author: NEUMAN, Justice.

text:
    In re The MARRIAGE OF Patricia Lynn SOJKA and James Leo Sojka. Upon the Petition of Patricia Lynn Sojka n/k/a Patricia Lynn Robison, Appellant, and Concerning James Leo Sojka, Appellee.
    No. 98-2066.
    Supreme Court of Iowa.
    June 1, 2000.
    Douglas L. Tindal of Tindal, Erdahl, Goddard & Nestor, Washington, for appellant.

      Leslie D. Lamping of Day, Meeker, Lamping & Schlegel, Washington, for ap-pellee.
   NEUMAN, Justice.

This is an action to modify the child support provisions of the parties’ dissolution of marriage decree. The issue is whether Iowa Code section 598.21(5A) (Supp.1997), which limits a divorced parent’s financial obligation to college-age children, applies to a decree that predates its enactment. The district court, relying on In re Marriage of Griffin, 570 N.W.2d 258 (Iowa App.1997), granted the modification despite the fact that the statutory changes postdated the parties’ decree. This court subsequently overruled Griffin, emphasizing the general rule requiring prospective application of new statutes. In re Marriage of Williams, 595 N.W.2d 126, 180 (Iowa 1999). Williams controls the present controversy. We therefore reverse and remand.

The facts are not disputed. The marriage between Patricia and James Sojka was dissolved in 1992. The parties have two children, Greg and Stacie. Only Stacie’s ongoing support is at issue on this appeal.

The parties’ dissolution decree incorporated the following agreement:

Respondent [James SojkaJ’s child support obligation shall continue for either child who is below age twenty-two and is a full-time student, per Code of Iowa section 598.1(2).
In addition to child support Respondent will pay one-third (⅜) of the child’s tuition, books, room and board while the child is a full-time student, and under age twenty-two. Respondent’s obligation for such costs shall in no case exceed what is paid in-state students at the University of Iowa.

(Emphasis added.)

James petitioned to modify the child support provision in January 1998. He rested his petition on a then-recent amendment to Iowa Code section 598.21. The amendment provided that a divorced parent’s financial obligation to a child attending college shall not exceed one-third of the total cost of the child’s postsecondary education, measured by the cost of in-state tuition, room and board. 1997 Iowa Acts ch. 175, § 190 (now codified at Iowa Code § 598.21(5A) (1999)). James’ petition claimed he was paying support for Stacie “far in excess of what is required by law.” His petition also alluded, without elaboration, to other material and substantial changes in circumstances warranting modification pursuant to Iowa Code section 598.21(8).

Patricia resisted the modification application. She contested the applicability of section 598.21(5A) to obligations fixed by a decree filed more than six years before the statute’s effective date. She also counterclaimed for additional support as well as an award of attorney fees.

The parties submitted the question of the applicability of section 598.21 (5A) to the court in advance of trial. See Iowa R.Civ.P. 116 (separate adjudication of law points). Griffin, decided by our court of appeals in 1997, was the only appellate decision on point. The motion judge felt bound to apply it, as did the trial court. See id. (final order on law point may not be questioned at trial.) Consistent with Griffin, the court terminated the former child support provisions of the decree, and limited James’ future payments to one-third of the roughly $11,100 annual expenses for Stacie’s tuition, books, room, board and fees at the University of Iowa. The court specifically found no other grounds to modify the decree. This appeal by Patricia followed.

I. A petition to modify a decree of dissolution of marriage is triable in equity. Our review, therefore, is de novo. In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998).

■ II. In Griffin, the court of appeals recognized that substantive' law changes ordinarily apply prospectively only. Griffin, 570 N.W.2d at 260. It then observed, however, that “higher education costs are not all due and payable at one time.” Id. It therefore applied the former law to support obligations accruing before the statutory change, but applied the new law to reduce the child support payor’s subsequent obligations. Id. at 260-61.

