author: SABERS, Justice.

text:
    2008 SD 16
    James B. OSMAN, Plaintiff and Appellee, v. KARLEN AND ASSOCIATES and Dean Karlen, Defendants. and Gary Peterson, Defendant and Appellant.
    No. 24517.
    Supreme Court of South Dakota.
    Argued Jan. 9, 2008.
    Decided March 05, 2008.
    Rehearing Denied April 11, 2008.

      Robert L. Spears of Spears Law Office, P.C., Watertown, South Dakota, Attorneys for appellee.
    Kimberly Dorsett of Richards, Oliver & Dorsett Aberdeen, South Dakota, Attorneys for appellant.
   SABERS, Justice.

[¶ 1.] James Osman sued Dean Karlen, Karlen & Associates, Inc., and Gary Peterson alleging breach of contract and retaliatory discharge. After a bench trial, the circuit court found against Peterson on the breach of contract claim. The circuit court dismissed the retaliatory discharge claim and directed a verdict in favor of Karlen and Karlen & Associates, Inc. on the breach of contract claim. Peterson appeals.

FACTS

[¶ 2 J Karlen is an insurance agent in Aberdeen, South Dakota. He formed Kar-len & Associates, a South Dakota corporation doing business in South Dakota, to sell DakotaCare policies. Karlen is the President and only employee of this corporation. Karlen rents office space to five individual agents who work out of his office as independent contractors. These agents selling DakotaCare policies assign their commissions to Karlen & Associates, which pays the agents their commissions. Agents at Karlen & Associates now sell other lines of insurance, in addition to DakotaCare policies. It is unclear whether these commission checks are assigned to Karlen & Associates or if the checks go directly to the agents.

[¶ 3.] Karlen also is the general agent for Security Financial Life (n/k/a Assurity) insurance products. Karlen recruits and trains agents to work with him, but they are actually independent agents that contract directly with Security Financial. Karlen receives a 10% override from the new agent’s sales of Security Financial products. Security Financial pays the commissions from sales of its products directly to the independent agents and not to Karlen & Associates.

[¶ 4.] Karlen owns an office building in Aberdeen, with office space for up to five independent agents. If the agents are at club level, then the agent pays no additional money for rent or office supplies. If the agents are not at club level, then $200 per month was deducted from the agent’s commission assigned to Karlen & Associates.

[¶ 5.] Osman was an insurance agent who worked out of Karlen’s office building from 1990 to December 31, 1999. In January of 2000, Osman became a detached agent and worked out of his home. Peterson started working out of the office in 1996.

[¶ 6.] Karlen drafted an “Agency Administrative Policy Manual” that sets forth some requirements of agents associated with his office. Each agent received the manual upon hire. The manual covered such items as when to be in the office, when to answer correspondence, how many appointments to schedule per day, and when to turn in activity sheets. The manual also contains broad policy statements, such as “This Agency is a joint team effort. By doing more than your share, you will receive more than average success.” It required brokerage business to be placed through the general agent, Karlen.

[¶ 7.] The relevant section for this case provides:

9. Active [Full-Time (Club Level) ] agents’ policyholders are protected to the extent that they are not to be used by another agent as a prospecting list. The policyholder and his/ her immediate family up to age 16 are protected. However, should another agent call on them by mistake, or not knowing they are a poliey-holder, and create some interest by the prospect, then both the original agent and the agent who created the need or interest should hold the interview and split the case.

The manual also explains the division of brokerage commissions. Generally, there is a 90/10, 80/20 or 50/50 split of commissions between the agent and Karlen & Associates, depending on the type of sale and the experience of the agent.

[¶ 8.] In 1991, Osman sold Dennis Hell-wig a life insurance policy. A year later he sold Dennis’ wife, Cherie, and Dennis’ sons insurance policies. In 1994 or 1995, Osman sold the Hellwigs an executive bonus plan, which is a retirement plan. Over the years he received commissions from these policies and continued to service the policies when needed.

[¶ 9.] On or around June 10, 2006, Osman went to the Hellwig’s business to change beneficiaries on the retirement plan Osman previously sold to the Hell-wigs. There, he discovered Peterson was in the process of selling the Hellwigs a GEAR program. Osman asked Karlen to enforce the policy manual, which Osman alleged required Peterson and Karlen to let Osman assist in the sale of the GEAR program and split the commission.

[¶ 10.] A couple of days later, Karlen, Osman and Peterson had a meeting regarding the GEAR policy and Osman assisting in the sale. Peterson claimed the sale was already completed and Osman was not needed to help with the sale. Moreover, Peterson would not split the commission for the sale. Osman asked Karlen to “follow the policy” and force Peterson to split the commission. Karlen claimed he did not have the power to force the commission split.

[¶ 11.] Osman did not sell GEAR policies, but went to one seminar about the product. Thereafter, Osman called on the Hellwigs and told them the GEAR policy was not fully approved by the IRS. The Hellwigs called Peterson to ask about Osman’s statements and Peterson explained that one section of the GEAR policy has not been fully approved, but the section he sold the Hellwigs was approved. Osman was subsequently fired in November of 2000 by Security Financial.

[¶ 12.] Osman sued Karlen, Karlen & Associates and Peterson. He alleged section nine of the Agency Administrative Policy Manual created an implied contract and the defendants breached the contract by refusing to split the commission on the GEAR policy sale. He also sued Karlen and Karlen & Associates for retaliatory discharge.

[¶ 13.] A bench trial was held on February 22-23, 2007. After Osman presented his case, the defendants moved for a directed verdict. The circuit court granted the motion for a directed verdict on the retaliatory discharge claim finding Osman presented no evidence that termination “for cause” was required. With regard to the breach of contract claim, the circuit court denied the directed verdict motion.

[¶ 14.] At the conclusion of the trial, the circuit court judge found Peterson had breached an implied contract based on section nine of the Agency Administrative Policy Manual. He awarded Osman 40% of the $117,082 commission Peterson earned from the GEAR sale to the Hell-wigs. Prejudgment interest amounted to $19,405, for a total judgment of $66,237.80. The circuit court found in favor of Karlen and Karlen & Associates and dismissed all claims. Peterson appeals and raises the following issues:

1. Whether the circuit court erred in denying Peterson a directed verdict for the breach of contract claim.

2. Whether the circuit court erred in finding that the manual created a contract between Osman and Peterson.

3. Whether the circuit court erred when it failed to hold that plaintiffs

claims in equity are barred by the doctrine of unclean hands.

4.Whether the circuit court erred in holding that the commission should be split 60/40.

STANDARD OF REVIEW
We review a trial court’s consideration of a motion for directed verdict and judgment notwithstanding the verdict under the following standard:
A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.

Martinmaas v. Engelmann, 2000 SD 85, ¶ 20, 612 N.W.2d 600, 606 (additional citations omitted). “Thus, we apply the abuse of discretion standard when reviewing the trial court’s ruling.” Id. (citing Bland v. Davison County, 1997 SD 92, ¶26, 566 N.W.2d 452, 460) (citing Treib v. Kern, 513 N.W.2d 908, 914 (S.D.1994)).

[¶ 15.] On an appeal from a bench trial:

We review the circuit court’s findings of fact under the clearly erroneous standard. Under this standard, we will only reverse when we “are left with a definite and firm conviction that a mistake has been made” after a thorough review of the evidence. We review conclusions of law under the de novo standard without deference to the circuit court.
In applying the clearly erroneous standard, our function is not to decide factual issues de novo. The question is not whether this Court would have made the same findings that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed. This Court is not free to disturb the lower court’s findings unless it is satisfied that they are contrary to a clear preponderance of the evidence. Doubts about whether the evidence supports the court’s findings of fact are to be resolved in favor of the successful party’s “version of the evidence and of all inferences fairly deducible therefrom which are favorable to the court’s action.”

Fin-Ag, Inc. v. Feldman Bros., 2007 SD 105, ¶ 19, 740 N.W.2d 857, 862-68 (additional citation omitted).

[¶ 16.] l.Whether the circuit court erred in denying Peterson a directed verdict for the breach of contract claim.

[¶ 17.] At the conclusion of Osman’s case, Peterson requested a directed verdict regarding both the contract and retaliatory discharge claim. The circuit court denied the motion for directed verdict. The court found there was sufficient evidence in the record for the trial to continue. It noted that the agency administration policy, specifically paragraph nine, supported Osman’s allegations that the commissions from the GEAR policy sale to Hellwigs should have been split. There was evidence that this commission splitting was company policy, based on the agency administration policy manual and other agents’ testimony. Every agent receives a copy of the manual upon hire. Peterson was aware of the policy and the policy was in effect at the time of the GEAR sale.

[¶ 18.] Based on the record, there was sufficient evidence to deny the directed verdict motion. Therefore, the circuit court did not abuse its discretion.

[¶ 19.] 2. Whether the circuit court erred in finding that the manual created a contract between Osman and Peterson.

