author: GILDEA, Justice.

text:
    STATE of Minnesota, Respondent, v. Michael J. DAHLIN, Appellant.
    No. A06-717.
    Supreme Court of Minnesota.
    July 24, 2008.

      Gurdip Singh Atwal, Assistant State Public Defender, St. Paul, MN, for Appellant.
    Attorney General — Criminal, St. Paul, MN, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

GILDEA, Justice.

The question presented in this appeal is whether a party has the right to peremptorily remove a district court judge when a case has been remanded and assigned to that judge for a new trial. Because we hold that Minn. R.Crim. P. 26.03, subd. 13(4), does not guarantee a party the peremptory right to remove a judge from presiding over a new trial on remand, we affirm.

Appellant Michael J. Dahlin appeals his conviction for aiding and abetting second-degree murder. The facts underlying the crime are detailed in our opinion in Dah-lin’s direct appeal. State v. Dahlin, 695 N.W.2d 588, 590-92 (Minn.2005). There, we reversed Dahlin’s conviction for first-degree murder because we held that the district court had erred when it did not submit a lesser-included offense instruction to the jury. Id. at 601. We remanded the matter for a new trial, and it was assigned to the same judge who had presided over the first trial.

Dahlin sought to peremptorily remove the judge pursuant to Minn. R.Crim. P. 26.03, subd. 13(4), but the district court denied his request. Dahlin then petitioned the court of appeals for a writ of prohibition to prevent the judge from presiding over the second trial. The court of appeals denied the writ, and Dahlin did not petition our court for further review.

Dahlin’s second jury trial commenced the day before the court of appeals denied his petition for a writ of prohibition. Following trial, the jury found Dahlin guilty of aiding and abetting second-degree intentional murder. The district court convicted Dahlin of this offense and sentenced him to 433 months in prison. The court of appeals affirmed Dahlin’s conviction in an unpublished opinion, State v. Dahlin, No. A06-717, 2007 WL 2998956 (Minn.App. Oct. 16, 2007), and we granted review on the removal issue.

I.

As noted above, Dahlin did not seek review in this court of the court of appeals’ order denying his petition for a writ of prohibition. We directed the parties to brief whether Dahlin’s failure to seek review of the court of appeals’ denial of the writ of prohibition constitutes a waiver of further appellate review of the removal issue. We turn to that procedural question first.

We generally discourage interlocutory appeals, but they are allowed in certain situations. See Minn. R. Civ.App. P. 103.03 (discussing appealable orders). Interlocutory review is also available in special circumstances, such as by petition for an extraordinary writ pursuant to Minn. R. Civ.App. P. 120. While interlocutory appeals may be available, they are not necessarily mandatory. See Kastner v. Star Trails Ass’n, 646 N.W.2d 235, 240 n. 9 (Minn.2002). But we have previously stated that the right of peremptory removal “ ‘may be waived by failure to seasonably assert it.’ ” State v. Azure, 621 N.W.2d 721, 724 (Minn.2001) (quoting Jones v. Jones, 242 Minn. 251, 262, 64 N.W.2d 508, 515 (1954)) (holding that appellant waived his right to seek peremptory removal by failing to file a notice of removal with the court administrator and by failing to bring a motion for removal in a timely manner). And we have made clear that the proper remedy to seek review of an order denying the peremptory removal of a judge is a writ of prohibition. Azure, 621 N.W.2d at 725 n. 3; State v. Cemnak, 350 N.W.2d 328, 331 (Minn.1984); see State v. Burrell, 743 N.W.2d 596, 601 (Minn.2008).

The writ of prohibition is the proper remedy because this procedure “prevents a judge from proceeding in a matter where he has been disqualified * * * and ‘avoid[s] the possible] * * * waste of time, money, and effort required of all parties by a procedure which might involve two trials and possibly two appeals in order to adjudicate the issue.’ ” Azure, 621 N.W.2d at 725 n. 3 (quoting Smith v. Turnan, 262 Minn. 149, 154, 114 N.W.2d 73, 77 (1962)) (citing State v. Scruggs, 421 N.W.2d 707, 717 (Minn.1988), for the proposition that a writ of prohibition is often necessary because it is difficult to review pretrial procedures after a fair trial has occurred). To preserve the peremptory removal issue, a party must therefore seek a writ of prohibition from the court of appeals. Id. (“Thus, a posttrial appeal to this court was not the appropriate way for appellant to obtain review of the denial of his motion to remove.”) Dahlin properly invoked this procedure through the court of appeals.

Pursuant to Minn. R. Civ.App. P. 120.05, denial of a writ of prohibition by the court of appeals is subject to review by this court through petition for review under Minn. R. Civ.App. P. 117. Because Dahlin did not petition this court for review of the court of appeals’ denial of a writ of prohibition, the question presented is whether this failure bars him from seeking review of what would, in essence, be the merits of the denial of the writ. We have not previously adopted a rule that requires a party to seek review of a court of appeals ruling on an interlocutory issue in order to preserve review of the issue in this court. But the logical extension of the rule we applied in Azure dictates that if a party wishes to obtain review in our court of the denial of the peremptory removal of a judge, that party must petition for review of the court of appeals’ order denying relief.

The conclusion that a petition for review is required is reinforced by our analysis in Peterson v. BASF Corp., 675 N.W.2d 57, 68 (Minn.2004), vacated on other grounds, BASF Corp. v. Peterson, 544 U.S. 1012, 125 S.Ct. 1968, 161 L.Ed.2d 845 (mem.) (2005). In the “unique” circumstances presented there, we held that where a party had filed a petition for review, but did not include all issues that were ripe for decision in that petition, that party could not later seek review of those issues in this court. Id. The issues we found to be “waived” in BASF, which related to choice of law and class certification, involved pure questions of law as presented. Id. at 67. We specifically noted that facts necessary for resolution of the choice of law and class certification questions had not changed between the time of the first petition for review and the time when the case came back to our court after judgment had been entered. Id. at 68. Because of that “unique procedural history,” we concluded that allowing BASF to pursue review following entry of judgment of claims that were “ripe” at the time of the first petition for review “would undermine principles of fairness and judicial economy.” Id. Accordingly, we held that further review of the legal issues involving choice of law and class certification in our court was waived. Id.

Like the issues raised in BASF, the question presented here is a legal one. In addition, there is no possibility that the development of a factual record would be relevant in any way to resolution of the question of the applicability of the removal right at issue here. Finally, allowing further review now of the question of whether Dahlin had the right to peremptorily remove the judge after that judge had presided over the new trial “would undermine principles of * * * judicial economy.” Id.

We held in BASF that if a party petitions for review, the party must bring all claims then ripe in that petition for review or waive further review of such claims in our court. Id. We did not say in BASF that the rule we applied there applied in any other context, and we have not otherwise established a general rule that requires a party to petition for review from adverse rulings by the court of appeals on all interlocutory appeals. We likewise establish no such broad rule in this case. To the contrary, our prior precedent recognizes that the peremptory removal of a judge is different from other questions that are subject to permissive interlocutory appeals. The interlocutory review of the denial of a peremptory removal of a judge is not permissive; it is mandatory. It logically follows therefore that if review is sought in our court, it must be done following an adverse ruling on the interlocutory petition in the court of appeals. In order to avoid a waste of time, resources, and effort by the parties and the court system, cf. Azure, 621 N.W.2d at 725 n. 3, we hold that a party must timely petition this court for review of the denial of a writ of prohibition when the issue involves the right of peremptory removal, and that failure to do so constitutes waiver of further review of the removal issue in this court.

We recognize that the rule we announce here is an extension of the principles in Azure and BASF and that it could be viewed as a departure from the principle that we have recognized elsewhere that the failure to pursue an interlocutory appeal in certain circumstances does not forfeit the right to appellate review. See Engvall v. Soo Line R.R. Co., 605 N.W.2d 738, 745 (Minn.2000) (“The better rule is that failure to appeal from such an interlocutory order or judgment does not result in forfeiture of the right to appeal from the final judgment.”). But given the nature of the right at issue in this case, we conclude that a different path is warranted for the unique circumstances presented here. Because our holding could be viewed as a departure from prior practice, we hold that the rule we adopt in this opinion applies prospectively only and that it is not applicable to Dahlin’s claim. We therefore proceed to address the merits of Dahlin’s appeal.

II.

