text:
    Leonard OLSON, et al., on behalf of themselves and all others similarly situated, Respondents, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant.
    No. CX-01-974.
    Court of Appeals of Minnesota.
    Dec. 11, 2001.

      Karl L. Cambronne, Jeffrey D. Bores, Brian N. Toder, Becky L. Erickson, Chestnut & Cambronne, P.A., Minneapolis; and Robert Espeset, Barry Blomquist, Blom-quist & Espeset, Minneapolis; and Mark Reinhardt, Mark A. Wendorf, Harvey H. Eckart, Reinhardt & Anderson, St. Paul, for respondents.
    Corey J. Ayling, Kathleen M. Brennan, McGrann Shea Anderson Carnival Straughn & Lamb, Chartered, Minneapolis, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, PETERSON, Judge, and MULALLY, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

Respondents sued appellant under several common-law and statutory theories, alleging that appellant improperly charged some insureds over the age of 65 for no-fault wage-loss coverage that, by law, the insureds could not receive under most circumstances. Appellant moved to dismiss respondents’ claims under several theories, but argued specifically that the district court lacked subject-matter jurisdiction. The district court denied appellant’s motion to dismiss for lack of subject-matter jurisdiction.

Appellant challenges the denial of its motion to dismiss, arguing that the district court lacks subject-matter jurisdiction because respondents are allegedly seeking mandatory premium reductions, and these premium reductions are “no-fault benefits,” subject to mandatory arbitration under Minn.Stat. § 65B.525, subd. 1 (2000). Appellant argues this construction of § 65B.525, subd. 1, is justified by the plain language of the arbitration provision, effectuates the Minnesota legislature’s intent to streamline no-fault dispute resolution, effectuates the No-Fault Act’s remedial purpose, and is consistent with Minnesota precedent. We affirm.

FACTS

On August 24, 2000, the supreme court decided Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273 (Minn.2000). The Schroedl court interpreted Minn.Stat. § 65B.491 (1998), which states:

Senior Citizens
After August 1, 1987, no plan of reparation security issued to or renewed with a person who has attained the age of 65 years may provide coverage for wage loss reimbursement that the insured will not reasonably be expected to be able to receive. It is the responsibility of the person issuing or renewing the plan to inquire as to the applicability of this section. The rate for any plan for which coverage has been excluded or reduced pursuant to this section must be reduced accordingly. This section does apply to self-insurance.

The respondent in Schroedl was a 72-year-old man who elected to exclude wage-loss coverage from his American Family automobile-insurance policy. Schroedl, 616 N.W.2d at 276. The exclusion was effective the day of his automobile accident; that accident resulted in his permanent incapacitation and, ultimately, his death. Id. at 276. Despite the policy’s wage-loss coverage exclusion, Schroedl sued for wage-loss reimbursement because he was forced to hire others to operate his rental property. Id. The supreme court found that Schroedl was entitled to wage-loss reimbursement under § 65B.491, despite the policy exclusion. Id. at 282.

The supreme court first noted that the No-Fault Act generally mandates that basic economic-loss benefits, including wage-loss reimbursement, be included in all insurance policies written in this state. See id. at 278; see also Minn.Stat. §§ 65B.43, subds. 6, 7; 65B.44, subd. 1(b) (2000). But the court also recognized that in some limited circumstances the No-Fault Act prohibited wage-loss coverage for some insureds. Schroedl, 616 N.W.2d at 278.

The supreme court found that § 65B.491 “categorically prohibits an insurer from providing coverage for wage loss reimbursement to an insured who is 65 years of age or older” unless the insured will “reasonably be expected to be able to receive ‘a benefit’ from the coverage.” Id. at 278 (citation omitted). The court further noted,

[I]f the insured is reasonably expected to benefit from wage loss reimbursement coverage, whether the insured wants it or not, the insurer must provide it to comply with the statute.

Id. at 278-79. Therefore, the statute mandated all-or-nothing coverage, and an insured did not have the option to choose wage-loss coverage if the insurer decided the insured “will not reasonably be expected to be able to receive” wage-loss reimbursement. Minn.Stat. § 65B.491; Schroedl, 616 N.W.2d at 279.

Finally, the Schroedl court found that an insurer had a duty to inquire, at every renewal date, whether an insured over the age of 65 was now entitled to wage-loss reimbursement. Schroedl, 616 N.W.2d at 280. Because American Family had not asked Schroedl whether he qualified to receive wage-loss reimbursement (for which he apparently would have qualified because of his rental property) at every renewal period, the court found American Family had violated the statute and the court awarded Schroedl wage-loss reimbursement. Id. at 282.

The instant case apparently arose out of Schroedl’s potentially retroactive impact on Minnesota automobile-insurance policies written during the late 1980s and 1990s. On November 16, 2000, respondents served a class-action complaint on appellant. Respondents also filed similar lawsuits against other Minnesota automobile insurers. The lawsuit alleges that appellant improperly charged some Minnesota insureds over the age of 65 for wage-loss coverage, although under Minnesota law, as interpreted by the Schroedl court, these insureds were not entitled to wage-loss reimbursement. Essentially, respondents allege appellant charged them for wage-loss coverage that, under Schroedl, they could not receive.

On February 14, 2001, appellant generally moved to dismiss respondents’ claims but argued separately (from the other defendants in the other cases) that the district court lacked subject-matter jurisdiction. On April 20, 2001, the district court denied appellant’s motion to dismiss for lack of subject-matter jurisdiction. This appeal followed.

ISSUE

Whether respondents’ claims for improperly charged or overpaid wage-loss coverage premiums must be arbitrated under Minn.Stat. § 65B.525, subd. 1?

ANALYSIS

The existence of subject-matter jurisdiction is a question of law, which we review de novo. Neighborhood Sch. Coalition v. Indep. Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn.App.1992), review denied (Minn. June 30, 1992). Here, subject-matter jurisdiction depends on the construction of Minnesota’s No-Fault Act. Statutory construction is a question of law, which we also review de novo. Nelson v. Am. Family Ins. Group, 632 N.W.2d 264, 266 (Minn.App.2001); see also Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

The legislature provides rules of statutory construction to guide this court in its interpretive task. The intent of the legislature must govern our inquiry, but “[wjords and phrases [should be] construed according to rules of grammar and according to their common and approved usage.” Minn.Stat. § 645.08 (2000). Moreover, “[gjeneral words are construed to be restricted in their meaning by preceding particular words.” Id.

When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.

Minn.Stat. § 645.16 (2000); see also Pususta v. State Farm Ins. Cos., 632 N.W.2d 549, 552 (Minn.2001); Nelson, 632 N.W.2d at 266 (“[A] statute should be interpreted * * * to give effect to all of its provisions; ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” (quotation omitted)). Under these rules of construction, it is clear that we must first examine “whether the statute’s language * * * is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Schroedl, 616 N.W.2d at 277 (citations and quotation omitted).

Appellant argues that the plain meaning of “no-fault benefits” in § 65B.525, subd. 1, includes a statutory entitlement to premium reductions. Appellant points out that the American Heritage Dictionary (2000) defines “benefit” as “an entitlement available in accordance with an insurance policy.” Because the word “benefit” must be afforded its “common and approved usage” of “an entitlement available in accordance with an insurance policy,” appellant argues respondents’ claims must be arbitrated.

The No-Fault Act requires mandatory arbitration of certain' no-fault insurance claims:

Except as otherwise provided in section 72A.327, the supreme court and the several courts of general trial jurisdiction of this state shall by rules of court or other constitutionally allowable device, provide for the mandatory submission to binding arbitration of all cases at issue where the claim at the commencement of arbitration is in an amount of $10,000 or less against any insured’s reparation obligor for no-fault benefits or comprehensive or collision damage coverage.

Minn.Stat. § 65B.525, subd. 1 (emphasis added). The district court, in its memorandum denying appellant’s motion to dismiss for failure of subject-matter jurisdiction, explained,

In this case Plaintiffs are not seeking no-fault benefits, or comprehensive or collision damage coverage. Plaintiffs do not allege that any collision has taken place. The damages Plaintiffs seek are for premiums paid to Defendants in violation of Minn.Stat. § 65[B].491. Such damages are not of the type for which arbitration is mandatory under the provisions of the No-Fault [A]et.

We conclude appellant’s interpretation of the statute does not afford the statutory language its common and approved usage and therefore is not reasonable. We therefore find that respondents’ claims, whatever the precise characterization of those claims may be, need not be arbitrated under § 65B.525, subd. 1.

Examining the arbitration provision, and affording the term “no-fault benefits” its common and approved usage, leads inevitably to the conclusion that appellant’s strained interpretation fails. The dictionary definition of “benefit,” which refers to a payment made as part of an insurance policy, cannot be read in isolation without examining other descriptions of the word “benefit” that contemplate an affirmative, compensatory understanding of the word. Moreover, in its reply brief, appellant admits that although “it is true that a premium reduction in lieu of wage loss benefits would be an unusual and unique kind of no-fault ‘benefit,’ ” the fact “[t]hat a benefit is unusual does not prevent it from becoming considered a benefit.” (emphases added). These are tacit admissions of the problems with appellant’s common-and-approved-usage argument.