[¶ 20.] At trial, Osman argued, and the circuit court agreed, that paragraph nine in the agency administrative policy manual impliedly requires an agent who solicits business, knowingly or otherwise, from another agent’s clients to split the commission earned from any policy sold. The circuit court found this case analogous to Osterkamp v. Alkota Manufacturing, Inc., 332 N.W.2d 275 (S.D.1983), and ruled in favor of Osman. Peterson argues that Os-terkamp does not apply in this context. Specifically, Peterson alleges that 1) the Osterkamp decision does not apply outside of the employer/employee context; 2) the Osterkamp decision should not be extended to an independent contractor setting; 3) Osterkamp should not be read to create contractual obligations between co-employees; and 4) the agency administrative policy manual is not specific enough to create contractual rights in accordance with Os-terkamp.

[¶21.] In Osterkamp, the employee sued his former employer for wrongful discharge. 332 N.W.2d at 276. After a jury found for Osterkamp, the trial court granted a new trial, in part, because it found the verdict was not supported by the evidence. Id. On appeal, this Court noted that Osterkamp alleged during trial that the termination “violated the rules, regulations and disciplinary procedures in Employer’s Employees Handbook.” Id. The handbook, “list[ed] twenty-eight rules ‘necessary for the orderly operation of Employer’s business’ and ‘violations of the rules listed ... will result in disciplinary actionId.

[¶ 22.] While normally an employee works “at-will” in South Dakota and can be fired without cause, the employee handbook in Osterkamp specifically provided that “[t]he company will not discharge nor give disciplinary layoff to any employee without just cause.” Id. at 277. Despite this assurance, Osterkamp was fired for disloyalty, which was not a basis for discharge in the disciplinary rules. Moreover, the testimony demonstrated he was fired without following any of the procedures for disciplinary action enumerated in the manual. Therefore, this Court held that the trial court abused its discretion in granting a new trial after the jury’s verdict because the evidence supported the verdict. Id. at 277-79.

[¶ 23.] The circuit court in this case found the precedent in Osterkamp created contractual obligations between Peterson and Osman, and it ordered the commissions split 60/40. We do not agree that Osterkamp is controlling precedent under these facts. However, SDCL 53-1-3 provides a basis to affirm the circuit court. We will affirm the circuit court if there is a basis on the record to do so. See Bunkers v. Jacobson, 2002 SD 135, ¶ 23, 653 N.W.2d 732, 739 (additional citations omitted) (affirming the trial court when it reached the right result, albeit with the wrong reasoning).

[¶ 24.] SDCL 53-1-3 in relevant part provides that “[a]n implied contract is one, the existence and terms of which are manifested by conduct.” The language in the manual is specific and both Peterson and Osman were aware of the policy. The manual provides that once the agent contacts a protected client and generates interest, “then both the original agent and the agent who created the need or interest should hold the interview and split the case.” While Peterson argues that “should” is permissive and not mandatory, the definition declares that should is used, “to express obligation, propriety, or expediency” or “to express what is probable or expected.” Merriam-Webster’s Online Dictionary, located at www.m-w.com (last accessed on February 26, 2008). Therefore, the language creates an obligation or expectation of splitting the commission.

[¶ 25.] Moreover, there was testimony that commission splitting was common in the industry and specifically between the agents at Karlen & Associates. The circuit court found:

That all of the insurance agents who testified at trial testified that it is common in the insurance industry for agents to split commissions, and every insurance agent that testified at the two day trial testified that he split commissions somewhere along the line with someone under some terms and conditions; not always the same, and obviously usually people agree and it’s done in advance, but not always.

(Emphasis added). In addition, the circuit court listened to all the testimony and specifically rejected Karlen and Peterson’s assertions that the policy was only a suggestion and in any event, did not apply to Security Mutual Life Products. It found:

That if Mr. Karlen believed that the policy was only a suggestion, not binding on the parties or the Plaintiff had no rights under the Policy, this Court wonders why, when Jim Osman came to him with a complaint on or about June 10th, and the Court understands this date is disputed by the Defendants, Mr. Karlen did not say, “Jim you’re crazy. We’re not going to do anything because you have no legal rights under this document.” This Court finds that Mr. Kar-len did not say that but instead Mr. Karlen said he followed the normal procedure and he complied with the directive of the policy to get the agents together.
This Court finds that such action is inconsistent with the Defendant Karlen’s testimony that the Policy Manual was merely suggestive and/or permissive and not binding on the parties regarding the sale and commissions split of Security Mutual Products.

[¶ 26.] Finally, both agents knew of the policy, yet continued to work with Karlen & Associates and there is nothing in the record that indicates either objected to the policy’s terms. Indeed, both agents had split commissions on prior occasions with different agents. The manual was written to foster a good work environment for all agents. It limited competition by protecting agent’s clients and ensured the agents were not continually calling the same people who were already clients. Moreover, it protected the original agent from losing commission money for his original sales. Specifically, Osman earned renewal commissions from his sales to the Hellwigs. When Peterson sold the GEAR policy to Osman’s clients, the commissions stopped because the Hellwigs converted the executive bonus plan previously sold by Osman into the GEAR policy sold by Peterson. Therefore, the policy ensures agents who may lose old commissions from their original clients get some new commissions from other agent’s sales to their clients.

[¶ 27.] Osman has followed the policy on different occasions, expecting to be terminated if he did not split his commissions. Peterson has received the benefit of the policy and its protections and should be required to follow the policy on this occasion as well. The conduct of the parties sufficiently demonstrates there was an implied contract between Peterson and Osman at the time Peterson sold an insurance policy to Osman’s clients. Therefore, we affirm the circuit court on this issue.

[¶ 28.] 3. Whether the circuit court erred when it failed to hold that plaintiff’s claims in equity are barred by the doctrine of unclean hands.

[¶ 29.] Peterson claims Osman’s claims should be barred because of the doctrine of unclean hands. Specifically, Peterson argues that Osman tried to hinder the sale of the GEAR policy by telling the Hellwigs that it was not approved of by the IRS. Therefore, according to Peterson, Osman should collect nothing.

[¶ 30.] However, the circuit court listened to the testimony and rejected this defense. In a bench trial, the circuit court is the finder of fact and sole judge of credibility. There is nothing on this record that demonstrates the circuit court erred.

[¶ 31.] 4. Whether the circuit court erred in holding that the commission should be split 60/40.

[¶ 32.] Peterson argues that the circuit court did not have the authority to order a 60/40 split. According to Peterson, the only testimony was that splits are typically 50/50 if the original agent participates or 80/20 if the original agent does not participate in the new sale. Therefore, the circuit court could only choose between those two values.

[¶ 33.] Osman argues that the determination of the commission split amount is akin to property valuation in a divorce. Therefore, he argues that the circuit court has the authority to choose between a range of values. See DeVries v. DeVries, 519 N.W.2d 73, 75 (S.D.1994). If that is the proper method, the valuation would not be set aside absent an abuse of discretion.

[¶ 34.] However, the determination of damages in this case is not akin to property valuation. This is a breach of implied contract action and the measure of damage should be Osman’s expectation damages. Bad Wound v. Dakota Community Homes, Inc., 1999 SD 165, ¶ 11, 603 N.W.2d 723, 726 (noting that the damages awarded in breach of contract situations “are designed to protect the expectations of the parties when they entered into the legally binding agreement.”). We examine the record to determine the amount of Osman’s expectation damages.

[¶ 35.] The testimony reflects that Osman did not contribute to the sale. He argues that he asked to help, but Peterson claimed the sale was already complete. Regardless, it is undisputed that Osman did not assist in the sale. Nor is there any testimony that delineates a 60/40 split when an agent wants to help but is denied the opportunity. The only testimony on the record regarding the percentage of commission split is that agents who do not assist in the new sale typically get an 80/20 split. Therefore, Osman’s expectation damages are 20% of the commission for the GEAR policy sale, not the awarded 40%. Therefore, we reverse on this issue and remand.

[¶ 36.] Affirmed in part, reversed in part and remanded.

[¶ 37.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . Club level means the agent meets the sales goal set by the company. Osman testified that club level was set around $17,000 of production.

      . The words “Full-Time (Club Level)” are hand-written into the manual, which was offered as Exhibit 1 by Osman. Osman testified it was not in the copy he received in 1990. Karlen testified that he did not know when the words were added. The circuit court treated the policy as if those words did not exist.