Dahlin argues that Minn. R.Crim. P. 26.03, subd. 13(4), guarantees a party the right to peremptorily remove a judge from presiding over a new trial on remand. We review the construction of a rule of procedure de novo. Azure, 621 N.W.2d at 723.

Minnesota Rule of Criminal Procedure 26.03, subd. 13(4), “provides for removal as a matter of right of a judge assigned to a criminal trial or hearing.” State v. Cheng, 623 N.W.2d 252, 256 (Minn.2001). Under the rule, a party may file a notice to remove the judge assigned to its trial within 7 days after the party receives notice of the judicial assignment. Minn. R.Crim. P. 26.03, subd. 13(4). The rule contains an exception to removal as of right, however, by providing: “No notice to remove shall be effective against a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing of which the party had notice * * *.” Id. Dahlin asserts that this exception does not apply to his notice to remove. Specifically, he argues that remand for a new trial revives the right of peremptory removal, because a new trial is a new determination of guilt and therefore that the judge he sought to remove had not already presided over the trial. We disagree.

In construing procedural rules, we look first to the plain language of the rule and its purpose. Commandeur LLC v. Howard Hartry, Inc., 724 N.W.2d 508, 510 (Minn.2006). Where the language is plain and unambiguous, that plain language must be followed. See Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). Ambiguity exists only when the language of the rule is subject to more than one reasonable interpretation. Id. The rule is read as a whole and each section is interpreted “in light of the surrounding sections to avoid conflicting interpretations.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). Words and phrases are “construed according to rules of grammar and according to their common and approved usage.” Welscher v. Myhre, 231 Minn. 33, 38, 42 N.W.2d 311, 314 (1950). And “[wjhenever it is possible, no word, phrase, or sentence should be deemed superfluous, void, or insignificant.” Amaral, 598 N.W.2d at 384.

The plain language of the rule confirms that Dahlin’s notice to remove was not effective. There is no question that the judge Dahlin sought to remove had “already presided at the trial” of the State’s case against Dahlin. Minn. R.Crim. P. 26.03, subd. 13(4).

Dahlin argues that because a new trial involves new witnesses and new charges, he therefore should have the peremptory right to remove the judge. But we narrowly construe the right to peremptorily remove a judge. Cheng, 623 N.W.2d at 257 (citing State v. Erickson, 589 N.W.2d 481, 485 (Minn.1999)). Adopting Dahlin’s construction would significantly broaden the scope of the rule. Dahlin argues that the exception, which precludes a notice to remove from operating against a judge who has “presided at the trial, Omnibus Hearing, or other evidentiary hearing,” does not apply when new witnesses are presented. Minn. R.Crim. P. 26.03, subd. 13(4). If the exception’s applicability is rendered inoperable because of new witnesses or claims presented at a new trial, it would similarly be inoperable if new witnesses were presented at a new evidentiary hearing. Such a broad application of the automatic removal right is inconsistent with our precedent, see Cheng, 623 N.W.2d at 257, and we decline to adopt it.

Examination of the commentary to Minn. R.Crim. P. 26.03, subd. 13(4), regarding the purpose of the rule reinforces the conclusion that Dahlin’s notice was not effective. While the commentary is not binding on this court, “the comments are recognized as providing guidance which courts may follow.” State v. Pero, 590 N.W.2d 319, 326 (Minn.1999). Minnesota Rule of Criminal Procedure 26.03, subd. 13(4), is based on Minn. R. Civ. P. 63.03. Minn. R.Crim. P. 26 cmt. Originally the civil rule did not include the provision precluding application of removal as of right where a judge had presided over a proceeding involving a substantive matter. See Minn. R. Civ. P. 63.03 (1984). The civil rule was “substantially rewritten” in 1985 in order to adapt the rule “to follow in large part the notice of removal procedure established by Minn. Stat. § 542.16 (1982).” Minn. R. Civ. P. 68.03 advisory comm, note — 1986. Of particular relevance here is the drafters’ “attempt[ ] to make it clear that a party must file a notice to remove with respect to any individual judge the first time that judge presides in an action.” Id. (emphasis added). The exception for judges who have presided “at a motion or any other proceeding” was inserted to “prevent counsel from using the notice to remove procedures to remove an assigned judge after that judge has presided at one or more pretrial hearings.” Id. Commentary to Minn. R.Crim. P. 26.03, subd. 13(4) reconfirms this limited purpose: “A judge who has previously presided at the trial, the Omnibus Hearing, or other evidentiary hearing in the case, of which a party had notice, may not later be removed from the case by that party without a showing of cause.” Minn. R.Crim. P. 26.03 cmt. (emphasis added). By using the phrases “an action” and “the case,” the drafters confirmed that the purpose of the rules is to give the parties one automatic right to remove a judge before that judge presides over a proceeding involving a substantive issue in the matter. After that point, removal can only be for cause shown. Allowing Dahlin to remove the district court judge under the circumstances presented here, where that judge has already presided over a trial in the case, would conflict with this limited purpose of the rule.

Because the judge Dahlin sought to remove had presided over Dahlin’s first trial, we hold that Dahliris notice of peremptory removal was not effective. We therefore affirm the conviction.

Affirmed.

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

      . The complete text of Minn. R.Crim. P. 26.03, subd. 13(4), provides:
      The defendant or the prosecuting attorney may serve on the other party and file with the court administrator a notice to remove the judge assigned to a trial or hearing. The notice shall be served and filed within seven (7) days after the party receives notice of which judge is to preside at the trial or hearing, but not later than the commencement of the trial or hearing. No notice to remove shall be effective against a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing of which the party had notice, except upon an affirmative showing of cause on the part of the judge. After a party has once disqualified a presiding judge as a matter of right, that party may disqualify the substitute judge only upon an affirmative showing of cause.

      . While the petition was pending before the court of appeals, Dahlin moved the district court for a continuance, but his motion was denied. He then moved the district court to remove the trial judge for cause, but this motion was also denied. Dahlin did not appeal the denial of his motion for removal for cause or request a stay of the proceedings from the court of appeals.

      . In addition to the peremptory removal issue, Dahlin also argued to the court of appeals that the State’s evidence was insufficient to prove the element of intent and that the upward durational departure from the presumptive sentence exaggerated the criminality of his conduct. Dahlin, 2007 WL 2998956, at *1. These issues are not before us.

      . Dahlin argues that the denial of his right to remove the judge was structural error that cannot be waived. But the issue before us is not the right to an unbiased decision-maker, which is guaranteed by the Constitution. McKenzie v. State, 583 N.W.2d 744, 747 (Minn.1998). Rather, the issue presented is this case involves the right to peremptorily remove a judge as provided by a rule of court procedure. Minn. R.Crim. P. 26.03, subd. 13(4). The right to peremptorily remove a judge is waivable, see State v. Azure, 621 N.W.2d 721, 724 (Minn.2001) (finding that right to peremptory removal is waivable), and not subject to structural error analysis.

      . Interlocutory appeals from qualifying district court orders are also permitted under the collateral order doctrine, even if those orders are not identified as immediately appealable by the rules of appellate procedure. St. Croix Dev., LLC v. Gossman, 735 N.W.2d 320, 325 (Minn.2007). The collateral order doctrine applies to the "small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); see also Kastner v. Star Trails Ass’n, 646 N.W.2d 235, 238 (Minn.2002) (stating that review is available, for example, from orders "denying motions to dismiss for lack of personal jurisdiction, subject matter jurisdiction, and government immunity”).

      . The United States Supreme Court vacated the judgment in BASF and remanded the case to this court for reconsideration in light of its recently-decided preemption case of Bates v. Dow Agrosciences LLC, 544 U.S. 431, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005). Because Bates involved only the issue of preemption under the Federal Insecticide, Fungicide, and Rodenticide Act, we reviewed only the preemption issue on remand. Peterson v. BASF Corp., 711 N.W.2d 470, 474 (Minn.2006). Our analysis of the procedural issue was not affected by the Supreme Court's vacation of the judgment. See id. at 482.

      . As an alternative to its argument that Dah-lin waived review in this court, the State argues that the law-of-the-case doctrine also precludes us from considering the removal issue. The law-of-the-case doctrine "is a rule of practice that once an issue is considered and adjudicated, that issue should not be reexamined in that court or any lower court throughout the case.” BASF, 675 N.W.2d at 66. We are not generally barred "from reviewing an earlier decision of a lower court,” even if the court of appeals applied the law-of-the-case doctrine. Id. Accordingly, the doctrine does not preclude our review of the removal issue.

