author: MINGE, Judge.

text:
    Sandra BODAH, et al., on their own behalf and on behalf of all others similarly situated, Appellants, v. LAKEVILLE MOTOR EXPRESS, INC., Respondent.
    No. C5-02-276.
    Court of Appeals of Minnesota.
    Aug. 20, 2002.

      Alf E. Sivertson, Sivertson and Barrette, P.A., St. Paul, MN; and Thomas J. Lyons, Thomas J. Lyons, Jr., Thomas Lyons & Associates, P.A., Little Canada, MN, for appellants.
    Richard L. Gill, William A. Webster, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

The safety director of respondent trucking company faxed a list of 204 employee names and social security numbers to 16 trucking terminals in six states. Appellants brought an invasion of privacy class-action lawsuit. The district court dismissed the complaint for failure to state a claim, ruling that the dissemination did not constitute publication to the public at large or to a substantial group of people. Appellants contend that (a) respondent’s dissemination meets the established “publicity” thresholds; and (b) this court should adopt a new publicity threshold because the traditional publicity definition as applied to social security numbers was inappropriate. Because we determine that admitted and alleged facts could constitute adequate publication and shift the burden of going forward to the respondent, we reverse and remand.

FACTS

Appellants Sandra Bodah, Wayne Sen-ne, John Tonsager, and Mark Urick are former or current employees of respondent Lakeville Motor Express, Inc. Respondent is a trucking company that does business throughout the upper Midwest. Respondent uses trucking terminals that are either wholly owned by respondent or are owned by independent trucking companies and serve as respondent’s agents.

On January 4, 2001, respondent’s safety director, William Frame, faxed a memo listing the names of 204 truck drivers and their social security numbers to the managers of 16 trucking terminals in six states, including several terminals that contracted with the respondent. The memo stated:

In order for the safety department to keep computer records for terminal accidents, injuries, etc. we need to have social security numbers, names, hire date, and termination date. Please review list for your terminal, add or delete accordingly. Fax back to me. Once this is done it will be just a matter of communications.

No confidentiality admonition was contained in the cover sheet. Shortly after the dissemination of this .memo, appellant Tonsager confronted Frame and respondent’s president, Peter Martin, about the wrongful dissemination of these social security numbers and expressed concerns about identity theft.

On May 1, 2001, Martin sent a letter to respondent’s drivers and dockmen explaining that the list of drivers and their social security numbers was prepared for “insurance renewal purposes” and was “mistakenly sent to other terminals.” Martin continued:

Once I learned of the problem, I instructed the Safety Department to contact the terminal managers who were sent the list, asking them to destroy or return it immediately. This was done. As far as I know, the contents of the list were not shared with anyone beyond the small group of terminal managers. I am confident that after destroying the information, they did nothing further with it. I do not know of any employee who has been hurt by disclosure of this limited information.

Appellants allege that (1) “the private information has not been redacted or erased and is still being shared or is accessible in general;” and (2) the employees had incurred and would continue to “incur costs to monitor their credit ratings and [to] take preventive measures against identity theft.”

In August 2001, appellants initiated a class-action lawsuit against respondent for invasion of privacy. Respondent moved for dismissal of the complaint pursuant to Minn. R. Civ. P. 12.02(e) for failure to state a claim, Aside from the contents of appellants’ complaint, there is no factual record. Respondent neither filed an answer nor furnished any affidavits. On December 11, 2001, the district court dismissed appellants’ complaint holding that respondent’s communication to 16 terminal managers — who were either respondent’s employees or agents — constituted a private communication rather than a public one. The district court added that the actions of respondent’s president directing the terminal managers to destroy or return the list negated any inference that the publication would be disseminated to the public at large. Judgment was entered, and this appeal followed.

ISSUE '

Does an employer’s faxing 204 employees’ social security numbers to 16 managers of affiliated businesses in six states together with alleged continued sharing and accessibility of the information state a legally sufficient claim for invasion of privacy?

ANALYSIS

Standard of Review

On appeal from a dismissal for failure to state a claim upon which relief can be granted, “a reviewing court must only determine whether the complaint sets forth a legally sufficient claim for relief.” Geldert v. Am. Nat’l Bank, 506 N.W.2d 22, 25 (Minn.App.1993), review denied (Minn. Nov. 16, 1993). Whether the plaintiff can prove the facts alleged is immaterial. Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn.App.2001), review denied (Minn. Feb. 19, 2002). The facts in the complaint are accepted as true, and the plaintiff has the benefit of all favorable and reasonable inferences. Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 275-76 (Minn.App.1998). Dismissal of a complaint for failure to state a claim is only proper if there are no facts consistent with the pleading that support the relief demanded. Brakke v. Hilgers, 374 N.W.2d 553, 555 (Minn.App.1985). An appellate court reviews the claim’s legal sufficiency de novo. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997).

Right of Privacy

The Minnesota Supreme Court recognized the tort of invasion of privacy in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn.1998):

Today we join the majority of jurisdictions and recognize the tort of invasion of privacy. The right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close.

The court identified three distinct causes of action within the scope of this privacy right: intrusion upon seclusion, appropriation of name or likeness, and publication of private facts. Id. at 233. It rejected a fourth cause of action: false light publicity. Id. at 236. Its analysis drew from the Restatement (Second) of Torts. In this regard, the court observed that publication of private facts constitutes an invasion of privacy when one

gives publicity to a matter concerning the private life of another * * * if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

Id. at 233 (quoting Restatement (Second) of Torts § 652D (1977)).

The right of privacy is a relatively new concept in the law and is developing quickly. The range of situations covered by a right to privacy claim does not always fit within the Restatement categories. The Restatement itself was drafted prior to 1970 and is in some respects eclipsed by subsequent evolving caselaw. Be that as it may, our supreme court in the Lake decision used the Restatement categories in recognizing the right of privacy, and the parties in this case have proceeded on the assumption that this situation falls under the category of publication of private facts.

Two key determinations must be made incident to this cause of action: (1) whether a person’s social security number is indeed a private fact; and (2) whether publication has occurred. Id.

Social Security Numbers as Private Facts

Social security numbers are broadly recognized as confidential information. The federal government and the states have passed numerous laws on the right of privacy, and courts have recognized that social security numbers are private information. See Flavio Kamuves, We’ve Got Your Number: An Overview of Legislation And Decisions To Control The Use Of Social Security Numbers as Personal Identifiers, 16 J. Marshal J. Computer & Info. L. 529, 531-535, 565-567 (1998). Appellants persuasively argue that social security numbers are a key to identity in our society. Unlike certain information such as medical conditions, social security numbers are not on their face revealing, compromising, or embarrassing. They are, however, such a significant identifier that they facilitate access by others to many of our most personal and private records and can enable someone to impersonate us to our embarrassment or financial loss. See generally Greidinger v. Davis, 988 F.2d 1344, 1354 (4th Cir.1993) (stating that “the harm that can be inflicted from the disclosure of a SSN to an unscrupulous individual is alarming and potentially financially ruinous”). This is part of the so-called identity-theft phenomenon that is an increasing risk and problem in our society.

In In re Crawford, 194 F.3d 954, 958 (9th Cir.1999), the court dramatically described the problem:

In an era of rampant identity theft, concern regarding the dissemination of SSNs is no longer reserved for libertarians inveighing against the specter of national identity cards. See Greidinger at 1353 (“[Ajrmed with ■ one’s SSN, an unscrupulous individual could obtain a person’s welfare benefits or Social Security benefits, order new checks at a new address on that person’s checking account, obtain credit cards, or even obtain a person’s paycheck.”). Unlike a telephone number or even a name, an individual’s SSN serves as a unique identifier that cannot be changed and is not generally disclosed by individuals to the public.

Respondent does not question the private nature of social security numbers. Respondent’s president’s apology to appellants for the dissemination of the social security numbers constitutes recognition of this privacy expectation and is refreshing for its candor.

Although social security numbers are private, they are available in a wide range of contexts in our society. We provide them to others continuously. One is daily exposed to the risk that someone at work, a government office, school, an accountant’s office, a financial institution, or dozens of other settings may improperly use our social security numbers or provide these numbers to others who will do so. Misappropriation of social security numbers is a pervasive risk of modern -life. In all of the settings where these numbers are available, however, the entities with that information and their employees are bound by contractual and legal constraints to. hold our social security numbers in confidence. Given the very sensitive and important nature of the social security numbers, these constraints are important to a functioning society.

Publication

The difficult question in this case is defining the standard for what level of publication or dissemination of another’s social security number constitutes tortious invasion of privacy. To date, no court has held that disclosure of a social security number to an unauthorized person is a per se violation of one’s right of privacy that entitles the victim to relief. The question is how extensive the dissemination must be. Given the strong interest of society in protecting information like social security numbers, the standard must be appropriate to the situation.

As noted earlier, the seminal Minnesota right-of-privacy decision is Lake. The nature of the dissemination in that case is a baseline. In Lake, the plaintiffs complained that a nude photo of them had been included in a roll of film that was presented to a Wal-Mart store for developing. 582 N.W.2d at 232-33. A Wal-Mart employee had a copy of the photo, and plaintiffs alleged that one or more copies of the photo were circulating in the community where they resided. Id. at 233. The suit against Wal-Mart claimed invasion of privacy. Id. The court in Lake was concerned about recognition of the right to privacy " and defining categories of privacy.