      .New Agents
      —First 2 years in the Insurance Business —Life (20% Agency/ 80% Agent)
      —Individual Health & DA = 10% Agency, 90% Agent
      —Group = 50% Agency, 50% Agent (if General Agent involved in the sale) 20% Agency, 80% Agent (if General Agent is not involved in sale)
      —Annuities = 25% Agency, 75% Agent —DAKOTACARE = 50% Agency, 50% Agent (Groups of 10 employees and over) 20% Agency, 80% Agent (Groups under 10 employees)
      —Medicare, Long-term care 20% Agency, 80% Agent
      NOTE: ABOVE PERCENTAGES WILL BE EVAULATED EACH YEAR. IF A PRODUCT IS NOT DISCUSSED ABOVE, THEN AGENT/AGENCY SPLITS MUST BE CLEARED BY THE GENERAL AGENT. ALSO, JOINT SECURITY MUTUAL WORK WITH GENERAL AGENT WILL BE SPLIT 20% AGENCY, 80% AGENT (IF NO SALES CONTACT WITH THE CLIENT) OR 50% AGENCY, 50% AGENT (IF GENERAL AGENT ASSISTS IN THE SALE TO THE CLIENT). THIS DOES NOT APPLY TO THE FIRST 6 MONTHS FOR NEW AGENTS. ESTABLISHED AGENT:-Any agent with more that [sic] two years experience.
      —Brokerage Life — 10% Agency, 90% Agent
      —Individual Health & D/I = 10% Agency, 90% Agent
      —Brokerage Annuities 20% Agency, 80% Agent
      —Medicare, long-term care 10% Agency, 90% Agent
      —Group Business = 20% Agency, 80% Agent (if no General Agent Assistance) 50% Agency, 50% Agent (if General Agent assists with sale).

      . Hellwigs own and operate Hub City Livestock Auction in Aberdeen, SD.

      . GEAR is a tax advantage life insurance product.

      . Since the breach of contract claim against Karlen and Karlen & Associates was dismissed after trial and Osman did not appeal the dismissal, reference to the defendants will be limited to Peterson, unless further distinction is necessary.

      . Karlen testified that in thirty years, this is the only time it has ever happened.

      . While not demonstrative of splits between two agents, the manual does show that when splits occur between the agency and selling agent, the splits are generally 50/50 or 80/20. See supra note 3.

      . Peterson also argues that the policy cannot create contractual rights because the remedy is not specific. However, the policy says to "split” the commission and the testimony regarding company course of dealing in these situations can be used to define an ambiguous term. See Mash v. Cutler, 488 N.W.2d 642, 647 (S.D.1992).


source: Caselaw Access Project

author: VOGEL, J.

license: Public Domain

text:
    STATE of Iowa, Plaintiff-Appellee v. Anthony Dean KNUDSEN, Defendant-Appellant.
    No. 07-0248.
    Court of Appeals of Iowa.
    Feb. 13, 2008.
    Mark C. Smith, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, and Gregory M. Lievens, County Attorney, for appellee.
    HEARD by SACKETT, C.J., and VOGEL and VAITHESWARAN, JJ.
   VOGEL, J.

When Anthony Knudsen was charged with second-degree sexual abuse, a guardian ad litem was appointed to represent the child victim. Later, Knudsen pled guilty to the reduced charge of lascivious acts with a child in violation of Iowa Code section 709.8 (2005). As part of Knudsen’s sentence, he was ordered to pay restitution, which included the fee for the guardian ad litem appointed to represent his victim. On appeal, Knudsen argues the district court exceeded its authority in requiring him to pay the guardian ad litem fee. We agree, vacate this portion of his sentence, and remand.

We review a district court’s restitution order for errors of law. State v. Paxton, 674 N.W.2d 106, 108 (Iowa 2004) (citing State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001)). As there is no code provision enumerating guardian ad litem fees as restitution, we must examine whether the district court had statutory authority to include the guardian ad litem fee in the restitution order. State v. Taylor, 506 N.W.2d 767, 768 (Iowa 1993).

Iowa criminal defendants who plead guilty or who are found guilty are required to make restitution “to the victims of the offender’s criminal activities [and] to the clerk of court.” Iowa Code § 910.2. Restitution is statutorily defined to not only include payment to a victim for the victim’s pecuniary damages, but also payment to the clerk of court for

fines, penalties, and surcharges, the contribution of funds to a local antierime organization which provided assistance to law enforcement in an offender’s case, the payment of crime victim compensation program reimbursements, payment of restitution to public agencies pursuant to section 321J.2, subsection 9, paragraph “b,” court costs including correctional fees approved pursuant to section 356.7, court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender.

Iowa Code § 910.1(4). Because both parties agree that the guardian ad litem fee does not fall within the “payment to the clerk of court” provision of this code section, the guardian ad litem fee must fall within the “payment to a victim” section in order for the restitution order to be a legal sentencing provision. Iowa Code § 910.1(4). In this case, because it was required to provide a guardian ad litem for the child victim under section 915.37, the State asserts it was a victim entitled to restitution by the defendant.

To determine if restitution is required in any given case, the district court must first identify the victim(s) of the defendant’s criminal conduct. Bonstetter, 637 N.W.2d at 165. A victim is “a person who has suffered pecuniary damages as a result of the offender’s criminal activities.” Iowa Code § 910.1(5); see also Iowa Code § 4.1(20) (defining a person as “an individual, corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity”). Pecuniary damages are damages a victim could recover from the defendant in a civil action. Iowa Code § 910.1(3). Next, the district court must determine what losses may be included in the calculation of restitution. Bonstetter, 637 N.W.2d at 165. A restitution order may include any damages that are causally related to criminal activities and the order is not excessive if it bears a reasonable relationship to the damage caused by the offender’s criminal act. Id.

The State points to several cases where the State (or another governmental subdivision) was found to be a victim and entitled to restitution. We note, however, in these cases the State suffered a direct economic loss as a result of the crime. See, e.g., State v. Tesch, 704 N.W.2d 440, 452 (Iowa 2005) (finding the State and an individual were both victims where the defendant destroyed traffic warning devices that resulted in the individual’s injury); Taylor, 506 N.W.2d at 768 (Iowa 1993) (requiring the defendant to pay for the cost of an audit when the defendant embezzled money from a State university); State v. Wagner, 484 N.W.2d 212, 214 (Iowa Ct.App.1992) (requiring the defendant to pay restitution for damage to a prison caused during a riot). Damages that are a direct result of the defendant’s criminal act must be distinguished from the expenses associated with the prosecution of the defendant for the criminal act. Prosecution costs are not recoverable in a civil action, and therefore cannot be included in a restitution order. Iowa Code § 910.1(3); Taylor, 506 N.W.2d at 769 (discussing that prosecution costs cannot be included in a restitution order because they are not recoverable in a civil suit). In the present case, the State did not incur the guardian ad litem fee as a result of Knudsen’s criminal conduct, but rather as a result of prosecuting Knudsen for that criminal conduct.

The State next cites to the statutory definition of “pecuniary damages,” which includes “expenses incurred for psychiatric or psychological services or counseling or other counseling for the victim which became necessary as a direct result of the criminal activity.” Iowa Code § 910.1(3) (emphasis added). It attempts to tie the “other counseling” phrase to guardian ad litem fees, asserting that Knudsen should “bear the cost of protecting his victim from further injury during his prosecution.” While that sentiment may be a logical extension of the statute had the victim incurred the costs, the prosecution of this type of case is clearly not so designed. Under Iowa Code section 915.37, the child witness “is entitled to have the witness’s interests represented.” It is a cost of prosecution borne by the State, which cost could not be shifted to a child victim. See State Public Defender v. Iowa District Court, 644 N.W.2d 354, (Iowa 2002) (finding that a guardian ad litem appointed pursuant to 915.37 is to be paid by the State under section 815.10, which authorizes legal assistance for indigent persons involved in criminal or juvenile proceedings). Therefore, the guardian ad litem fee is the resulting cost of the State prosecuting Knudsen as opposed to pecuniary damages incurred by his victim.

Nonetheless, the State argues that the restitution statute broadly defines criminal restitution and we should therefore allow for non-enumerated examples of restitution. See State v. Izzolena, 609 N.W.2d 541, 545 (Iowa 2000) (discussing the comprehensive scheme for restitution set forth in Iowa Code ch. 910). In this case we do not believe the restitution statute is broad enough to include this guardian ad litem fee. See Bonstetter, 637 N.W.2d at 166 (“The restitution statute in Iowa Code chapter 910 is a penal statute and must be interpreted strictly.”)- To broaden the statute to include guardian ad litem fees for a child victim in restitution orders is a legislative function. See State v. Monroe, 236 N.W.2d 24, 36 (Iowa 1975) (“If changes in a law are desirable from a standpoint of policy or mere practicality, it is for the legislature to enact them, not for the court to incorporate them by interpretation.”).

We conclude that the State in this case is not the victim within the purview of Iowa Code § 910.2. Because the restitution statute does not explicitly provide for the repayment of guardian ad litem fees for a child victim, we find no authority to require Knudsen to pay the fee he was ordered to pay. See Iowa Code § 910.1(4) (defining restitution as a victim’s pecuniary damages and other enumerated costs that do not include guardian ad litem fees); Bonstetter, 637 N.W.2d at 166 (stating the “district court is confined to the statute in determining what "damages to include in the restitution order”); Woodbury County v. Anderson, 164 N.W.2d 129, 133 (Iowa 1969) (holding the court has no authority to award costs against a defendant without statutory authorization).