      . Dahlin cites several cases from foreign jurisdictions in support of this argument. See Priest v. Lindig, 591 P.2d 1299, 1301 (Alaska 1979); People v. Emerson, 122 IU.2d411, 119 Ill.Dec. 250, 522 N.E.2d 1109, 1113 (1987); State v. Sullivan, 486 S.W.2d 474, 476 (Mo. 1972); State v. Belgarde, 119 Wash.2d 711, 837 P.2d 599, 601-02 (1992). Those cases considered removal rules that do not use the same exception language as that contained in Minn. R.Crim. P. 26.03, subd. 13(4), and are therefore unpersuasive.

      . Dahlin cites McClelland v. Pierce, 376 N.W.2d 217 (Minn. 1985), for the proposition that a new trial is a new proceeding that revives the right of peremptory removal. McClelland involved two cases that we had previously remanded to the district court for disposition of spousal maintenance and child support. Id. at 218. On subsequent appeal, we considered whether the remand proceedings were new proceedings in which a party could file a notice to remove under Minn. R. Civ. P. 63.03 (1984), and held that "reconsideration of these cases on remand [was] a continuation of the original proceedings, [and] that it [was] not a new proceeding which gives rise to a right of peremptory challenge.” Id. at 220. We noted that the remand instructions “contemplate[d] neither a new trial nor an evidentiary hearing * * * [but directed] a continuation of the original proceedings.” Id. at 219; cf. Hooper v. State, 680 N.W.2d 89, 92 (Minn.2004) ("A postconviction proceeding is an extension of the criminal prosecution.”). McClelland is inapposite, however, because the civil removal rule in effect at that time did not include the exception provision at issue in this case. 376 N.W.2d at 218; Minn. R. Civ. P. 63.03 (1984). The McClelland petitioners filed an affidavit of prejudice requesting reassignment to another judge pursuant to Minn. R. Civ. P. 63.03 (1984) on January 11, 1985. McClel-land, 376 N.W.2d at 218. The exception provision that precludes application of removal as of right where the judge has presided over a proceeding involving a substantive matter went into effect on July 1, 1985. Thus, we had no occasion in McClelland to construe this provision.

      . But see Ellis v. Minneapolis Comm’n on Civil Rights, 295 N.W.2d 523, 524-25 (Minn. 1980) ("We have often stated that the right to peremptorily challenge a judge is to be liberally construed to safeguard in both fact and appearance the constitutional right to a fair and impartial trial.”). Ellis is inapposite to this case because it considered the pre-1985 version of the civil removal rule that did not contain the exception provision at issue in this case. See id. at 524.

      . The plain language of the rule also confirms that if a different judge had been assigned to the trial on remand, Dahlin's preemptory removal would have been effective because that judge would not have already presided over the trial. Minn. R.Crim. P. 26.03, subd. 13(4).

      . Minnesota Rule of Civil Procedure 63.03 provides:
      Any party or attorney may make and serve on the opposing party and file with the administrator a notice to remove. The notice shall be served and filed within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.
      No such notice may be filed by a party or party’s attorney against a judge or judicial officer who has presided at a motion or any other proceeding of which the party had notice, or who is assigned by the Chief Justice of the Minnesota Supreme Court. A judge or judicial officer who has presided at a motion or other proceeding or who is assigned by the Chief Justice of the Minnesota Supreme Court may not be removed except upon an affirmative showing of prejudice on the part of the judge or judicial officer.
      After a party has once disqualified a presiding judge or judicial officer as a matter of right that party may disqualify the substitute judge or judicial officer, but only by making an affirmative showing of prejudice. A showing that the judge or judicial officer might be excluded for bias from acting as a juror in the matter constitutes an affirmative showing of prejudice.
      Upon the filing of a notice to remove or if a litigant makes an affirmative showing of prejudice against a substitute judge or judicial officer, the chief judge of the judicial district shall assign any other judge of any court within the district, or a judicial officer in the case of a substitute judicial officer, to hear the cause.

      . Minnesota Rule of Civil Procedure 63.03 (1984) provides:
      Any party or his attorney may make and serve on the opposing party and file with the clerk an affidavit stating that, on account of prejudice or bias on the part of the judge who is to preside at the trial or at the hearing of any motion, he has good reason to believe and does believe that he cannot have a fair trial or hearing before such judge. The affidavit shall be served and filed not less than 10 days prior to the first day of a general term, or 5 days prior to a special term or a day fixed by notice of motion, at which the trial or hearing is to be had, or, in any district having two or more judges, within one day after it is ascertained which judge is to preside at the trial or hearing. Upon the filing of such affidavit, with proof of service, the clerk shall forthwith assign the cause to another judge of the same district, and if there be no other judge of the district who is qualified, or if there be only one judge of the district, he shall forthwith notify the chief justice of the supreme court.

      . Minnesota Statutes § 542.16 (1982) provides:
      Subdivision 1. Initial disqualification. Any party, or his attorney, to a cause pending in a district court, within one day after it is ascertained which judge is to preside at the trial or hearing thereof, or at the hearing of any motion or order to show cause, may make and file with the clerk of the court in which the action is pending and serve on the opposite party a notice to remove. Thereupon without any further act or proof, the chief judge of the judicial district shall assign any other judge of any court within the district to preside at the trial of the cause or the hearing of the motion or order to show cause, and the cause shall be continued on the calendar, until the assigned judge can be present. In criminal actions the notice to remove shall be made and filed with the clerk by the defendant, or his attorney, not less than two days before the expiration of the time allowed him by law to prepare for trial and in any of those cases the presiding judge shall be incapacitated to try the cause. In criminal cases, the chief judge, for the purpose of securing a speedy trial, may in his discretion change the place of trial to another county.
      Subd. 2. Subsequent disqualifications. After a litigant has once disqualified a presiding judge as a matter of right under subdivision 1, he may disqualify the substitute judge, but only by making an affirmative showing of prejudice. A showing that the judge might be excluded for bias from acting as a juror in the matter constitutes an affirmative showing of prejudice. If a litigant makes an affirmative showing of prejudice against a substitute judge, the chief judge of the judicial district shall assign any other judge of any court within the district to hear the cause.


source: Caselaw Access Project

author: MUEHLBERG, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, Vernon PUGH, Appellant.
    No. A07-1171.
    Court of Appeals of Minnesota.
    July 22, 2008.

      Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Mark A. Ostrem, Olmsted County Attorney, Rochester, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, MN.
    Considered and decided by STONEBURNER, Presiding Judge; WORKE, Judge; and MUEHLBERG, Judge.
   OPINION

MUEHLBERG, Judge.

Following remand for resentencing in accordance with Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Taylor v. State, 670 N.W.2d 584 (Minn.2003), the district court sentenced appellant to 144 months and ten years of conditional release for first-degree criminal sexual conduct. The court also ordered that appellant have no contact with the victim of the offense. On appeal from resentencing, appellant argues that the district court did not have authority to impose the no-contact order and that his sentence violates the single-behavioral-incident statute. We affirm except as to the imposition of the no-contact order. Because the district court was not statutorily authorized to impose the no-contact order, we vacate that part of appellant’s sentence.

FACTS

The state charged appellant Vernon Lee Pugh with two counts of first-degree criminal sexual conduct in May 2002 for having sexual intercourse with his 11-year-old step-daughter. A jury found Pugh guilty on both counts, but the first count was “vacated and dismissed as being a lesser-included charge.” At the sentencing hearing, the district court granted the state’s motion for an upward sentencing departure and imposed a sentence of 180 months and ten years of conditional release on the second count. The court also “[ordered] that the defendant have no contact whatsoever with ... the victim of [the] offense.”

Pugh appealed and challenged his sentence on two grounds. State v. Pugh, No. A04-663, 2005 WL 1019023, at *4-*5 (Minn.App. May 3, 2005). First, he contended that his sentence was invalid under Taylor v. State, 670 N.W.2d 584 (Minn. 2003) because some of the factors on which the departure was based were elements of the charged offense. Second, he argued that his sentence was invalid under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) because the district court had based the upward sentencing departure on factors that had been found by the court rather than by the jury. We agreed with Pugh and remanded the case for sentencing in accordance with Taylor and Blakely.

At resentencing, the district court sentenced Pugh to 144 months, the presumptive sentence under the sentencing guidelines, and ten years of conditional release. The court emphasized that it was imposing the sentence on count two and that the first count had been “vacated and dismissed.” The court also reimposed its order “that the defendant have no contact whatsoever with ... the victim of [the] offense.”

