meeting, Fred Isaacs voted his majority shares to expand the board of directors from two members to four and to elect Mindy Ode-gard, his daughter, and Rhea Isaacs, his wife, to the new directorships. John Isaacs voted against the expansion of the board and the election of Odegard and Rhea Isaacs. Over a period of approximately five months, the newly constituted board demoted, suspended, and eventually terminated John Isaacs from his positions with the company.

In his complaint, John Isaacs alleged multiple claims arising from the July 2002 shareholder meeting and the board actions that followed. In part, he claimed that the election of Odegard and Rhea Isaacs violated American Iron’s bylaws and demanded equitable relief under Minn.Stat. §§ 302A.467 and .751 (2002). Odegard and Fred and Rhea Isaacs moved for summary judgment on those claims.

On the section-302A.751 claim, the district court concluded that the bylaws had been violated, but the claim was moot because Fred Isaacs could have acted in a manner compliant with the bylaws and achieved the same result. The district court dismissed the section-302A.467 claim for failure to specify which section of chapter 302A had been violated.

The district court ordered entry of judgment on these issues under Minn. R. Civ. P. 54.02, and John Isaacs appeals. In accordance with a stipulation reached among all of the Isaacs and Odegard, the claims and counterclaims that survived summary judgment were tried to a court-appointed referee.

ISSUES

I. Did the district court err in dismissing the minority shareholder’s claim for relief under Minn.Stat. § 302A.751 (2002), based on a claim of bylaws violation?

II. Did the district court err in dismissing the minority shareholder’s claim for equitable relief under MinmStat. § 302A.467 (2002), based on claims of chapter 302A violations?

III. Should this court grant the motions filed pending appeal?

ANALYSIS

I

John Isaacs contends that the district court erred in denying relief under section 302A.751 (2002) by dismissing, as moot, his claim that the July 2002 election of directors violated American Iron’s bylaws. The issue of whether a cause of action is moot is a legal issue, which we review de novo. In re McCaskill, 603 N.W.2d 326, 327 (Minn.1999). Generally, an issue may be dismissed as moot if an event occurs that resolves the issue or renders it impossible to grant effective relief. State v. Rud, 359 N.W.2d 573, 576 (Minn.1984).

The district court concluded that the July 2002 election violated American Iron’s bylaws. Nevertheless, the district court dismissed the claim for relief on the grounds that Fred Isaacs could have achieved the same results without violating the bylaws. But the doctrine of mootness looks towards actual occurrences, not mere speculation on events that could have happened. Thus, we agree that the doctrine of mootness does not justify dismissal of the claim. But because we conclude that the plain meaning of the bylaws applied to the undisputed facts does not support the claim, we agree that dismissal was, nonetheless, required.

Bylaws establish rules for a corporation’s internal governance and may contain any provision relating to management of the business that is not inconsistent with state law. Minn.Stat. § 302A.181, subd. 1 (2002). Bylaws have the same force and effect as provisions of a corporation’s charter or articles of incorporation and must be obeyed by the corporation and its directors, officers, and shareholders. Diedrick v. Helm, 217 Minn. 483, 497, 14 N.W.2d 913, 921 (1944).

We construe bylaws according to rules governing the construction of contracts and statutes. See Mauer v. Kircher, 587 N.W.2d 512, 514-15 (Minn.App.1998) (applying rules of contract and statutory construction to the interpretation of a bank’s bylaws), review dismissed (Minn. July 29, 1999). A court’s primary role in interpreting a contract is to “ascertain and give effect to the intention of the parties.” Metro. Sports Facilities Comm’n v. Gen. Mills, Inc., 470 N.W.2d 118, 122-23 (Minn.1991). When intent is expressed in unambiguous words, those words are to be given their plain and ordinary meaning. Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 704 (Minn.1999); see also Minn.Stat. § 645.08, subd. 1 (2002) (stating words and phrases in statutes must be construed according to common and approved usage).

Section 3.2 of American Iron’s bylaws provides that shareholders may increase the number of directors at regular shareholder meetings, and that directors serve indefinite terms:

The Board of Directors shall consist of one or more members. At each regular meeting, the shareholders shall determine the number of directors; provided, that between regular meetings the authorized number of directors may be increased or decreased by the shareholders or increased by the Board of Directors. Each director shall serve for an indefinite term that expires at the next regular meeting of shareholders, and until his successor is elected and qualified, or until his earlier death, resignation, disqualification, or removal as provided by statute.

Section 3.3 explains the procedure by which vacancies on the board of directors are filled:

Vacancies on the Board of Directors may be filled by the affirmative vote of a majority of the remaining members of the Board, though less than a quorum; provided, that newly created directorships resulting from an increase in the authorized number of directors shall be filled by the affirmative vote of a majority of the directors serving at the time of such increase. Persons so elected shall be directors until their successors are elected by the shareholders, who may make such an election at the next regular or special meeting of the shareholders.

The district court observed that an increase in the number of directors by shareholders under section 3.2 creates a vacancy. The district court then looked to the provision for vacancies, under section 3.3, that allows vacancies to be filled by “a majority of the directors serving at the time of such increase.” Applying these two sections, the district court concluded that the bylaws created exclusive authority in the board initially to fill a newly created directorship. But this reading isolates these phrases from their context. We must ascertain the parties’ intent “not by a process of dissection in which words or phrases are isolated from their context, but rather from a process of synthesis in which the words and phrases are given a meaning in accordance with the obvious purpose of the contract ... as a whole.” Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc., 666 N.W.2d 320, 324 (Minn.2003) (alteration in original) (quoting Republic Nat’l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn.1979)).

The bylaws explicitly establish the following procedures: (1) directors serve indefinite terms that expire at each regular shareholder meeting; (2) shareholders must determine the number of directors at each regular meeting, and may increase or decrease the number of directors at any time; (3) the board may fill vacancies; and (4) a director initially elected by the board’s exercise of its permissive power to fill vacancies serves only until shareholders act to choose a successor. Read together, the bylaws demonstrate the intent of its drafters: shareholders have the right to determine the board’s composition, including the number of positions and the individuals who hold those positions, at each shareholder meeting. Thus, shareholders have the plenary power to fill newly created directorships, and the board has interstitial power to fill vacancies between shareholder meetings. See id. (stating words and phrases must be viewed in context and not in isolation); see also Haft v. Dart Group Corp., 841 F.Supp. 549, 564 (D.Del.1993) (stating courts should not rewrite plain language of contractual provision, even to supply perceived omission).