Accordingly, we vacate the part of the sentencing order requiring payment of the guardian ad litem fee and remand for the district court to enter an order consistent with this opinion.

SENTENCE VACATED IN PART AND REMANDED.

      . Pursuant to Iowa Code section 915.37 (2005), a guardian ad litem was required to be appointed to represent the child prosecuting witness.

      . The State made this concession at oral argument.


author: ANDERSON, G. BARRY, Justice.

text:
    STATE of Minnesota, Respondent, v. Toyie Diane COTTEW, Appellant.
    No. A06-785.
    Supreme Court of Minnesota.
    Jan. 31, 2008.
   OPINION

ANDERSON, G. BARRY, Justice.

This dispute raises the issue of whether the detailed findings required before probation is revoked are also required when intermediate sanctions are imposed by a district court for probation violations.

After Toyie Diane Cottew admitted that she violated the conditions of her probation, the district court imposed local jail time as an intermediate sanction for the violation. In imposing this sanction, the district court identified the specific condition that was violated and found that the violation was intentional, but did not address whether the need for confinement outweighed the policies favoring probation as required under State v. Austin, 295 N.W.2d 246, 250 (Minn.1980), and State v. Modtland, 695 N.W.2d 602, 606 (Minn.2005).

The court of appeals affirmed the imposition of local incarceration for the probation violation, holding that the Austin/Modtland analysis does not apply to the imposition of intermediate sanctions. State v. Cottew, 728 N.W.2d 268, 271-74 (Minn.App.2007). The court of appeals also construed the Minnesota Rules of Criminal Procedure to require the extension of the defendant’s probation when intermediate sanctions are imposed, and modified the district court’s order accordingly. Id. at 274.

We conclude that the Austin/Modtland analysis only applies to the revocation of probation and execution of the underlying sentence — not to the imposition of intermediate sanctions — for probation violations. We also conclude that the Rules of Criminal Procedure do not require that the district court extend a defendant’s probation when imposing intermediate sanctions for a probation violation. Accordingly, we affirm in part and reverse in part.

On February 2, 2004, Toyie Diane Cot-tew pleaded guilty in Aitkin County District Court to one count of fourth-degree driving while impaired (DWI). Cottew was sentenced to 90 days in jail and ordered to pay a $1,000 fine and $565 in other fees. Execution of the 90-day jail sentence was stayed, however, and Cottew was placed on supervised probation for 2 years subject to the conditions that she follow the rules of probation, make monthly payments toward the fine and fees, complete a chemical use assessment, and attend a DWI clinic.

Cottew’s probation agent filed a probation violation report with the district court on September 1, 2004, alleging that Cot-tew had violated the conditions of her probation by failing to make monthly fine payments, complete a chemical use assessment, attend a DWI clinic or MAJDD Victim Impact Panel, and report to her probation agent as directed. This violation report was subsequently dismissed.

Cottew’s probation agent filed another violation report on January 3, 2006. According to this report, Cottew did not make several monthly fine payments, still owed $1,095 in fines and fees, and had failed to stay in contact with the probation agent. The report also noted that Cot-tew’s probation was scheduled to expire on February 1. When the district court held a hearing on the probation violation on February 6, 2006, Cottew waived her right to representation and to a hearing and admitted that she had failed to pay her financial obligations and to report to her probation agent. Cottew stated, however, that she had paid all but $125 of the remaining fine and fees the day of the hearing. Based on the admitted violations, the court ordered “that 20 days of the remaining jail sentence be executed, and that [Cottew] report to the jail on February 26th.” The court also ordered that Cottew’s jail time would be reduced to 10 days if the remaining $125 was paid before Cottew was required to report to jail.

On February 24, 2006, before the start of the scheduled jail sentence, an attorney representing Cottew asked the district court for a hearing to review the disposition from the February 6 hearing because the court failed to address the findings required by our Modtland, decision. The court granted Cottew’s request, scheduled a hearing for March 20, 2006, and deferred Cottew’s jail sentence pending that hearing.

At the hearing, Cottew’s attorney argued that the district court failed to inquire into whether the probation violations were intentional or inexcusable, and whether incarceration was the only way to address the violations. The court clarified its previous order, stating, “Well, I did not order that her sentence be executed. The sanction that was imposed was meant to be just that: A sanction for a violation. And not to be an executed sentence.” Cottew’s attorney explained that the fine and fees had not been paid earlier because Cottew was unemployed. The attorney asserted that the failure to pay was only a technical violation because Cottew had paid the vast majority of the fine and fees before the February hearing and paid the remainder 2 or 3 days later. Cottew’s attorney also claimed that Cottew had tried to contact the probation agent, but her calls were not answered and telephone messages were not returned. The probation agent stated that Cottew had contacted her before the hearing, but not before the violation report was filed.

The district court clarified that the jail term imposed at the February hearing was “a sanction for failure to report to the probation department,” not for failure to make the required fine payments, and that it “was more in the nature of reinstating [Cottew] on probation, with ten days being the sanction for the violation,” rather than a revocation of the probation and execution of the sentence. The court also noted “that it’s been the policy of this Court to routinely impose additional probationary jail time when a person fails to be in contact with the probation department,” but that the length of that jail time varies with the circumstances of each case. Based on the mitigating circumstances presented by Cottew’s attorney at the March hearing, the court decided that half of the 10-day sentence could be served on electronic home monitoring. The court ultimately concluded “that the violation was intentional” because the probation agent told Cottew that she needed to report, Cottew knew of that requirement, and Cot-tew failed to report to the agent before the violation report was filed with the court.

Looking to the policy considerations underlying our holding in Austin, the court of appeals concluded that the district court is not required to make Austin findings before imposing intermediate sanctions and therefore affirmed the district court’s imposition of jail time. Cottew, 728 N.W.2d at 271-74. The court of appeals also concluded sua sponte that Minn. R.Crim. P. 27.04, subd. 3(3)(b), requires an extension of the probation term when an intermediate sanction is imposed after the original probation term has expired, and therefore modified the district court’s order to extend Cottew’s probation for the duration of the intermediate sanctions imposed by the district court. Id. at 274.

I.

Minnesota Rule of Criminal Procedure 27.04 governs probation revocation proceedings and sets out a detailed framework for handling violations. The process begins with a written report containing “a description of the surrounding facts and circumstances upon which the request for revocation is based” that must be submitted to the district court. Minn. R.Crim. P. 27.04, subd. 1(1). If the court determines that the report “show[s] probable cause to believe that the probationer has violated any conditions of probation,” the revocation proceedings are officially commenced with the issuance by the court of a summons or a warrant, either of which must be accompanied by a copy of the written violation report. Id., subd. l(l)-(2). At the probationer’s first appearance, the court must advise the probationer “of the nature of the violation charged,” give the probationer a copy of the written violation report if she has not already received that report, and advise the probationer, inter alia, of her rights to counsel and to have a hearing to challenge the violation. Id., subd. 2(1).

When a probationer challenges the probation violation, the state must prove the violation by clear and convincing evidence. Id., subd. 8(2). If the district court “finds that a violation of the conditions of probation has not been established by clear and convincing evidence,” it must dismiss the proceedings and continue probation “under the conditions theretofore ordered by the court.” Id. But if the court finds that there is clear and convincing evidence that the probationer violated a condition of probation, or if the probationer admits the alleged probation violation, the court may either (1) continue to stay execution or imposition of sentence under the previously stayed conditions or under modified conditions, or (2) revoke the defendant’s probation and execute the previously stayed sentence. Id., subd. 3(3).

Revocation of probation, like revocation of parole, “ ‘deprives an individual, not of the- absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special [probation] restrictions.’ ” Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Due process requires that a defendant be given an opportunity to show that even if a condition of probation was violated, mitigating circumstances exist such that the violation does not warrant revocation. Pearson v. State, 308 Minn. 287, 289-90, 241 N.W.2d 490, 492 (Minn.1976) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). A violation is mitigated where it was unintentional or excusable. Bearden v. Georgia, 461 U.S. 660, 668-69, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (holding that where a violation is committed “through no fault of [the defendant’s] own,” the court should “consider[ ] whether adequate alternative methods of punishing the defendant are available” before revoking the defendant’s probation). Public policies favoring probation further limit revocation to those situations where “ ‘(i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.’ ” State v. Austin, 295 N.W.2d 246, 250-51 (Minn.1980) (quoting A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).

Consequently, before a district court revokes a defendant’s probation, it must, in addition to designating the condition of probation it found was violated, “find that the violation was intentional or inexcusable” and “that need for confinement outweighs the policies favoring probation.” Id. at 250. Although a district court has broad discretion in determining whether there is sufficient evidence to revoke probation, it must make specific findings on all three Austin factors before revoking probation. State v. Modtland, 695 N.W.2d 602, 605-06 (Minn.2005).

A.

Cottew argues that the three Austin findings are required when a district court orders “incarceration as a consequence [of] a probation violation.” But this conclusion is not supported by our prior decisions.