On appeal from resentencing, Pugh argues that the district court did not have authority to impose a no-contact order as part of his executed sentence. In a pro se supplemental brief, he also asserts that his sentence violates the single-behavioral-incident statute. Minn.Stat. § 609.035, subd. 1 (2000).

ISSUES

I. Did the district court have authority to impose a no-contact order as part of Pugh’s executed sentence? II. Does Pugh’s sentence violate the single-behavioral-incident statute?

ANALYSIS

I.

Pugh challenges the district court’s imposition of a no-contact order as part of his executed sentence. We review a sentence imposed by a district court “to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2006).

“The legislature has the exclusive authority to define crimes and offenses and the range of the sentences or punishments for their violation.” Minn. Stat. § 609.095(a) (2006). Minnesota courts therefore do not have inherent authority to impose terms or conditions of sentences for criminal acts and must act within the limits of their statutory authority when imposing sentences. Id.; State v. Olson, 325 N.W.2d 13, 17 (Minn.1982). Consequently, a district court may not impose a no-contact order as part of an executed sentence unless the order is expressly authorized by statute. Cf. Laux v. State, 821 N.E.2d 816, 818-19 (Ind.2005) (vacating no-contact order that was imposed as part of executed sentence because the order was not authorized by statute); State v. Post, 279 Kan. 664, 112 P.3d 116, 120 (2005) (holding that, because no-contact order did not conform to statutory provision, order constituted illegal sentence).

The no-contact order that was imposed in this case was not statutorily authorized. Pugh was convicted of first-degree criminal sexual conduct, a felony offense. Minn.Stat. § 609.02, subd. 2 (2000) (defining felony as “crime for which a sentence of imprisonment for more than one year may be imposed”); Minn.Stat. § 609.342, subd. 2 (2000) (authorizing courts to sentence persons found guilty of first-degree criminal sexual conduct “to imprisonment for not more than 30 years or to a payment of a fine of not more than $40,000, or both”). Minn.Stat. § 609.10, subd. 1 (2000) sets forth the sentences available for felony offenses. It authorizes courts to order imprisonment of the defendant, payment of a fine, payment of court-ordered restitution and/or payment of a local correctional fee. Id. Minn.Stat. § 609.10, subd. 1, does not authorize a court to prohibit the defendant from having contact with the victim of the crime. Nor does Minn.Stat. § 609.342, subd. 2, which specifically addresses the penalty for first-degree criminal sexual conduct, authorize the imposition of a no-contact order. The district court therefore acted without authority when it imposed a no-contact order as part of Pugh’s executed sentence.

The state emphasizes that the Minnesota Statutes authorize district courts to impose no-contact orders in a number of different situations. Indeed, a court may impose a no-contact order in a criminal proceeding for domestic abuse, Minn.Stat. § 518B.01, subd. 4 (2006), may issue a restraining order if a petitioner fulfills several procedural requirements and shows “that there are reasonable grounds to believe that the respondent has engaged in harassment,” MinmStat. § 609.748, subd. 5 (2006), and may issue a temporary no-contact order to protect an alleged victim until a defendant is either acquitted or convicted, Minn.Stat. § 629.715, subd. 4 (2006). But none of the provisions cited by the state authorizes a district court to issue a no-contact order as part of an executed sentence for first-degree criminal sexual conduct.

The state also argues that, by failing to raise the issue with the district court, Pugh waived his argument that the district court did not have authority to impose the no-contact order. Under Minnesota caselaw, however, Pugh could not waive his challenge to the no-contact order. Because courts have authority to correct an illegal sentence at any time under Minn. R.Crim. P. 27.03, subd. 9, a defendant cannot forfeit, or waive by silence, review of an illegal sentence. State v. Maurstad, 733 N.W.2d 141, 146-47 (Minn.2007) (holding that defendant could not waive review of his criminal history score because sentence based on incorrect score is illegal sentence). Therefore, because the no-contact order constituted an illegal sentence, Pugh could not and did not waive his challenge to the order.

II.

Pugh raises a second issue in his pro se supplemental brief. The brief consists of Pugh’s “motion of allocution” and is a copy of the motion he submitted to the district court before his resentencing. At his resentencing hearing, Pugh was permitted to orally clarify the argument he set forth in his motion of allocution. The district court construed Pugh’s statements as an argument that he should not be sentenced on both of the matters for which he was convicted. Pugh did not object to this interpretation of his argument.

Although Pugh correctly notes in his brief that the single-behavioral-incident statute protects defendants from being punished for multiple offenses arising from the same behavioral incident, his argument that his sentence violates the statute fails because he was not punished for multiple offenses. Minn.Stat. § 609.035, subd. 1 (2000); State v. Schmidt, 612 N.W.2d 871, 876 (Minn.2000). Pugh was only sentenced for one count of first-degree criminal sexual conduct. Although the jury convicted him of two counts, the district court vacated and dismissed one of the counts “as being a lesser-included charge.”

Because the district court only sentenced Pugh for violating Minn.Stat. § 609.342, subd. l(h)(iii) (2000), a single offense, his claim that the court violated the single-behavioral-incident statute is without merit.

DECISION

We affirm Pugh’s sentence of 144 months and 10 years of conditional release for first-degree criminal sexual conduct. But, because the district court was not statutorily authorized to impose the no-contact order, we vacate that part of Pugh’s sentence.

Affirmed as modified.

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


author: STONEBURNER, Judge.

text:
    Harold E. BJORKLUND, Trustee of the Harold E. Bjorklund Revocable Trust U/A January 14, 2004, Respondent, v. BJORKLUND TRUCKING, INC., Appellant.
    No. A07-1327.
    Court of Appeals of Minnesota.
    July 22, 2008.

      Timothy A. Sullivan, Brigid M. Goss, Best & Flanagan, L.L.P., Eric W. Fors-berg, Forsberg Law Office, P.A., Minneapolis, MN, for respondent.
    Michael W. Haag, Thomas W. Pahl, Hillary B. Parsons, Foley & Mansfield, P.L.L.P., Minneapolis, MN, and Kelly J. Shannon, G & K Services, Inc., Minneton-ka, MN, for appellant.
    Considered and decided by WORKE, Presiding Judge; HALBROOKS, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant, a trucking business, challenges as an abuse of discretion the district court’s denial of its motion to stay an action to evict appellant from commercial property that it has occupied for more than 30 years pending resolution of an existing, separate action that would resolve possession and ownership of the subject property and all other claims appellant had asserted against respondent, the record titleholder. Appellant seeks reversal of the eviction verdict and asks that this court remand with instructions to the district court to stay the eviction action pending resolution of the first-filed action. In the alternative, appellant argues that it is entitled to a new trial in the eviction action, arguing that the district court committed reversible error by failing to submit appellant’s affirmative defenses to the jury through instructions and special-verdict questions. Because we conclude that the district court’s failure to stay the eviction action was an abuse of discretion constituting reversible error, we reverse and remand.

FACTS

Respondent Harold E. Bjorklund, Trustee of the Bjorklund Revocable Trust U/A January 14, 2004, (Bjorklund) is the father of Bruce Bjorklund and Wanda Sapatnekar. Wanda Sapatnekar is married to Sunil Sapatnekar. From 1965 until December 30, 1993, Bjorklund was the sole shareholder of appellant Bjorklund Trucking, Inc. (BTI). In 1975 and 1977, Bjorklund bought property in Scott County. BTI uses this property and property owned by Bjorklund in Wright County for its business.

As he planned for his retirement, Bjork-lund consulted his son-in-law, Sunil Sa-patnekar, who holds an M.B.A. in new-business development, about BTI’s operation. As a result of these discussions, the Sapanekars moved from New Jersey to Minnesota in the summer of 1993, and Sunil Sapatnekar became BTI’s chief operating officer.

In December 1993, Bjorklund convened a meeting to discuss the future of BTI. The meeting was attended by Bjorklund; Bruce Bjorklund; the Sapatnekars; BTI’s and Bjorklund’s accountant, Jim Daleiden; BTI’s and Bjorklund’s attorney, Andy Clark; and Mike Frost, an attorney at Clark’s firm who was involved in Bjork-lund’s estate planning. At that meeting, Bjorklund decided to transfer 98 of his 100 shares of BTI stock to his two children equally. The shares were transferred in 1993 and 1994. An agreement was also reached that BTI would pay Bjorklund $64,000 annually.