We examined the Griffin decision in In re Marriage of Williams. Not unlike the case before us, Williams involved an application to modify postsecondary educational child support. The trial court’s ruling, however, predated the statutory amendment by six days. Thus the district court refused to apply the new statute, and the child support obligor appealed, Williams, 595 N.W.2d at 130. We affirmed the district court and, in doing so, overruled that portion of Griffin which segregated pre-amendment college expenses from post-amendment costs and obligations. Id. We reasoned that such a division could not be reconciled with the prospective-only application of a substantive statute. Id.

The fact that the trial court’s modification order in Williams predated the statutory amendment distinguishes it factually from the present case but does not diminish its precedential value. Implicit in our Williams decision is the principle that we look to the date of the decree, not to subsequent events, to determine whether a statutory change applies. An analogous case, In re Marriage of Harless, 251 N.W.2d 212 (Iowa 1977), nicely illustrates the point.

Harless involved a dissolution decree that obligated a father to support his daughter until she reached twenty-one or otherwise attained her majority (by marriage or emancipation) or terminated her education. Harless, 251 N.W.2d at 212. The legislature subsequently lowered the-age bf majority from twenty-one to eighteen. See id. When the father sought a corresponding termination of his child support obligation, a dispute arose over which statute governing age of majority applied. Mindful that not all jurisdictions were in agreement on the issue, we joined those states which hold “the law in effect at the time of the decree should govern.” Id. at 213. Our decision rested on the general rule of statutory construction expressed in Iowa Code section 4.5 and applied at common law: “[Sjtatutes have prospective application only unless a clearly contrary intent appears.” Id.

The rule set forth in Harless and Williams applies with equal force here. James and Patricia’s postsecondary child support obligations were mutually agreed upon, and fixed by decree, in 1992. James can point to no material or substantial change in circumstances warranting a modification of those obligations but for the statutory change in 1997. That change contained no language suggesting retroactive application. Cf. Iowa Code §§ 598.21(8A) (post-decree relocation of custodial parent may be considered substantial change in circumstances); 598.21(9) (authorizing modification when court order for child support deviates at least ten percent from current child support guidelines); In re Marriage of Guyer, 522 N.W.2d 818, 821 (Iowa 1994) (applying section 598.21(9)). To the extent Williams left open any question about the matter, we now hold that section 598.21(5A) applies only to dissolution decrees postdating the statute’s enactment.

III. Because the district court relied on Griffin, its decision to modify the parties’ decree must be reversed. No other grounds for modification appear in the record. We therefore reverse and remand .for an order reinstating the prior judgment, and for a hearing on Patricia’s claim for attorney fees at trial and on appeal.

REVERSED AND REMANDED.

All justices concur except CADY, J., who takes no part.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    ACCO UNLIMITED CORP. and Andrew Christenson, Appellants, v. CITY OF JOHNSTON, Iowa, Appellee.
    No. 98-580.
    Supreme Court of Iowa.
    June 1, 2000.

      Frank Murray Smith of Frank M. Smith Law Office, Des Moines, for appellants.
    J. Russell Hixson of Dickinson, Macka-man, Tyler & Hagen, P.C., Des Moines, and Lee H. Gaudineer, Jr. of Austin, Gau-dineer & Comito, L.L.P., Des Moines, for appellee.
   LARSON, Justice.

The City of Johnston, Iowa, condemned land owned by Andrew Christenson for flood control purposes, and he and his tenant, ACCO Unlimited Corp., sought declaratory and injunctive relief in a suit against the city. The district court denied relief, and the plaintiffs appealed. We affirm.

I. Facts and Prior Proceedings.

Andrew Christenson owned approximately eighteen acres in Johnston, whtáh he leased to ACCO Unlimited, a corporation solely owned by him. (We will refer to them collectively as Christenson.) Christenson contends the .city illegally condemned approximately ten acres of his land. Johnston lies at.the confluence of Beaver Creek and the Des Moines River. Flooding of the area has been a problem for many years, and a disastrous flood in 1993, caused by the simultaneous overflow of Beaver Creek and the Des Moines River, prompted the city council to take action. The area, which had also flooded in 1960, 1966, 1972, 1974, 1979, 1986, and 1990, was likely to flood even more frequently as the city’s expansion caused increased runoff into the drainage area. One witness estimated that over 200 homes per year were being built in the city.