Our reading of American Iron’s bylaws comports with the obvious and essential right of shareholders to elect directors:

It is doubtful if any ... shareholder right is any more important than the right to vote for the election of the directors and trustees of á corporation who cany on and conduct the business of the corporation, elect or appoint its officers and agents, and in a large measure, determine the manner in which the corporation operates.

Minn. Baptist Convention v. Pillsbury Acad., 246 Minn. 46, 61, 74 N.W.2d 286, 296 (1955). Our reading also comports with the Minnesota Business Corporations Act, which provides, “[vjacancies on a board resulting from newly created directorships may be filled by the affirmative vote of a majority of.... directors,” and each director so elected serves only until his or her successor is elected by shareholders. Minn.Stat. § 302A.225(a)(2), (b) (2002) (emphasis added). The right of shareholders to act before directors to fill such vacancies is implied, albeit not explicitly granted, by the right of shareholders to elect directors. See 18 John H.- Matheson & Philip S. Garon, Minnesota Practice § 3.18, at 74 (1996) (stating same).

It- is undisputed that American Iron’s shareholders, by majority vote, created two new directorships at the July 2002 shareholder meeting and elected Mindy Odegard and Rhea Isaacs to ■ the newly created positions. As we have concluded, under the plain meaning of American Iron’s bylaws, shareholders may determine the composition of the board at each shareholder meeting. The shareholders’ course of conduct at the July 2002 meeting did not violate American Iron’s bylaws, and John Isaacs failed to establish the foundational fact on which he rests his section-302A.751 bylaws-violation claim. Although we conclude that the district court dismissed John Isaacs’s claim under an incorrect application of the mootness doctrine, we affirm as modified because the district court arrived at the correct result. See Brecht v. Schramm, 266 N.W.2d 514, 520 (Minn.1978) (stating, “[i]f the trial court arrives at a correct decision, that decision should not be overturned regardless of the theory upon which it is based”)..

II

For several independent reasons, we also conclude that the district court properly dismissed John Isaacs’s section-302A.467 claim. The dismissed claim alleged that Odegard and Fred and Rhea Isaacs “violated the provisions of Chapter 302A,” and therefore John Isaacs was entitled to equitable relief under Minn.Stat. § 302A.467 (2002). In dismissing the claim, the district court reasoned that John Isaacs did not allege that a specific section of chapter 302A had been violated, and the claim was impermissibly vague:

Count Four does not specify which sections of the voluminous Minn.Stat. § 302A Fred is alleged to have violated.... Section 302A.467 does not identify a possible type of mischief but allows for certain remedies if a type of mischief is proven.... Within the chapter for which the remedies identified in Minn. Stat. § 302A.467 apply, there are myriad offenses, some related, some unrelated.

On appeal, John Isaacs argues that the district court’s reasoning was flawed because the dismissed claim realleged the initial eighty-six paragraphs of the complaint that listed various claims of infractions.

We agree with the district court that the claim was broad, and we also agree that section 302A.467 is directed more at a remedy than at providing a ground for a claim. We find it significant that John Isaacs’s substantive claims under section 302A.751 that were not resolved through summary judgment were fully tried to a referee. Thus, the dismissal of a duplica-tive request for equitable relief under section 302A.467 does not affect substantial rights. See Minn.Stat. § 302A.467 (providing that if a corporation, officer, or director violates chapter 302A a court may “grant any equitable relief it deems just and reasonable in the circumstances and award expenses, including attorneys’ fees and disbursements” to the complaining shareholder).

At oral argument, John Isaacs argued that, even though both sections 302A.467 and .751 provide for equitable relief, because only section 302A.467 provides for “injunctive relief,” his claims were affected by the dismissal of the section-302A.467 claim. But both sections provide for “any equitable relief [a court] deems just and reasonable.” Minn.Stat. §§ 302A.467, .751 (emphasis added). John Isaacs cites no authority for the proposition that injunc-tive relief may be granted only under section 302A.467, and we have found none. Additionally, we note that John Isaacs sought emergency injunctive relief, but the district court denied that request on its merits for failure to show irreparable harm and John Isaacs does not contest that decision. Accordingly, the later dismissal of the claim based on section 302A.467 did not prejudice John Isaacs.

Finally, John Isaacs argues that his claim for equitable relief under section 302A.467 should have been allowed as a remedy for his claim for violation of American Iron’s bylaws. But this claim alleged a violation of the company’s bylaws, not a violation of chapter 302A for which equitable relief under section 302A.467 may be requested. Furthermore, we have concluded that the bylaws were not violated. The district court did not err in dismissing John Isaacs’s claim based on section 302A.467.

Ill

During the pendency of this appeal, the litigants filed various motions. John Isaacs moved to strike documents that postdated the order appealed, that were included in Odegard and Fred and Rhea Isaacs’ appendix, and that were relied upon in their brief. Because we have not relied on the contested material in reaching our decision, it is unnecessary to address the merits of this motion. See Berge v. Comm’r of Pub. Safety, 588 N.W.2d 177, 180 (Minn.App.1999) (finding it unnecessary to address merits of motion to strike when appellate court did not rely on objected-to portions).

John Isaacs also moved to vacate a referee’s report and district court order filed after the district court’s summary judgment ruling and before oral argument on the appeal, contending that the district court was divested of jurisdiction. See Minn. R. Civ.App. P. 108.03 (suspending district court’s jurisdiction, pending appeal, unless the matter before it is independent from the judgment from which appeal is taken). Finally, Odegard and Fred and Rhea Isaacs moved to dismiss this appeal as moot. Because we affirm the judgment from which this appeal is taken, we decline to consider the merits of these arguments.