In addition, the arbitration provision itself suggests the common and approved usage of the term “no-fault benefits.” Under the arbitration provision, respondents have asserted a claim against an “insured’s reparation obligor”; however, “no-fault benefits” is immediately followed by “or comprehensive or collision damage coverage.” Reading “no-fault benefits” not in isolation, but with the terms immediately preceding and following it, suggests that the term “no-fault benefits” represents compensatory benefit payments made by an insurer pursuant to an insured’s insurance policy. See Minn.Stat. § 645.08(3) (“General words are construed to be restricted in their meaning by preceding particular words[.]”).

Appellant also suggests that another No-Fault Act provision, which requires payment of basic economic-loss benefits, sheds some light on how the term “no-fault benefits” should be interpreted in the arbitration provision. In particular, appellant argues that a claim for improperly charged or overpaid wage-loss coverage premiums is “at least an ‘applicable deductible! ], exclusion! ], disqualification! ], [or] other condition.’ ”

Basic economic loss benefits shall provide reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle, subject to any applicable deductibles, exclusions, disqualifications, and other conditions, and shall provide a minimum of $40,000 for loss arising out of the injury of any one person * * ⅜.

Minn.Stat. § 65B.44, subd. 1 (2000).

The district court did not address this argument in its order, but appellant’s interpretation of the statutory language is simply not reasonable. First, the provision reads: “Basic economic loss benefits shall provide reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle ⅜ ⅝ *.” Id. The clause in no way suggests that “benefits” should be read to encompass a claim for improperly charged or overpaid premiums. See Pususta, 632 N.W.2d at 552 (“The No-Fault Act provides that an injured person * ⅜ * is entitled to medical expense reimbursement ‘for all loss suffered through injury arising out of the maintenance or use of a motor vehicle * * ” (second ellipsis in original) (quotation omitted)); AMCO Ins. Co. v. Ashwood-Ames, 534 N.W.2d 740, 741 (Minn.App.1995), review denied (Minn. Sept. 28, 1995); Michael K. Steenson; Minnesota No-Fault Automobile Insurance 79 (2d ed. 1989) (“In order for benefits to be payable, the injured person must incur loss because of ‘inability to work’ that is ‘proximately caused’ by a nonfatal injury arising out of the maintenance or use of a motor vehicle.”).

Second, appellant’s argument that “[t]he requirement of a premium reduction is at least an ‘applicable deductible[ ], exclusion[ ], disqualifieation[ ], [or] other condition ]’ ” interprets that clause in isolation,. and, therefore, is not reasonable. The language “subject to any applicable deductibles, exclusions, disqualifications, and other conditions” qualifies the ' preceding clause and restricts the amount of basic economic-loss reimbursement that must be paid to reimburse injury.

We therefore conclude that the plain language of the arbitration provision and the common and approved usage of the term “no-fault benefits” suggest respondents’ claims for improperly charged or overpaid premiums need not be arbitrated. To mandate arbitration of respondents’ claims would do violence to the plain language of the arbitration provision. Cf. Pususta, 632 N.W.2d at 555 (“To hold the insurer liable for medical expenses resulting from a nonautomobile accident conflicts with the statutory language limiting the definition of loss to injuries ‘arising out of the maintenance or use of a motor vehicle * * ⅜.’ ” (ellipsis in original) (citation omitted)).

Appellant argues that if we look past the plain language of the arbitration provision, respondents’ claims should be subject to mandatory arbitration because that interpretation would best effectuate the legislature’s intent when it adopted the No-Fault Act’s arbitration provision. We note that appellant has thoroughly briefed the court on the history and purposes of the No-Fault Act. But because we conclude that the plain language of the arbitration provision and the common and approved usage of “no-fault benefits” does not contemplate mandatory arbitration of respondents’ claims, we decline to go further and examine legislative intent and the purposes of the No-Faúlt Act.

“The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16. The legislature, however, has made it clear that legislative intent and the spirit of the law, if any such intent or spirit can be ascertained, cannot override the plain language of a statute. Id.

Moreover, because we conclude that respondents’ claims need not be arbitrated under the plain language of the arbitration provision, we decline to address appellant’s alternative arguments that do not address the district court’s subject-matter jurisdiction and are not properly before this court.

DECISION

Respondents’ claims for improperly charged or overpaid wage-loss coverage premiums are not claims for “no-fault benefits” for purposes of MinmStat. § 65B.525, subd. 1; therefore, they need not first be arbitrated, and respondents may proceed in the district court.

Affirmed.

      . The precise characterization of respondents’ "claims” is disputed. Appellant characterizes respondents’ claims in several ways: "premium reductions,” "senior citizen discounts,” “retroactive premium benefit,” and "premium reduction refund." Respondents characterize their claims as "required premium reductions,” "premium reimbursements,” "illegally collected premiums,” and "illegally charged premiums.” For purposes of the arbitration provision’s jurisdictional amount, the supreme court and this court have broadly defined the word "claim.” See Brown v. Allstate Ins. Co., 481 N.W.2d 17, 19 (Minn.1992) ("[T]he term ‘claim’ as used in [§ ] 65B.525, subd. 1, is simply referring to the amount that the claimant is asking for.”); Hippe v. Am. Family Ins. Co., 565 N.W.2d 439, 442 (Minn.App.1997).

      . Several no-fault provisions in § 65B.44 also suggest "benefits” are compensatory payments made as part of an insured's contract with an insurer: Medical-expense "benefits” (subd. 2); Disability and income-loss "benefits” (subd. 3); Funeral and burial “benefits” (subd. 4); Replacement service-loss "benefits” (subd. 5); Survivor’s economic-loss "benefits” (subd. 6); Survivors replacement-services-loss "benefits” (subd. 7). In addition, the No-Fault Act requires that "no insurance policy providing benefits for injuries arising out of the maintenance or use of a motor vehicle shall be issued” unless basic economic-loss benefits are provided. Minn. Stat. § 65B.49, subd. 1 (2000) (emphasis added).

      . We also recognize, however, that the legislature could have specifically provided for mandatory arbitration of claims such as respondents’ when it enacted the senior-citizen provision in 1987. It did not do so. See Minn.Stat. §§ 65B.491; 65B.525, subd. 1.

      . Appellant has not specifically cited any legislative history or contemporary commentary that clearly suggests claims such as respondents’ must be arbitrated. In addition, the committee statements appellant relies on may suggest that "no-fault benefits” should be interpreted as set forth above. State Senator Luther commented:
      Now the small person, the person with the small amount of damages or injuries, if the insurance company would like, they can actually force that person to go through a court proceeding, when they’re getting what’s supposed to be a very expeditious process — no fault benefits. No small person ought to have to go through that kind of process. And what this amendment would do is to make no-fault do what it was intended to do: a fast, speedy remedy without a lot of lawyers and a lot of court proceedings.

        Hearing on S.F. 314 & H.F. 345 Before the Senate Econ. Dev. and Commerce Comm. (Apr. 16, 1985) (statement of Sen. Luther) (emphasis added).
      These comments suggest that at least one member of the Senate Economic Development and Commerce Committee had a general understanding of what types of claims would be submitted to mandatory arbitration: claims for damages or injuries, which at least Senator Luther equated with claims for "no-fault benefits.”


source: Caselaw Access Project

author: DANIEL F. FOLEY, Judge.

license: Public Domain

text:
    PINE ISLAND FARMERS COOP, et al., Appellants, v. ERSTAD & RIEMER, P.A., et al., Respondents.
    No. C1-01-670.
    Court of Appeals of Minnesota.
    Dec. 11, 2001.

      William A. Moeller, Dustin J. Cross, Gis-lason & Hunter LLP, New Ulm, MN, for appellants.
    Kay Nord Hunt, Phillip A. Cole, Lom-men, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for respondents.

      Considered and decided by SHUMAKER, Presiding Judge, SCHUMACHER, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge.

Appellants, insurer and insured, contend that the district court erred in holding that the insurer does not have an attorney-client relationship with respondents. Appellants also argue that the district court properly granted the insurer standing to sue respondents for legal malpractice under the doctrine of equitable subrogation. Because the district court properly held that the insurer did not have an attorney-client relationship with respondents, we affirm this holding, but we reverse the holding that the insurer can sue respondents under equitable subrogation. In addition, we remand the case for further proceedings pursuant to the parties’ stipulation.

FACTS

This appeal arises from respondents’ legal representation of appellants in Duane Windhorst v. Pine Island Farmers Elevator Co., No. C8-96-562 (Minn.Dist.Ct., Mar. 3,1999) (Pine Island action).