The property involved in this appeal is located between Merle Hay Road on the west and Beaver Road and the Des Moines River on the east. Interstate 80 and Beaver Creek'border the land on the south, and a new street, Johnston Drive, borders it on the north. Johnston Drive lies in an east-west direction, extending from Merle Hay Road to Beaver Drive. The original Christenson property was a triangular piece of land, which is- now bisected by the new’ street. Only that property lying south of the new’ street is involved in this controversy.

A1 of the areas described above are within the “100-year floodplain.” This is a designation arising out of a 1981 flood insurance study of the flood potential of given areas. The study is based on a flood occurrence that has a probability of reoccurring once evéry 100 years, of a one percent chance of happening every year. Under the study, thé- extent of the 100-year floodplain is determined by considering the drainage basin, the type of development in the drainage basin, and the type of runoff that can be expected. As previously noted, the area in question has exceeded expectations, flooding eight times since 1960. If obstructions or structures are placed within the floodplain, it adversely affects the water flow and the storage capacity of the area. . One of the purposes of designating an area as a floodplain is to discourage construction of structures and to limit damage in the event of a flood. Christenson’s primary argument in this case is that development of the area in question could have been discouraged by means short of condemnation.

After the flood of 1993, the Christenson property and the Beaverdale Little League property, which adjoined it, were under several feet of water for up to two weeks. Along what is now Johnston Drive, which bisects Christenson’s land, the water stood to depths of five feet.

Following the 1993 flood, the Economic Development Administration (EDA) of the United States Department of Commerce made federal flood relief grants available to cities in Polk County to provide funds for construction of public improvements to protect property from future damage by flood waters. Johnston applied for one of these grants. The city sought to fund construction of a new access-connector street, now constructed and known as Johnston Drive, and other improvements. However, the EDA balked; it was concerned that the proposed Johnston Drive would stimulate development in the floodplain adjacent to the new street, including the Christenson and Beaverdale Little League properties. This was a concern because a federal executive order required federal agencies to “reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the natural and beneficial values served by floodplains .... ” Another concern was that the filling of the properties incident to development would decrease the water storage capacity of the floodplain. The city determined that, due to “the lay of the land,” the filling that would accompany development of the Christenson and Beaverdale Little League properties would adversely affect the 100-year floodplain.

Before it would award any grant money, the EDA required the city to get assurances from the property owners in the floodplain that they would not develop the area inside the floodplain. The little league furnished such an assurance, stating it would continue to use it as little league baseball diamonds. Christenson, however, expressed a desire to develop the southern part of his property in the floodplain — action the agency believed would increase flood problems. (Only Christen-son’s and the little league’s properties were of concern; development of the other properties would not substantially affect the floodplain.)

In an attempt to satisfy the EDA’s concerns, the city council passed Resolution 94-72, stating it would discourage development in the floodplain. The resolution, however, did not satisfy the EDA, and as a condition to receiving the grant, the EDA required the city to provide evidence it had either acquired the Christenson property, obtained restrictive covenants, or rezoned it as a conservation district in order to assure it would not be developed. The city began condemnation proceedings against Christenson’s property, which were set to begin on February 27,1996.

On February 16, 1996, Christenson filed suit against the city seeking a permanent injunction and declaratory relief. Chris-tenson filed an amended petition for temporary and permanent injunctions and declaratory relief on February 20, 1996. On February 26, the district court denied the temporary injunction.

On February 27, 1996, a condemnation commission awarded damages for the taking of the land — $122,600 to Christenson as the titleholder, $30,000 to ACCO as tenant, and an additional $400 to Christen-son for the taking of a temporary easement, as well as $2500 in attorney fees. Christenson appealed the amount of the award to the district court but did not challenge the legality of the commission’s taking of the land.