DECISION

We interpret bylaws according to their plain meaning and in accordance with the obvious purpose of the document as a whole and conclude that Odegard and Fred and Rhea Isaacs did not violate American Iron’s bylaws. The district court properly dismissed John Isaacs’s bylaw-violation claim but did so on an incorrect legal theory. We therefore affirm as modified. We also conclude that the district court did not err under section 302A.467. We decline to address motions filed by the parties pending this appeal.

Affirmed as modified.


author: HUDSON, Judge.

text:
    Nicole STENGEL, Respondent, v. EAST SIDE BEVERAGE, et al., Appellants.
    No. A04-392.
    Court of Appeals of Minnesota.
    Dec. 28, 2004.
    Review Denied Feb. 23, 2005.

      Stephen W. Cooper, Stacey R. Everson, Stephanie A. Haedt, The Cooper Law Firm, Minneapolis, MN, for reápondent.
    Paul J. Zech, Lee A. Lastovich, Marnie Polhamus, Felhaber, Larson, Fenlon & Vogt, P.A., Minneapolis, MN, for appellants.
    Considered and decided by HUDSON, Presiding Judge; KALITOWSKI, Judge; and KLAPHAKE, Judge.
   OPINION

HUDSON, Judge.

In a denial of summary judgment, the district court rejected appellant East Side Beverage’s contention that the Workers’ Compensation Act provides respondent Nicole Stengel’s sole remedy against her former employer for injuries resulting from sexually motivated assault and battery by coworkers and a supervisor. We affirm.

FACTS

Appellant East Side Beverage is a beer distributor to liquor stores and bars in the Twin Cities metropolitan area. Appellant employed respondent Nicole Stengel as a graphic designer of advertising signs for about two years. Respondent was responsible for producing “sign graphics” for on- and off-premise accounts, table tents, menus, stickers for tap handles, special event signs and posters, as well as a variety of other projects for appellant’s customers. Appellant terminated respondent on December 19, 2001, for unsatisfactory performance.

Respondent brought suit against East Side Beverage’s president and vice-president, individually, as well as her former employer, appellant East Side Beverage, for sexual discrimination under the Minnesota Human Rights Act. Her complaint also included counts for common-law assault and battery, intentional infliction of emotional distress, and numerous other claims. The alleged conduct which formed the basis for respondent’s claims includes a co-worker sticking his finger in between the buttons of respondent’s blouse, between her breasts, and moving his finger back and forth while saying “ding, ding, ding ... ”; another co-worker shoving his hand up her leg saying, “Oh, dead man’s curve, I’d like to get some of that,” and then grabbing respondent and reaching for her vagina; her supervisor leaning his body against hers and kissing her; and various other co-workers grabbing her buttocks, grabbing and snapping her bra, and slapping her backside with a rolled up sign.

Appellant moved the district court for summary judgment on all counts, arguing that the district court lacked subject-matter jurisdiction because the Minnesota Workers’ Compensation Act (WCA) provides an employee’s exclusive remedy, and thus bars respondent’s common-law claims for assault, battery, and intentional infliction of emotional distress. In response, respondent argued that her injuries were excluded from coverage under the WCA by virtue of the WCA’s “assault exception,” because she was the victim of an intentional assault that was personal to her and unrelated to her employment.

The district court dismissed several of respondent’s claims, but denied appellant’s summary judgment motion with respect to respondent’s common-law assault and battery and intentional infliction of emotional distress claims, finding that a genuine issue of material fact exists regarding the assailants’ motives; specifically whether the alleged motivation to injure respondent was based on personal animosity toward her, arising from circumstances “wholly unconnected with the employment.”

This appeal follows.

ISSUE

Did the district court err in holding that factual issues exist as to whether respondent’s intentional tort claims are barred by the exclusivity provisions of the Workers Compensation Act?

ANALYSIS

Appellant contends that the district court lacks subject-matter jurisdiction to hear respondent’s common-law assault and battery and intentional infliction of emotional distress claims, arguing that the Workers’ Compensation Act (WCA) provides respondent’s exclusive remedy.

On appeal from summary judgment, this court must examine two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its interpretation of the law. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn.1997). A district court’s decision on a motion for summary judgment is reviewed de novo. Sentinel Mgmt. Co. v. Aetna Cas. & Sur. Co., 615 N.W.2d 819, 827 (Minn.2000). Questions involving the interpretation of a statute and the determination of whether a district court has subject-matter jurisdiction are legal questions subject to de novo review. Gunderson v. Harrington, 632 N.W.2d 695, 701 (Minn.2001).

Under the WCA, employers are required to “pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.” Minn.Stat. § 176.021, subd. 1 (2002). Thus, the WCA provides the exclusive remedy to employees for personal injuries arising out of and in the course of employment. Id.; McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn.1995). When the WCA provides the employee’s exclusive remedy, district courts are without subject-matter jurisdiction, unless an employee facing an. exclusivity defense can show that the alleged conduct falls within an exception to the coverage of the Act. Id. One exception to the WCA is what is commonly known as the “assault exception”:

“Personal injury” means injury arising out of and in the course of employment. ... Personal injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.

MinmStat. § 176.011, subd. 16 (2002) (emphasis added).

Thus, the question presented to us is if there is a genuine issue of material fact as to whether the conduct that appellant’s employees subjected respondent to falls within the assault exception. We conclude that a genuine issue of material fact exists.

We begin our analysis by noting that the Minnesota Supreme Court has observed that assault cases generally fall into three categories, two of which are compensable under the WCA, and one that is non-compensable and therefore actionable under common law. McGowan, 527 N.W.2d at 834. The three pertinent categories are: (1) assaults that are non-compensable under the WCA — i.e., actionable under the common law — because the assailant was motivated by personal animosity toward the victim", arising from circumstances wholly unconnected with the employment; (2) assaults that are compen-sable under the WCA because the provocation or motivation for the assault arises solely out of the activity of the victim as an employee; and (3) assaults that are compensable under the WCA because they are neither directed against the victim as an employee nor for reasons personal to the employee. See id.; Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 600, 297 N.W. 19, 21-22 (1941). Assigning a case to the “proper category” requires a review of the pertinent case law.