Given the attention the Minnesota Supreme Court in Lake gave to the Restatement (Second) of Torts in recognizing a common law right of privacy in our state, it is important to look to the Restatement. Comment a to section 652D states:

“Publicity,” as it is used in this Section, differs from “publication,” * * *. “Publication,” * ⅜ * is a word of art, which includes any communication by the defendant to a third person. “Publicity,” on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.

The Restatement gives illustrations of publicity. These include the following:

1. A, a creditor, writes a letter to the employer of B, his debtor, informing him that B owes the debt and will not pay it. This is not an invasion of B’s privacy under this Section.
2. A, a creditor, posts in the window of his shop, where it is read by those passing by on the street, a statement that B owes a debt to him and has not paid it. This is an invasion of B’s privacy.
3. A, a motion picture exhibitor, wishing to advertise a picture to be exhibited, writes letters to a thousand men in which he makes unprivileged and objectionable statements concerning the private life of B, an actress. This is an invasion of B’s privacy.

The Restatement comment then continues:

While the cases to date allowing recovery for the type of invasion of privacy covered by this Section have been confined to the giving of publicity to the private matter, the courts may decide to extend the coverage to a simple disclosure. * * * It remains to be seen whether a disclosure not equivalent to the giving of publicity will be actionable when the obtaining of the information was not tortious in character.

Unfortunately, none of these three illustrations easily fits our factual situation. Appellants claim that illustration 2 is most appropriate. But illustration 2 is clearly a public display, and many people may have seen the window posting or no one may have looked at it. In this case, it is not alleged that the faxed memo was posted for the public to see. Dozens of people, however, may have seen the fax or obtained copies.

Prior to the Lake decision Minnesota avoided recognizing the right of privacy. Although the supreme court addressed the question of publicity in Hendry v. Conner, 303 Minn. 317, 226 N.W.2d 921 (1975), its status post Lake is doubtful. In Hendry, the plaintiff, a prospective hospital patient, was berated in the waiting room by a hospital employee for having discharged a debt owed to the hospital by filing for bankruptcy. Id. at 317-18, 226 N.W.2d at 922. Although a handful of people were in the waiting room and could have heard the critical bankruptcy comment, the court quoted the Restatement and stated that such verbal disclosures had to be heard by a larger number of people to be actionable. Id. at 317-19, 226 N.W.2d at 922-23. The court, however, proceeded to emphasize that the plaintiffs bankruptcy was not private information because bankruptcy filings are a matter of public record. Id. at 319, 226 N.W.2d at 923.

Another case arising in Minnesota bears mention. In C.L.D. v. Wal-Mart Stores, Inc., 79 F.Supp.2d 1080 (D.Minn.1999), the federal district court in this state dealt with this issue. In that case, an employee had asked the assistant manager of the store for time off for medical purposes. Id. at 1082. In the context of that discussion the employee disclosed that she intended to obtain an abortion. Id. She alleged that the assistant manager subsequently communicated this information about the abortion to three other employees of the store and that this was an actionable invasion of her privacy. Id. The federal district court determined that this was not sufficient publication to constitute invasion of privacy and relied heavily on parts of the discussion in the comment to section 652D of the Restatement (Second) of Torts. Id. at 1083-84. The federal court concluded that the disclosure must be to a “significantly large number of people that the public at large either knew or was substantially certain to become aware of it.” Id. This is a high threshold. On our facts and with this standard, the district court in this case granted defendants’ motion for summary judgment. Although of interest, the C.L.D. case does not limit the reach of the Lake decision nor does C.L.D. constrain this court from reaching an appropriate disposition in this or other cases.

Courts have indicated that the breadth of disclosure is related to the abuse of the right to privacy. In McSurely v. McClellan, 753 F.2d 88, 112 (D.C.Cir.1985), due to the delicacy of the situation, disclosure to one person — a spouse — was found to be adequate to support a claim. In Braid v. Int’l Bus Machines Corp., 392 Mass. 508, 467 N.E.2d 126, 134 (1984), the court held that an intracorporate communication could constitute sufficient publication.

In several cases, however, disclosure to a single person or a handful of people did not constitute sufficient publicity to support a claim for invasion of privacy. The Eighth Circuit Court of Appeals held that, under Arkansas law,

the simple disclosure of private information to one other person, which is all that plaintiff could possibly prove here, is not sufficient to state a [publication of private facts] claim.

Wood v. Nat’l Computer Sys. Inc., 814 F.2d 544, 545 (8th Cir.1987) (addressing situation where one teacher’s certification scores were sent to another teacher). According to the United States District Court for the District of Utah, dissemination of private facts to an individual’s employer, mother, and two siblings is insufficient “publicity” as well. Jones v. U.S. Child Support Recovery, 961 F.Supp. 1518, 1520-21 (D.Utah 1997). The United States District Court for the District of Nevada found that a creditor’s telephone calls to no more than six co-workers of a debtor was not sufficient “publicity” of private information. Kuhn v. Account Control Tech., Inc., 865 F.Supp. 1443, 1448 (D.Nev.1994). See also Davis v. Monsanto Co., 627 F.Supp. 418, 421-22 (S.D.W.Va.1986) (holding that employer telling two persons outside of management level of information regarding an employee’s private mental health status was not the widespread publication required.to establish a cause of action); Porten v. Univ. of San Francisco, 64 Cal.App.3d 825, 134 Cal.Rptr. 839, 841 (1976) (holding that the university’s disclosure of a student’s college transcript to the Scholarship and( Loan Commission constituted a private communication to an individual or to a few people but not a communication to the public in general).

In this case, respondent faxed the social security numbers of 204 employees to 16 terminals in six states. Although addressed to the managers of these terminals, the number of persons who saw the fax is unknown. Fax transmissions typically he in a tray. Ideally they are immediately picked up by the designated person or a trusted employee. The transmission, however, may be viewed and copied by any person in the vicinity of the machine. Once removed, from the fax machine, the pages may be promptly filed or left on a counter available to any passerby to read or copy, or even posted on a bulletin board. Traffic patterns in the office areas of 16 terminals are unknown. Although it is not clearly public as the Restatement uses the term, many more people may have seen the information than those that saw the window posting in illustration 2 of the Restatement, certainly more than heard or saw the information in the privacy cases just discussed.

Another key factor in determining whether the requisite publication has occurred is the nature of the private data and the damage. Social security numbers are not embarrassing personal-life details like an extramarital affair, nude photos, bad grades, an abortion, mental health problems, or financial difficulties depicted in many of the cited cases. Plainly, one does not want such tantalizing information publicized. Social security numbers are dry, sterile figures. But they are a private detail that enables the data voyeur to snoop or the thief to access financial details. A rash of identity theft incidents may flow from one disclosure. On the other hand, widespread dissemination of social security numbers within a business setting may not lead to any untoward results. Moreover, a person’s bank account numbers, credit card numbers, personal identification numbers (PIN), and other similar identifiers may be considered just as sensitive as social security numbers. The damage is the substantial risk for misuse or illegal use of an individual’s identity or financial information, not personal embarrassment.

In this social security number setting, the problem is that any unnecessary display or dissemination of the private data is a serious threat. The improper disclosure may be contained by corrective action, or it may be compounded by further dissemination. Many factors are relevant to the potential harm and what may be equitable. An actionable situation requires a level of publication that unreasonably exposes the appellant to significant risk of loss under all the circumstances.

In this case, respondent’s president quite appropriately instructed the terminal managers to return or destroy the social security number information. Possibly, they did this. At this stage in the litigation, however, we cannot assume his best intentions actually were carried out. If copies of the transmission had been made, retrieving all copies is difficult. If not properly contained at each of the 16 terminals, what was a modest circulation to 16 managers could easily be transformed into a widespread dissemination of the material.

At this stage in the litigation, it is impossible to determine what happened. Appellants, as employees and former employees, are in a difficult position to prove that respondent’s dissemination unreasonably exposed them to a significant risk of loss. They know the transmission occurred. Their social security numbers were sent out. They have done nothing wrong. To place on them the burden of interviewing terminal managers and other employees at 16 locations in six states and the further burden of evaluating office traffic patterns around the fax machines, location of copy machines, practices in handling fax material and the risk of publicity is inappropriate. The party responsible for disseminating the numbers — the respondent in this case — should have the burden of showing not only that reasonable steps were taken to contain the risk of more widespread dissemination of social security numbers, but that in the physical settings of each terminal these steps were effective. The letter from respondent’s president is certainly a step in the right direction. His statements, however, are couched in qualifying terms that provide no assurance that the goal of correcting the situation was achieved. Through affidavits, depositions, or, if necessary, witnesses at a trial, respondent can easily define the practices in the terminals and what occurred with the information. That would shift the burden back to the appellants to show either widespread dissemination or improper use.

The district court is in the best position to determine whether actionable publication occurred. The publicity requirement in this case, where the dissemination was not for profit or with malicious intent, ought to be whether it unreasonably exposed appellants to a significant risk that their social security numbers would be misused.

Record

Respondent argues that this court should not consider six documents in appellants’ appendix because appellants did not present them to the district court. Because the six articles were not germane to our decision, we decline to address this issue.

DECISION

The district court’s dismissal of appellants’ complaint alleging a violation of their right to privacy is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: R.A. RANDALL, Judge.

license: Public Domain

text:
    BRITAMCO UNDERWRITERS, INC., Respondent, v. A & A LIQUORS OF ST. CLOUD, et al., Respondent, Thomas Eul, Appellant.
    No. C7-02-327.
    Court of Appeals of Minnesota.
    Aug. 20, 2002.