In the meantime, the present equity case proceeded to trial on October 28, 1997. Christenson sought to have the condemnation nullified as illegal. On February 20, 1998, the district court issued its findings of fact and conclusions of law, finding the city had a legitimate public purpose in condemning the Christenson property and dismissing his petition for declaratory and injunctive relief. Chris-tenson appealed. After Christenson appealed his equity case, his appeal challenging the amount of damages awarded by the condemnation commission was resolved. In that case, the district court substantially increased the damages awarded for the condemnation. The city appealed this ruling, but the parties settled on the amount of the award, and the city dismissed its appeal. Based on the parties! agreement, the city filed a motion to dismiss Christen-son’s present appeal on election-of-remedy grounds. The motion was ordered submitted with the appeal. Because we reject Christenson’s constitutional arguments on their merits, it is unnecessary to address the city’s motion to dismiss.

II. The Constitutional Arguments.

Christenson complains the city’s taking of his land violated his procedural- and substantive due process rights and denied him equal protection of the law. All of his constitutional arguments seem to be based on his assumption that the city' could have accomplished its desired purpose of preventing development of the land in question by less intrusive methods than condemnation.

A. Procedural due process. According to Christenson’s procedural due process argument, the condemnation of his land for the purpose of maintaining it in its present unimproved state went too far, and “Johnston did not need to obtain fee title to ACCO/Christenson’s land to effect its purpose [of maintaining it in its present state].” In effect, he argues the condemnation was overkill because Christenson could not have improved the' land without a floodplain development permit and that if the city desired to prevent his development of the area it could simply have denied the permit. Further, according to his argument, this was a condemnation for conservation purposes, and the condemnation of a conservation easement is expressly prohibited by Iowa Code section 457A.1 (1995):

The department [of natural ■ resources], any county conservation board, and any city or agency of a city may acquire by purchase, gift, contract, or other voluntary means, but not by eminent domain, conservation easements in land to preserve scenic beauty, wildlife habitat, riparian lands, wet lands, or forests, promote outdoor recreation, or otherwise conserve for the benefit of the public the natural beauty, natural resources, and public recreation facilities of the state.

A “conservation easement” is defined as an “easement in, servitude upon, restriction upon the use of, or other interest in land owned by another, created for any of the purposes set forth in section 457A.1.” Iowa Code § 457A.2. Christenson argues the city’s action was not taken to condemn a fee, as the city claims, but was actually a conservation easement expressly prohibited by Iowa Code section 457A.1. Christen-son also contends, as a part of his procedural due process argument, that the city should have followed the statutory procedure for rezoning in order to regulate the future use of the land.

The problem with both of these arguments is they proceed from the assumption the city was attempting to obtain a de facto rezoning or a de facto conservation easement (apparently because the city was planning to- leave the area in its status quo). The fact is the city did not attempt either; it simply condemned the .land for flood control purposes, a valid object of condemnation as we discuss later. We find no merit in the plaintiffs’ procedural due process arguments.

B. Substantive due process. Christen-son’s substantive due process claims closely track his arguments concerning procedural due process. He claims “there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process,” quoting Parrott v. Taylor, 451 U.S. 527, 545, 101 S.Ct. 1908, 1918, 68 L.Ed.2d 420, 435 (1981) (Blackmun, J., concurring).

Christenson’s argument is again that the condemnation was overkill; the city should have controlled the usage of the land by pursuing Resolution 94-72, under which use of a floodplain would be maintained in its status quo by measures short of acquiring title to the land. These could include the refusal by the city to extend municipal services to the area or restricting the issuance of floodplain development permits.

Instead of adopting these measures, the city simply condemned the land. Chris-tenson says this “action is so egregious and irrational that the action exceeds standards of inadvertence and mere errors of law,” and the city’s action is “conscience shocking.” Christenson presents the action as one solely aimed at receiving the EDA funding to construct the connector street between Beaver Avenue and Merle Hay and not a flood control measure.