In Fernandez v. Ramsey County, 495 N.W.2d 859 (Minn.App.1993), this court directly addressed sexual assault and battery in the workplace, and affirmed the denial of the employer’s motion for summary judgment where the plaintiff alleged that she was a victim of sexually-motivated assaults that were directed at her personally. Id. at 860-63. Thus, the Fernandez court held that the disputed question of whether an assault and battery are “personally motivated” or random acts resulting from circumstances of employment is a triable issue. Id. at 863.

Two years later, the Minnesota Supreme Court decided McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830 (Minn.1995). In McGowan, the court held that a negligence action by an employee of a homeless shelter who was raped by a shelter patron was barred by the exclusivity provision of the WCA. Id. at 834. Thus, McGowan held that the district court lacked jurisdiction, and the employer was entitled, as a matter of law, to summary judgment on McGowan’s tort claims. Id. at 833-34. In so doing, the court rejected McGowan’s claim that the rape fell within, the “assault exception” because her assailant assaulted her for personal reasons as evidenced by the fact that he had previously made advances toward her and had been rebuffed. Id. The court added that

[i]t is also equally clear that McGowan’s employment was a causal factor contributing to her being raped. At the time she was raped, McGowan was the shelter’s director and had never had any contact with her assailant outside the workplace. Further, the assault occurred during working hours, in her office, while she was directly engaged in the performance of her work duties. Based on these facts, we cannot say that the rape arose from circumstances unrelated to McGowan’s employment.

Id. at 834.

Despite the court’s rejection of McGowan’s argument concerning the assailant’s subjective intent, and its ultimate grant of summary judgment, it is significant that the McGowan- court did not address the reasoning in Fernandez which deferred the determination of the assailant’s subjective intent for a fact-based analysis at trial. Equally significant, the McGowan court made it clear that -its holding was' based largely on the fact that the nature of McGowan’s employment — working in a homeless shelter where she was put at risk to such attacks — was a causal factor contributing to the attack. Id. In other words, the assault arose solely out of her activities as an employee; but those activities were considered within the context of the nature of McGowan’s employment.

The most recent case addressing the applicability of the assault exception is Meintsma v. Loram Maintenance of Way, Inc., 684 N.W.2d 434 (Minn.2004). In Meintsma, union employees had a ritual of giving other union employees “birthday spankings” at the workplace, and a few days after his birthday, Meintsma received a spanking from his co-workers who spanked him with a wooden paddle made from two-by-four lumber. Id. at 437-38. After stating that the assault exception was to be narrowly construed, the supreme court held, as a matter of law, that the assault exception did not apply to impose liability on the employer for assault and battery because the motivation for the conduct arose solely out of the employee’s activity as an employee, and not personal animosity. Id. at 439. Like McGowan, Meintsma did not address the reasoning in Fernandez. Also like McGowan, the Meintsma court relied heavily on the fact that Meintsma’s spanking was a result of an employment ritual, not anything personal to Meintsma. Id.

Nevertheless, appellant argues that the trial court erred in relying upon Fernandez because the Minnesota Supreme Court’s decisions in Meintsma and McGowan have implicitly overruled this court’s decision in Fernandez. In support of that proposition, appellant claims that: (1) the Fernandez subjective analysis predates the supreme court’s holding in McGowan and Meintsma; (2) Fernandez does not address the “wholly unconnected” standard relied on by the supreme court both before and after the Fernandez decision; and (3) McGowan did not cite Fernandez as having any precedential value and implicitly rejected the subjective, fact-based analysis. Thus, appellant contends that to invoke the assault exception, an employee must demonstrate that the assailant was motivated by personal animosity toward the victim arising from circumstances “wholly unconnected with the employment.” See, e.g., McGowan, 527 N.W.2d at 834; Hanson, 209 Minn. at 600, 297 N.W. at 21-22. Appellant further posits that the assault must have been for “reasons personal to the victim,” and “must not have been directed against him as an employee, or because of his employment.” See Hanson, 209 Minn. at 600, 297 N.W. at 22. Significantly, appellant contends that unless the employee can demonstrate that the assault was “wholly unconnected” to his or her employment, the assault exception does not apply as a matter of law.

Applying this standard, appellant argues that respondent fails to meet it because her injuries occurred at work, during working hours, and while she was performing her job duties. Additionally, appellant argues that respondent’s assailants were not motivated by personal reasons to commit the alleged offenses, and that respondent has presented no evidence to the contrary. Indeed, appellant suggests that its employees have engaged in a pattern of inappropriate conduct with respect to all its women employees and that respondent is but one of many women who are part of that culture.

Respondent contends that nothing in the Minnesota Supreme Court’s decisions in McGowan and Meintsma overruled Fernandez. Therefore, under Fernandez, the disputed question of intent and motivation are triable issues. Further, respondent acknowledges the general rule that unless the injury was wholly unrelated to the employment, the WCA provides an employee’s exclusive remedy. But respondent asserts that whether an assault is wholly unrelated to the employment is determined by examining whether the essential nature of the work makes risk of assault a part of the job. Respondent contends that the sexual assaults and batteries at issue here were wholly unrelated to her job duties as a graphic designer of signs.

First, we conclude that the test for determining whether the assault exception applies is to examine whether the assailant is motivated by “personal animosity toward his victim, arising from circumstances wholly unconnected with the employment.” McGowan, 527 N.W.2d at 834. We further conclude that neither McGowan nor Meintsma overruled Fernandez. The legislatively created assault exception opened the door for fact-specific inquiries to determine the assailant’s motivation; to overrule Fernandez would effectively render the assault exception meaningless. Accordingly, the district court properly relied on Fernandez and McGowan in denying summary judgment, and correctly explained that here, on this record, the trier of fact will need to determine whether the alleged motivation to injure respondent was based on “personal animosity” toward respondent arising from circumstances “wholly unconnected with the employment.”