      Amy J. Doll, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chtd., Morris, MN, for appellant.
    Peter Lind, Steven D. Pattee, Minneapolis, MN, for respondent Britamco Underwriters.
    Thomas P. Melloy, Hall & Byers, P.A., St. Cloud, MN, for respondent A & A Liquors.

      Considered and decided by RANDALL, Presiding Judge, HANSON, Judge, and HUDSON, Judge.
   OPINION

R.A. RANDALL, Judge.

In this dram-shop action, appellant moved for a declaration that he was entitled to loss-of-means-of-support coverage under the liquor establishment’s liquor-liability policy for the reduction in his standard of living pursuant to Minn.Stat. § 340A.801 (2000). The district court denied his motion, and this appeal followed. Respondent also filed a notice of review, contending that appellant did not have standing to bring this declaratory-judgment motion and that this action is not the appropriate vehicle to present this claim because appellant can proceed by execution on his judgment against the liquor establishment and garnishment of the insurance policy. We affirm.

FACTS

In June 1998, appellant Thomas Eul sued respondent A & A Liquors of St. Cloud (Tom’s Bar), Centennial Liquor Shoppe, Eugene Myers, David Williams, and Allen Smith, alleging assault and battery by Myers, Williams, and Smith and dram-shop liability on Tom’s Bar and Centennial. At the time of the incident, respondent Britamco Underwriters, Inc. insured Tom’s Bar under a liquor-liability policy for claims arising under the Minnesota Civil Damages Act. In November 1998, the district court granted default judgment against Tom’s Bar and awarded Eul damages of $225,000, including $65,404 for medical expenses and $56,680 for past and future loss of earnings. This court affirmed the district court’s refusal to vacate the default judgment. Eul v. A & A Liquors of St. Cloud, Inc., 1999 WL 809744 (Minn.App.1999). Britamco’s policy provides coverage for $50,000 per person for bodily injury and $50,000 per person for loss of means of support.

In July 1999, Britamco sought a judgment declaring that it was not responsible for defending or indemnifying Tom’s Bar for the underlying claim. Eul intervened to defend against the action. The district court granted summary judgment in favor of Britamco, finding that Britamco had sustained actual prejudice due to the failure of Tom’s Bar to notify it of the claim in a timely manner. This court reversed the district court’s grant of summary judgment, concluding that because “Britamco did not reserve its rights in a timely manner, it is now estopped from denying coverage.” Britamco Underwriters, Inc. v. A & A Liquors of St. Cloud, Inc., 2001 WL 379028 (Minn.App.2001), review denied (Minn. Jun. 27, 2001).

After remand, in May 2001, Eul brought a motion for partial summary judgment, asking the court to declare that coverage for “loss of means of support” was available to cover his damages of lost income and wages, “in addition” to his right to claim up to the policy limits for other bodily injuries, under the bodily-injury portion of the policy. Britamco responded, asserting that (1) Eul must commence a garnishment action to present his argument to the court; (2) Eul’s intervention only permits him to file a response to Britamco’s motion for summary judgment; and (3) Eul cannot make a claim for lost means of support because that claim is reserved for dependents.

The district court denied Eul’s motion for summary judgment, concluding that lost income and wages by the injured party are not considered loss of means of support as contemplated by Britamco’s insurance policy. This appeal followed.

ISSUE

Did the district court err in concluding that Eul may not recover for “loss of means of support” under the Civil Damages Act or Britamco’s policy?

ANALYSIS

On an appeal from summary judgment, an appellate court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). A district court shall grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that no genuine issue of material fact exists and that either party is entitled to a judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Because material facts are not in dispute, we consider whether the district court erred in its application of the law.

A. Standing

Britamco asserts that Eul lacks standing to bring a motion for summary judgment because Eul lacks contractual privity with Britamco and because Eul did not serve an answer in intervention and thus has not made an official appearance. We disagree. Whether a party has standing to sue is a question of law, which appellate courts review de novo. Joel v. Wellman, 551 N.W.2d 729, 730 (Minn.App.1996), review denied (Minn. Oct. 29, 1996).

Britamco’s argument is without merit. Tom’s Bar assigned its rights under the insurance contract to Eul. A “valid assignment generally operates to vest in the assignee the same right, title, or interest that the assignor had in the thing assigned.” State ex rel. Southwell v. Chamberland, 361 N.W.2d 814, 818 (Minn.1985). In effect, the assignee “stands in the shoes of the assignor.” Geldert v. American Nat’l Bank, 506 N.W.2d 22, 29 (Minn.App.1993), review denied (Minn. Nov. 16, 1993). Moreover, Britamco cites no authority for its argument that Eul has not made an official appearance in this action. We find no error in the district court’s conclusion that because Tom’s Bar assigned all of its interest in the underlying policy to Eul, Eul has standing to litigate the coverage issues just as Tom’s Bar would have standing.

B. Proper Procedural Vehicle to Challenge Issue

Britamco argues that Eul must commence a garnishment action supplemental to the underlying action in order to present this argument to the court, citing Anderson v. St. Paul Fire & Marine Ins. Co., 414 N.W.2d 575, 577 (Minn.App.1987). But Anderson does not support Britamco’s argument. In Anderson, this court determined that where an injured plaintiff had not obtained a judgment against the tort-feasor, the plaintiff could not bring a direct action against the insurer (the direct-action rule). Id. at 576. Here, Eul has obtained a default judgment against Tom’s Bar. Moreover, Anderson explicitly recognized that a plaintiff could contest the question of insurer liability after judgment has been established or, had the defendant tortfeasor chosen to contest the insurer’s denial of coverage, the plaintiff could have joined that suit before a determination of liability on the merits. Id. at 577. Anderson does not dictate that a garnishment action is the only means by which a plaintiff can obtain a judgment against the tortfeasor’s insurer.

Additionally, Minn.Stat. § 571.71 (2000), which authorizes garnishment proceedings by creditors, states that “a creditor may issue a garnishment summons as provided in this chapter.” (Emphasis added). The statute does not require that a garnishment action be commenced and does not state that the statute is the sole remedy available to a judgment creditor. Britam-co instituted this declaratory action to determine coverage under the policy. No point would be served by requiring Eul to file a separate garnishment action. We conclude the district court did not err in determining that Eul did not need to file a garnishment action.

C. “Loss of Means of Support”

Eul argues that the district court erred by granting summary judgment in favor of Britamco and concluding that under the Civil Damages Act, Eul may not recover for “loss of means of support” in addition to bodily-injury damages.

Interpretation of insurance policy provisions required by statute involves questions of law, to be reviewed de novo. Nathe Bros., Inc. v. American Nat’l Fire Ins. Co., 615 N.W.2d 341, 344 (Minn.2000). Interpretation of the Civil Damages Act is a question of law, which an appellate court reviews de novo. Koehnen v. Dufuor, 590 N.W.2d 107, 109 (Minn.1999).

The Civil Damages Act (CDA), adopted in 1911, is a creature of statute, has no common-law counterpart, and is strictly construed. Whitener ex rel. Miller v. Dahl, 625 N.W.2d 827, 831, 833 (Minn.2001). The CDA creates a cause of action for a person who is injured by another’s intoxication against the person who caused the intoxication by illegally selling alcoholic beverages. Brua v. Olson, 621 N.W.2d 472, 474 (Minn.App.2001), review denied (Minn. Mar. 27, 2001). The CDA is both penal and remedial because

[wjhile the statute serves to punish an offending vendor and deter others from making illegal sales of liquor, it also serves to compensate those who would under ordinary circumstances or other tort principles obtain no recovery for their injuries.

Hannah v. Chmielewski, Inc., 323 N.W.2d 781, 784 (Minn.1982) (citation omitted). To insure that injured persons and persons deprived of support have a chance to receive compensation, the CDA requires a liquor establishment to carry an insurance policy that contains minimum limits for both bodily injury and “loss of support.” Minn.Stat. § 340A.409, subd. 1(1) (2000) (emphasis added). A liquor establishment must provide “at least $50,000 of coverage because of bodily injury to any one person in any one occurrence,” and “$50,000 for loss of means of support of any one person in any one occurrence.” Id.

Britamco’s policy provides the coverage limits that are required by law, $50,000 per person for bodily injury and $50,000 per person for loss of means of support. Britamco’s policy provides that it will

pay those sums that [Tom’s Bar] become legally obligated to pay because of injury to which this insurance applies if liability for injury arises out of the selling, serving or furnishing of any alcoholic beverages in violation of Section 340A.801.

If the CDA confers upon Eul his own claim for loss of means of support, Britamco’s policy cannot preclude such coverage because insurance coverage required by law must not be omitted from a policy, and policy provisions must not contravene applicable statutes. American Family Mut. Ins. Co. v. Ryan, 330 N.W.2d 113, 115 (Minn.1983).

Eul asserts that he can claim loss-of-means-of-support damages for himself under the CDA. We disagree. Minnesota’s Civil Damages Act provides a limited cause of action:

[a] spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person’s own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages.

Minn.Stat. § 340A.801, subd. 1 (2000). Minn.Stat. § 340A.801, subd. 1, which is the only provision that confers a cause of action under the CDA, does not include the injured person. Although the statute does not define “means of support,” we agree with the district court that the phrase “loss of means of support” incorporates within it the requirement that a claimant be a dependent. See Jones v. Fisher, 309 N.W.2d 726, 730 (Minn.1981) (recognizing that “[djamages under the dram shop act, in case of death, are limited to loss of ‘means of support’ to decedent’s dependents”).