According to BTI, the annual payments, which equaled the amount of money that Bjorklund had been earning as an annual salary from BTI, were made at Bjork-lund’s request to cover his living expenses after he withdrew from management and ownership of BTI, and the payments were to end when Bjorklund began to receive pension benefits from BTI. BTI also asserts that Bjorklund agreed that, when the payments ended, he would transfer title of the properties occupied by BTI in Scott and Wright Counties to BTI. BTI asserts that it agreed to characterize the payments as rent so that Bjorklund’s social-security entitlement would not be affected. But BTI considered the payments to be for purchase of the property, even though the amount of the payment was not related to the lands’ values.

Bjorklund, however, denies that he agreed to transfer the Scott County and Wright County properties to BTI. Bjork-lund says that he agreed only to lease the properties to BTI indefinitely on a month-to-month lease for $64,000 per year plus payment of real-estate taxes and insurance.

From 1994 through mid-2000, BTI paid Bjorklund $64,000 annually. All business records of both parties characterize the payments as rent. After Bjorklund began to receive pension benefits from BTI, BTI stopped making the annual payments. BTI continued to insure the Scott County property at issue in this case and paid the real-estate taxes into 2005. Bjorklund did not transfer title to the Scott County and Wright County properties to BTI, but he did not request further payments and did not ask BTI to vacate the properties until the family became divided and litigation was pending.

At trial, Bjorklund testified that on Thanksgiving in 2003, the Sapatnekars asked him to sign both properties over to BTI and that this request made him so angry that he almost left the family dinner. This appears to be the beginning of what the district court ultimately characterized as a “family grudge.”

In January 2004, Bjorklund transferred title to the Scott County and Wright County properties to the Bjorklund Trust. Shortly after that transfer, Clark, as counsel for BTI, wrote to Bjorklund reminding him that he had agreed to transfer title to the properties to BTI. Bjorklund testified at trial that he does not recall receiving that letter. At about this same time, Sunil Sapatnekar purchased the two remaining shares of BTI stock, which BTI acquired from Bjorklund in 1995, making the Sa-patnekars the majority owners of the corporation.

In June 2005, BTI’s attorney wrote to Frost, asking that Bjorklund fulfill his agreement to transfer the properties to BTI. Bruce Bjorklund, at the time an officer and director of BTI, took the position that Bjorklund never promised to transfer the Scott County and Wright County properties to BTI, causing a rift in BTI’s management as well as within the family. In October 2005, Bruce Bjorklund sued BTI, Bjorklund, and the Sapatnekars in Wright County District Court, alleging in part that BTI had not afforded him certain shareholder preemptive rights to the two shares purchased by Sunil Sapatnekar. BTI cross-claimed against Bjorklund, alleging breach of contract, unjust enrichment, promissory estoppel, fraud, and misappropriation of corporate assets, and seeking specific performance of the alleged contractual obligation to transfer title to the properties to BTI.

Six days after BTI filed its cross-claims, Bjorklund initiated an eviction action in Scott County District Court, seeking to evict BTI from the Scott County properties. BTI moved for a stay or for an order consolidating the eviction action with the litigation pending in Wright County. The district court denied both motions. Subsequently, Bjorklund, who had not served BTI with a notice to vacate before initiating the eviction action, voluntarily dismissed the action without prejudice. A few days later, however, Bjorklund sent BTI a letter purporting to terminate a tenancy-at-will relationship between himself and BTI. When BTI failed to vacate, Bjorklund brought this eviction action. BTI moved to stay the eviction proceedings pending resolution of the Wright County action, or, in the alternative, for a full hearing on its claims against Bjork-lund. The district court denied BTI’s motion for a stay, concluding that circumstances had not changed after it denied BTI’s prior motion for a stay of eviction proceedings. The order denying the stay did not address BTI’s request to expand the scope of the proceeding.

BTI’s answer in the eviction action asserted that Bjorklund wrongfully holds title to the Scott County and Wright County properties because he had agreed to transfer title to BTI. BTI alleged that it more than fulfilled the original agreement by making payments for six years, but Bjork-lund refused to transfer title and instead fraudulently transferred the properties to his trust and made up a false story that BTI occupied the property under an oral lease. BTI also counterclaimed against Bjorklund for breach of contract, specific performance, promissory estoppel, unjust enrichment, constructive trust, fraudulent transfer, and forcible entry.

Bjorklund moved to dismiss or strike BTI’s counterclaim and for summary judgment in the eviction action. Bjorklund asserted that because the counterclaims mirror allegations in the action pending in Wright County and because the district court had denied BTI’s first motion to consolidate the eviction action with the Wright County action, BTI should be collaterally estopped from circumventing that order by asserting its counterclaims in the eviction action. Bjorklund also argued that the district court lacked jurisdiction over the counterclaims, citing pre-1998 caselaw stating that eviction actions are intended to address only the issue of possession of the property and asserting that because the eviction statute does not provide for counterclaims, none are allowed. Bjorklund asserted that the counterclaims should be resolved in the Wright County action.

The district court denied Bjorklund’s motion for summary judgment, reserved Bjorklund’s motion to dismiss BTI’s counterclaims, and set the matter for trial. In a brief memorandum, the district court stated that eviction actions are “summary proceedings [] trying only the right to possession” and that “[ujntil the trial is concluded, it is premature to dismiss the counterclaims, which may very well be allowed to continue whether [Bjorklund] is successful or not.”

Before trial, Bjorklund moved in limine to preclude BTI from introducing evidence relating to counterclaims that were pending in the Wright County action, arguing that the scope of the eviction action is limited to a determination regarding the right to present possession and that all equitable counterclaims must be raised in a separate proceeding. Bjorklund argued that even if the district court were to determine that the evidence is relevant to the eviction action, it should exclude it due to the risk of confusing the issues and misleading the jury. Bjorklund also argued that evidence of an alleged oral agreement to transfer title to property is precluded under the statute of frauds and that evidence of the fair market value of the property is irrelevant to the issue of possession, “the only matter at issue in an eviction proceeding.”

BTI countered that the doctrine of part performance removed the oral agreement to transfer property from the statute of frauds and that evidence of such agreement should be admitted. BTI renewed its motion for a stay of the eviction action, or alternatively, that it be allowed to assert all of its claims against Bjorklund in the eviction action, arguing that granting the motion in limine would put BTI at risk of inconsistent verdicts in the two actions.

The district court ruled that, to the extent BTI was arguing that the agreement with Bjorklund was for purchase of the property and not a lease, BTI could assert its claim as an affirmative defense in the eviction action but could not seek any affirmative relief or assert additional claims against Bjorklund.

A jury trial began on May 22, 2007, during which the district court was repeatedly called on to address the scope of evidence to be presented. At the close of testimony, BTI proposed a special-verdict form consisting of 16 questions covering its counter-claims for breach of contract, promissory estoppel, misrepresentation, unjust enrichment, and ownership and possession of the Scott County property. BTI’s proposed jury instructions included instructions on breach of contract, contract implied in fact, promissory estoppel, unjust enrichment/constructive trust, specific performance, equitable estoppel, full and part performance, and waiver. The district court denied all of BTI’s requested jury instructions and special-verdict questions, and instructed the jury only on eviction for non-payment of rent or termination of lease, definition of landlord, definition of lease, and definition of a contract. A single-question special-verdict form was submitted to the jury, asking: ■

Do you, the Jury, in the above-entitled action, find that the facts alleged in the complaint are true, and that [Bjorklund] shall recover possession of the premises and that [BTI] shall vacate the premises immediately?

The jury answered “yes.” The district court accepted the jury’s verdict against BTI but stayed the writ of execution for seven days.

BTI moved for a new trial, arguing that the district court’s failure to instruct the jury on its affirmative defenses and failure to mention the affirmative defenses in the special-verdict form required a new trial. BTI also moved to continue to stay the writ of execution. The district court denied BTI’s motion for a new trial but granted the motion to stay further proceedings and execution of the writ. In a memorandum supporting the order, the district court stated that “[b]ecause of the summary nature of an [eviction] action the jury in this action was simply being asked to determine whether there was a lease, whether it had been breached and whether [BTI] was still in possession.” The district court noted that BTI’s affirmative defense of possession by purchase “was fully developed during the trial and fully argued to the jury, and did not need further instruction.” The district court implied that it was without authority to supplement the special-verdict form contained in Minn. Stat. § 504B.355 (2006). This appeal followed.