Second, in order for the assault exception to apply, the acts must not be directed against the employee as an employee. Or, as articulated in McGowan, the acts must be “wholly unconnected” to the employment. Id. But as stated earlier, the “wholly unconnected” standard is in turn a function of analyzing the nature of the employee’s job. Thus we note that the driving force behind the holding in Meints-ma was the fact that the employee spanking was a company ritual; i.e., an integral part of the company’s culture to which most of the employees were subjected on their birthdays. For that reason, the court held that the assault exception did not apply to impose liability on the employer for assault and battery because the motivation for the injuries the employee received arose solely out of the employee’s activity as an employee and not personal animosity. Meintsma, 684 N.W.2d at 439.

Likewise, in McGowan, the director of a homeless shelter was raped by a man she was attempting to counsel regarding his disruptive behavior. McGowan, 527 N.W.2d at 832. The court held that her negligence action was barred by the WCA because her rape arose “solely out of McGowan’s activities as an employee.” Id. at 834. The court said that “employment that requires women to be in isolated places is a causal factor contributing to such an attack,” and noted that McGowan was assaulted while directly engaged in the performance of her work duties. Id. at 834 (quotation omitted).

Here, we cannot say as a matter of law that respondent was assaulted solely because of the nature of her job duties or in her capacity as an employee, unlike the employees in Meintsma and McGowan. There was no peculiar hazard inherent in making signs. Indeed, nothing about being a sign-maker was a causal factor in the alleged assaults. Nor has appellant demonstrated that all its female employees were subjected to similar assaults. At its essence, appellant’s position is that if an assault occurs at the workplace, that in and of itself puts the assault within the ambit of the WCA. This position is not supported by Minnesota precedent. To the contrary, the central question is not whether the employee was injured merely while at his or her employment, but whether the injury occurred because the employee was at the job “in touch with associations and conditions inseparable from it.” Johnson v. Ramsey County, 424 N.W.2d 800, 805 (Minn.App.1988) (holding that a kiss had no association with or to the job) (quotation omitted), review denied (Minn. Aug. 24, 1988). As Meintsma and McGowan clearly demonstrate, courts must examine cases on their individual facts to determine whether the employee’s job function was somehow related to the injury. If it is not, then the assault exception applies and the employee’s common-law claim is not barred by the Workers’ Compensation Act. Thus, though the alleged assaults occurred during working hours and respondent had not had contact with any of her assailants outside of the workplace, we cannot say that as a matter of law respondent’s injuries were not based on personal animosity.

While some cases will warrant granting summary judgment as a matter of law, on this record we conclude that appellant’s motivations cannot be determined as a matter of law, and we leave to the trier of fact the determination of whether the assault exception applies.

DECISION

Because a genuine issue of material fact exists as to whether the alleged acts were directed against respondent for personal reasons or as an employee, the district court did not err in denying summary judgment of respondent’s intentional tort claims.

Affirmed.

      . Appellant argues that the district court erred by not dismissing respondent’s assault and battery claim against East Side Beverage's president and vice-president in their individual capacities. But our review of the district court's January 16, 2004 order reveals that the district court did just that — i.e., it dismissed the assault and battery and aiding and abetting claims (Count 3) against appellant's president and vice president in their individual capacities. The claim against appellant as a corporate entity, however, survived. Moreover, in respondent’s brief on appeal here and at oral argument, respondent's counsel stated that Count 3 had been withdrawn as it relates to the individual liability of appellant's president and vice president. Therefore, the only issue before us is whether respondent’s assault and battery claim properly survived summary judgment with respect to appellant East Side Beverage.

      . We do not consider whether the district court erred in declining to dismiss respondent's intentional infliction of emotional distress claim because appellant did not brief this issue on appeal. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982) (holding that issues not briefed on appeal are waived).

      . At the time the briefs were filed in this matter, the supreme court had recently granted review of Meintsma, but no decision had been rendered. The supreme court's decision in Meintsma, however, like McGowan, does not cite Fernandez as having any precedential value; nor does it address the reasoning in Fernandez.

      . Because the Minnesota Supreme Court did not decide Meintsma until July 29, 2004, the district court did not have Meintsma before it.


author: WILLIS, Judge.

text:
    STATE of Minnesota, Respondent, v. Karen Kay FITZPATRICK, Appellant.
    No. A03-1480.
    Court of Appeals of Minnesota.
    Dec. 28, 2004.

      Mike Hatch, Attorney General, St. Paul, MN and Ross E. Arneson, Blue Earth County Attorney, Patrick R. McDermott, Susan B. DeVos, Assistant County Attorneys, Mankato, MN, for respondent.
    Allen P. Eskens, Paul E. Grabitske, Eskens, Gibson & Behm Law Firm, Chtd., Mankato, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; WILLIS, Judge; and CRIPPEN, Judge.

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

   OPINION

WILLIS, Judge.

Appellant Karen Kay Fitzpatrick challenges her conviction of providing alcoholic beverages to a minor, arguing that Blue Earth County’s compliance check violated both her due-process rights and Minnesota’s statute prohibiting the underage purchase of alcoholic beverages. Because the district court did not err by concluding that the due-process defense arising from government overinvolvement in the prohibited activity was not available to Fitzpatrick; because we cannot infer a legislative intent to prohibit the type of compliance check at issue; and because there is no authority to suggest that constitutional principles regarding the reasonableness of searches and seizures apply, we affirm.

FACTS

In May 2002, the Blue Earth County Sheriffs Office conducted a compliance check regarding the sale of alcoholic beverages to minors at Jack’s Bar & Grill in Good Thunder, Minnesota. The sheriffs office used a 19-year-old undercover purchaser, wired him with audio-surveillance equipment, gave him a 20-dollar bill, and sent him into the bar to attempt to purchase alcoholic beverages. The underage purchaser wore a khaki cap with blue cursive writing that identified him as a member of the “Blue Earth County Sheriffs Office Alcohol Compliance Team.” Detective Willis Purvis and a colleague instructed the underage purchaser to produce identification showing his true age at the bartender’s request.