The “threshold question” we decided in Austin was “what findings a trial court must make before revoking probation.” Austin, 295 N.W.2d at 250 (emphasis added). Under the express terms of our holdings, the Austin findings are only required before a defendant’s probation is revoked. Modtland, 695 N.W.2d at 606 (requiring the three findings “before probation is revoked”); Austin, 295 N.W.2d at 250 (requiring the three findings “before probation be revoked”); cf. State v. B.Y., 659 N.W.2d 763, 768-69 (Minn.2003) (noting that “revocation of [Extended Jurisdiction Juvenile (EJJ) ] probation may result in the execution of an adult sentence” and requiring that the Austin factors be considered before an EJJ sentence is revoked). The required Austin findings ensure that the district court has fully considered any claims by the defendant that revocation is not warranted because his probation violation was either unintentional or excusable, or because revocation would be inconsistent with the public policies favoring probation.

Although our definition of the third Austin finding considers the “need for confinement,” Modtland, 695 N.W.2d at 606; Austin, 295 N.W.2d at 250, our subsequent description of the analysis required in relation to this finding clearly indicates that the “confinement” referred to is the imprisonment of the defendant following revocation of the defendant’s probation and execution of the underlying sentence, not the imposition of confinement as an intermediate sanction. In Austin, for example, we noted that “[i]n some cases, policy considerations may require that probation not be revoked even though the facts may allow it.” 295 N.W.2d at 250 (emphasis added); see also Modtland, 695 N.W.2d at 606. We also stated that “[t]he decision to revoke cannot be ‘a reflexive reaction to an accumulation of technical violations’ but requires a showing that the ‘offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.’ ” Austin, 295 N.W.2d at 251 (emphasis added) (quoting United States v. Reed, 573 F.2d 1020, 1024 (8th Cir.1978)). Thus, we conclude that our prior cases do not require the three Austin findings before the imposition of any incarceration as a consequence for a probation violation; rather, we have only required this analysis before a defendant’s probation is revoked and the underlying sentence is executed.

Intermediate sanctions are imposed when the district court has determined that the defendant has violated his probation but that revocation of the defendant’s probation and execution of the underlying sentence is not appropriate, at least in part, because rehabilitation is still possible. See Minn.Stat. § 609.14, subd. 3 (2006) (permitting the imposition of intermediate sanctions when a stayed sentence is continued following a probation violation). In this situation, there is no need for Austin findings to ensure that the district court considered any claims by a defendant that revocation is not warranted under the circumstances because the district court necessarily agrees that revocation is not warranted. Athough the intermediate sanction serves as a punishment for the probation violation, this punishment is not just an end in itself, but is also a means of advancing the defendant’s rehabilitation. This is true even where the violation was unintentional or inexcusable. See Bearden, 461 U.S. at 668-69, 103 S.Ct. 2064 (holding that where a violation is committed “through no fault of [the defendant’s] own,” the court may consider “alternative methods of punishing the defendant” that do not involve revocation of the defendant’s probation). In addition, as the court of appeals correctly recognized, “confinement as an intermediate sanction may provide a necessary incentive or ‘wake-up call’ to comply with a rehabilitative treatment or counseling regimen included in the probation conditions or to avoid antisocial activity and resume court-ordered conduct.” Cottew, 728 N.W.2d at 272. Accordingly, we decline to extend the Austin analysis to the imposition of local incarceration as an intermediate sanction.

In concluding that the Austin analysis does not apply to the imposition of intermediate sanctions, however, we emphasize that the procedural safeguards contained in Rule 27.04 of the Minnesota Rules of Criminal Procedure apply to all probation violation proceedings, including those that result in the imposition of intermediate sanctions rather than the revocation of a defendant’s probation and execution of the defendant’s sentence. Thus, as discussed above, the defendant is entitled to receive a copy of the written violation report describing the circumstances of the violation and must be told which probation condition she is accused of violating. Minn. R.Crim. P. 27.04, subds. 1-2. The defendant is also entitled to a hearing at which the district court must determine whether there is clear and convincing evidence that a condition of probation has been violated. Id., subd. 3. If a probation violation has been established, the court has broad discretion in determining whether to impose an intermediate sanction. But that discretion is not unlimited. This decision, like all exercises of judicial discretion, requires “conscientious judgment, not arbitrary action,” Burns v. United States, 287 U.S. 216, 222-23, 53 S.Ct. 154, 77 L.Ed. 266 (1932), and the imposition of intermediate sanctions for probation violations will be reviewed to determine whether the district court abused its discretion.

B.

Turning to the record of the present case, the district court initially ordered “that 20 days of [Cottew’s] remaining jail sentence be executed.” But at the March 20 hearing, the court clarified that the incarceration was intended to be “a sanction for failure to report to the probation department” and “in the nature of reinstating [Cottew] on probation” rather than an executed sentence. Based on this record, we conclude that the district court did not revoke Cottew’s probation and execute her underlying sentence, and that the incarceration ordered in this case was instead an intermediate sanction for the probation violation. Therefore, we hold that the district court did not err in imposing the sanction without making the three Austin findings.

Cottew also argues that the district court abused its discretion by imposing the incarceration in this case because of its “consistent policy” of ordering jail as a sanction for failing to contact the probation agent, rather than basing its judgment on the unique facts and circumstances of this case. But the record of this case demonstrates that the court considered the mitigating circumstances presented by Cottew and adjusted its order to permit electronic home monitoring for half of the jail term based on those circumstances. Based on this record, we hold that the district court did not abuse its discretion.

II.

The court of appeals considered sua sponte whether “the district court imposed the intermediate sanctions in a manner authorized by Minn.Stat. § 609.135 (2004) and Minn. R.Crim. P. 27.04.” Cottew, 728 N.W.2d at 273. Rule 27.04 provides that when the execution of a defendant’s sentence is initially stayed but the defendant subsequently violates the conditions of her probation, “the [district] court may continue the stay and place the probationer on probation in accordance with the provisions of Minn.Stat. § 609.135, or order execution of the sentence previously imposed.” Minn. R.Crim. P. 27.04, subd. 3(3)(b). The court of appeals construed this language as requiring “the district court to ‘place the probationer on probation ’ ” if the court continues the stay of the defendant’s sentence. Cottew, 728 N.W.2d at 273 (quoting Minn. R.Crim. P. 27.04, subd. 3(3)(b)).

Minnesota Statutes section 609.135, subdivision 1(a) (2006), provides that the district court “may stay imposition or execution of sentence and: (1) may order intermediate sanctions without placing the defendant on probation; or (2) may place the defendant on probation with or without supervision and on the terms the court prescribes, including intermediate sanctions when practicable.” According to the court of appeals, the requirement in Rule 27.04 that the district court place the probationer on probation when imposing intermediate sanctions for a probation violation conflicts with the permissive language of Minn.Stat. § 609.135. Cottew, 728 N.W.2d at 273. Because it concluded that the statute is procedural rather than substantive, the court of appeals held that the statute “has no force or effect to the extent that it conflicts with the requirements of rule 27.04,” and that the district court was therefore “required to place Cottew on probation when it imposed the intermediate sanctions.” Id. at 273-74. Accordingly, the court of appeals “mod-if[ied] the district court’s order to place Cottew on probation for the duration of the intermediate sanctions ordered by the district court.” Id. at 274.

Whenever reasonable, we construe statutory provisions to avoid unnecessary conflict with other statutes. Minn.Stat. § 645.26, subd. 1 (2006); State by Beaulieu v. Indep. Sch. Dist. No. 624, 533 N.W.2d 393, 396 (Minn.1995); Erickson v. Sunset Memorial Park Ass’n, 259 Minn. 532, 543, 108 N.W.2d 434, 441 (1961). We see no reason why this basic principle of construction should not apply with equal force to the interpretation of court rules that may conflict with statutory provisions. In this case, the rule provides that “the [district] court may continue the stay and place the probationer on probation.” Minn. R.Crim. P. 27.04, subd. 3(3)(b) (emphasis added). We agree with the court of appeals that this language could reasonably be interpreted to require that the district court place the probationer on probation when it decides to continue a stay. But the rule also provides that this action be done “in accordance with the provisions of Minn.Stat. § 609.135.” Id. Rather than evincing an intent to supersede section 609.135, rule 27.04 thus expressly subordinates itself to the provisions of the statute. Therefore, we conclude that the rule must be construed to permit the district court to continue a probationer’s stay and place her on probation in any manner authorized by the statute. And because section 609.135 expressly authorizes the district court to impose intermediate sanctions with or without placing the defendant on probation, we conclude that a district court is not required to impose probation in connection with the imposition of intermediate sanctions for a probation violation.

Based on our reading of the record, it appears that the district court did extend Cottew’s probation for the duration of the local incarceration it imposed. We hold that such an extension is permitted, but is not required, by rule 27.04 of the Minnesota Rules of Criminal Procedure. Thus, to the extent that the court of appeals modi-. fied the district court’s order, we reverse the court of appeals and reinstate the district court’s order.