A. Pine Island Action

The Pine Island action involved plaintiff Windhorst, a dairy farmer, who purchased a milk metering system (equipment) manufactured by Alfa Laval Agri (Alfa Laval) from appellant Pine Island Farmers Coop (Pine Island). Windhorst and Pine Island executed a purchase agreement that set forth the terms and conditions governing the equipment, including Windhorst’s requirement that an Alfa Laval representative be present during installation. Win-dhorst experienced problems with the cleaning process of the equipment and claimed that such problems caused bacteria to grow in the milk lines, infecting his cows with mastitis, which resulted in loss of milk production and required culling of the herd.

In November 1996, Windhorst sued Pine Island for (1) breach of contract for failure to install properly the equipment; (2) negligence in installation and inspection of the equipment; and (3) breach of express warranties. Appellant Farmland Mutual Insurance Company (Farmland), Pine Island’s insurance carrier, retained respondent law firm Erstad & Riemer, P.A., and its attorneys Lawrence Skolund and John Thomas, to defend Pine Island. Appellants contend that respondents also represented Farmland, while respondents argue that Pine Island was their sole client.

After being retained as counsel, Skolund and Thomas discussed with Farmland the possibility of impleading Alfa Laval. Sko-lund recommended to Farmland that Pine Island’s defense be that Windhorst’s poor farming practices caused the damage, and he reasoned that Alfa Laval would be more helpful as a witness than as a party opponent. Alfa Laval was not impleaded.

At trial, Windhorst proceeded on a negligence theory. Skolund did not object until Windhorst rested his case; Skolund then moved for a directed verdict, arguing that Windhorst’s facts were weak on negligence and that his true cause of action was in contract, not tort. On the issue of contract theory, the district court responded.

[H]ad it been sued on a contract theory, you would probably be in a position to have your motion that you have just made with respect to liability on the party of the elevator granted, but indeed it is sued and has been tried on a negligence theory * ⅜ *.

The court denied Skolund’s directed verdict motion. Skolund’s defense focused on Windhorst’s culpability and relied on experts who concluded that Windhorst’s poor farming practices, rather than the equipment, caused the alleged cleaning problem. In a special verdict, the jury found Pine Island 90% at fault for installation of the equipment and found Windhorst 10% at fault. Skolund filed posttrial motions arguing for a new trial, remittitur, or judgment notwithstanding the verdict. The district court denied all motions. Pine Island appealed, but appellants later settled with Windhorst, without consulting respondents.

B. Present Action Against Respondents

Thereafter, appellants commenced this suit, arguing (1) professional negligence for failure to assert limitation of warranties and remedies defenses; (2) failure to implead a third party; and (3) breach of contract for failure to furnish competent legal services. Respondents moved for summary judgment, arguing that (1) Farmland lacked standing to sue because it was not their client; (2) failure to raise the limitation of warranties and remedies defense did not constitute legal malpractice; and (3) the claim regarding failure to implead a third party did not state a cause of action.

In December 2000, the district court granted respondents summary judgment with respect to appellants’ claims, except for Pine Island’s claim for failure to im-plead. Although the motion dismissed all of Farmland’s claims, the district court granted Farmland standing to sue respondents for malpractice under the doctrine of equitable subrogation. In February 2001, pursuant to the parties’ stipulation, the district court entered an appealable judgment dismissing with prejudice all claims against respondents, except Pine Island’s claim for failure to implead. This appeal followed.

Due to the parties’ stipulation, our focus is directed to Farmland’s standing to sue respondents for legal malpractice. For the reasons stated in this opinion, we conclude that Farmland does not have standing to assert a claim for legal malpractice under the doctrine of equitable subrogation or otherwise.

ISSUES

1. Did the district court err in finding that the insurer did not have an attorney-client relationship with the defense attorneys retained for the insured?

2. Did the district court err in finding that the doctrine of equitable subrogation allowed the insurer to sue for legal malpractice related to representation of the insured?

ANALYSIS

On an appeal from summary judgment, the reviewing court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). There are no genuine issues of material facts when the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

Appellants contend that respondents were professionally negligent in their representation of Pine Island in the underlying suit. In order to prevail on a legal malpractice claim, a plaintiff must prove (1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) such acts proximately caused plaintiffs damages; and (4) but for defendant’s conduct, plaintiff would have been successful in the action. Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn.1994). Failure to prove any of these elements defeats the claim for malpractice. Id. Here, the parties dispute the existence of an attorney-client relationship and respondents’ negligence in the underlying suit.

I. Attorney-Client Relationship

The district court found that Farmland was not respondents’ client. Farmland asserts that under Minnesota law, an attorney hired by an insurance company to represent an insured has an attorney-client relationship with both the insured and the insurer. Respondents argue that under Minnesota law the insured is the sole client.

Although Minnesota law has not firmly established that the insured is the sole client of defense counsel, pronouncements of the Minnesota Supreme Court are consistent with this conclusion. The supreme court has stated that attorneys hired by an insurance company “owe their allegiance to their clients, the insureds, to best represent their interests.” Miller v. Shugart, 316 N.W.2d 729, 733 (Minn.1982). In Miller, the court relied on Minn.Code of Prof'l Responsibility DR 5-107(B) (1980), which precludes attorneys from allowing someone who employs counsel for another from interfering with legal representation of the client:

A lawyer shall not permit a person who recommends, employs or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.

Code of Professional Responsibility, DR 5-107(B), now embodied in Minn. R. Prof. Conduct 5.4(c). The rules governing attorney conduct impose these restrictions to ensure that those paying for legal representation do not interfere with the lawyer’s exercise of independent professional judgment on behalf of the client. Minn. R. Prof. Conduct 5.4 cmt (1985).

Both caselaw and the Minnesota Rules of Professional Conduct recognize that potential conflicts may arise between the insured and the insurer when the insurer retains defense attorneys. See, e.g., Mutual Serv. Cas. Ins. Co. v. Luetmer, 474 N.W.2d 365, 368 (Minn.App.1991) (citing Bogard v. Employers Cas. Co., 164 Cal.App.3d 602, 210 Cal.Rptr. 578, 582 (1985)) (counsel selected by insurer may have compelling interest in protecting rights of insurer rather than rights of insured because of counsel’s closer ties with insurer). The rules require that when an insurer hires counsel for the insured and the insurer and the insured have conflicting interests, the attorney’s duty of loyalty is to the insured:

[W]hen an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel’s professional independence.

Minn. R. Prof. Conduct 1.7 cmt. (1985).

Consistent with both Minnesota law and its rules of professional conduct, we hold that the insured is the sole client of the defense attorneys hired by the insurer. We are not alone in this holding. Many other courts have concluded that the insured is the sole client of defense counsel retained by an insurer. See, e.g., In re Rules of Prof'l Conduct, 299 Mont. 321, 2 P.3d 806, 814 (2000) (relying on Montana Rules of Professional Conduct to hold that insured is sole client of defense counsel); see also Cont'l Cas. Co. v. Pullman, Comley, Bradley & Reeves, 929 F.2d 103, 108 (2nd Cir.1991) (holding that in an insurance context, attorney owes allegiance to insured, not to insurer who retained him); First Am. Carriers, Inc. v. Kroger Co., 302 Ark. 86, 787 S.W.2d 669, 671 (1990) (holding that when insurer retains lawyer to defend insured, insured is lawyer’s client); Mich. Millers Mut. Ins. Co. v. Bronson Plating Co., 197 Mich.App. 482, 496 N.W.2d 373, 378 (1992) (holding that no attorney-client relationship exists between insurer and attorney representing insured; attorney’s sole duty and loyalty is to insured); Jackson v. Trapier, 42 Misc.2d 139, 247 N.Y.S.2d 315, 316 (1964) (concluding that insured and not insurer is client of defense attorney, even if insurer chose and paid for counsel); Point Pleasant Canoe Rental, Inc. v. Tinicum Township, 110 F.R.D. 166, 170 (E.D.Pa.1986) (holding that when insurer retains attorney to defend insured, insured is attorney’s client).

In April 1996, Farmland, as Pine Island’s liability insurance carrier, retained respondents to defend Pine Island in the underlying action. After respondents were retained as counsel, attorney Skolund sent a letter to the plaintiffs attorney in the underlying case to inform him that he was representing Pine Island. Farmland’s name was not mentioned as a client.

The record does show that respondents consulted Farmland about litigation matters concerning the underlying suit, including whether Pine Island should im-plead the manufacturer of the milk metering system. Although appellants contend this consultation established an implied contract and established an attorney-client relationship, the record demonstrates that respondents merely advised Farmland of their defense strategies and sought Farmland’s input regarding those strategies. Because the record shows that Farmland retained respondents to defend Pine Island, Pine Island was its sole client. Succinctly stated, when Farmland engaged respondents to represent Pine Island in the underlying action, it was merely fulfilling its contractual obligation to pay for Pine Island’s defense, but that did not establish an attorney-client relationship between Farmland and respondents.