The underage purchaser entered the bar and asked to buy a 12-pack of beer from appellant Karen Kay Fitzpatrick. Without asking for identification, Fitzpatrick made the sale, and the underage purchaser left the bar with the beer. After taking possession of the beer, the detectives entered the bar. Fitzpatrick admitted to the sale, and the officers verified that the 20-dollar bill used in the sale was the one that they had given to the underage purchaser. Fitzpatrick was charged with providing alcoholic beverages to a minor. She subsequently moved to dismiss the charge.

At a contested omnibus hearing in March 2003, Detective Purvis testified that the sheriffs office had been conducting the compliance checks since 1997 or 1998. He testified that minor consumption of alcoholic beverages is a significant problem in Blue Earth County and that the reason for conducting compliance checks was to raise awareness of the problem among alcoholic-beverage retailers and to keep alcoholic beverages out of the hands of minors.

Purvis testified that, on average, the sheriffs office conducts compliance checks at every alcoholic-beverage retailer in Blue Earth County twice annually. He further testified that, generally, the sheriffs office does not have any particularized suspicion of criminal activity before conducting a compliance check. He stated that in this case the sheriffs office had no specific suspicion that Fitzpatrick was selling alcoholic beverages to minors but that this particular retailer had been a “problem spot” in the past, having failed at least two previous compliance checks.

The district court denied Fitzpatrick’s motion to dismiss and subsequently found her guilty of providing alcoholic beverages to a minor. This appeal followed.

ISSUES

I. Does a law-enforcement compliance check that uses an undercover, underage purchaser of alcoholic beverages constitute government overinvolvement in the criminal conduct with which the defendant is subsequently charged, violating the defendant's due-process rights?

II. Does the absence of an enforcement exception in Minnesota's statute prohibiting the underage purchase of alcoholic beverages, Minn.Stat. § 340A.503, subd. 2(2) (2002), prohibit law enforcement from conducting a compliance check that uses an undercover, underage purchaser of alcoholic beverages?

III. Should an objective, individualized, articulable suspicion of criminal wrongdoing on the, part of an employee of an alcoholic-beverage retailer be a prerequisite for a valid law-enforcement compliance check that uses an undercover, underage purchaser of alcoholic beverages?

ANALYSIS

I.

Fitzpatrick argues that the sheriffs office manufactured the sale by using an underage person to purchase alcoholic beverages without evidence that an illegal sale would otherwise have occurred; that the use of an underage purchaser to break the law in order to enforce the law is repugnant to a sense of justice; and that the compliance check revealed simply a desire by the sheriffs office to obtain a conviction. The district court determined that the compliance check did not violate Fitzpatrick's due-process rights.

The due-process defense arising from government over-involvement in the criminal conduct with which a defendant is subsequently charged "is a legal defense which must be left to the trial court to decide in a manner similar to the way it decides a search and seizure issue. In other words, the court must resolve any factual disputes necessary to determining whether the police conduct violated due process." State v. Ford, 276 N.W.2d 178, 182 (Minn.1979). After accepting all factual findings by the district court that are not clearly erroneous, the ultimate question for this court is whether the charge at issue violated due process, which is a legal question reviewed de novo. See State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998) (stating that a mixed question of law and fact requires "the appellate court to apply the controlling legal standard to historical facts as determined by the trial court"). Here, the record supports the district court's findings of fact; we therefore turn to analysis of the legal question.

This court has applied guidelines for determining whether a defendant has access to the due-process defense on the ground of government overinvolvement in the criminal conduct with which the defendant is subsequently charged, adopting factors applied by the court in People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 373 N.E.2d 78, 83 (1978). State v. James, 484 N.W.2d 799 (Minn.App.1992), review denied (Minn. June 30, 1992). These factors are:

(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity.
(2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice.
(3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation, of exorbitant gain, or by persistent solicitation in the fac[e] of unwillingness.
(4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.

Id. at 802.

The district court determined that “it cannot be said that the police manufactured a crime that would not likely have occurred.” We agree. The record shows that the sheriffs office did not manufacture a crime but rather involved itself in the ongoing problem of the sale of alcoholic beverages to minors in Blue Earth County and merely provided the opportunity for Fitzpatrick to commit the crime, which she did. Nor was it entirely unlikely that the crime would otherwise have been committed: as Detective Purvis testified, this particular retailer had failed at least two previous compliance checks and had been designated a “problem spot.”

The district court determined that the conduct of the sheriffs office, while arguably “criminal or improper,” was not repugnant to a sense of justice because the underage purchaser “wore a cap identifying himself as a member of the compliance team, and was instructed to give correct information regarding his age if asked.” Detective Purvis testified that the sheriffs office had instituted a policy of identifying its underage purchasers as members of the alcohol-compliance team in response to retailer concerns regarding entrapment. The record supports the district court’s determination.

Fitzpatrick admits that “there is no evidence of [her] will being overcome” by the sheriffs office but argues that its motivation of enforcement of the statute was not sufficiently related to the purposes of crime prevention and protection of the populace to satisfy the James requirement. The district court determined that “there is no showing in the record that the police desired a conviction for any reason other than to prevent further crime.” Again, Detective Purvis testified that the compliance checks were a response to the problem of underage drinking in Blue Earth County and that the checks were an effort to both heighten awareness of the problem and to keep alcohol out of the hands of underage persons. The record supports the district court’s determination on this factor as well.

The district court did not err by determining that Fitzpatrick’s due-process rights were not violated.

II.

Fitzpatrick argues that the plain language of the statutes prohibiting the purchase of alcoholic beverages by minors and the sale of alcoholic beverages to minors does not give police the authority to break the law in order to enforce the law. Fitzpatrick compares the statute prohibiting the underage purchase of alcoholic beverages with the statute prohibiting the underage purchase of tobacco and points out that Minn.Stat. § 609.685, subd. 5(b) (2002), provides that the penalties applicable to an underage purchaser of tobacco “do not apply to a person under the age of 18 years who purchases or attempts to purchase tobacco ... for training, education, research, or enforcement purposes." Id. (emphasis added). Fitzpatrick argues that the legislature intended to prohibit the law-enforcement activity at issue here by purposefully omitting an enforcement exception in the statute prohibiting the underage purchase of alcoholic beverages. The conduct of the sheriffs department, she argues, is therefore a violation of the statute, compelling the suppression of all evidence..