Under the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, a state is forbidden from infringing on “certain fundamental liberty interests, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” In re C.S., 516 N.W.2d 851, 860 (Iowa 1994). When the right infringed is not fundamental, substantive due process demands no more than “a ‘reasonable fit’ between governmental purpose ... and the means chosen to advance that purpose.” Id. at 861 (quoting Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 1448-19, 123 L.Ed.2d 1, 18 (1993)).

Christenson does not claim the condemnation of his property violates a fundamental right, and no cases would support such an argument. Because that is so, the condemnation of his property is analyzed to determine if there is a “reasonable fit” between the governmental purpose, flood control, and the means chosen to advance that purpose. In re C.S., 516 N.W.2d at 861. Under this analysis, the city’s subjective intent as attributed to it by Christen-son is irrelevant if flood control is an appropriate reason for the condemnation.

Eminent domain is the power of a governmental entity to take private property for a public use without the owner’s consent. Comes v. City of Atlantic, 601 N.W.2d 93, 95 (Iowa 1999). Chapter 6A of the Iowa Code provides for the use of eminent domain:

Proceedings may be instituted and maintained by the state of Iowa, or for the use and benefit thereof, for the condemnation of such private property as may be necessary for any public improvement which the general assembly has authorized to be undertaken by the state, and for which an available appropriation has been made.

Iowa Code § 6A.1. This power has also been granted to cities “for public purposes which are reasonable and necessary as an incident to the powers and duties conferred upon cities.” Iowa Code § 6A.4(6). Before a city may invoke its powers of eminent domain, Iowa law imposes two requirements: the property must be taken for a public use, and the taking must be reasonable and necessary. Comes, 601 N.W.2d at 95. Here, the city condemned Christenson’s property for the purpose of maintaining the floodplain and of maintaining the water storage capacity of the property in question.

Apparently, no Iowa case has considered the propriety of using eminent domain to take a floodplain for purposes of maintaining it in its status quo. Such power in a governmental body, however, is implicit in our law. For example, in Iowa Natural Resources Council v. Van Zee, 261 Iowa 1287, 158 N.W.2d 111 (1968), we considered a statute empowering the Natural Resources Council to bring an action to abate a nuisance in a floodway adversely affecting the capacity of the floodway to hold water. We held the statute was a proper exercise of police power and eminent domain. Iowa Natural Resources Council, 261 Iowa at 1297-98, 158 N.W.2d at 118.

In addition, the Code allows a city to “exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the city or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.” Iowa Code § 364.1. Further,' the Code provides that general obligation bonds may be issued to carry out “essential corporate purposes.” Among such purposes is: •

The acquisition, construction, reconstruction, and improvement of all waterways, and real and personal property, useful for the protection or reclamation of property situated within the corporate limits of cities from floods or high waters, and for the protection of property in cities from the effects of flood waters, including the deepening, widening, alteration, change, diversion, or other improvement of watercourses, within or without the city limits, the construction of levees, embankments, structures, impounding reservoirs, or conduits, and the establishment, improvement and widening of streets, avenues, boulevards, and alleys across and adjacent to the project, as well as the development and beautification of the banks and other areas adjacent to flood control improvements.

Iowa Code § 384.24(3)(i).

Other jurisdictions have approved condemnation proceedings for flood control purposes. See, e.g., American Nat’l Bank & Trust Co. v. Village of Winfield, 1 Ill.App.3d 376, 274 N.E.2d 144, 146 (1971) (the public may acquire the floodplain area by eminent domain); Winters v. City of Columbus, 735 So.2d 1104, 1108 (Miss.Ct. App.1999) (ameliorating impact of flooding and drainage on many private lands as well as to public facilities and lands may constitute public use); Hill v. City of Han-ahan, 281 S.C. 527, 316 S.E.2d 681, 684 (Ct.App.1984) (taking of land for drainage and flood control purposes is compensable in action for inverse condemnation); Farmers New World Life Ins. Co. v. Bountiful City, 803 P.2d 1241, 1245 (Utah 1990) (city’s construction of culvert was in support of flood control program and was public use within meaning of Utah constitutional provision governing inverse condemnation claims).