Affirmed in part and reversed in part.

      . Under Minnesota law, "the term ‘intermediate sanctions’ includes but is not limited to incarceration in a local jail or workhouse, home detention, electronic monitoring, intensive probation, sentencing to service, reporting to a day reporting center, chemical dependency or mental health treatment or counseling, restitution, fines, day-fines, community work service, work service in a restorative justice program, work in lieu of or to work off fines and, with the victim’s consent, work in lieu of or to work off restitution.” Minn.Stat § 609.135, subd. 1(b) (2006).

      . Similarly, when imposition of the defendant’s sentence is initially stayed, Rule 27.04 provides that “the court may again stay imposition of sentence or impose sentence and stay execution thereof, and in either event place the probationer on probation pursuant to Minn.Stat. § 609.135, or impose sentence and order the execution thereof.” Minn. R.Crim. P. 27.04, subd. 3(3)(a).


author: MEYER, Justice.

text:
    Jacob Stephen BROWN, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-1754.
    Supreme Court of Minnesota.
    Jan. 31, 2008.

      Jacob Stephen Brown, Bayport, for Appellant (pro se).

    Lori Swanson, Attorney General, St. Paul, Michael 0. Freeman, Hennepin County Attorney, Michael Walz, Assistant Hennepin County Attorney, Minneapolis, for Respondent.
   OPINION

MEYER, Justice.

Appellant Jacob Stephen Brown, currently serving a life sentence for first-degree murder, appeals from the summary denial of his petition for postconviction relief. We affirm.

In 1988, Brown pleaded guilty to the first-degree murder of Carmen Larson and the attempted first-degree murder of Michelle Raisch. Broum v. State (Brown I), 449 N.W.2d 180, 181 (Minn.1989). Following entry and acceptance of his guilty plea, Brown moved to withdraw that plea and proceed to trial. Id. at 182. Analyzing Brown’s motion both as a direct appeal and as a petition for postconviction relief, we declined to permit withdrawal of his plea. Id. at 182-83. In doing so, we observed that Brown was represented by counsel, that he had an adequate opportunity to consult with said counsel, that he pleaded voluntarily, that he was aware of the charges against him, that he was aware of the rights he was waiving, and that he understood the consequences of his plea. Id. at 182.

Brown subsequently filed a postconviction petition alleging that he lacked the requisite mental capacity to enter a guilty plea; that petition was denied by the district court after an evidentiary hearing. Brown v. State (Broum II), 481 N.W.2d 852, 853 (Minn.1992). On appeal, we denied relief, again observing that Brown was represented by counsel when he pleaded guilty and that no evidence indicated that he was mentally incompetent at the time of his plea. Id.

Brown now brings another postcon-viction petition to withdraw his 1988 guilty plea, claiming that two recent psychiatric assessments diagnosing him with paranoid schizophrenia indicate his incompetency to enter a plea. The district court summarily denied Brown’s petition because (1) Brown’s previous argument that his plea was involuntary had been rejected by this court; and (2) a 2006 psychiatric evaluation tells little of Brown’s mental state twenty years prior. This appeal followed.

Under Minn.Stat. § 590.01, subd. 1 (2006), an incarcerated individual may petition for postconviction relief if he alleges that his imprisonment violates his rights under state or federal law. An evidentiary hearing must be held on that petition unless “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2006). On review of a denial of postconviction relief, we inquire as to whether sufficient evidence supported the postconviction court’s findings, and will reverse only for an abuse of discretion. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997).

All claims raised on direct appeal from a conviction, as well as all claims known but not raised, are barred in a subsequent petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Claims of which a petitioner should have known at the time of appeal are also barred. See Black v. State, 560 N.W.2d 83, 85 (Minn.1997). Knaffla similarly bars postconviction review of claims that could have been raised in a previous postconviction petition. Wayne v. State, 601 N.W.2d 440, 441 (Minn.1999). Although there are two exceptions to Knaffla, see Perry v. State, 731 N.W.2d 143, 146 (Minn.2007), we decline to apply those exceptions if they are not raised by the petitioner. See Erickson v. State, 725 N.W.2d 532, 535 (Minn.2007).

The incompetency claims in Brown’s present petition are barred under Knaffla because Brown knew or should have known of the basis for those claims by the time of his previous petition. Further, the exceptions to Knaffla will not be considered because Brown does not raise them.

Affirmed.

      . The details of these crimes are set forth in this court's opinion on direct appeal.

      . Even if Brown’s claims were not barred under Knaffla, postconviction relief would remain inappropriate. Notably, Brown provides evidence only that he currently suffers from a psychological disorder, but neither psychiatric assessment indicates that he suffered from schizophrenia at the time he entered his plea.


author: /s/Alan C. Page Associate Justice

text:
    Genaro SANCHEZ, Respondent, v. QUALITY PORK PROCESSORS, INC., and AIG Claim Services, Relators, and Aspen Medical Group, and Park Nicollet Health Services, Intervenors.
    No. A07-2409.
    Supreme Court of Minnesota.
    April 1, 2008.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed November 29, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[s]ummary affirmances have no prece-dential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Alan C. Page

Associate Justice


text:
    In re Petition for Disciplinary Action against Samuel Steven JOHNSON, a Minnesota Attorney, Registration No. 273168.
    No. A08-87.
    Supreme Court of Minnesota.
    April 3, 2008.
   ORDER

On February 1, 2008, the court suspended petitioner from the practice of law for a period of 60 days. Petitioner has filed with this court an affidavit stating that he has fully complied with the terms of the court’s suspension order and requests reinstatement. The Director of the Office of Lawyers Professional Responsibility does not oppose the request.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Samuel Steven Johnson is conditionally reinstated to the practice of law in the State of Minnesota effective as of April 1, 2008, subject to his successful completion of the professional responsibility portion of the state bar examination by February 1, 2009.

BY THE COURT:

/s/Alan C. Page

Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Philip Charles WILSON, a Minnesota Attorney, Registration No. 349483.
    No. A08-493.
    Supreme Court of Minnesota.
    April 3, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Philip Charles Wilson committed professional misconduct warranting public discipline, namely, communicating about the subject of a representation in one case with a person the respondent knew to be represented by the public defender’s office in another case, without the consent of the public defender or authorization by court order, in violation of Minn. R. Prof. Conduct 4.2 and 8.4(d).

Respondent admits the allegations of the petition and waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR). Respondent has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and probation for two years pursuant to Rule 15, RLPR, subject to the following conditions:

(a) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(c) Within two years from the date of entry of this order, respondent shall satisfactorily complete a course of individual study, as proposed by respondent and accepted by the Director, with Professor Neil Hamilton. This course of study shall address the topic of ethical problems in the practice of criminal law and, specifically, the practical implications of Rule 4.2, Minn. R. Prof. Conduct. Promptly upon the completion of such course, Professor Hamilton shall confirm the satisfactory completion of this study to the Director’s Office, in writing.
(d) During the term of respondent’s probation, respondent shall not represent any client in defense of criminal charges of murder (defined as any offense charged as first-, second-, or third-degree murder pursuant to Minn.Stat. §§ 609.185, 609.190, or 609.195 (2006), or any subsequent amendments) or criminal sexual conduct (defined as any offense charged under first-, second-, third-, fourth-, or fifth-degree criminal sexual conduct, pursuant to Minn.Stat. §§ 609.342, 609.343, 609.344, 609.345, or 609.3451 (2006), or any subsequent amendments) unless another, more experienced attorney serves as co-counsel in the matter.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Philip Charles Wilson is publicly reprimanded and placed on two years’ probation, subject to the terms and conditions set forth above. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR. BY THE COURT:

/s/Alan C. Page

Associate Justice


author: STONEBURNER, Judge.

text:
    Michael Duane RAZINK, et al., Appellants, v. Michael J. KRUTZIG, Respondent, Kathy M. Krutzig, et al., Respondents, Charles Pfeffer, et al., Respondents, S.B. 25, LLC, Respondent, Ocello, LLC, Respondent.
    No. A07-0389.
    Court of Appeals of Minnesota.
    April 1, 2008.

      David M. Bolt, Christopher J. Hoffer, Soucie & Bolt, Anoka, MN, for appellants.
    Frank J. Rajkowski, Lori L. Athmann, Troy Allen Poetz, Rajkowski Hansmeier, Ltd., St. Cloud, MN, for respondent Michael J. Krutzig.
    Nicholas L. Klehr, LaBore & Giuliani, Cosgriff & Viltoft, Ltd., Hopkins, MN, for respondents Kathy M. Krutzig, et al.
    Andrew T. Shern, Chris Angelí, Mur-nane Brandt, St. Paul, MN, for respondents Charles Pfeffer, et al.
    Lawrence J. Skoglund, Carol L. Casey, Erstad & Riemer, P.A., Minneapolis, MN, for respondent Ocello, LLC.
    Considered and decided by PETERSON, Presiding Judge; STONEBURNER, Judge; and PORITSKY, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellants challenge summary judgment granted to respondents dismissing their claims that respondents are liable for injuries sustained by one of the appellants when, while operating a snowmobile on land adjacent to a public highway, he struck a sign constructed and/or maintained by respondents. Appellants argue that the district court erred by concluding that: (1) under Minn.Stat. § 604A.25 (2002), appellants are precluded from maintaining this action that arises out of entry onto land for recreational-trail use; (2) the landowner’s agent has no greater duty to appellants than its principal; and (3) as a matter of law, respondents other than the landowner and its agent did not breach any duty to appellants because they could not have been aware that the sign created a risk of injury to anyone.