The district court determined that the lack of an enforcement exception in the statute prohibiting the underage purchase of alcoholic beverages (Minn.Stat. § 340A.503, subd. 2(2)-(3) (2002)) is irrelevant. We agree. The violation at issue here is an illegal sale of alcoholic beverages, not an illegal purchase. Fitzpatrick was charged with violating the statute that makes it “unlawful for any person ... to sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age.” Id., subd. 2(1) (emphasis added); see Minn. Stat. § 645.16 (2002) (stating that “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”). The language of the statute regarding illegal sales is plain, and there is no dispute that Fitzpatrick violated it. Further, Fitzpatrick cites no authority for the proposition that even if the sheriffs office aided and abetted a violation of the illegal-purchase provision, evidence of her illegal sale should be suppressed.

We conclude that Fitzpatrick’s statutory argument is without merit.

III.

We also address an argument that the district court chose not to consider but that Fitzpatrick has revived on appeal. Fitzpatrick argues that the constitutional principles relating to unreasonable searches and seizures should apply here. Specifically, she urges this court to find that an objective, individualized, articula-ble suspicion of criminal wrongdoing on the part of an employee of an alcoholic-beverage retailer is a prerequisite to a valid compliance check. Because the sheriffs office did not have an individualized suspicion that Fitzpatrick was selling alcoholic beverages to underage persons, she argues that its conduct was unconstitutional and that the district court should have suppressed the evidence.

But there is no authority to suggest that search-and-seizure jurisprudence is “relevant to cases in which the government has encouraged the defendant to commit a crime.” Ford, 276 N.W.2d at 182-83 (stating that only the doctrines of entrapment and the due-process defense are relevant to such cases). The extension of existing law is the task of the supreme court or the legislature, not of this court. Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987), review denied (Minn. Dec. 18, 1987). Further, merely entering an alcoholic-beverage retail establishment to buy beer is neither a “search” nor a “seizure” for constitutional purposes.

Finally, Fitzpatrick argues that the compliance check deprived her of a fundamental liberty interest in her employment. But because she raises the issue for the first time in her brief on appeal, we do not review the issue. See Roby v. State, 547 N.W.2d 354, 357 (Minn.1996) (stating that “[tjhis court generally will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure”).

DECISION

Because Fitzpatrick failed to show that the sheriffs office violated her due-process rights; because her statutory argument does not show that the legislature intended to prohibit the government conduct at issue here; and because constitutional principles regarding unreasonable searches and seizures are not applicable to this case, we affirm.

Affirmed.


author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Anthony Phillip SCACCHETTI, Appellant.
    No. A03-301.
    Court of Appeals of Minnesota.
    Jan. 4, 2005.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN, and Donald F. Ryan, Crow Wing County'Attorney, Brainerd, MN, for respondent.
    John M. Stuart; State Public Defender, Sara L. Martin, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge; KLAPHAEE, Judge; and STONEBURNER, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Anthony Phillip Scacchetti challenges his convictions, for first-degree criminal sexual conduct, malicious punishment of a child, and third-degree assault, arguing under the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), his constitutional right of confrontation was violated by the admission of a child accuser’s out-of-court- statements to a nurse practitioner. We affirm.

FACTS

In May 2002, Scacchetti began babysitting for his girlfriend’s three-year-old daughter, R.J., while his girlfriend, K.J., was working. In late June, K.J. returned home from work and found R.J. with numerous bruises and a swollen face. K.J. also found items with blood on them including R.J.’s underwear, R.J.’s pillowcase, and a washcloth. Scacchetti told K. J. that R.J. had fallen in the bathtub.

K.J. took R.J. to Children’s Hospital in Minneapolis. An emergency room physician examined R.J. and found a possible hymen abnormality. Suspecting sexual abuse, the physician called a specialist for further examination.

The Midwest Children’s Resource Center is a department of Children’s Hospital that specializes in diagnosing whether a child has been the victim of abuse. Dr. Carolyn Levitt, a pediatrician and director of the center, testified at trial that the center’s process for diagnosing children includes a discussion with the parent or other person who brought the child to the clinic, a physical examination of the child, and an interview in which the child is asked “historical” questions about potential abuse. According to Levitt, this process is based on a “medical protocol” and it is “pretty much based on what [Levitt] would be doing if [she] were evaluating a child ... who had abdominal pain and appendicitis.” Examinations are videotaped for Levitt’s review because she is often not in the department when children are examined.

Laurel Edinburgh, a nurse practitioner with the center, examined R.J. after the emergency room physician suspected abuse had occurred. Edinburgh explained that she evaluates children to determine whether their “symptoms or signs” are due to a medical cause, neglect, abuse, or accident. She testified that she usually does not provide ongoing care for children who have been physically or sexually abused, but does provide ongoing care in situations of neglect. She also testified that she refers families to appropriate services in their local community.

Edinburgh started her examination of R.J. by talking with R.J.’s mother. She then conducted a physical examination of R.J. Photographs taken during this examination show numerous bruises on R.J.’s body, including an oblong bruise next to her anal opening. While examining R.J.’s anal and vaginal area, Edinburgh asked R.J. if anything had happened there. Edinburgh testified that R.J. said, “Yes.” Edinburgh then asked, “What touched [you] there?” According to Edinburgh, R.J. said, “Tony’s pee-pee.”

During the second examination, Edinburgh asked R.J. whether she had been touched, by whom, and in what way. A videotape of Edinburgh’s conversation with R.J. was played for the jury. During this examination, R.J. indicated that Scac-ehetti had touched her where she “poop[s].” R.J. said, while showing one finger pointing up, “He put his hands right in there.” R.J. also said that Scacchetti had touched her with his “pee-pee.”