ISSUES
Did the district court abuse its discretion by not staying the eviction action pending a final determination on the merits of an existing action in Wright County that would be dispositive of possession and ownership of all commercial real estate occupied by BTI and all other claims BTI asserted against Bjork-lund?

ANALYSIS

BTI argues that the district court abused its discretion when it declined to stay the eviction proceeding pending a final determination in the existing litigation in Wright County. “Generally, whether to stay a proceeding is discretionary with the district court, [and] its decision on the issue will not be altered on appeal absent an abuse of that discretion.” Real Estate Equity Strategies, LLC v. Jones, 720 N.W.2d 352, 358 (Minn.App. 2006).

“In deciding whether to defer to another court, a district court considers judicial economy, comity between courts, and the cost to and the convenience of the litigants....” Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 449 (Minn.App.2001); see also First State Ins. Co. v. Minn. Mining & Mfg. Co., 535 N.W.2d 684, 688 (Minn.App.1995) (stating that “[i]n considering the first-filed status in conjunction with other equitable factors, Minnesota courts have long held that the [first-filed] rule recognizes the importance of comity, while permitting the [district] courts discretion in granting anti-suit injunctions”), review denied (Minn. Oct. 18, 1995); Minn. Mut. Life Ins. v. Anderson, 410 N.W.2d 80, 82 (Minn.App.1987) (stating that when two actions in courts of concurrent jurisdiction are substantially similar, comity requires that “the first court to acquire jurisdiction has priority in considering the case”). The district court “must [also] assess the possibility of multiple determinations of the same dispute.” Medtronic, 630 N.W.2d at 449.

BTI acknowledges that the district court’s decision whether to stay an eviction proceeding is discretionary and that the “first-filed rule” is not a formal procedural rule but rather a principle based on courtesy and expediency. Nonetheless, BTI contends that denial of its motions to stay was an abuse of discretion under the supreme court’s ruling in Rice Park Props, v. Robins, Kaplan, Miller & Ciresi, 532 N.W.2d 556 (Minn.1995). BTI asserts that Rice Park “specific[ally] rul[ed] that it is appropriate to stay the eviction proceeding pending determination of an earlier-filed and all-encompassing action.” But, as Bjorklund correctly points out, Rice Park merely affirms a district court’s “considerable discretion” to stay an eviction action pending the resolution of a first-filed action. 532 N.W.2d at 556. Rice Park does not mandate a stay when other litigation is pending. Id.

BTI further argues that the district court should have stayed this action due to the possibility of “multiple litigation and conflicting results,” citing Anderson. In Anderson, this court affirmed the district court’s temporary injunction prohibiting further prosecutions or actions until the first-filed action was resolved, noting that “[t]he most critical aspect of [that] case [was] the possibility of multiple litigation and conflicting results.” 410 N.W.2d at 82-83. But Anderson, like Rice Park, affirmed an exercise of discretion; it did not mandate a stay. And by itself, the possibility of multiple determinations is not enough to establish that the district court abused its discretion by not staying the proceedings. Medtronic, 630 N.W.2d at 449-50.

Although neither Rice Park nor Anderson mandates that the district court stay an eviction proceeding pending an outcome in a first-filed suit, we conclude that the district court in this case abused its discretion by not doing so. In Fraser v. Fraser, we addressed whether the scope of an eviction proceeding under the current statute is as limited as that of unlawful detainer proceedings under the former statute. 642 N.W.2d 34, 40 (Minn.App. 2002). We stated that

to the extent [the possessor of land] has the ability to litigate ... equitable [claims] and other claims and defenses in alternate civil proceedings, it would be inappropriate ... to seek to do so in [an] eviction action; only if the eviction action presents the only forum for litigating these claims would it be appropriate for the district court to entertain them in that action.

Id. at 40-41. We further cited to this court’s decision in Amresco Residential Mortgage Corp. v. Stange, 631 N.W.2d 444 (Minn.App.2001), in which we affirmed dismissal of counterclaims in an eviction action “because an ‘alternate process’ was available for their resolution,” noting that “a party to such an alternate proceeding could seek to enjoin the prosecution of the eviction action pending determination of its challenges.” Id. at 40 (citing Amresco, 631 N.W.2d at 445-46). We now hold that when the counterclaims and defenses are necessary to a fair determination of the eviction action, it is an abuse of discretion not to grant a stay of the eviction proceedings when an alternate civil action that involves those counterclaims and defenses is pending.

In this case, the district court considered BTI’s requests for a stay of the eviction proceeding several times: after Bjorklund filed the first eviction action in December 2005; after Bjorklund filed the present eviction action; during trial; and on BTI’s motion for a new trial. The district court repeatedly cited pre-1998 cases for the proposition that “[t]he scope and purpose of [an eviction] action differs so essentially from the scope and purpose of an action to enforce equitable rights in the property that the pendency of the latter action cannot be held to bar the right to prosecute the former.” But the district court also concluded that it had to allow BTI to defend the eviction action by presenting evidence that the agreement between the parties was for purchase, not lease, of the property. The district court plainly contemplated that BTI would be able to fully litigate its additional claims against Bjorklund in the shareholder action and did not address the possibility that, or the extent to which, BTI could be collaterally estopped by the eviction verdict from asserting those claims in the Wright County action. See Burgmeier v. Bjur, 533 N.W.2d 67, 70 (Minn.App.1995) (noting limited collateral-estoppel effect of unlawful detainer rulings), review denied (Sept. 20, 1995).

At trial, the district court expressed its frustration with attempting to fit this case into the confines of an eviction proceeding. In the context of addressing the scope of evidence that BTI could present, the district court stated that, had it intended to try all the claims at issue in the Wright County action, it “should have just stayed this proceeding to begin with.” And at the hearing on BTI’s new-trial motion, the district court noted “that this [eviction] statute ... just doesn’t work very well in a context of a case like [this], but ... it’s still ... a summary proceeding.”

We recognize that existing caselaw provides very little guidance to the district court on exercising its discretion to stay or expand the scope of an eviction proceeding when other litigation is pending that would resolve the issue of possession. But we conclude that, on this record, once the district court determined that some of BTI’s claims against Bjorklund in the first-filed Wright County action were essential to BTI’s defense of the eviction action, the district court abused its discretion by failing to grant BTI’s motion to stay the eviction proceedings pending resolution of all of BTI’s claims against Bjorklund in the first-filed action. We further conclude that the abuse of discretion constituted reversible error in this case because the district court limited the nature and types of claims it allowed BTI to assert in the eviction action and failed to submit BTI’s claims to the jury. This decision forced BTI to present its claims piecemeal and subjected BTI to the possibility of being collaterally estopped from litigating its claims against Bjorklund to a single jury in a single action. We therefore reverse the eviction verdict and remand with instructions to the district court to stay the eviction action until BTI’s claims against Bjorklund are resolved in the Wright County action, understanding that a verdict in the Wright County action will, in fact, resolve the issue of possession as to all of the property held by the Bjorklund Trust and occupied by BTI.

DECISION

The district court, having determined that some claims asserted by BTI against Bjorklund in an existing action were essential to BTI’s defense of the eviction action, abused its discretion by denying BTI’s motion to stay the eviction action pending resolution of the first-filed action.

Reversed and remanded.

      . Bjorklund also brought an eviction action in Wright County seeking to evict BTI from the property there; but on BTI’s motion, that action was stayed pending resolution of the already existing litigation in Wright County.

      . In 1998, unlawful-detainer actions were replaced with eviction actions. This court has held that because eviction actions now originate in district court, the district court may, despite the statutory description of eviction actions as "summary,” expand the scope of such an action to address defendant’s equitable defenses to title. Fraser v. Fraser, 642 N.W.2d 34, 40-41 (Minn.App.2002).

      . The court cited William Weisman Holding Co. v. Miller, 152 Minn. 330, 332, 188 N.W. 732, 733 (1922). See also Park Drive P’ship v. Granse, No. C7-96-401, 1996 WL 537498, at *1 (Minn.App. Sept. 24, 1996) (holding that pending quiet-title action did not bar unlawful-detainer proceeding), review denied (Minn. Oct. 31, 1996).

      . The record reflects that Bjorklund has moved in the Wright County action for a ruling that BTI is collaterally estopped by the eviction verdict from its cross-claims against Bjorklund. The Wright County District Court has stayed a decision on the motion pending the outcome of this appeal.


author: CROTHERS, Justice.

text:
    2008 ND 146
    STATE of North Dakota, Plaintiff and Appellee v. Michael SCHOLES, Sr., Defendant and Appellant.
    No. 20070316.
    Supreme Court of North Dakota.
    July 21, 2008.