Eul argues that Minnesota law recognizes that a person provides support for one’s self. See, e.g., Minn.Stat. § 518.552, subd. 1(b) (2000) (stating court may award maintenance if spouse is unable to provide adequate self-support). But as Britamco points out, under the CDA and Britamco’s policy, Eul’s damages for loss of wages, as well as future loss of earning capacity, are properly categorized and can be compensated as bodily-injury damages under the bodily-injury portion of the policy in question. The policy defines “injury” as “all damages because of bodily injury and property damage, and including damages for care, loss of services or loss of support.” Appellant concedes that under the bodily-injury portion of the policy, loss of earning capacity, partial disability, full disability, lost wages, and diminution of wages, loss of future earning potential can all be included under bodily injury. He simply wants to carve his loss of income and wages out of bodily-injury coverage, collect bodily-injury compensation for other damages, and then go back and collect the lost income and wages under the “loss of support” coverage. Appellant wants his total target for insurance coverage to be $100,000 (two times $50,000) rather than $50,000.

We understand appellant’s argument, but we disagree. Bodily-injury damages under the CDA are broadly defined. There is no need for a second category called “loss of support” to help an individual with no dependents, such as Eul. It is too clear to be contested that Minnesota law covers Eul’s loss of income and loss of wages under the broad category of bodily injury. See 4 Minnesota Practice, CIVJIG 45.55 (stating general damage instructions in categories 90 and 91 should be used in CDA actions); 4A Minnesota Practice, CIVJIG 90.10 (1999) (stating damages are sums of money that will compensate a person who has been injured and may include past and future harm); 4A Minnesota Practice, CIVJIG 90.25 (1999) (defining calculation for loss of future earning capacity). Finally, as Britamco and the district court correctly noted, no reported Minnesota cases have ever granted “loss-of-means-of-support” damages to the injured “breadwinner.” Rather, the loss-of-support cases have involved dependents.

We recognize that with the CDA’s modest limit of $50,000 for bodily injury, Eul legitimately has a lack-of-coverage problem. Eul alleged total damages of $225,000, including $65,404.04 for medical expenses and $56,680 for past and future loss of earnings. However, nothing in the history of the CDA remotely permits Eul to convert lost wages to loss-of-support damages and stack those on top of bodily-injury damages.

The legislature created the cause of action authorized by the CDA, and the legislature is free to expand or reduce the rights provided by the CDA. K.R. v. Sanford, 605 N.W.2d 387, 391 (Minn.2000). But the remedy prescribed under the CDA “cannot be enlarged except by further legislative enactment.” Beck v. Groe, 245 Minn. 28, 44, 70 N.W.2d 886, 897 (1955) (citations omitted).

We conclude, as did the district court, that loss-of-income damages for the injured “breadwinner” under Minn.Stat. § 340A.801, subd. 1 (and thus Britamco’s policy), fall under the bodily-injury coverage-portion of the dram-shop policy. The CDA does not grant Eul, the injured party, a separate claim for loss of support apart from and in addition to his claims for bodily injury. The district court properly concluded that Britamco’s policy does not provide separate coverage for Eul’s claim for loss of income and loss of wages under the loss-of-means-of-support portion of the policy.

Britamco also filed a notice of review challenging the district court’s award of attorney fees to Tom’s Bar. Because the parties have settled the matter, we do not address the issue.

DECISION

Minn.Stat. § 340A.801, subd. 1 (2000), does not provide coverage for Eul’s loss-of-means-of-support claim because claims for loss of means of support under the Civil Damages Act are limited to dependents. The district court properly granted summary judgment in favor of Britamco.

Affirmed.


author: WILLIS, Judge.

text:
    Harry JOHNSON, Margot Siegel, et al., Respondents, v. The CITY OF MINNEAPOLIS, et al., Appellants.
    Nos. C7-01-1676, C4-01-1683.
    Court of Appeals of Minnesota.
    Aug. 22, 2002.

      Michael C. Mahoney, Havilah L. Solarz, Mahoney & Hagberg, P.A., Wayzata, MN, for respondents.
    Jay M. Heffern, Minneapolis City Attorney, James A. Moore, Susan L. Trammell, Assistant City Attorneys, Minneapolis, MN, for appellants.
    Considered and decided by KLAPHAKE, Presiding Judge, WILLIS, Judge, and HANSON, Judge.
   OPINION

WILLIS, Judge.

On appeal after remand in this takings dispute, appellants City of Minneapolis and Minneapolis Community Development Agency argue that the district court erred by finding a taking of property even though appellants did not control respondent property owners’ use of their property. Appellants also contend that the district court erred by excluding from evidence a related United States Eighth Circuit Court of Appeals decision and by allowing respondents to offer hearsay testimony regarding their damages. Because we find that appellants’ actions do not amount to a taking of respondents’ property, we reverse the district court’s award of damages, interest, attorney fees, and costs. But we affirm the district court’s evidentiary rulings because we find no prejudice in the exclusion of the related federal decision, and we decline to address appellants’ hearsay argument because it is inadequately briefed.

FACTS

We previously addressed this case in Siegel v. Minneapolis Cmty. Dev. Agency, No. C0-95-1637, 1996 WL 229242 (Minn. App. May 7, 1996), review denied (Minn. July 10, 1996), and its companion decision, 614 Co. v. Minneapolis Cmty. Dev. Agency, 547 N.W.2d 400 (Minn.App.1996). At that time, respondents Harry Johnson and Margot Siegel, et al. (collectively “respondents”), challenged, in part, the district court’s dismissal of their takings claim against appellants City of Minneapolis and Minneapolis Community Development Agency (MCDA) (collectively “appellants”). We reversed and remanded, concluding that respondents’ allegations were sufficient to survive a motion to dismiss on the pleadings. Siegel, 1996 WL 229242, at *3-4. Respondents subsequently prevailed on the merits, and this appeal follows.

This case arises from appellants’ efforts, beginning in 1983, to redevelop the south Nicollet Mall (the development district). Appellants’ primary objectives were to promote the growth of the newly expanded convention center, to preserve downtown Minneapolis as a major retail center, to provide a commercial link between the development district and the convention center, to encourage more intensive development of the surrounding area, and to increase the area’s tax base. After two years in which no developers showed interest in the project, in 1985 appellants began negotiating development rights with La Societe Generate Immobiliere (LSGI), a French corporation.

Appellant City of Minneapolis soon thereafter established Tax Increment Financing District Number' 63 within the development district and adopted a tax-increment financing plan for the district. Minneapolis Mayor Donald M. Fraser created the “Committee on the Future of the Nicollet Mall” to assist in the planning, and the Minneapolis City Council approved the essential terms and conditions of a redevelopment agreement with LSGI (the development contract). The City Council overrode Mayor Fraser’s veto of the agreement, and appellant MCDA and LSGI executed the development contract on November 3,1986.

The development contract called for appellant MCDA to acquire several properties in the development district by exercise of its eminent-domain powers and to then tease those properties to LSGI for the construction of a shopping mall and office tower. The targeted area stretched from 9th Street to 11th Street and from Marquette Avenue to LaSalle Avenue, and it included the Arcade, Essex, 1009 Nicollet, 81 South 10th Street, 87 South 10th Street, and Handicraft buildings owned by respondent Siegel, et al., as well as the Physicians and Surgeons Building owned by respondent Johnson. The development contract contained a series of mutually escalating obligations that required LSGI to secure anchor tenants for the project before appellant MCDA was required to acquire the targeted properties and lease them to LSGI. The agreement also gave appellant MCDA the right to approval of the proposed project design plans and gave appellant City of Minneapolis the right to approval of the final project design. It also required LSGI to submit progress reports to appellants and, in turn, appellants agreed to keep all information contained in the progress reports confidential.

In December 1986, several of appellants’ advisory committees began expressing reservations about LSGI’s proposed “dome and tunnel” design. In October 1987, LSGI told appellants that it had secured a letter of commitment from Nordstrom’s for a tease in the shopping mall and a letter of interest from Neiman Marcus to do the same. Appellants and LSGI temporarily resolved their design differences by closing the development contract with the stipulation that LSGI would develop a new design to keep the mail’s open, urban-street atmosphere. This “post-closing agreement” required appellant MCDA, after the project’s design had been approved, to acquire the properties in the targeted area and execute a 99-year lease with LSGI for those properties. Shortly after closing the development contract, Mayor Fraser contacted Nordstrom’s and Neiman Marcus in an apparent attempt to discourage their participation in the project. Indeed, several city council members testified at trial that the mayor’s actions hampered LSGI’s ability to secure anchor tenants for the project.

Several weeks after the execution of the post-closing agreement, appellants sent letters to all potentially affected property owners, including respondents, telling them that appellants had decided to go forward with LSGI’s proposal. The letter stated that appraisers would be contacting the property owners to conduct appraisals of their properties, which “would be acquired if the proposed development takes place.” But the letters also stated: “You should understand that by appraising the property the City is not making a definite commitment to acquire the same.”

As LSGI continued negotiations with Neiman Marcus, appellant City of Minneapolis contacted that company about participating in a different development project at the north end of the Nicollet Mall. After appellant MCDA rejected several LSGI design proposals, appellants issued a public notice of default in January 1988 based on LSGI’s failure to secure anchor tenants. Appellants and LSGI continued to negotiate over the design of the proposed mall, and in March 1988, LSGI presented a new design proposal, which appellant MCDA approved one month later. Mayor Fraser vetoed appellant MCDA’s approval, but appellant MCDA overrode the veto. Appellant City of Minneapolis then told LSGI that, for the project to move forward, the proposed plan would need to be altered to garner sufficient support on the City Council, which had final design approval. The parties continued to negotiate over design and other contract issues, but appellants ultimately terminated all negotiations with LSGI on June 1, 1989. Respondents contacted appellants several times over the course of the LSGI negotiations, seeking information regarding the progress of the project, but appellants gave them no clear response and never told them that appellants would not be pursing acquisition of respondents’ properties.