Edinburgh testified, based on her examination of R.J., that she believed R.J. had been physically and sexually abused. With regard to whether R.J.’s disclosures played a part in the diagnosis of abuse, Edinburgh said:

Yes, it does.... I use all of my knowledge of how children disclose, out of the statements that they made during the interview, out of what a parent tells me about a medical history, about any histories of trauma, and my physical exam, and I put those, all of those sort of factors go together when I’m making a diagnosis that a child was sexually-abused.

R.J. did not testily at trial and Scacchetti did not have an opportunity prior to trial to cross examine her.

A jury found Scacchetti guilty of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(a) (2000), malicious punishment of a child in violation of Minn.Stat. § 609.377, subd. 4 (2000), and third-degree assault in violation of Minn. Stat. § 609.223, subd. 3 (2000). This court previously affirmed Scacchetti’s convictions in an unpublished opinion. State v. Scacchetti No. A03-301, 2004 WL 1191666 (Minn.App. June 1, 2004). On remand from the Minnesota Supreme Court, we reconsider Scacchetti’s appeal only with regard to the United States Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

ISSUE

Did the admission into evidence of R.J.’s out-of-court statements to Edinburgh violate Scacchetti’s Confrontation Clause rights?

ANALYSIS

A district court’s evidentiary rulings lie within its sound judgment and will not be reversed on appeal absent an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). “[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule.” O’Meara v. State, 679 N.W.2d 334, 336 (Minn.2004); accord Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (stating, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final” (emphasis added)). Scacchetti’s case was pending on direct review when the Supreme Court released its opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Thus, Scacchetti is entitled to benefit from any applicable rule announced in Crawford.

The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The Minnesota Constitution affords the same fundamental right, and the analysis is the same under both provisions. See Minn. Const. art. I, § 6; State v. Dukes, 544 N.W.2d 13, 19 (Minn.1996).

In Crawford, the Supreme Court criticized the reasoning of its previous decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which allowed out-of-court statements of an unavailable witness to be admitted at trial upon a showing of adequate indicia of reliability. Crawford, 124 S.Ct. at 1369-71. The Court stated that the Sixth Amendment right to confront one’s accuser cannot be satisfied by the reliability analysis in Roberts where “testimonial” statements are at issue. Id. at 1374. As such, the Court held, the Sixth Amendment bars out-of-court, “testimonial”- statements from admission into evidence unless (1) the hearsay declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant. Id.

The Court declined to provide a comprehensive definition of “testimonial.” Id. at 1374. Nevertheless, the Court provided examples of testimonial statements, including prior testimony at a preliminary hearing, previous trial, or grand jury proceedings, and police interrogations. Id. at 1364, 1374. The Court held, in reversing the trial court, that a “recorded statement, knowingly given in response to structured police questioning” in an interrogation setting was testimonial. Id. at 1365 n. 4. In reaching its decision, the Court recognized the “unique potential for prosecutorial abuse” when government officers, acting with an eye toward trial, are involved in the production of testimony. Id. at 1368 n. 7.

The Court also noted “[v]arious formulations of this core class of ‘testimonial’ statements,” including: (1) ex parte, in-court testimony or its functional equivalent, including affidavits, custodial examinations, prior testimony, or similar pretrial statements; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 124 S.Ct. at 1364.

On remand, Scacchetti argues R.J.’s disclosures to Edinburgh fall within the third and broadest, proposed formulation of testimonial statements because Edinburgh “does not provide ongoing care for children,” “clearly [knew] that her examinations may be used as evidence in the criminal case,” and “always tapes interviews.” But in order for Scacchetti to succeed on this argument, he must show, under Crawford, that the circumstances surrounding the contested statements led the three-year-old to reasonably believe her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation. See Crawford, 124 S.Ct. at 1364. Scacchetti’s arguments fail to show this.

Scacchetti also contends the circumstances surrounding R.J.’s disclosures are analogous to the child declarant’s statements in State v. Courtney, 682 N.W.2d 185 (Minn.App.2004), and are therefore testimonial. In Courtney, this court determined that under the holding of Crawford a child’s statement to a child protection worker was testimonial where an investigating police officer arranged the interview, observed the interview via T.V. satellite, and at one point interrupted the interview and directed the questioning. Id. at 196-97.

The record shows Edinburgh sought information from R.J. in order to provide a medical diagnosis — the examination protocol was developed by medical professionals and is similar to what a pediatrician would do when evaluating a child for medical needs generally; the examinations were videotaped to allow a pediatrician to consult with the nurse practitioner in the diagnosis process; Edinburgh considered R.J.’s disclosure, along with numerous other factors, in diagnosing abuse; and after diagnosing a child, Edinburgh provides ongoing care or refers the child to other, appropriate resources. See United States v. Renville, 779 F.2d 430, 438 (8th Cir.1985) (noting statements of identity to physician by child sexually abused by family member are of type physicians reasonably rely on in reaching diagnosis and course of treatment). Edinburgh was not working on behalf of, or in conjunction with, investigating police officers or other government officials “for the purpose of developing the case against [the defendant].” Courtney, 682 N.W.2d at 196. R.J.’s disclosures are not testimonial under this theory.

We conclude that R.J.’s out-of-court statements to Edinburgh were not testimonial and therefore their admission did not violate Scacchetti’s right to confrontation. Accord State v. Vaught, 268 Neb. 316, 682 N.W.2d 284-86, 291 (2004) (statement of four-year-old victim that “defendant put his finger in her pee-pee” was not testimonial because victim’s statement was made for the purpose of medical diagnosis); State v. Castilla, 121 Wash.App. 198, 87 P.3d 1211, 1214 (2004) (concluding statements made by sexual assault victim to sexual assault nurse regarding rape were not testimonial).

DECISION

R.J.’s out-of-court statements to a nurse practitioner, made in a hospital while the nurse examined R.J. for purposes of medical diagnosis, were not testimonial and therefore their admission did not violate Scacchetti’s right to confrontation even though R.J. did not testify at trial and Scacchetti did not have a prior opportunity to cross examine her.

Affirmed.