II. Equitable Subrogation

Subrogation is the substitution of an insurer in the pursuit of the rights of the insured. Medica, Inc. v. Atl. Mut. Ins. Co., 566 N.W.2d 74, 76 (Minn.1997). It allows the insurer to stand in the shoes of the insured and acquire all of the insured’s rights against a third party. Id. at 77. The policy behind subrogation rests on the theory that no one should be enriched by another’s loss. Id. Equitable subrogation places the charge where it ought to rest, by compelling the payment of the debt by him who ought in equity to pay it. Id. The application of equitable subrogation is generally a question of law subject to de novo review. Ill. Farmers Ins. Co. v. Schmuckler, 603 N.W.2d 138, 140 (Minn.App.1999), revieiv denied (Minn. Feb. 23, 2000).

While no Minnesota case has discussed equitable subrogation as a viable basis for an insurer to bring a malpractice action against an insured’s attorney, the Michigan Supreme Court has allowed an insurer to sue defense counsel under this theory. See Atlanta Int’l Ins. Co. v. Bell, 438 Mich. 512, 475 N.W.2d 294, 297 (1991). In Bell the Michigan court weighed the legal doctrine that limits the right to sue for malpractice to those in special privity with the attorney against the insurer’s duty to defend and right to control litigation. Id. In analyzing the applicability of equitable subrogation, the court struggled with the tripartite relationship among the insurer, the insured, and defense counsel and reasoned that

[t]o hold that an attorney-client relationship exists between insurer and defense counsel could indeed work mischief, yet to hold that a mere commercial relationship exists would work obfuscation and injustice.

Id. The court concluded that equitable sub-rogation resulted in the proper placement of the social costs of malpractice without jeopardizing the attorney-client relationship between insureds and defense counsel. Id.

In a dissenting opinion, the chief justice argued that the relationship among an attorney, an insured, and an insurer arises from the insurance contract requiring the insured to make certain disclosures to the insurance carrier and to cooperate in defense of the claim. Id. at 301. Because an attorney does not owe a legal duty to an adversary, the dissenting justices would have declined to recognize a duty owed to the insurer:

In every case where an attorney is hired by an insurer to represent the insured, the attorney embarks down a road laden with potential conflict. ⅜ * ⅜ To recognize a separate duty to the insurer might significantly interfere with the attorney’s ability to choose the most appropriate course of action for the insured.

Id. at 302-03. The dissent criticized the majority’s conclusion that the insurer and the insured were not adversaries because their interests were aligned as a distinction without a difference. Id. at 307.

In the present case, the district court found the majority in Bell persuasive and held that Farmland may prosecute a malpractice claim against respondents under equitable subrogation. But Bell’s application of the doctrine of equitable subro-gation does not control the issues in the case at bar. Bell was decided by a divided court and limited to the facts of that case. Moreover, the dissenting opinion is more consistent with prevailing Minnesota law prohibiting an assignment of legal malpractice claims. See Wagener v. McDonald, 509 N.W.2d 188, 190 (Minn.App.1993) (citing Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 341 (Ind.1991), and Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389, 133 Cal.Rptr. 83, 86 (1976)) (holding that assignment of legal malpractice claims is contrary to Minnesota public policy because incompatible with (1) attorney’s duty to act loyally towards client; (2) attorney’s duty to maintain confidentiality; and (3) fiduciary attorney-client relationship that is restricted only to parties involved). Whether an insurer in Minnesota can sue defense counsel under the doctrine of equitable subrogation is best left to the Minnesota Supreme Court. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987) (noting “task of extending laws falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).

Here, the district court did not expressly determine in what way equity would favor the insurer. In the underlying case, Pine Island, the insured, appealed the verdict. While that appeal was pending, and without consulting defense counsel, appellants settled with Windhorst, the injured party. It is a maxim of equity that “he who seeks equity must do equity, and he who comes into equity must come with clean hands.” Hruska v. Chandler Assocs., Inc., 372 N.W.2d 709, 715 (Minn.1985) (citing Johnson v. Freberg, 178 Minn. 594, 597-98, 228 N.W. 159, 160 (1929)). The case had not proceeded to final judgment on appeal, yet appellants settled with Windhorst without even consulting respondents. Now, Farmland is attempting to sue respondents for legal malpractice in the underlying suit through equitable subrogation, but the doctrine of “unclean hands” prevents it from any recourse in equity. The district court erred in applying the doctrine of equitable subro-gation, and we reverse on that issue.

III.

Having determined that Farmland does not have standing to sue for malpractice, it is unnecessary to consider (1) the application of the economic loss doctrine under Minn.Stat. § 604.10 (2000) or its ramifications in the underlying suit, or (2) whether respondents negligently failed to advise Farmland of the consequences of implead-ing the manufacturer. Finally, we observe that the district court’s ruling was inconsistent. The court simultaneously held that no attorney-client relationship existed between Farmland and respondents and that Farmland had standing to sue under the doctrine of equitable subrogation. There are no equities here favoring such a decision.

DECISION

We affirm the district court’s finding that Farmland was not respondents’ client because Pine Island, as the insured, was the sole client. We reverse the district court’s holding that Farmland may sue under the doctrine of equitable subrogation. The case is remanded for further proceedings pursuant to the parties’ stipulation.

Affirmed in part, reversed in part, and remanded.

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

      . Pine Island, as the client, has standing to assert a claim for legal malpractice against respondents as outlined in the parties' stipulation.

      . The district court stayed Pine Island's im-pleader claim and respondents' counterclaim pending this appeal from the final partial judgment, and these claims are not addressed in this opinion.

      . Our holding that an insured is the sole client of defense counsel renders moot Farmland’s arguments that they established an attorney-client relationship with respondents under both tort and contract theories. Therefore, we decline to address these issues.


author: KALITOWSKI, Judge.

text:
    John WISTROM, Appellant, v. DULUTH, MISSABE AND IRON RANGE RAILWAY COMPANY, a corporation, and subsidiary of Transtar Company, Inc., Respondent.
    No. C7-01-821.
    Court of Appeals of Minnesota.
    Dec. 18, 2001.

      William Kvas, Richard L. Carlson, Hu-negs, Stone, LeNeave, Kvas & Thornton, P.A., Minneapolis, MN, for appellant.
    Eric J. Magnuson, Max C. Ramsey, Diane B. Bratvold, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge, WILLIS, Judge, and FORSBERG, Judge.

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

   OPINION

KALITOWSKI, Judge.

Appellant challenges the district court’s order granting respondent’s motion for summary judgment and dismissing appellant’s action brought under the Federal Employers’ Liability Act, contending that the court erred in determining that appellant’s sole remedy lies under the Long-shore and Harbor Workers’ Compensation Act.

FACTS

Appellant John Wistrom worked various jobs for respondent Duluth, Missabe and Iron Range Railway Company from 1976 to March 1996. During this time appellant was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA). The record indicates that in 1992 appellant saw a doctor and complained of intermittent bilateral hand numbness and tingling.

In March 1996 appellant took a leave of absence from respondent to pursue another job, but returned to work for respondent in a new position in April 1996. Because appellant’s new work for respondent involved railroad duties, it is undisputed that he was covered by the Federal Employers’ Liability Act (FELA). On June 7, 1996, appellant sought medical attention for what he described as a “two to three month” history of bilateral hand numbness and was diagnosed with carpal tunnel syndrome (CTS), a cumulative trauma disorder. Appellant underwent surgery in November and December of 1996, which afforded him some relief from his symptoms.

In April 1997, appellant started a new position with respondent where he was again covered by the LHWCA. In this new position he continued to suffer symptoms related to his CTS and underwent further surgery in December 1998 and February 1999. Appellant returned to work after his surgeries, but his symptoms forced him to stop working in June 1999.

Appellant commenced this suit in September 1999 pursuant to the FELA claiming that respondent’s negligence caused his wrist problems. Respondent moved for summary judgment arguing the LHWCA provided appellant’s sole remedy. The district court granted respondent’s motion in a judgment filed on March 13, 2001.

ISSUE

Did the district court err by granting respondent’s motion for summary judgment and finding that appellant’s sole remedy lies under the LHWCA?

ANALYSIS

On an appeal from summary judgment, we ask two questions:

(1) whether there are any genuine issues of material fact and

(2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). This court views the evidence in the light most favorable to the party against whom the motion was granted, and resolves all factual inferences and ambiguities in favor of the non-moving party. Id.; Rathbun v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974). A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).

1. Is summary judgment appropriate?

Appellant contends that when the facts demonstrate that an employer’s negligence caused any part of an injury to an employee covered by the FELA, summary judgment is inappropriate due to the relaxed causation standard for FELA cases. We disagree and note that FELA’s relaxed causation standard is irrelevant.