FACTS

Before December 2002, respondent Oeello, LLC (Ocello) owned adjacent lots one, two, and three that parallel Highway 25 within the city limits of Monticello. Respondent Charles Pfeffer, Ocello’s real-estate agent, began marketing the lots in 1999 or 2000. Before October 2002, Pfeffer erected a sign on lot two, parallel to and visible from Highway 25, advertising the lots for sale. The sign consisted of a four-foot by eight-foot piece of three-quarter inch plywood mounted on two steel posts. Pfeffer testified that at all times relevant he was unaware of any type of recreational-trail or recreational-vehicle use in the area where he placed the sign.

In early or mid-2002, respondents Michael and Daryl Krutzig entered into an option agreement to purchase all three lots. They also signed a purchase agreement for lot one and closed on this purchase in December 2002. The Krutzigs visited the property when there was no snow on the ground. The record reflects that in the winter of 2002-03, there was no snow on the ground in Monticello until January 2003. Michael Krutzig testified in his deposition that he did not see any evidence of recreational-vehicle use of the property during their visit. At some time after the Krutzigs obtained the option, they got permission from Pfeffer to replace the message on the sign that Pfeffer had erected with a message advertising their future development of the property. They used plywood of the same size and attached it to the existing sign posts. Pfeffer testified to his recollection that the Krutzigs put their sign on the existing posts in October 2002, but Michael Krutzig thought that this occurred after closing on lot one in December 2002.

On February 9, 2003, appellant Michael Razink rode a friend’s snowmobile on what he describes as a “known, well-travelled snowmobile trail” across lot two. Razink was following his friend, who was also on a snowmobile, into Monticello to get gas. It was dark. Razink was traveling between 35-40 miles per hour, despite a municipal snowmobile speed limit of 15 miles per hour, and his blood-alcohol content was approximately .15. Razink hit one of the sign posts and seriously injured his right arm on the edge of the sign board. Ra-zink testified that he was an experienced snowmobile rider, aware of the hazards of riding at night and in road ditches, and that he had ridden a snowmobile on the same route two or three times in years before 2003. Razink acknowledges that he was a trespasser on lot two at the time of the accident. It is undisputed that none of the respondents granted written or oral permission for anyone to use the property as a recreational trail.

Razink and his wife sued Ocello, LLC; Michael, Daryl, and Kathy Krutzig; and S.B. 25, LLC, asserting that their negligence caused his injuries. Ocello moved for dismissal under rule 12, asserting that under Minn.Stat. §§ 604A.20-604A.27 (2002) (the recreational-land-use statute), Razinks failed to state a viable claim against it as owner of property on which recreational-trail use was permitted. The district court agreed, but denied similar relief to the Krutzigs because they did not own lot two at the time of the accident.

Razinks then amended the complaint to add Pfeffer as a defendant. After discovery was complete, the Krutzigs moved for summary judgment. A different district-court judge granted the motion, concluding that, as owners of the sign, the Krutzigs qualified as owners of land, as that term is defined in the recreational-land-use statute, and, like Ocello, are entitled to immunity from trespasser actions under section 604A.25. Alternatively, the district court based its grant of summary judgment to the Krutzigs on its conclusion that, as a matter of law, the Krutzigs could not foresee any risk of injury created by the sign and therefore had not breached a duty to Razinks.

Pfeffer then moved for dismissal under rule 12 or alternatively for summary judgment based on its agency relationship with Ocello. The district court granted summary judgment to Pfeffer, concluding that Pfeffer owed no greater duty to Razinks than was owed by his principal. This appeal followed.

ISSUES

1. Did the district court err in dismissing the Razinks’ action for failure to state a viable claim based on its conclusion that MinmStat. § 604A.25 (2002) precludes the Razinks’ action against Ocello, which passively permitted use of its land as a recreational trail?

2. Did the district court err in granting summary judgment to Pfeffer?

3. Did the district court err in concluding that the Krutzigs qualified as landowners under Minn.Stat. § 604A.21 (2002) and were therefore entitled to immunity from the Razinks’ action under section 604A.25?

4. Did the district court err in granting summary judgment to the Krutzigs on the basis that, as a matter of law, they did not know that the sign posed a risk of injury to anyone?

ANALYSIS

I. The district court erred in concluding that passively allowing recreational-trail use entitles a landowner to immunity provided in Minn. Stat. § 604A.25 from trespasser actions.

“When reviewing cases dismissed for failure to state a claim on which relief can be granted, the only question before [the reviewing court] is whether the complaint sets forth a legally sufficient claim for relief.” Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). The district court concluded that the Razinks’ action was precluded by Minn.Stat. § 604A.25, and therefore failed to state a claim on which relief could be granted. We disagree.

The recreational-land-use statute was enacted “to encourage and promote the use of land owned by a municipal power agency and privately owned lands and waters by the public for beneficial recreational purposes.” Minn.Stat. § 604A.20. It is undisputed that Ocello is a private landowner for purposes of the recreational-land-use statute and that “recreational purpose” under the statute includes recreational-trail use. Minn.Stat. § 604A.21, subds. 3-5. “Recreational trail use” is defined as “use on or about a trail, including but not limited to, hunting, trapping, fishing, hiking, bicycling, skiing, horseback riding, snowmobile riding, and motorized trail riding.” Minn.Stat. § 604A.21, subd. 6.

Section 604A.22 of the recreational-land-use statute also provides that:

Except as provided in section 604A.25, an owner who gives written or oral permission for the use of the land for recreational purposes without charge:
(1) owes no duty of care to render or maintain the land safe for entry or use by other persons for recreational purpose;
(2) owes no duty to warn those persons of any dangerous condition on the land, whether patent or latent;
(3) owes no duty of care toward those persons except to refrain from willfully taking action to cause injury; and
(4) owes no duty to curtail use of the land during its use for recreational purpose.

And section 604A.25 states, in relevant part, that:

Except as set forth in this section, nothing in sections 604A.20 to 604A.27 limits liability that otherwise exists: (1) for conduct which, at law, entitles a trespasser to maintain an action and obtain relief for the conduct complained of;
Except for conduct set forth in section 604A.22 clause (3), a person may not maintain an action and obtain relief at law for conduct referred to by clause (1) in this section if the entry upon the land is incidental to or arises from access granted for the recreational trail use of land dedicated, leased, or permitted by the owners for recreational-trail use.

At issue in this case is whether a landowner who has not given written or oral permission for recreational-trail use of land is entitled to immunity from a trespasser action as provided in the final paragraph of section 604A.25. The district court concluded that because the words “access granted” and “permitted” in section 604A.25 are not modified by a requirement of a written or oral communication, immunity from a trespasser action extends to landowners who passively permit recreational-trail use. Razinks argue that, considering the statute as a whole, the protection from trespasser actions arising out of recreational-trail use extends only to landowners who have given written or oral permission for such use.

When “the words of a statute are not explicit and more than one reasonable interpretation is possible, the statute must be construed.” Abrahamson v. Abrahamson, 613 N.W.2d 418, 421-22 (Minn.App.2000). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.” Minn. Stat. § 645.16 (2006).

We conclude that the district court’s focus only on the words contained in section 604A.25 was too narrow and failed to take into account that section 604A.22 effectively incorporates into section 604A.25 the requirement that permission be “written or oral.” Section 604A.22 specifically limits the duties, “except as provided in section 604A.25,” of an “owner who gives written or oral permission for the use of the land for recreational purposes without charge.” Section 604A.25 provides that such a landowner retains the duty that a landowner has at common law to a trespasser, except that when the permitted use is for a recreational trail, the owner’s only duty is to refrain from willfully causing injury. Nothing in section 604A.25 extends the protection of the statute beyond owners who give written or oral permission for recreational use of land.

Such a reading is consistent with case-law holding that “[ojrdinarily, legislative enactments will not effect changes in the common law beyond those clearly indicated in their specific terms.” Fuller v. City of Mankato, 248 Minn. 342, 347, 80 N.W.2d 9, 12 (1956). This reading is also consistent with the rule of construction requiring this court to harmonize apparently conflicting provisions in a statute, where possible. Septran, Inc. v. Indep. Sch. Dist. No. 271, 555 N.W.2d 915, 919 (Minn.App.1996), review denied (Minn. Feb. 27, 1997). Absent explicit language stating that the permission referred to in section 604A.25 is not required to be written or oral as required in sections 604A.22 and 604A.23 (limiting the liability of an owner who gives written or oral permission for use of the land for recreational purposes without charge), we conclude that section 604A.25 also requires an affirmative act of granting permission.