In June 1989, LSGI sued appellants in federal district court for breach of contract. La Societe Generale Immobiliere v. Minneapolis Cmty. Dev. Agency, 827 F.Supp. 1431, 1438 (D.Minn.1993). LSGI initially won a court-reduced award of $17,280,000, but the Eighth Circuit reversed the award in December 1994, concluding that appellants did not breach the contract because they had the right to final design approval. La Societe Generale Immobiliere v. Minneapolis Cmty. Dev. Agency, 44 F.3d 629, 636-38 (8th Cir.1994).

Respondents filed this suit in November 1994, alleging an unjust taking under both the United States and Minnesota constitutions. Before appellants began pursing the redevelopment project, respondents’ properties had low vacancy rates and were profitable. Appellants’ appraisers placed the following values on respondents’ properties: $3,085,000 for the Arcade; $2,400,000 for the Essex; $5,133,000 for all of 1009 Nicollet, 81-87 South 10th Street, and the Handicraft; and $4,000,000 for the Physicians and Surgeons Building. Respondents received little clarifying information from appellants during the redevelopment process, and they were therefore unable to answer their tenants’ questions regarding the future of the buildings or give them any assurances in that regard. As a result, some tenants left and respondents had difficulty replacing them, resulting in a decline in respondents’ rental income. Total rents for the properties increased 8.3% from 1984 to 1985, but decreased 4.9% in 1986, 10.2% in 1987, 14.0% in 1988, 3.3% in 1989, 22.5% in 1990, 22.5% in 1991, and 2.8% in 1992. Total rents then increased by 10.8% in 1993, 0.1% in 1994, and 9.9% in 1995. In 1997, the Arcade sold for $2,750,000, and the next year the Essex sold for $1,100,000. At trial, appellants offered several alternative explanations for the tenants’ relocation and the decreased property values, including an increased amount of rental space available in the surrounding area and the deterioration of respondents’ properties.

As already noted, the district court granted appellants’ motion to dismiss on the pleadings, finding that respondents’ substantial losses did not amount to a taking. Siegel, 1996 WL 229242, at *2. On appeal, the issue before this court was whether respondents’ pleadings, which alleged a taking of all economically viable uses for their properties, but not a total loss of all value, sufficiently alleged a taking. Id.; see 614 Co., 547 N.W.2d at 406-07. Despite “ample doubts about [respondents’] ability to prove its cause of action,” this court reversed, finding that

[dismissal of [respondents’] claims on the pleadings requires an unduly constricted view of the holding of Lucas [v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798 (1992)]. Although the pleadings state no claim of total worthlessness, the pleadings permit proof that [appellants’] actions left appellants without economically viable rental and development uses for their property and, therefore, that [respondents] have a right to recovery under the Takings Clause.

Siegel, 1996 WL 229242, at *4, *2.

On remand, the district court concluded that the record did not present a categorical taking as contemplated by Lucas. Instead, the district court found appellants liable for unjustly taking respondents’ properties under both the federal standard in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978), and the Minnesota standard in Orfield v. Hous. & Redev. Auth. of the City of St. Paul, 305 Minn. 336, 232 N.W.2d 923 (1975), and its progeny. In an exceptionally thorough order and memorandum, the district court found that appellants violated the standard set out in Penn Central by (1) uniquely burdening respondents by impairing their existing and prospective uses of the property for an unreasonable period of time, (2) causing a substantial and adverse economic impact on the properties, and (3) interfering with respondents’ investment-backed expectations by disturbing their longstanding and existing uses of the properties. The court also found that appellants violated the Orfield standard by abusing their eminent-domain powers and by acting in bad faith. Specifically, the court found that

[t]he City abused its power of eminent domain because (1) the City and LSGI entered into a contract that invoked its eminent domain power, a power otherwise unavailable to a private party; (2) the City reserved the right to abandon its contract partner at the last minute; (3) the City agreed to and did keep material information from the property owners; (4) the City agreed to specific performance as a remedy for breach of contract; (5) the City reversed course at closing; (6) the City, despite reversing course, sold the bonds to acquire the property and sent appraisers to the targeted property to begin the acquisition process; (7) the City severely undermined the ability of its contract partner to perform its end of the bargain; and (8) the City unreasonably delayed the official decision-making process.

Based on an advisory jury’s findings, the district court awarded respondents Siegel, et al., $2,348,000 in damages and $1,191,687 in interest and awarded respondent Johnson $2,000,000 in damages and $1,015,065.59 in interest. The court later awarded respondent Siegel, et al., $444,319.35 in attorney fees and $27,407.75 in costs and expenses and awarded respondent Johnson $441,845.10 in attorney fees and $27,397.17 in costs and expenses. The district court denied appellants’ motion to amend the findings or, in the alternative, for a new trial. This appeal follows.

ISSUES .

I. Did the district court err by finding that a taking occurred?

II. Did the district court err by excluding from evidence a related Eighth Circuit decision and by allowing respondents to offer hearsay testimony regarding their damages?

ANALYSIS

I.

The United States and Minnesota constitutions prohibit governments from taking private property without just compensation. U.S. Const, amend. Y (“nor shall private property be taken for public use without just compensation”); Minn. Const, art. I, § 13 (“Private property shall not be taken, destroyed or damaged for public use without just compensation.”). Appellants contend that the district court erred by finding that a taking had occurred under both the federal takings standard in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978), and the Minnesota standard in Orfield v. Hous. & Redev. Auth. of the City of St. Paul, 305 Minn. 336, 232 N.W.2d 923 (1975). Whether a taking has occurred is a question of law, which we review de novo. Fitger Brewing Co. v. State, 416 N.W.2d 200, 205 (Minn.App.1987), review denied (Minn. Feb. 23, 1988).

A taking occurs either by physical invasion of property or by other activity that so limits the use of property that it constitutes a taking. Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 2457, 150 L.Ed.2d 592 (2001). The principle that governmental activity alone may constitute a taking if it limits the use of property finds its roots in Justice Oliver Wendell Holmes’s often-cited, but not overly instructive, statement that, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Penn. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). Courts have attempted to refine this concept over the years, but it still eludes sharp definition. As a result, analysis of such takings cases “often relies heavily on reasoning by analogy to previous takings cases.” Zeman v. City of Minneapolis, 552 N.W.2d 548, 552 n. 3 (Minn.1996). To that end, courts have developed context-specific tests to narrow the inquiry into whether a taking has occurred. These include the federal standard in Penn Central and the Minnesota standard in Orfield, and the progeny of those cases.

A. Federal Takings Standard.

Appellants argue that no taking occurred under the Penn Central standard because appellants placed no restrictions on respondents’ uses of their properties. Appellants claim, therefore, that this case is similar to Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984), where the United States Supreme Court found that no taking occurred under the Penn Central standard because the government did not significantly interfere with the property owner’s use of its property.

In Penn Central, the United States Supreme Court reviewed New York City’s Landmarks Preservation Law, which was enacted to meet concerns that historic buildings were being destroyed without sufficient consideration of their historic, cultural, and architectural significance. Penn Central, 438 U.S. at 108-09, 98 S.Ct. at 2651. The law gave a commission authority to designate certain properties as, for example, a “landmark” and thereby restrict the owner’s use of the property. Id. at 110-12, 98 S.Ct. at 2652-53. The commission designated Grand Central Terminal a “landmark” and denied a request from its owner, Penn Central Transportation Company, to construct an office building on top of the terminal. Id. at 115-16, 98 S.Ct. at 2654-55. Penn Central sued, alleging that the commission’s actions amounted to an unjust taking of its property. Id. at 119, 98 S.Ct. at 2656.

In affirming the decision of New York Court of Appeals that no taking occurred, the Court established several factors for courts to consider when determining whether governmental activity so limits an owner’s use of property that the activity constitutes a taking. Id. at 124, 98 S.Ct. at 2659; see Zeman, 552 N.W.2d at 552 n. 3 (noting that “[sjcholars seem to agree that Penn Central provides the best formulation of the factors the Supreme Court deems important to takings analyses.” (citations omitted)). These factors include the economic effect on the property owner, the extent to which the activity interferes with the owner’s reasonable, investment-backed expectations, and the character of the governmental action. Id.; see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798 (1992) (describing a per se exception to the Penn Central analysis that applies when the governmental activity “denies all economically beneficial or productive use of land”). The Penn Central standard is premised on the belief that,

while most burdens consequent upon government action undertaken in the public interest must be borne by individual landowners as concomitants of the advantage of living and doing business in a civilized community, some are so substantial and unforeseeable, and can so easily be identified and redistributed, that justice and fairness require that they be borne by the public as a whole.

Kirby Forest v. United States, 467 U.S. at 14, 104 S.Ct. at 2196 (quotations omitted). Because this case concerns governmental activity in a condemnation context, Kirby Forest and Armour & Co., Inc., v. Inver Grove Heights, 2 F.3d 276 (8th Cir.1993), are particularly relevant in applying Penn Central here.