      James M. Vukelic, Acting State’s Attorney, Bismarck, ND, for plaintiff and appel-lee.
    Jessica J. Ahrendt, Valley City, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Michael William Scholes, Sr., appeals a criminal judgment entered on a conditional plea of guilty to four counts of class AA felony gross sexual imposition, one count of class A felony gross sexual imposition, and four counts of class B felony use of a minor in a sexual performance. We conclude the district court did not err in denying Scholes’s motion to suppress evidence because probable cause existed to issue a search warrant for his residence, because the State’s failure to comply with the literal terms of N.D.R.Crim.P. 41 does not require suppression of the evidence under the circumstances and because Scholes failed to establish that the State intentionally or recklessly omitted facts material to the issuance of the search warrant. We affirm.

I

[¶ 2] Scholes is the father of two sons, M.S., born in 1994, and R.S., born in 1995. Scholes also has a stepson, M.A., and a stepdaughter, A.A., who were both born in 1994. The family lived in Carson.

[¶ 3] In 2006, Dickinson attorney Kelly Armstrong was appointed to represent the children in a juvenile court action brought by the director of the Grant County Social Service Board against Scholes and the other parents to gain custody of the children. On December 7, 2006, during the course of his investigation in the juvenile court action, Armstrong prepared the following affidavit:

2. That on December 6, 2006, at approximately 4 p.m. MT, I conducted an interview with 3 of my 4 clients, [R.S.], [A.A.], and [M.A.] at Michael Scholes, Sr.’s residence. I have permission from both Michael Scholes, Sr., and his attorney to conduct these interviews. I spoke briefly with all 3 of my clients while Michael Scholes, Sr. was in the room. I then interviewed each of my clients separately.
3. I spoke with [R.S.] first. [R.S.] was visibly agitated and upset. When I asked him questions, he would start talking in a very low tone. He told me he did not want to testify at the hearing scheduled for next Thursday, December 14, 2006. I asked [R.S.] numerous questions about the case which he answered. He then asked if he could write the Judge a letter. I told him he could. He asked if his Dad and his Grandmother would be able to see this letter, I asked why, [R.S.] then told me that he was very scared of his father and grandmother. Throughout this conversation he was whispering in a very low tone. He was obviously afraid of being overheard.
4. I then interviewed [M.A.] and [A.A.], They were both in good moods and the interviews were short. [R.S.] came back up from the basement and said he had to talk to me again. He told me that ... “I know why Dad likes [A.A.] better.” He was whispering very quietly and I could barely hear him. [R.S.] informed me that recently [M.A.] had found videos of Michael Scholes, Sr. and [A.A.]. I asked what kind of videos and he told me they were naked. I asked where they were, he told me they were in Dad’s big brown dresser in his bedroom. [R.S.] then handed me a note, a copy of which is attached, saying that his dad might be taping the conversation. At this point, I decided to terminate the interview.
5. As I was leaving the house, [R.S.] walked me out to my car. When I explained to [R.S.] how serious the situation was and that I may have to report it to the police, he started crying and shaking uncontrollably. He said he was very scared of his father and grandmother and begged me not to tell the police. I told [R.S.] I would call him immediately the next day at school and that I would not do anything until I spoke to him again. Before I left, [R.S.] stated, “Please, just get me out of here. I’m thinking about killing myself.” I spoke with [R.S.] a little more until he calmed down and got him to promise to not do anything until I talked to him tomorrow. He agreed.
6. This morning, at approximately 8:30 a.m. MT, I called [R.S.] at school. I spoke with him again about what he had told me the night before. He explained that there were 2 videos, a normal VHS and a small camcorder video in Michael Scholes, Sr.’s big brown dresser. I asked him to describe in detail how he knew this. [R.S.] told me that recently when [A.A.] was sick and Michael Scholes, Sr. took her to the hospital, he [R.S.] was taking a bath. When he got done with his bath, he walked into the living room and [M.A.] was watching a video of [A.A.] and Michael Scholes, Sr. [R.S.] said the videos were located in the big brown dresser in Michael Scholes, Sr.’s bedroom. I informed [R.S.] again that we may have to report this to the police and he freaked out. I then decided to drive to Carson and speak to [R.S.] personally.
7. I met with [R.S.] at Grant County Junior High School in Carson. He informed me that there were also naked pictures of [A.A.] in the little white dresser in Michael Scholes, Sr.’s bedroom. [R.S.] informed me that when Michael Scholes, Sr. took [A.A.] to the hospital, he forgot to lock his bedroom door. While [R.S.] was in the bath, [M.A.] took one of the videos and began watching it. Upon leaving the room, [M.A.] accidentally locked the door. When [R.S.] got out of the bath and saw the video, [M.A.] and [R.S.] decided to put them away so they would not get into trouble. [R.S.] picked the lock to his father’s bedroom door and they replaced the videos. [R.S.] also told me that [A.A.] still sleeps in Michael Scholes, Sr.’s room every night. [R.S.] also told me that Michael Scholes, Sr. may have hid these items in the attic. [R.S.] is adamant that these items are still in the house.
8. [R.S.] is terrified of his father and grandmother. Several times during the course of this interview, he cried and begged me to get him out of the house. In my experience as an attorney, I have conducted numerous cross-examinations. Throughout the course of these interviews with [R.S.], I attempted to trip up [R.S.’s] answers. With regard to the videos and pictures, [R.S.’s] answers were very consistent. When I left the school, I informed [R.S.] that I had no choice but to report this. He was so visibly shaken and upset that school staff kept him in the office.
9. Upon receipt of this information, I am extraordinarily worried about my clients’ health and safety. [R.S.’s] affirmation that he is thinking of killing himself and his numerous emotional outbursts lead me to believe that it is imperative that he be removed from his father’s home immediately. I have no reason to doubt what [R.S.] told me. My concern is that if the items that [R.S.] swears are located in Michael Sr.’s home have been moved, destroyed, or not found, and [R.S.] is told that he has to return to the home, that he may harm himself. [R.S.’s] only concern is about not going back to the home.
10. I believe I am legally and ethically obligated to report this information, as my client has informed me that there is a crime being committed. Also, as I represent [A.A.] as well, obvious risk to her safety compels me to file this affidavit.

[¶ 4] The affidavit contained the caption for the juvenile court case and was notarized by the Grant County Clerk of Court. Because the Grant County State’s Attorney was out of the state at the time, Armstrong gave the affidavit to the Grant County Sheriff. The Grant County State’s Attorney was contacted, and he contacted the Morton County State’s Attorney, who presented the affidavit to a district court judge. The district court judge found probable cause existed and issued the warrant to search Scholes’s residence. Law enforcement officers discovered incriminating evidence during the search, and Scholes was charged with the crimes.

[¶ 5] Scholes moved to suppress the evidence claiming no probable cause existed to issue the search warrant. Scholes also requested and was given a Franks hearing, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to consider his allegation that the State omitted relevant facts in obtaining the warrant. The district court denied the suppression motion. The court found there was probable cause to issue the search warrant and found “Scholes did not demonstrate that there were any omissions of facts that would have been material to [the district court judge’s] determination” of probable cause. Scholes entered a conditional plea of guilty to the criminal charges under N.D.R.Crim.P. 11(a)(2), reserving his right to appeal from the denial of his motion to suppress evidence.

II

[¶ 6] Scholes argues the district court erred in denying his suppression motion because probable cause did not exist to issue the search warrant.

[¶ 7] “[A] district court’s decision ... [on] a motion to suppress [evidence] will not be reversed [on appeal] if there is sufficient competent evidence capable of supporting the district court’s findings, and ... if its decision is not contrary to the manifest weight of the evidence.” State v. Fischer, 2008 ND 32, ¶ 10, 744 N.W.2d 760 (quoting State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578). “Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.” State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578. “Whether probable cause exists to issue a search warrant is a question of law which is fully reviewable on appeal.” Roth v. State, 2007 ND 112, ¶18, 735 N.W.2d 882.