The FELA allows injured railroad workers to recover for the negligence of their employer. 45 U.S.C. §§ 51-60 (1994). The LHWCA, on the other hand, allows eligible employees to recover for their work injuries regardless of fault. 33 U.S.C. §§ 901-950 (1994). Section 905 of the LHWCA states:

The liability of an employer prescribed in section [904] shall be exclusive and in place of all other liability of such employer to the employee * * *.

33 U.S.C. § 905(a).

In Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 42, 110 S.Ct. 381, 383, 107 L.Ed.2d 278 (1989), in the context of a worker injured loading coal from a railway onto a ship, the United States Supreme Court stated that if the claimant’s injuries are covered by the LHWCA, that act’s remedy is exclusive and appellant may not resort to the FELA.

Even more on point, in Stanley v. Western Maryland Ry. Co., 301 Md. 204, 482 A.2d 881, 883-84 (1984), a Maryland court addressed whether an injured worker was covered by the FELA or the LHWCA. Stanley began work in a position covered by the FELA in the mid-1950s. Id. at 882. Following a 1972 amendment to the LHWCA, Stanley received coverage under that act. Id. at 882-83. Stanley first noticed damage to his hearing due to work activities in 1977 while he was covered by the LHWCA. Id. at 882. Stanley brought his claim under the FELA seeking apportionment because he claimed the majority of his exposure to the injurious stimuli occurred prior to his coverage under the LHWCA. Id. at 882-83. The Maryland Court of Appeals held that

the LHWCA decidedly applies to at least a portion of Stanley’s exposure to the harmful noise. He thus is not entitled to pursue a separate claim under the FELA.

Id. at 884.

Thus, we conclude that regardless of the relaxed causation standard of the FELA, the LHWCA bars appellant’s FELA action, and summary judgment is appropriate if the LHWCA applies to appellant’s injuries.

2. Does the LHWCA apply?

Appellant contends the district court erred in determining that the LHWCA applies. He argues that under the last-injurious-exposure rule, utilized in Stanley, 482 A.2d at 884, his sole remedy lies under the FELA because he was diagnosed with CTS while working in a position that was covered by the FELA. We disagree.

We reject appellant’s contention that the last-injurious-exposure rule applies here. The last-injurious-exposure rule provides:

[T]he employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the claimant became aware of the fact that he was suffering from an occupational disease arising naturally out of his employment, should be liable for the foil amount of the award.

Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.1955). The Second Circuit developed this rule in a case that dealt only with apportioning liability between the employer and various insurers all covered under the LHWCA, so it provides no guidance in whether the LHWCA or the FELA applies. Id. at 139-40. The Fifth Circuit made a similar finding in Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1012 (5th Cir.1981), when it stated, “Car-dillo is a rule of liability assessment, not of jurisdiction.” Here, appellant was covered by both the LHWCA and the FELA at various times so this case involves a jurisdictional matter. Since the last injurious exposure rule is a rule of liability assessment, it does not apply to the present jurisdictional matter.

As a result of the exclusivity provision in the LHWCA, 33 U.S.C. 905(a), as recognized in Schwalb, the precise time that appellant was first diagnosed with CTS is not controlling. Instead, we focus on when and how the CTS developed. Here there is evidence that: (1) appellant first suffered symptoms indicative of CTS in 1992 after years of hand-intensive labor, while covered by the LHWCA; and (2) in June 1996, after being covered by the FELA for only two months, appellant sought medical attention for symptoms he stated dated back “two to three months.” These symptoms led to a diagnosis of CTS. But appellant’s own expert stated that appellant’s “original carpal tunnel syndrome problems” are “causally associated with his years of work as a railroad electrician.”

We conclude that in light of this evidence, combined with the fact that CTS is a cumulative trauma disorder which develops over time, appellant’s CTS resulted, at least in part, from his 20 years of work while covered by the LHWCA. Therefore, as in Stanley, because at least a portion of appellant’s injuries are covered by the LHWCA, that act’s remedy is exclusive and bars his FELA claim.

DECISION

Because appellant’s repetitive trauma injury resulted at least in part from his years of employment under the LHWCA, the district court properly granted respondent’s summary judgment motion dismissing appellant’s claim under the FELA.

Affirmed.


author: MARING, Justice.

text:
    2001 ND 194
    STATE of North Dakota, Plaintiff and Appellee, v. Peggy J. CLARK, Defendant and Appellant.
    No. 20010102.
    Supreme Court of North Dakota.
    Dec. 10, 2001.

      Peggy J. Clark, Bismarck, pro se defendant and appellant.
    Richard James Riha, State’s Attorney, Bismarck, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Peggy J. Clark appeals from a second amended criminal judgment which set her restitution payments at $300.00 per month. We affirm.

I

[¶ 2] Peggy J. Clark was charged with theft of property for taking funds belonging to the Bismarck Gymnastics Academy. She entered a plea of guilty to that offense on September 12, 2000, and was sentenced for five years to the custody of the North Dakota Department of Corrections and Rehabilitation. This sentence was suspended, and Clark was placed on supervised probation for five years, subject to certain conditions. One of those conditions required Clark to “make restitution in the amount of $21,000.00, payable to the Burleigh County States Attorney’s Office by money order or certified check with monthly payments to be determined by her probation officer based on the Defendant’s ability to pay.” A criminal judgment reflecting the terms of Clark’s probation was filed on September 12, 2000, and an amended criminal judgment was filed on October 5, 2000.

[¶ 3] According to an affidavit she submitted to the trial court, Clark paid $50.00 per month of restitution for the months of October and November and $100.00 in December of 2000. On December 19, 2000, Mark Kemmet, Clark’s probation officer, sent a letter to Richard Riha of the Bur-leigh County State’s Attorney’s office regarding a meeting he had with Clark on December 13, 2000. In this letter, Kem-met listed Clark’s income and expenses as she reported them to him. Kemmet also wrote that Clark “said she can pay a minimum of $50.00 per month towards restitution and will pay more if the money is available.” Kemmet concluded the letter by stating, “I am aware that the victim’s are unhappy with the restitution being received and the defendant indicates an inability to pay more. At this point, I’m at a loss as how to collect more money.”

[¶ 4] After receiving the letter, the State filed a petition for revocation of probation dated January 5, 2001. The State alleged Clark had failed to pay adequate restitution and attached Kemmet’s letter in support of the petition. Based on this petition, the court commanded Clark to appear at a hearing on March 20, 2001, and show cause why her probation should not be revoked. In response to the petition, Clark filed a brief, an affidavit listing her expenses, and copies of her pay stubs for January and February of 2001. Subsequent to the hearing, the trial court did not revoke Clark’s probation; however, it ordered that the original criminal judgment against her “be amended to add that the restitution payment shall be no less than $300.00 per month.” A second amended criminal judgment reflecting this order was filed on March 22, 2001, and Clark appealed.

II

[¶ 5] Before discussing the merits of this appeal, we note that this case comes before us with no transcript. The burden is on Clark, as the appellant in this case, to have filed a transcript with this Court on appeal. N.D.RApp.P. 10(b). “ ‘The appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, we will decline review of the issue.’ ’’City of Fargo v. Bommersbach, 511 N.W.2d 563, 566 (quoting Sabot v. Fargo Women’s Health Org., Inc., 500 N.W.2d 889, 892 (N.D.1993)). Therefore, “[fjailure to provide a transcript may prevent a party from , being successful on appeal.” Owan v. Kindel, 347 N.W.2d 577, 579 (N.D.1984).

Ill

[¶ 6] “On probable cause to believe a probationer has violated a condition of probation,” a court may order the probationer to appear for a hearing on the alleged violation. N.D.R.Crim.P. 32(f). If contested, “the prosecution shall establish the violation by a preponderance of the evidence.” Id. “After the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order suspending the imposition of sentence, or continue probation on the same or different conditions, as the circumstances warrant.” Id.; see also N.D.C.C. § 12.1-32-07(7) (stating that when a defendant violates a condition of probation, a trial court may modify or revoke the probation).

[¶ 7] We review probation revocation proceedings in two stages. See State v. Gates, 540 N.W.2d 134, 137 (N.D.1995). First, we review the trial court’s factual finding on the probation violation under a clearly erroneous standard. See id. Second, we review the trial court’s decision to revoke or modify probation under an abuse of discretion standard. See id.