In Kirby Forest, the federal government began targeting property owned by Kirby Forest Industries, Inc., in 1967 as a part of an effort to preserve a wilderness area in east Texas. Kirby Forest, 467 U.S. at 6, 104 S.Ct. at 2192. Congress finally passed legislation in 1974 that created a national park in the area and authorized the Secretary of the Interior to acquire land for the park, including several thousand acres of Kirby Forest’s property. Id. at 7, 104 S.Ct. at 2192. After negotiations to purchase appellant’s land failed, the government began condemnation proceedings in 1978 and filed a notice of lis pendens that notified the public of the action. Id. The federal district court referred the matter to a special commission to determine the compensation due Kirby Forest. Id., 104 S.Ct. at 2193. Kirby Forest objected to the commission’s recommendation of $2,331,202, arguing that the award should also include interest accruing from the date the government began the condemnation proceedings. Id. at 8, 104 S.Ct. at 2193. The district court eventually adopted the commission’s recommendation in 1981, but it also awarded interest on that amount from 1978, concluding that “the institution of condemnation proceedings had effectively denied [appellant] economically viable use and enjoyment of its property.” Id. (quotation omitted). On appeal, a unanimous United States Supreme Court reversed the award of interest because it found that no taking occurred before completion of the condemnation action. Id. at 14-15, 104 S.Ct. at 2196-97. After setting out the Penn Central standard and the theory underlying it, the Court reasoned:

[W]e do not find, prior to the payment of the condemnation award in this case, an interference with petitioner’s property interests severe enough to give rise to a taking under the foregoing theory. Until title passed to the United States, petitioner was free to make whatever use it pleased of its property. The Government never forbade petitioner to cut the trees on the land or to develop the tract in some other way. Indeed, petitioner is unable to point to any statutory provision that would have authorized the Government to restrict petitioner’s usage of the property prior to payment of the award.
Nor did the Government abridge petitioner’s right to sell the land if it wished. It is certainly possible, as petitioner contends, that the initiation of condemnation proceedings, publicized by the filing of a notice of lis pendens, reduced the price that the land would have fetched, but impairment of the market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. At least in the absence of an interference with an owner’s legal right to dispose of his land, even a substantial reduction of the attractiveness of the property to potential purchasers does not entitle the owner to compensation under the Fifth Amendment.

Id. (internal citations omitted).

The Eighth Circuit adopted this reasoning in Armour, where the City of Inver Grove Heights, Minnesota, targeted land for a shopping-mall development, including land owned by Armour and Company, Inc. Armour, 2 F.3d at 277. The city entered into an agreement that required the developer to meet certain conditions before the city became obligated to exercise its eminent-domain powers. Id. Armour asked for a guarantee that the properties within the area would be acquired, and, when the city refused to give such a guarantee, Armour sued for unjust taking. Id. In affirming summary judgment for the city, the Eighth Circuit relied on Kirby Forest’s holding that, as a matter of law, no taking occurred before the completion of the condemnation action. Id. at 278. The court found that the record showed, at best, that the city’s actions impaired the marketability of Armour’s property and that there was no evidence that the city imposed any legal restrictions on Armour’s use of its property. Id. at 279. As a result, the Eighth Circuit concluded that there was no issue “as to whether [appellant] suffered an economic impact of a constitutional magnitude, or that there was interference with [appellant’s] investment-backed expectations.” Id.

Thus, as illustrated by Kirby Forest and Armour, no taking occurs under the Penn Central standard in a condemnation setting unless a governmental entity exerts significant control over an owner’s use of property before actually acquiring the property. In the absence of governmental control that significantly interferes with an owner’s use of property, the government’s actions, even if they adversely affect the property, do not implicate constitutional protections.

Other appellate courts have reached similar conclusions in condemnation settings. For example, in City of Norwood v. Cannava, 45 Ohio St.3d 238, 543 N.E.2d 802 (1989), the Ohio Supreme Court addressed the issue of whether a taking occurs when a governmental authority initiates condemnation proceedings or only when it actually takes physical possession of the property. Id. at 803. The property owners argued that the taking occurred at the institution of the proceedings because their rental income and property values declined then. Id. at 805. The court relied on Kirby Forest and rejected this argument, finding that

[w]hile the initiation of condemnation proceedings may reduce the rental value of property, impairment of rental value incident to otherwise legitimate governmental action ordinarily does not constitute a taking.

Id. (citation omitted). The court concluded that no taking occurred because the owners retained full possession of their property and continued to receive rental income, and, thus, the owners “were not dispossessed or deprived of economically viable use of their property prior to the date the [governmental authority] took possession of the property.” Id.

Similarly, in Wilkinson v. Dallas/Fort Worth Intern. Airport Bd., 54 S.W.3d 1 (Tex.App.2001), several property owners alleged that prolonged planning by the Dallas/Fort Worth International Airport Board (D/FW) for a runway expansion caused the owners difficulty in selling their homes or obtaining financing. Id. at 7. The owners claimed that D/FW’s process of decision-making and its failure to keep promises regarding the acquisition of the owners’ properties contributed to the owners’ economic difficulties. Id. In affirming summary judgment for D/FW, the Texas Court of Appeals concluded that no taking occurred because the owners had not shown “a significant interference” with their property interests. Id. at 19. The court went on to state:

To the extent [the owners] allege a taking based on D/FW’s pre-condemnation proceedings without restricting appellants’ use of their property, such claims have been routinely rejected by federal courts.

Id. at 19 (citing Kirby Forest, 467 U.S. at 15, 104 S.Ct. at 2196-97; Saffold v. Carter, 739 F.Supp. 1541, 1544 (S.D.Ga.1990)). Likewise, in Calhoun v. City of Durant, 970 P.2d 608 (Okla.Civ.App.1997), the Oklahoma Court of Appeals reversed the trial court’s finding of a taking, holding:

There was no physical invasion of Calhoun’s land and there was no regulatory action taken by the City. The City of Durant’s proposed plans to condemn Calhoun’s property, coupled with delay, does not constitute a taking.

Id. at 613-14 (citing Kirby Forest, 467 U.S. at 15, 104 S.Ct. at 2196-97).

B. Minnesota Takings Standard.

In addition to applying the Penn Central analysis, Minnesota courts employ a standard described in Orfield, and elaborated on in subsequent cases, when a property owner claims that a government entity’s abuse of its eminent-domain powers amounts to a taking. Appellants here argue that no taking occurred under the Orfield standard because respondents retained full control over their property.

In Orfield, the Housing and Redevelopment Authority of the City of St. Paul (the city) proposed an urban-renewal project that included the Orfields’ apartment building. Orfield, 305 Minn. at 337, 232 N.W.2d at 924. In connection with this project, owners whose properties were designated “substandard” could request that the city acquire the properties. Id. at 338, 232 N.W.2d at 925. The Orfields asked the city to buy their “substandard” property, but the city declined because it had allocated its federally provided funds for other, higher-priority properties first. Id. at 338-39, 232 N.W.2d at 925. But the city encouraged the Orfields to keep their property in good condition because the price they would receive if the city purchased their property depended on the value at the time of the purchase. Id. The city eventually acquired the properties on either side of the Orfields’ building, but did not purchase their building. Id. at 339, 232 N.W.2d at 926. Many of the Orfields’ tenants soon left, and this caused a decline in the property’s value and rental income. Id. But the court concluded that no taking occurred because

economic loss caused by the altered character of a neighborhood due to normal activities in connection with an urban renewal project, without more, does not constitute a de facto taking of the property in a constitutional sense. Fluctuations in value of property which may occur by reason of activity undertaken in connection with a government project of this type are incidents of ownership, and a reduction in value so occurring cannot be considered a taking in a constitutional sense.

Id. at 341, 232 N.W.2d at 927. The court then stated:

It may well be that abuse of the power of eminent domain when that abuse is specifically directed against a particular parcel could constitute a de facto taking.

Id. at 342, 232 N.W.2d at 927 (citation omitted). Nevertheless, the court found no such abuse because the city did not promise that it would acquire the Orfields’ property and it did not abuse its discretion in its use of its allocated funds. Id.

This court subsequently elaborated on Orfield’s general pronouncement regarding abuses of the eminent-domain process, finding that there is no such abuse

if the state makes it clear to the owners there may be no taking, does not abuse its discretion by abandoning a plan to take, and urges the owners to make necessary property improvements.

Fitger, 416 N.W.2d at 208. This court further defined Orfield’s reach as follows:

We find no authority permitting us to expand the concept of de facto taking, suggested in Orfield, to a case where the landowner’s freedom of choice on improvements is not substantially destroyed by state action. Absent such control over the owner’s use of its property, we are dealing with normal “incidents of ownership.”

Id. (quoting Orfield, 305 Minn, at 341, 232 N.W.2d at 927). Fitger arose from the state’s announcement in 1969 of a plan to extend an interstate highway through Duluth along a route that would require purchasing some of Fitger’s brewery facilities. Id. at 201-02. At the same time, Fitger faced major pollution-control expenditures and was concerned about how the proposed route would affect its investment in the required improvements. Fitger asked the state about the status of the proposed project and was told that the plan was still under consideration and that a final proposal was expected within the next several months. Id. at 202. No final proposal was made within the next year, but a newspaper account at the time quoted transportation department officials as saying that the proposed route “will mean ‘taking’ (condemning) everything on the south side of Superior Street from the Fitger Brewery to Eighth Avenue East.” Despite continued consideration of several proposals, all involving Fitger’s property, Fitger received no assurances over the next several years that the state would, in fact, purchase the property. Id. at 202-04. Fitger closed the brewery in 1972 in apparent reliance on the state’s earlier announced plan to acquire the property and the impracticality of making the necessary pollution-control expenditures in the face of the anticipated acquisition. Id. at. 203-04. Three years later, the state decided that the project would not require taking Fitger’s property. Id. at 204. This court reversed the district court’s finding of a taking because “the state did not physically or legally prevent the owner’s use of the property or force its closing.” Id. at 208.