Because we conclude that the district court erred by holding that Ocello is immune from the Razinks’ action under Minn.Stat. § 604A.25, we reverse the judgment of dismissal in favor of Ocello and remand.

II. Because Ocello owed the duties of a landowner to trespassers, including Razink, the district court erred in granting summary judgment to Pfeffer.

Summary judgment is appropriate when, based on the pleadings, discovery, and affidavits filed with the court, there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary judgment, we review de novo whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn.2002). We view the evidence in the light most favorable to the party against whom the district court granted summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Summary judgment is inappropriate when the evidence might lead reasonable persons to different conclusions concerning material facts. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997).

Pfeffer placed the sign on lot two, but the Razinks did not add him to the lawsuit until after Ocello was dismissed. Pfeffer moved for dismissal, asserting that as Ocello’s agent, he was entitled to immunity from suit under section 604A.25. In the alternative, Pfeffer moved for summary judgment based on lack of evidence that he could have foreseen that the sign created an unreasonable risk of harm to others.

The district court’s grant of summary judgment to Pfeffer was premised on its conclusion that it was bound by the prior district court’s holding that Razink cannot maintain a trespasser action against Pfei-fer’s principal. The district court cited the Restatement (Second) of Agency for the proposition that an agent cannot owe a greater duty of care to a third party unless the master or third party relies on a “greater undertaking by the servant.” Restatement (Second) of Agency § 347(2) (1958). Because the record does not contain any evidence that the Razinks relied on a greater undertaking by Pfeffer, the district court concluded that Pfeifer’s duty to the Razinks is, like Ocello’s, limited to not willfully causing injury. Because there was no allegation that Pfeffer willfully caused Razink’s accident or injuries, the district court granted summary judgment to Pfeffer. But we have concluded that Ocello is not entitled to immunity from a trespasser action under section 604A.25, and therefore owed Michael Razink the duty of a landowner to a trespasser. Accordingly, the district court’s reason for granting summary judgment to Pfeffer is no longer valid.

Pfeffer argued, in the alternative, that he could not have appreciated the risk regarding placement of the sign, but the district court did not reach this issue. The evidence in the record at this time indicates that Pfeffer has a strong argument for summary judgment on this ground. But because the record has not been developed concerning Ocello’s knowledge of trail use on its land or whether Ocello relied on Pfeffer for a “greater undertaking” with regard to placement of the sign, we decline to hold that Pfeffer is entitled to summary judgment on this ground. We therefore reverse summary judgment granted to Pfeffer and remand for further proceedings in the district court.

III. The Krutzigs are not entitled to immunity from the Razinks’ action under section 604A.25.

The district court granted summary judgment to the Krutzigs based on its determination that because they owned the sign, they qualified for the protection of the recreational-land-use statute. “Land” is defined in the statute as “any of the following which is privately owned or leased ...: land, easements, rights-of-way, roads, water, watercourses, private ways and buildings, structures, and other improvements to land, and machinery or equipment when attached to land.” Minn. Stat. § 604A.21, subd. 3. “Owner” is defined as “the possessor of a fee interest or a life estate, tenant, lessee, occupant, holder of a utility easement, or person in control of the land.” Minn.Stat. § 604A.21, subd. 4. The district court reasoned that the sign is a structure and that the Krut-zigs owned the sign, making them “landowners” under the recreational-land-use statute.

Even if this is the case, the Krutzigs did not give written or oral permission for use of such “land” as a recreational trail and therefore are not entitled to any of the protections of the recreational-land-use statute. The district court erred in concluding that section 604A.25 immunized the Krutzigs from the Razinks’ action, and we reverse summary judgment granted to the Krutzigs on this basis.

IV. The Krutzigs are entitled to summary judgment on the ground that there is no evidence that they breached a duty to the Razinks with regard to the sign.

In the alternative, the district court concluded that the Krutzigs are entitled to summary judgment on the Razinks’ claims because, as a matter of law, they did not create or maintain a condition that they should have recognized as creating an unreasonable risk of physical harm to others. We agree. The Razinks have not clearly articulated what duty the Krutzigs owed them. On appeal, they argue that “at the very least, [the Krutzigs] owed the duty of care owed by landowners to trespassers.”

We agree with the district court’s analysis that the Krutzigs’ duty is more correctly described in section 386 of the Restatement (Second) of Torts:

Any person, except the possessor of land or a member of his household or one acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside of the land, is subject to liability for physical harm thereby caused to them, irrespective of whether they are lawfully upon the land, by the consent of the possessor or otherwise, or are trespassers as between themselves and the possessor.

Restatement (Second) of Torts § 386 (1965). There is no evidence that the Krutzigs were aware, or could have been aware, that placing their plywood sign on the existing sign posts on lot two would create any risk of harm, let alone an unreasonable risk of physical harm, to anyone. Moreover, it is undisputed that when the Krutzigs placed the sign, there was no snow on the ground and no evidence on the ground of any type of trail use in the area of the sign or near the sign.

Although the Razinks repeatedly assert that the sign was placed in the middle of a known and well-traveled snowmobile trail, they have failed to produce evidence that any trace of such a trail was visible when the Krutzigs placed the sign. They have also failed to show that the Krutzigs had any knowledge of such a trail at any time before the accident or otherwise could have foreseen that the sign created any risk of injury to anyone. Because there is no evidence to support even an inference of such knowledge, there is no material fact dispute. Therefore, the district court correctly concluded that, as a matter of law, the Krutzigs did not breach any duty owed to the Razinks with regard to the sign, and the district court did not err in granting summary judgment to the Krut-zigs on this ground.

DECISION

Because Ocello did not give oral or written permission for use of its land for a recreational trail, the Razinks are not precluded by Minn.Stat. § 604A.25 from pursuing an action for injuries Michael Razink, as a trespasser, sustained from running into a sign on Ocello’s land while snowmobiling. We therefore reverse dismissal of Ocello from this action. Because we have reversed Ocello’s dismissal, the district court’s grant of summary judgment to Pfeffer, which was premised on Ocello’s immunity from the Razinks’ action under section 604A.25, is also reversed. The Krutzigs are not entitled to the protection of section 604A.25, but because the record does not contain any evidence from which a fact-finder could conclude that the Krutzigs could have appreciated any risk of harm from their conduct with regard to the sign, the district court did not err in granting summary judgment to the Krutzigs.

Affirmed in part, reversed in part, and remanded,

      . Appellants sued Charles Pfeffer as an individual and Pfeffer Company, Inc. and made allegations against “Charles Pfeffer d/b/a Pfef-fer Company, Inc.” The parties and the district court have treated these respondents as a single entity, and no issues on appeal make any distinction between the individual and the corporation. Therefore, these parties will be treated as a single entity for purposes of this opinion.

      . The district court stated that Michael and Daryl Krutzig were "acting on behalf of their investment company, [respondent] S.B. 25, [LLC],” but the complaint asserts that Michael Krutzig is the sole owner of S.B. 25. The complaint also asserts that respondents Daryl and Kathy Krutzig are co-owners of lot one and/or officers of S.B. 25. The record appears to treat The Krutzigs and S.B. 25 as a single entity. S.B. 25 will therefore not be separately referred to in this opinion.

      . Razinks' complaint also asserted negligence per se based on an alleged violation of a county ordinance prohibiting signs within 200 feet of the center of a roadway. Because the municipality of Monticello has exercised its statutory authority to govern land use within municipal boundaries, Razinks conceded at oral argument on appeal that the county ordinance does not apply in this case and waived further consideration of that argument.

      . On appeal, Ocello argues that if it is not entitled to dismissal under rule 12, it is entitled to summary judgment because it could not have known that the sign posed an unreasonable risk of harm and therefore had no duty to Razink. But the existing record is silent about what Ocello knew or should have known. On remand, Ocello and the Razinks should be given an opportunity for additional discovery, and Ocello is not precluded from seeking summary judgment.

      . The Razinks argue that photographs taken after the snow melted in 2003 show that evidence of trail use remained on the ground even when there was no snow. But no one has disputed that there was snowmobile use of the area after snow fell in January 2003 or that evidence of that use was visible immediately after the snow melted in the spring of 2003. This evidence is not sufficient to create a genuine issue of material fact that evidence of trail use was apparent in the late fall/early winter of 2002. And Michael Razink's testimony that he had traveled the same route a couple of times in prior years when there was snow does not establish a material fact question regarding whether evidence of that use was visible when The Krutzigs were on the property. The only evidence of the condition of the land prior to the snowfall comes from the deposition testimony of Pfeffer and Michael Krutzig. Both stated that there was no visible sign of a trail of any kind.