[¶ 8] Clark argues that the trial court abused its discretion in setting restitution payments at $300.00 per month. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” State v. Sisson, 1997 ND 158, ¶ 7, 567 N.W.2d 839. Clark argues that the affidavit she submitted in response to the petition for revocation shows the unreasonableness of the trial court’s decision to set restitution payments at $300.00 per month. However, without, a transcript of the revocation hearing, we are unable to determine the weight, if any, the trial court placed on the list of income and expenses contained in this affidavit. Cf. Owan, 347 N.W.2d at 579 (finding that an appellant who did not file a transcript failed to “present and point out evidence in the record” which would show that the trial court’s findings were clearly erroneous). Similarly, without a transcript we are unable to examine the testimony from any witnesses who may have been called at the revocation hearing. Nothing in the record before us, therefore, reveals the factual basis for the trial court’s decision. Accordingly, the record on appeal does not allow us to properly determine whether the trial court abused its discretion in set- ting Clark’s restitution payments at $300.00 per month. See In re C.J.C., 2000 ND 27, ¶ 8, 606 N.W.2d 117 (finding that, without a transcript, “[t]he available record contains only fragmentary, incomplete information as to the parties’ income and expenses” and “does not reveal an abuse of discretion”); Cullen v. Williams County, 446 N.W.2d 250, 253 (N.D.1989) (stating that, without a transcript, “we are unable to properly determine whether the trial court abused its discretion in denying the motion for a new trial”). Therefore, Clark has not carried her burden of demonstrating an abuse of discretion. See Owan, 347 N.W.2d at 579 (“Failure to provide a transcript may prevent a party from being successful on appeal.”).

IV

[¶ 9] Clark also argues that the trial court violated her Equal Protection rights under the North Dakota and federal constitutions by setting the restitution payments at $300.00 per month, which she contends she is unable to pay. “Parties mounting constitutional challenges should bring up the heavy artillery or forego the attack entirely.” Jarvis v. Jarvis, 1998 ND 163, ¶ 33, 584 N.W.2d 84. In support of her constitutional challenge, Clark relies primarily on People v. Collins, 239 Mich.App. 125, 607 N.W.2d 760 (1999). The defendant in Collins argued that the trial court violated the Equal Protection Clauses of the Michigan and federal constitutions by requiring him to pay $31,505.50 in restitution as a prerequisite to the suspension of 270 days of a 360-day prison sentence. 607 N.W.2d at 764-65. The Michigan Court of Appeals agreed the “defendant cannot be required to serve the ‘suspended’ portion of the jail sentence absent a finding that he had the ability to pay and was in wilful default.” Id. at 765. However, unlike the defendant in Collins, Clark was not required to pay the $21,000.00 in restitution as a prerequisite to the suspension of her prison sentence. See Collins, 607 N.W.2d at 764-65. Clark’s reliance on People v. Collins is misplaced.

[¶ 10] Clark also cites Gates, 540 N.W.2d at 138 and State v. Ennis, 464 N.W.2d 378, 385 (N.D.1990) in support of her Equal Protection argument. However, in each of those cases, the trial court revoked the defendants’ probation. See Gates, 540 N.W.2d at 138; Ennis, 464 N.W.2d at 380. In the future, should Clark fail to make the $300.00 per month restitution payments, the trial court could only revoke her probation upon a showing that either she willfully failed to pay restitution, she failed to make sufficient bona fide efforts to acquire resources to pay, or measures other than incarceration “are not adequate to meet the state’s interests in punishment and deterrence.” See Neil P. Cohen, The Law of Probation and Parole § 19:17, at 19-28 to 19-29 (2d ed.1999) (stating the majority test for revocation of probation based on a failure to pay restitution); see also Ennis, 464 N.W.2d at 385 (citing Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)). In this instance, however, the trial court modified rather than revoked Clark’s probation; consequently, it was not necessary for the trial court to find that Clark had willfully failed to make restitution payments. N.D.C.C. § 12.1-32-07(6) (allowing a court to modify or enlarge the conditions of probation for “good cause”); see also People v. Cookson, 54 Cal.3d 1091, 2 Cal.Rptr.2d 176, 820 P.2d 278, 282-83 (1991) (holding that a court may modify probation conditions based on a failure to pay restitution that is not willful); Gates, 540 N.W.2d at 138 (“A sentencing court has continuing power to modify the conditions of probation.”)- The trial court did not violate Clark’s Equal Protection rights under the North Dakota or federal constitutions by setting her restitution payments at $300.00 per month.

V

[¶ 11] We conclude the trial court did not abuse its discretion or violate Clark’s Equal Protection rights in setting her restitution payments at $300.00 per month; therefore, the second amended judgment is affirmed.

[¶ 12] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., WILLIAM W. McLEES, D.J., concur.

[¶ 13] The Honorable WILLIAM W. McLEES, D.J., sitting in place of KAPSNER, J., disqualified.

      . The trial court set Clark's monthly restitution payments at a hearing on a petition to revoke probation. We encourage trial courts to consider establishing schedules for payments at restitution hearings in order to avoid problems that can arise when probationers fail to make adequate payments on lump-sum amounts of restitution. See N.D.C.C. § 12.1-32-08(1) (requiring sentencing courts to "fix the manner of performance of any condition or conditions of probation established" at restitution hearings); Gates, 540 N.W.2d at 138-39. In this case, we do not know if the trial court was required to hold a restitution hearing because, without a transcript, we are unable to determine whether Clark agreed to pay restitution as part of a plea agreement. If the defendant enters into a plea agreement which includes restitution, a restitution hearing is not required. See State v. Thorstad, 261 N.W.2d 899, 901 (N.D.1978).


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 197
    SECURITY STATE BANK OF NORTH DAKOTA, Plaintiff and Appellant, v. Bonnie ORVIK, Defendant and Appellee.
    No. 20010064.
    Supreme Court of North Dakota.
    Dec. 10, 2001.

      Troy J. Eickhoff (argued) and Richard P. Olson, Olson Burns Lee, Minot, for plaintiff and appellant.
    Charles D. Orvik, (argued) and Galen J. Mack, Mack Law Offices, PC, Rugby, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Security State Bank (“the Bank”) appealed a judgment granting Bonnie Or-vik priority over the Bank in 1997 crop proceeds from land she leased to David and Sharon Cherney. We hold N.D.C.C. § 47-16-03 does not apply to Orvik’s cash rent lease to give her priority in the 1997 crop proceeds. We reverse and remand for proceedings consistent with this opinion.

I

[¶ 2] In April 1994, Orvik leased farmland to Cherneys for five years. The “FARM LEASE-CASH RENT” agreement required Cherneys to pay Orvik cash rent in the amount of $15,134 before April 1 of each year and $15,134 before November 1 of each year. The lease gave Orvik “a lien against all crops (growing and harvested), crop proceeds and products ... until such time as [each year’s] final annual cash rent payment” was made. Orvik did not file the lease in the register of deeds’ office. The Bank loaned money to Cherneys, and in July 1997, it filed a crop mortgage on Cherneys’ 1997 crop. Cher-neys harvested the 1997 crop, but their farming operation experienced financial difficulties, and they defaulted on approximately $100,000 of their obligation to the Bank and $20,968 of their 1997 rent payment to Orvik. In January 1998, Orvik filed a Uniform Commercial Code financing statement, claiming an interest in the Cherneys’ 1997 crop proceeds.

[¶ 3] The Bank brought this action against several parties who had leased farmland to Cherneys, including Orvik, to determine competing claims to the Cher-neys’ 1997 crop proceeds. The Bank’s action against all the other parties, except Orvik, was ultimately dismissed. In its claim against Orvik, the Bank alleged its recorded interest in the 1997 crop proceeds had priority over her interest in the crops. Orvik counterclaimed against the Bank, claiming she was entitled to a portion of the 1997 crop proceeds sufficient to pay the balance due on the Cherneys’ 1997 cash rent payment to her.

[¶ 4] In September 1998, the trial court granted Orvik partial summary judgment, ruling N.D.C.C. § 47-16-03 applied to all farm leases reserving an interest in crops and Orvik had priority over the Bank’s interest in the 1997 crops up to the amount of rent due to her from Cherneys. After a September 2000 evidentiary hearing, the trial court ruled Orvik was entitled to $20,968, plus interest, from the 1997 crop proceeds. On March 8, 2001, the Bank appealed from the “Order Granting Summary Judgment dated September 17, 1998; and the Judgment, entered on January 8, 2001.”

II

[¶ 5] Orvik argues the Bank’s appeal is.not timely because it was not filed within sixty days of service of the notice of entry of the September 1998 summary judgment.

[¶ 6] The trial court said the September 1998 order granting Orvik partial summary judgment did not dispose of the entire action and was not intended to be final. The partial summary judgment was a nonappealable interlocutory order. See Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 8, fn. 1, 606 N.W.2d 908. Nonappealable interlocutory orders are reviewable in an appeal from a final judgment. See Brunsoman v. Scarlett, 465 N.W.2d 162, 164 (N.D.1991). The Bank’s appeal from the subsequent final judgment is timely, and the September 1998 order granting Orvik partial summary judgment is reviewable in the appeal from the final judgment. We therefore deny Orvik’s request to dismiss the Bank’s appeal.