C. Application of Takings Standards.

Although Penn Central arose in the context of governmental regulation and Orfield arose in the context of governmental use of the eminent-domain power, courts have read both cases to stand for the proposition that no taking occurs unless the governmental activity significantly restricts a property owner’s freedom to choose how to use the property. See Kirby Forest, 467 U.S. at 14-15, 104 S.Ct. at 2196-97; Fitger, 416 N.W.2d at 208. Thus, it is not enough under either Penn Central or Orfield for property owners to show that the government’s actions substantially impaired the value of their properties — those actions must also exert significant control over the owners’ use of their properties. See id.; Fitger, 416 N.W.2d at 208. In both Kirby Forest and Fitger, the degree of governmental control did not rise to the level of a taking because the owners there remained substantially free to use their property as they wished. Id.; Fitger, 416 N.W.2d at 208. Therefore, unless the governmental entity exerts a degree of control over property greater than that shown in Kirby Forest and Fit-ger, the property owner’s loss is simply a “concomitante ] of the advantage of living and doing business in a civilized community.” Kirby Forest, 467 U.S. at 14, 104 S.Ct. at 2196 (quotations omitted); see Fitger, 416 N.W.2d at 208.

Here, nothing in the record suggests that appellants exercised greater control over respondents’ property than the governmental entities did in Kirby Forest and Fitger. The record supports the district court’s findings used in its Penn Central analysis that appellants’ actions adversely affected the value and rental income of respondents’ property. The district court also found, relying on Orfield and Fitger, that appellants failed to clearly communicate that the project might not go forward, failed to urge respondents to improve their properties, and acted in bad faith in abandoning the project. But as in Kirby Forest and Fitger, respondents here remained substantially free to use their property as they pleased throughout the period during which appellants pursued the development project. The district court did not find, and the record does not show, that appellants restricted respondents’ rights to continue to rent their properties, to use them for other purposes, or to dispose of them. Indeed, the alleged impairment to the property in Kirby Forest was even greater than here because the property at issue in that case was subject to a Congressional mandate that required the acquisition of Kirby Forest’s property for national park purposes. Thus, it was a foregone conclusion that Kirby Forest would be forced at some point to sell its property to the government. Here, respondents’ properties were subject only to the conditional obligation in the development contract between appellants and LSGI, and that provision was never triggered because appellants rejected LSGI’s design proposal. As a result, the degree of governmental control in Kirby Forest and Fitger is legally indistinguishable from appellants’ control, or lack thereof, over respondents’ property here. Thus, we are constrained to conclude that the district court erred in finding that a taking occurred here.

While the record reasonably supports the district court’s findings that appellants’ bad faith and unreasonable delay caused respondents to suffer economic loss, that is not sufficient under Kirby Forest and Fit-ger. The record must also establish that appellants exercised significant control over respondents’ use of their properties. The record here does not show such control. Respondents knew that appellants might not acquire their properties, and respondents continued to use the properties as they had in the past. Without finding that appellants controlled respondents’ properties in a constitutionally significant manner, the district court essentially reprimanded appellants for their bad conduct. And while appellants’ conduct may well deserve reprimand, it does not provide sufficient grounds for finding that a taking of respondents’ properties occurred. Thus, as in Kirby Forest and Fitger, respondents’ losses do not amount to an unconstitutional taking, but are the unfortunate result of the risks of living in a civilized society. We, therefore, reverse the district court’s awards to respondents.

Our holding is not inconsistent with this court’s prior opinion in this case in which we found that respondents sufficiently alleged a taking to survive a motion to dismiss on the pleadings. There, although we expressed reservations regarding respondents’ ability to prove their claims, we concluded that respondents’ claims that appellants “radically curtailed,” “inhibited,” and even “precluded” respondents’ use of their properties sufficiently alleged a taking. We simply conclude that, after trial, the record does not support a finding that a taking occurred.

II.

Finally, appellants allege that the district court erred by preventing them from introducing evidence of the decision in La Societe Generale Immobiliere v. Minneapolis Cmty. Dev. Agency, 44 F.3d 629 (8th Cir.1994), on the grounds that it was irrelevant and misleading. We will not reverse a district court on eviden-tiary rulings unless the court clearly abuses its discretion and prejudices the adverse party. Zaluckyj v. Rice Creek Watershed Dist., 639 N.W.2d 70, 77 (Minn.App.2002). Here, appellants cannot show they were prejudiced by the district court’s exclusion of the Eighth Circuit’s decision because the district court’s finding of a taking was not based on the legality of appellants’ conduct toward LSGI, which was the issue addressed by the Eighth Circuit’s decision, but rather on appellants’ unreasonable delay in the official decision-making process and misleading words, actions, and inac-tions. See State v. Tereau, 304 Minn. 71, 73-74, 229 N.W.2d 27, 28 (1975) (finding no prejudice when the alleged evidentiary error did not affect the district court’s decision).

Appellants also assert that the district court erred by allowing respondents to present hearsay testimony regarding the reasons that they lost tenants during appellants’ pursuit of the development project. We generally decline to address issues that a party fails to adequately brief. State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997). Here, appellants make no argument as to which specific statements are hearsay, how the court abused its discretion, or why the testimony prejudiced their case. Appellants’ mere averments of error offer no real argument for our review, and, thus, we decline to address the issue.

DECISION

The district court erred by finding that appellants’ actions constituted a taking of respondents’ properties when appellants did not significantly control respondents’ use of their properties. Appellants suffered no prejudice by the district court’s exclusion of the Eighth Circuit’s related decision, and we do not reach appellants’ hearsay argument because it is inadequately briefed.

Affirmed in part and reversed in part.

      . We do not address appellants' argument that the district court erred by following this court’s interpretation of Lucas in the first appeal because the district court relied on Penn Central and Orfield, not Lucas, in its analysis. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn.App.1993) (noting that an appellant cannot prevail on appeal unless an alleged error is also prejudicial), review denied (Minn. June 28, 1993). Neither party disputes the district court's abandonment of a Lucas analysis.


author: PARKER, Judge.

text:
    In the Matter of Alexander Mark MARTINELLI.
    No. C4-00-748.
    Court of Appeals of Minnesota.
    Aug. 27, 2002.

      Brian C. Southwell, Minneapolis, MN, for appellant.
    Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, Minneapolis, MN, for respondent county.
    Considered and decided by HARTEN, Presiding Judge, PETERSON, Judge, and PARKER, Judge.
   OPINION

PARKER, Judge.

This appeal, taken from an order committing appellant Alexander Martinelli as a sexual dangerous person (SDP), has been remanded from the United States Supreme Court for consideration in light of Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). Because we conclude that appellant was committed upon a showing of “lack of control” that complies with Crane, we affirm.

FACTS

Appellant Alexander Martinelli was initially committed in January 1998 as a sexually dangerous person (SDP). At that time, Martinelli was about to be released from prison after serving a sentence for third-degree criminal sexual conduct. At the initial commitment hearing, the district court heard from a number of witnesses, including some of Martinelli’s victims and four expert witnesses. The court dismissed the petition to commit Martinelli as a sexual psychopathic personality (SPP), finding there was not evidence that he had an “utter lack of power to control his sexual impulses,” as required under the SPP statute. The court, however, found sufficient evidence to support commitment of Martinelli as an SDP.

At the initial commitment hearing, the court heard testimony from four expert witnesses. Dr. Douglas Fox, the petitioner county’s retained expert, concluded that Martinelli’s sexual behavior demonstrated an “utter lack of control over his sexual urges,” and that he met the criteria for commitment as an SPP. Dr. Fox also concluded Martinelli met the requirements of the SDP statute, which had not yet been construed to require a “lack of control.”

Dr. Thomas Alberg, the first court-appointed examiner, testified that Martinelli was a “borderline” SPP, but that, based on many of the relevant criteria, he had an “utter lack of power to control his sexual impulses.” However, Dr. Roger Sweet, the second court-appointed examiner, testified that Martinelli did have the power to control his sexual impulses, although his attitude and behavior showed a lack of control. Dr. Sweet testified that Martinel-li exhibited impulsive behavior and a lack of responsibility for his sexual conduct but did not meet the SPP requirement of “utter lack of control.” The fourth expert, Dr. Richard Friberg, who had examined Martinelli for suicidal intent while Marti-nelli was incarcerated but had not done an evaluation on him, did not recommend commitment.

Martinelli appealed the initial SDP commitment order. While that appeal was pending, the district court conducted the 60-day review hearing to consider Marti-nelli’s indeterminate commitment. Dr. Anita Schlank, the clinical director of the Minnesota Sex Offender Program (MNSOP), to which Martinelli had been initially committed, testified there had been no significant change in his condition. Dr. Sweet testified against commitment, as he had at the initial commitment hearing. The district court, however, ordered indeterminate commitment of Martinelli as an SDP.