[¶ 8] The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. State v. Proell, 2007 ND 17, ¶ 8, 726 N.W.2d 591. A search warrant may be issued only upon a showing of probable cause. State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375. Probable cause to issue a search warrant exists “when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.” State v. Schmalz, 2008 ND 27, ¶ 11, 744 N.W.2d 734. We review the validity of a search warrant using the totality-of-the-circumstances approach, “considering] all information for probable cause together[ ] and [ ] testing] affidavits executed in support of a warrant in a commonsense and realistic fashion.” Proell, at ¶ 12. “We generally defer to a magistrate’s determination of probable cause if there was a substantial basis for the conclusion, and [we resolve] doubtful or marginal cases ... in favor of the magistrate’s determination.” Roth, at ¶ 18.

[¶ 9] Armstrong, the affiant, is an attorney, and his client, who provided the information contained in the affidavit, is the named son of the defendant. As identified citizen informants, both “are presumed to be reliable sources of information.” See Ebel, 2006 ND 212, ¶ 15, 723 N.W.2d 375. Armstrong’s statements are entitled to even more reliability because of his status as an officer of the court. See State v. Harmon, 1997 ND 233, ¶ 13, 575 N.W.2d 635; Interest of J.B., 410 N.W.2d 530, 532 (N.D.1987). R.S., who was 11 years old at the time, described in detail where the items sought were located and how he had become aware of them. R.S.’s answers to Armstrong’s questions remained consistent despite Armstrong’s efforts to “trip up” R.S.’s recollection. Armstrong described R.S. as being “terrified” of his father and extremely “shaken and upset” when told that this information had to be reported to the police. Although R.S. did not describe in detail what appeared in the photographs and videos other than that A.A. and Scholes were “naked,” R.S.’s description of the secretive nature of their location and the revelation that A.A. sleeps in Scholes’s room every night permits a reasonable inference that the photographs depicted unlawful sexual contact.

[¶ 10] Considering the affidavit in a commonsense and realistic fashion under the totality of the circumstances, we conclude probable cause existed for issuance of the search warrant.

Ill

[¶ 11] Scholes argues the search warrant is invalid because the affidavit in support of the warrant was notarized by the Grant County Clerk of Court. Because this violates the requirement in N.D.R.Crim.P. 41(c)(1)(A) that a warrant “may issue only on an affidavit or affidavits sworn to ... before a state or federal magistrate,” Scholes contends the evidence must be suppressed.

[¶ 12] Rule 41, N.D.R.Crim.P., “is designed to implement the provisions of Article I, Section 8, of the North Dakota Constitution and the Fourth Amendment to the United States Constitution.” Explanatory Note, N.D.R.Crim.P. 41; see also State v. Iverson, 187 N.W.2d 1, 32 (N.D. 1971). This Court has held that suppression is the appropriate remedy for violations of the provisions of N.D.R.Crim.P. 41 under some circumstances. See, e.g., Roth, 2007 ND 112, ¶ 31, 735 N.W.2d 882 (“[T]he provision of Rule 41(c) governing nighttime warrants implicates substantive constitutional rights, particularly the right to be free from unreasonable searches and seizures under the Fourth Amendment.”); State v. Fields, 2005 ND 15, ¶14, 691 N.W.2d 233 (suppression is appropriate remedy for an illegal nighttime search under N.D.R.Crim.P. 41(c)). However, not every violation of N.D.R.Crim.P. 41 results in suppression of evidence.

[¶ 13] In State v. Runck, 534 N.W.2d 829, 832 (N.D.1995), this Court held that “leaving an unsigned and undated copy of the search warrant at the farmstead was a ministerial violation of Rule 41, N.D.R.Crim.P., that does not warrant suppression of the evidence seized upon execution of the warrant.” This Court ruled that absent a showing that the defendant was prejudiced, or that the violation was an intentional and deliberate disregard of the rule, or that the violation offends the Fourth Amendment, suppression is not required for violations of the provisions of N.D.R.Crim.P. 41. Id.

[¶ 14] There is no evidence that Scholes was prejudiced by this violation of N.D.R.Crim.P. 41(c)(1)(A) or that the State intentionally or deliberately disregarded the rule. “The provision for examination of the affiant before the magistrate is intended to assure the magistrate an opportunity to make a careful decision as to whether there is probable cause based on legally obtained evidence.” Explanatory Note, N.D.R.Crim.P. 41. The affiant in this case was an attorney, and the district court judge had the ability to contact Armstrong to clarify any questions the judge may have had about the affidavit. A clerk of district court is authorized to administer oaths. See N.D.C.C. § 44-05-01(2). We conclude an affidavit in support of a search warrant sworn to before a clerk of court rather than before a state or federal magistrate does not offend the Fourth Amendment, and we join the courts that have refused to require suppression of evidence for technical violations of rules equivalent to the N.D.R.Crim.P. 41(c)(1)(A) sworn-affidavit requirement. See United States v. Brooks, 285 F.3d 1102, 1104-06 (8th Cir.2002) (affidavit for search warrant signed in presence of notary public and given to state judge did not violate Fourth Amendment); People v. Chavez, 27 Cal. App.3d 883, 104 CaLRptr. 247, 248-49 (1972) (defendant’s constitutional rights were not violated where clerk of court administered oath, had affiant sign affidavit in her presence and took affidavit to judge who issued search warrant); People v. Fournier, 793 P.2d 1176, 1179 (Colo. 1990) (“Although we acknowledge in this case that the literal terms of Crim.P. 41(c)(1) were not complied with when the judge issued the search warrant based on an affidavit sworn to before the clerk of the court, we are satisfied that noncompliance with the rule is not the categorical equivalent of a constitutional violation that automatically triggers exclusionary rule principles.”); State v. Bicknell, 140 Idaho 201, 91 P.3d 1105, 1107 (2004) (“The Defendants have not cited, nor have we found, any authority supporting the proposition that the Fourth Amendment requires that an affidavit submitted in connection with an application for a search warrant must be signed in the presence of the person issuing the warrant.”); see also 2 W. LaFave, Search and Seizure, § 4.3(e), at n. 58 (4th ed. 2004).

[¶ 15] We conclude the clerk of court’s attestation on the affidavit in support of the search warrant did not invalidate the search warrant or require suppression of the evidence.

IV

[¶ 16] Scholes argues the district court erred in determining there were no omissions of facts by the State in applying for the search warrant that would have been material to the judge’s determination of probable cause. Scholes claims the sheriff and prosecutor knew, but failed to inform the judge, that there was a past allegation of sexual abuse of A.A. by Scholes, that A.A. was interviewed by professionals and that both Scholes and A.A. denied the sexual abuse.

[¶ 17] “[T]o succeed on a Franks challenge based on omitted information, the defendant must show: (1) that [law enforcement officers] omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; ... and (2) that the affidavit^] if supplemented by the omitted information^] would not have been sufficient to support a finding of probable cause.” State v. Ballweg, 2003 ND 153, ¶ 17, 670 N.W.2d 490 (quoting State v. Holzer, 2003 ND 19, ¶ 7, 656 N.W.2d 686). “Whether the defendant has demonstrated recklessness or deliberate falsity is a finding of fact reviewed under the clearly erroneous standard.” State v. Damron, 1998 ND 71, ¶10, 575 N.W.2d 912 (quoting State v. Morrison, 447 N.W.2d 272, 275 (N.D.1989)). “ A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or when, although there is some evidence, on the entire evidence, the Court is left with a definite and firm conviction a mistake has been made.’ ” State v. Donovan, 2004 ND 201, ¶ 8, 688 N.W.2d 646 (quoting State v. Jones, 2002 ND 193, ¶11, 653 N.W.2d 668).

[¶ 18] The district court’s finding there were no omissions of fact material to the judge’s probable cause determination is an implicit finding that there was no intention on the part of the prosecution to make the affidavit misleading and that the prosecution did not engage in any reckless conduct in obtaining the warrant. These findings are not clearly erroneous. The Grant County State’s Attorney was unavailable. The assistance of a state’s attorney from another county was required. Time was of the essence. Moreover, the inclusion of this information would not have defeated a determination of probable cause. Rather, inclusion of this information could have bolstered the finding of probable cause because it would have explained Scholes’s secrecy and increased the probability that Scholes was engaging in an incestuous relationship with his stepdaughter. A previous investigation resulting in no charges does not establish that sexual abuse had not occurred or was not occurring.

[¶ 19] We conclude the district court did not err in determining Scholes failed to establish the State intentionally or recklessly omitted facts material to the issuance of the search warrant.

V

[¶ 20] The criminal judgment is affirmed.

[¶ 21] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ„ concur.