Ill

[¶ 7] The substantive issue raised in this appeal involves the interpretation of N.D.C.C. § 47-16-03, which provides:

When a lease of a farm contains a provision reserving title in the lessor to any part of the crops in excess of the rental share of the lessor until the stated conditions of the lease have been complied with by the lessee, such lease must be filed in the office of the recorder in the county in which the land described therein is located prior to July first in the year in which the crops are raised to render such reservation of title effective as to subsequent purchasers or encum-brancers of any part of the grain over and above the lessor’s rental share produced upon the land. The failure to file such lease or contract in accordance with this section constitutes a waiver by the lessor of all rights reserved by that person over and above that person’s rental share in such crops as against any subsequent purchaser or encumbrancer of the lessee.

[¶ 8] The Bank argues N.D.C.C. § 47-16-03 applies only to crop-share agreements and does not give Orvik priority in the 1997 crop proceeds because the statute only gives a landlord an automatic lien in crops up to the rental share of a crop-share agreement. The Bank argues the “rental share” of Orvik’s cash rent lease was zero, and her claim to the 1997 crop proceeds was in excess of that rental share and required her to file the lease before July 1, 1997,' to take priority over the Bank’s crop mortgage. Orvik argues N.D.C.C. § 47-16-03 applies to any lease that reserves an interest in the tenant’s crops, and the reservation can be in a cash-rent lease, a crop-share lease, or a combination of those leases. Orvik argues she has priority over the Bank’s subsequent crop mortgage because she claims a lien in the 1997 crop proceeds only up to the balance due on the 1997 rent.

[¶ 9] The interpretation of a statute is a question of law. E.g., Buchholz v. City of Oriska, 2000 ND 115, ¶ 2, 611 N.W.2d 886. The primary purpose of statutory construction is to ascertain legislative intent. E.g., Douville v. Pembina County Water Res. Dist., 2000 ND 124, ¶ 9, 612 N.W.2d 270. In ascertaining legislative intent, we look first at the words used in the statute, and we give those words their plain, ordinary, and commonly understood meaning unless they are defined by statute. N.D.C.C. § 1-02-02; Kim-Go v. J.P. Furlong Enters., Inc., 460 N.W.2d 694, 696 (N.D.1990). When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because legislative intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05; Douville, at ¶ 9. A statute is ambiguous when it is susceptible to differing, but rational, meanings. Buch-holz, at ¶ 2. In determining the legislative intent for an ambiguous statute, a court may consider the object sought to be attained, the circumstances under which the statute was enacted, the legislative history, the common law or former statutory provisions, the consequences of a particular construction, the administrative construction, and the preamble. N.D.C.C. § 1-02-39.

[¶ 10] Section 47-16-03 N.D.C.C. says if “a lease of a farm contains a provision reserving title in the lessor to any part of the crops in excess of the rental share of the lessor until the stated conditions of the lease have complied with by the lessee,” the lease must be filed before July 1 of the crop year for the reservation to be effective against subsequent purchasers or en-cumbrancers of any part of the grain over and above the lessor’s rental share produced upon the land. Section 47-16-03, N.D.C.C., goes on to state the lessor’s failure to file the lease is a waiver of the lessor’s reserved rights over and above the lessor’s rental share in such crops against any subsequent purchaser or encumbrancer of the lessee. Section 47-16-03, N.D.C.C., arguably could be construed to apply to any lease “reserving title in the lessor to any part [of the tenant’s] crops.” However, the language reserving title to any part of the crops is modified by language requiring the reservation to be “in excess of the rental share of the lessor,” rather than in excess of the rent. The use of the term “rental share” in conjunction with the reservation of any part of the crops arguably suggests the statute applies only to crop-share agreements. The arguments by Orvik and the Bank represent different, but rational, meanings for N.D.C.C. § 47-16-03. The scope of the statute is not clear, and we conclude it is ambiguous.

[¶ 11] Before the predecessor to N.D.C.C. § 47-16-03 was enacted in 1941, each party to a crop-share agreement had title to their share of the crop, and a lessor was not required, to file the agreement to protect the lessor against subsequent purchasers or encumbrancers. See Kern v. Kelner, 75 N.D. 292, 308, 27 N.W.2d 567, 575 (1947) (on petition for rehearing); Merchants’ State Bank v. Sawyer Farmers’ Co-op. Ass’n, 47 N.D. 375, 385, 182 N.W. 263, 267 (1921). In 1941, the Legislature enacted 1941 N.D. Sess. Laws ch. 5, § 1, which was recodified and revised as 1943 N.D.R.C. § 47-1603, to provide:

When a lease of a farm contains a provision reserving title to all or any part of the crops in the lessor until the conditions of the lease have been complied with by the lessee and a division of the crop is made, such lease must be filed in the office of the register of deeds in the county in which the land described therein is located prior to July first in the year in which the crops are raised to render such reservation of title effective as to subsequent purchasers or encum-brancers of the lessee of the grain raised upon such land. The failure to file such lease or contract in accordance with the requirements of this section shall constitute a waiver by the lessor of all rights reserved by him in such crops as against any subsequent purchaser or encum-brancer of the lessee.

[¶ 12] In In re Wild, 795 F.2d 666 (8th Cir.1986), the court considered an issue about priorities under this statutory language. In Wild, at 667, the landlords’ 1984 farm lease reserved to them one-third of any crops grown on the land and directed the tenant to deliver the landlords’ share of the crops to a grain elevator. The landlords did not record the 1984 lease. Id. When the tenant filed for bankruptcy, the trustee, as a hypothetical lien creditor, took possession of the 1984 crops and claimed an interest in the crops superior to the landlords’ interest. Id. The appellate court, in a divided decision, held the statute applied to the landlords’ lease, and the bankruptcy trustee’s interest in the crops was superior to the landlords’ unrecorded interest in the crops. Id. at 668. The court said that in enacting N.D.C.C. § 47-16-03

“the legislature recognized that theretofore [the lessor’s] reservation of title was valid as against the world. Thereafter, when the law became operative, the lessor to protect himself against subsequent purchasers or encumbrancers in good faith, would be required to have his contract on file. However, as between the parties the right of reservation of title in the lessor still remained good without filing.”

Wild, at 668 (quoting Kern, 75 N.D. at 308, 27 N.W.2d at 575).

[¶ 13] Thereafter, in 1987 the Legislature amended N.D.C.C. § 47-16-03 to apply the filing requirement to a farm lease reserving title in the lessor to any part of the crops in “excess of the rental share of the lessor.” Compliance with this filing requirement makes the lessor’s reservation of title effective against purchasers or encumbrancers of any part of the grain “over and above the lessor’s rental share produced upon the land,” while non-compliance results in a waiver of all rights reserved by the lessor over and above the lessor’s rental share in the crops as against any subsequent purchaser or en-cumbrancer of the lessee. See 1987 N.D. Sess. Laws ch. 552, § 1. The relevant legislative history reflects the 1987 amendments were precipitated by the court’s decision in Wild. See Hearing on H.B. 14-68 Before Senate Agricultural Comm., 50th N.D. Legis. Sess. (Mar. 13, 1987) (testimony of Representative Robert Nowatzki). The legislative history explains the 1987 amendments were intended “to protect landowners’ share in crops under cases of crop-share rental agreements.” Id. See also Hearing on H.B. 14-68 Before the House Agricultural Comm., 50th N.D. Legis. Sess. (Feb. 13, 1987) (testimony of Representative Robert Nowatzki). The relevant legislative history indicates the 1987 Legislature intended that N.D.C.C. § 47-16-03 applies only to crop-share agreements. The effect of the amendment was to protect a landlord with an unrecorded crop-share agreement against subsequent encumbrancers up to the landlord’s share of the crops, and in order for the landlord to be protected against subsequent purchasers or encumbrancers for any “rental share” in excess of the landlord’s crop share, such as advances made by the landlord to or on behalf of the tenant, the landlord must file the lease before July 1 of the crop year.

[¶ 14] We construe N.D.C.C. § 47-16-03 consistent with the legislative intent that it applies only to crop-share agreements and not to cash rent leases. Although Orvik’s lease gave her a “lien” against Cherneys’ crops until each year’s final cash rent payment was made, the lease required Cherneys to pay Orvik cash rent in the amount of $15,134 before April 1 and $15,134 before November 1. The lease did not require rental payments based on a share of the crops and was not a crop-share agreement. We therefore hold the trial court erred in concluding N.D.C.C. § 47-16-03 applied to Orvik’s cash rent lease to give her priority over the Bank’s interest in the 1997 crop proceeds.

IV

[¶ 15] We reverse and remand for proceedings consistent with this opinion.

[¶ 16] WILLIAM W. McLEES, D.J., DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

[¶ 17] The Honorable WILLIAM W. McLEES, D.J., sitting in place of NEUMANN, J., disqualified.

      . See 1939 N.D. Sess. Laws ch. 110.


text:
    2001 ND 195
    Lina P. GAAB, Plaintiff and Appellee v. Clarence OCHSNER, Defendant and Appellant.
    No. 20010112.
    Supreme Court of North Dakota.
    Dec. 10, 2001.

      Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, N.D., for defendant and appellant.
    Patricia A. Garrity, (on brief), Bair, Bair, Garrity & Kelsch, LLP, Mandan, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Clarence Ochsner appeals from a domestic violence protection order dated March 7, 2001, which extended a prior domestic violence protection order for two years. We hold the trial court did not abuse its discretion in extending the protection order, and we affirm.

I

[¶ 2] Lina Gaab and Clarence Ochsner were involved in a relationship from 1993 until May of 2000. On August 15, 2000, Gaab filed a petition for a domestic violence protection order against Ochsner. In her affidavit in support of the petition, Gaab recounted a dinner date she had with Ochsner at the V.F.W. club on May 27, 2000. According to Gaab, while they were at the V.F.W. club, Ochsner grabbed Gaab’s right hand and held it between his legs so she couldn’t get away from him. He then attempted to pull a ring off the ring-finger of her left hand. Gaab asked the people at the table next to her for help, after which Ochsner let go of her hand and slapped her on the left side of her face. As a result of this incident, Gaab stated her face and wrist were bruised and swollen and she no longer had any strength in her wrist. In addition to the incident at the V.F.W. club, Gaab stated Ochsner drove through her apartment complex on several occasions and made phone calls to her after she told him to quit calling her.

[¶ 3] Gaab was granted a temporary protection order, and a hearing on the issuance of a permanent protection order was held on August 24, 2000, before the Honorable Robert O. Wefald. Judge Wef-ald issued a six-month domestic violence protection order, which was to expire on February 25, 2001. On February 21, 2001, Gaab filed a petition to extend the domestic violence protection order for two years. In her affidavit in support of the petition, Gaab alleged Ochsner violated the six-month protection order by driving past her apartment several times, by making harassing phone calls to her, and by leaving messages “with filthy language” on her answering machine. As a result of the petition, Gaab was granted a temporary extension of the original order and a hearing on the matter was set for March 7, 2001, before the Honorable Gail Hagerty. Subsequent to the hearing, Judge Hagerty ordered the original domestic violence protection order extended for two years. Ochsner appeals from this order.

II

[¶ 4] Ochsner argues the trial court erred in extending the protection order for two years because there was no evidence of actual or imminent domestic violence to support the extension of the order. Ochsner correctly states a party seeking a domestic violence protection order must prove actual or imminent domestic violence by a preponderance of evidence. See Steekler v. Steckler, 492 N.W.2d 76, 80 (N.D.1992). Ochsner, however, never appealed from the issuance of the original protection order, rather, he is appealing from the trial court’s extension of that order. We have never addressed the issue of whether a party must prove actual or imminent domestic violence to succeed on a motion to extend an existing protection order.

[¶ 5] Under N.D.C.C. § 14-07.1-02(6), a trial court may amend a protection order at any time upon petition of either party. Section 14-07.1-02, N.D.C.C., is a remedial statute which we construe “ ‘liberally, with a view to effecting its objects and to promoting justice.’ ” See Lucke v. Lucke, 300 N.W.2d 231, 234 (N.D.1980) (quoting N.D.C.C. § 1-02-01); cf. Maldonado v. Maldonado, 631 A.2d 40, 42 (D.C.1993) (“The Intrafamily Offenses Act is a remedial statute and as such should be liberally construed for the benefit of the class it is intended to pro-teet.”). It was enacted as part of the adult abuse laws passed by the legislature in 1979. 1979 N.D. Sess. Laws ch. 193, § 2. Existing remedies, such as restraining orders, had proved to be inadequate in protecting victims of domestic violence. Hearing on H.B. 1621 Before the Senate Judiciary Comm., 46th N.D. Legis. Sess. (March 12, 1979) (testimony of Rep. Wayne Stenehjem) [“Hearing on H.B. 1621,T\. The legislature intended the adult abuse laws to fill the void in existing laws in order to protect victims of domestic violence from further harm. See Hearing on H.B. 1621, supra (testimony of Sen. Harry Iszler); see also Peters-Riemers v. Riemers, 2001 ND 62, ¶ 54, 624 N.W.2d 83 (Maring, J., concurring and dissenting) (“The purpose of a civil protection order is to prevent domestic violence in the future.”). Given the fundamental purpose of the section 14-07.1-02, the prevention of further acts of domestic violence, we conclude once a petitioner succeeds in obtaining a permanent domestic violence protection order, the petitioner is not required to prove actual or imminent domestic violence in order to succeed on a motion to extend that order under N.D.C.C. § 14-07.1-02(6).

III

[¶ 6] Whether there is domestic violence sufficient to support the issuance of a protection order is a question of fact which will be overturned on appeal only if it is clearly erroneous. See Lovcik v. Ellingson, 1997 ND 201, ¶ 10, 569 N.W.2d 697. However, a trial court’s decision to extend an existing protection order is reviewed under an abuse of discretion standard. See Maldonado, 631 A.2d at 42 (stating that a trial court’s determination of good cause to extend an existing protection order is subject to reversal only upon a showing of abuse of discretion); cf. Woodworth v. Chillemi, 1999 ND 43, ¶ 7, 590 N.W.2d 446 (stating that a trial court’s decision to amend a judgment will not be reversed absent an abuse of discretion). A trial court abuses its discretion “when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law.” Peters-Riemers, 2001 ND 62, ¶ 7, 624 N.W.2d 83.

[¶ 7] In Gaab’s petition to extend the protection order, she stated Ochsner violated the six-month protection order by driving past her apartment- several times, by making harassing phone calls to her, and by leaving messages “with filthy language” on her answering machine. At the hearing on the petition to extend the protection order, Gaab testified “I’m afraid of what might happen to me if I don’t get another protection order because I do not trust him and he violated the first protection order, and I’m afraid.” Additionally, the act of domestic violence which formed the basis for the original protection order occurred less than a year prior to Gaab bringing her petition to extend that order. Under these circumstances, which indicate a violation of an existing protection order and Gaab’s fear of physical harm from Ochsner, we hold the trial court did not abuse its discretion in granting Gaab’s petition to extend the protection order. See Lutz v. Lutz, 313 Ill.App.3d 286, 245 Ill.Dec. 877, 728 N.E.2d 1234, 1237 (2000) (holding the trial court did not abuse its discretion in extending a protection order where the extension was based on evidence of the respondent’s alleged violation of the order and on the fact that there was no material change in circumstances since the original order); cf. Lovcik, 1997 ND 201, ¶¶ 12, 13, 569 N.W.2d 697 (holding recent harassing phone calls, evidence of domestic violence committed in 1989, and fear of imminent bodily harm supported the issuance of a domestic violence protection order in 1996).

IV

[¶ 8] Gaab requests costs and attorney’s fees incurred on this appeal because it is frivolous. Rule 38, N.D.R.App. P., provides “[i]f the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs including reasonable attorney’s fees.” An appeal is frivolous under Rule 38 if it is “‘flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.’ ” Matter of Estate of Opatz, 554 N.W.2d 813, 817 (N.D.1996) (quoting Wingerter v. North Dakota Dept. of Transp., 530 N.W.2d 362, 365 (N.D.1995)). As discussed above, we have never addressed the issue of whether a party must prove actual or imminent domestic violence in order to succeed on a motion to extend an existing protection order. Ochsner’s appeal was supported by rational argument and supporting authority. Accordingly, Gaab’s request for attorney’s fees is denied. See Estate of Opatz, 554 N.W.2d at 817 (denying attorney’s fees on appeal where the losing party presented an argument that was not “flagrantly groundless or devoid of merit”).

V

[¶ 9] We, therefore, affirm the domestic violence protection order dated March 7, 2001.

[¶ 10] VANDE WALLE, C.J., and NEUMANN, KAPSNER, JJ., and BRUCE E. BOHLMAN, District Judge, concur.

[¶ 11] The Honorable BRUCE E. BOHLMAN, District Judge, sitting in place of SANDSTROM, J., disqualified.

      . Had our Legislature intended to require a petitioner to make a second showing of actual or imminent domestic violence in order to obtain an extension of an existing protection order under section 14-07.1-02(6) it could have so provided. Legislatures of other states have set forth specific grounds on which an existing protection order may be extended. For example, the Minnesota Domestic Abuse Act specifically provides:
      The court may extend the terms of an existing order or, if an order is no longer in effect, grant a new order upon a showing that:
      (1) the respondent has violated a prior or existing order for protection;
      (2) the petitioner is reasonably in fear of physical harm from the respondent; or
      (3) the respondent has engaged in acts of harassment or stalking within the meaning of section 609.749, subdivision 2.
      A petitioner does not need to show that physical harm is imminent to obtain an extension or a subsequent order under this subdivision.
      Minn.Stat. Ann. § 518B.01, subd. 6a (West Supp. 2001); see also 750 Ill. Comp. Stat. Arm. 6%2o(e) (West 1999); Wash. Rev.Code § 26.50.060(3) (2000).