This court affirmed both Martinelli’s initial commitment and his indeterminate commitment in unpublished opinions. In re Martinelli, No. C0-98-1684 (Minn.App. Feb.23, 1999); In re Martinelli, No. C6-98-569 (Minn.App. Sept.15, 1998). The supreme court granted further review in both appeals, limited to the issue of whether the SDP statute was constitutional despite the absence of a “lack of control” standard. At the time, the issue was before the supreme court in the Linehan case. See In re Linehan, 594 N.W.2d 867 (Minn.1999) (Linehan IV).

The supreme court released Linehan IV in May 1999. Id. The court upheld the constitutionality of the SDP statute, as construed to require a showing of lack of control. Id. at 876. The Linehan IV court, citing language in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), narrowly construed the SDP statute so as to require a showing of future dangerousness linked with an existing mental disorder making it “difficult, if not impossible, for the person to control his dangerous behavior.” 594 N.W.2d at 875 (quoting Hendricks, 521 U.S. at 358, 117 S.Ct. at 2080). The Line-han IV court also stated that the SDP statute allowed commitment of those whose disorder did not “allow them to adequately control their sexual impulses.” Id. at 876.

Following release of Linehan TV, the supreme court remanded Martinelli’s appeal to this court. This court, in an order opinion, remanded to the district court “to determine whether Martinelli meets the standard for commitment as an SDP as clarified in Linehan [IV].” In re Martinelli, No. C6-98-569 (Minn.App. Aug.2, 1999).

On remand, the district court issued an amended commitment order. The court noted Dr. Fox’s opinion that Martinelli was “utterly lacking in the ability to control his sexual impulses.” The court also noted Dr. Alberg’s opinion to the same effect, and the evidence that both examiners had cited in support of their opinions. The court acknowledged that Dr. Sweet did not support commitment, but noted Dr. Sweet’s finding that Martinelli displayed “sexually addictive behavior.” The court concluded that the review hearing presented evidence that Martinelli continued to show a “lack of adequate control.”

Martinelli appealed this order. This court issued an opinion affirming the order in September 2000. In re Martinelli, No. C4-00-748 (Minn.App. Sept. 12, 2000), review denied (Minn. Oct. 26, 2000), vacated by — U.S. —, 122 S.Ct. 1171, 152 L.Ed.2d 114 (2002). The Minnesota Supreme Court denied the petition for further review of the September 2000 opinion. Id. The U.S. Supreme Court, however, following release of its opinion in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), granted certiorari and remanded to this court for further consideration in light of Crane. Martinelli v. Minnesota, — U.S. —, 122 S.Ct. 1171, 152 L.Ed.2d 114 (2002).

ISSUE

Was appellant properly committed .as a sexually dangerous person under the civil commitment standard as clarified in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)?

ANALYSIS

Whether the record provides clear and convincing evidence meeting the standards established for civil commitment is a question of law that this court reviews de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn.1994) (Linehan I). The narrower question of what standard Crane-establishes, and whether Martinelli meets it, is also a question of law. The district court, of course, did not have the benefit of Crane when it issued its amended commitment order, and applied only thé Linehan TV standard. See In re Linehan, 594 N.W.2d 867 (Minn.1999).

Martinelli argues that Crane requires, at the very least, that a person have “serious difficulty” in controlling his sexual impulses before he may be civilly committed. See Crane, 534 U.S. at —, 122 S.Ct. at 870 (stating “there must be proof of serious difficulty in controlling behavior”). Martinelli argues that the “lack of adequate control” standard from Linehan IV that the district court applied is a lower standard than the “serious difficulty” standard approved in Crane, and therefore is constitutionally inadequate. He argues that the “lack of adequate control” standard is unconstitutionally vague and insufficient to distinguish sex offenders who may constitutionally be committed from ordinary recidivist offenders.

The Supreme Court in Crane held that the constitution requires some finding on lack of control before a sexual offender may be civilly committed. Id. The Court reiterated that a complete lack of ability to control is not required. Id. (citing Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 2080, 138 L.Ed.2d 501 (1997)). The Court pointed to its language in Hendricks requiring a mental abnormality or personality disorder making it “difficult, if not impossible” to control behavior. Id. (emphasis omitted) (quotation omitted). The Court, however, declined to “give to the phrase ‘lack of control’ a particularly narrow or technical meaning.” Id.

It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the ease as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

Id. (citations omitted).

Martinelli argues that the “lack of adequate control” standard applied here does not satisfy Crane. But the majority opinion in Crane acknowledged it was not laying down any “bright-line rules.” Id. at —, 122 S.Ct. at 871. The opinion emphasized the leeway accorded the states under Hendricks, as well as the possibility of advances in the science of psychiatry, “whose distinctions do not seek precisely to mirror those of the law.” Id. We read Crane as approving a “lack of control” standard that, although “less precise,” at least requires “serious difficulty in controlling behavior,” and ties that requirement to a psychiatric diagnosis of a mental abnormality or personality disorder, as well as to the severity of the offender’s mental condition. See id. at —, 122 S.Ct. at 870-71. The “lack of adequate control” standard applied here, when read along with the language in Linehan IV requiring a “mental abnormality” or “personality disorder” making it “difficult, if not impossible” for that person to control his sexual conduct, satisfies the constitutional standard set by Crane. See Linehan TV, 594 N.W.2d at 875 (quoting Hendricks, 521 U.S. at 358, 117 S.Ct. at 2080).

It is essential, under Crane, that there be a judicial finding of “lack of control” based on expert testimony tying that “lack of control” to a properly diagnosed mental abnormality or personality disorder before civil commitment may occur. Such a finding, if it establishes a “serious difficulty” in controlling behavior, adequately distinguishes the offender subject to commitment from the “typical recidivist” offender.

The constitutionally required finding has been made in this case. The district court employed the phrase “lack of adequate control.” But it is clear that, when considered in light of the expert diagnoses of hebephilia and antisocial personality disorder and the expert opinions on Martinelli’s lack of ability to control his behavior, the district court’s finding was sufficient to distinguish Martinelli from the “typical recidivist” offender, as required by Crane.

Dr. Fox diagnosed Martinelli as suffering from hebephilia, defined as a sexual attraction to teens, specifically male teens, against whom he uses “intimidation, trickery or force to accomplish sexual offenses.” Dr. Fox also diagnosed Martinelli as having an antisocial personality disorder, based on his juvenile history of unlawful behavior, use of deceit, failure to pay debts, and other behavior. Dr. Fox concluded, based on Martinelli’s history, that he “has not displayed control over his sexual urges, and likely has an utter lack of control over such behaviors.” This conclusion was based on Martinelli’s criminal conduct, his grooming of boys even when he was on probation, his engaging in sexually assaultive behavior in front of others, and his use of force in his most recent offense.

Dr. Alberg also diagnosed Martinelli as having a paraphilia of hebephilia and of having an antisocial personality disorder, based on a number of behaviors in addition to Martinelli’s criminal offenses. Based on a number of factors, including Martinelli’s history of impulsive behavior, Dr. Alberg indicated that Martinelli was unable to control his sexual impulses and was “at high risk” to reoffend with teenage victims. On the HARE checklist used to score for psychopathy, Martinelli scored 29.5, which is just below the score of 30 usually considered to indicate a person is a psychopath.

The other two experts differed on the degree to which Martinelli lacks control over his behavior. But the evidence as a whole establishes a diagnosis of a mental disorder or abnormality (hebephilia and antisocial personality disorder) which is linked to a difficulty in controlling behavior that is properly described as “serious.” In addition, the HARE test indicates that Martinelli is borderline psychopathic. This evidence, taken as a whole, adequately distinguishes Martinelli from the “typical recidivist” sex offender who is properly dealt with solely through the criminal law. See Crane, 534 U.S. at —, 122 S.Ct. at 870.

Martinelli argues that the Linehan IV standard of “lack of control” is unconstitutionally vague. But that issue has not been previously raised in this appeal, and is not within the scope of the Supreme Court’s remand of this case, which is for consideration in light of Crane, which contains no discussion of vagueness. We note that a recent opinion of this court has upheld the Linehan IV “lack of control” standard against a vagueness challenge. In re Ramey, 648 N.W.2d 260 (Minn.App.2002). As this court holds in Ramey, we must consider the “lack of adequate control” language in the context of the offender’s history and the diagnosis of mental illness or dysfunction. See id. at 268.

Martinelli argues that this case should be remanded for reconsideration by the district court in light of Crane. But Crane does not prescribe any specific “lack of control” standard. Martinelli argues that a remand is necessary to allow him to cross-examine the expert witnesses using the standards set out in Crane. But Crane declines to give a “particularly narrow or technical meaning” to “lack of control” that would usefully govern the opinions of the experts. 534 U.S. at —, 122 S.Ct. at 870. Given the medical testimony already presented in this case, the diagnosis of hebephilia and antisocial personality disorder, and the expert opinions already presented on lack of control, no purpose would be served by remanding to allow the experts to be questioned on the semantic distinctions between “serious difficulty” in controlling sexual behavior, “difficult, if not impossible” to control behavior, and “lack of adequate control” over behavior.

DECISION

The district court made the “lack of control” finding that is constitutionally required under Crane. That finding, supported by an expert diagnosis of mental abnormality or personality disorder tied to appellant’s “lack of control,” establishes a “serious difficulty” in controlling behavior, as required by Crane.

Affirmed.

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

      . Ramey also discusses the issue of future dangerousness. Id. But this appeal was taken from an order on remand dealing only with the "lack of control” issue, and it has been remanded for consideration in light of Crane, which does not address the issue of future dangerousness. Although the testimony here would support a finding that Martinelli poses a risk of future harm, that issue is not within the scope of review on remand.