Condemning Christenson’s land for the purpose of maintaining the floodplain and preserving the water storage capability of the land is a reasonable and necessary public purpose for which condemnation may be used. We reject Christenson’s substantive due process arguments.

C. Equal protection. Christenson’s third constitutional argument. is he was denied equal protection of the law because of disparate treatment of his land and the land of the Beaverdale Little League, which, although it was also in the floodplain, was not condemned.

Christenson concedes his claim does not involve a fundamental right or suspect classification, so a heightened level of scrutiny is not appropriate. He contends, however, the city’s action cannot be upheld even under the less stringent rational-basis test. Under this test, Chris-tenson must negate every reasonable basis that may support the disparate treatment. See Suckow v. NEOWA FS, Inc., 445 N.W.2d 776, 779 (Iowa 1989).

As Christenson notes, the properties are subject to similar zoning. The industry-zoned portions of each property are in the same tax increment financing district, they are located in the same 100-year floodplain, each is currently being used in a means consistent with Johnston’s conservation district and floodplain management ordinances, and neither owner had yet filled or developed the industry-zoned portions of their property. It may in fact be conceded that the owners of the property are similarly situated for equal protection purposes, but that is only part of the analysis; Christenson must also negate every basis for their disparate treatment. Id. He has not done so.

The city’s decision to condemn the Christenson property and not the little league property bears a rational relationship to flood control. The little league agreed to not develop their property and to maintain it at the current condition. (Obviously, if the little league’s use of their land changes in the future, condemnation would be an option.) However, Christen-son did not give a similar assurance. In fact, he expressed an interest in developing his part of the floodplain. The city’s decision to condemn the Christenson property but not the little league property bears a rational relationship to the city’s interest in promoting flood control. The condemnation did not violate Christenson’s equal protection rights.

AFFIRMED.

All justices concur except CADY, J., who takes no part.


text:
    State of Iowa ex rel. Sena Westendorf, Shawn Westendorf, and Daniel Westendorf, Minor Children, Petitioner, v. Randy L. Westendorf, Respondent. Randy WESTENDORF, Appellant, v. Randy WEHLING, Dawn Westendorf, and the State of Iowa ex rel. Daniel Westendorf, Appellees.
    No. 98-1349.
    Supreme Court of Iowa.
    June 1, 2000.
    Rehearing Denied June 19, 2000.

      John W. Hofmeyer III, Oelwein, for ap■pellant.
    John S. Tremaine, Sumner, for appellee Randy Wehling.
    Thomas J. Miller, Attorney General and Patricia A. McGivern, Assistant Attorney General, for appellee State of Iowa.
    Dawn Westendorf, Sumner, pro sé.

       CARTER, J., taking no part.

   NEUMAN, Justice.

This appeal involves the financial aftermath of an action to overcome paternity under Iowa Code section 600B.41A(4) (Supp.1997). The statute authorizes relief from future support obligations as well as satisfaction of any unpaid support due pri- or to the order disestablishing paternity. Here the district court made those calculations based on an original order that designated support due on a sliding scale for three children, .two children, and one child. The question is how to apply section 600B.41(4)(b) in this situation. Finding no error in the district court’s calculation and judgment, we affirm.

The facts are not disputed. Randy and Dawn Westendorf were married in 1984. Three children were born during the marriage. Daniel, born December 29, 1987, is the subject of this controversy.

The Westendorfs were divorced in 1992. The decree granted them joint custody, awarding primary physical placement to Dawn. She had evidently been a long-time recipient of public assistance. So the decree provided that Randy’s support obligation would be fixed by a consent order entered in a companion case in Bremer County. Pursuant to that judgment, Randy was ordered to pay child support for the three children in the amount of $350 per month beginning February 1, 1993. When only two children were entitled to support, the amount reduced to $327, and for one child, $239. The order also entered judgment against Randy for accrued support in the amount of $6227, payable in installments of $25 per month.

In 1997, Randy commenced this action under Iowa Code section 600B .41A to disestablish his paternity as to Daniel. The alleged biological father, Randy Wehl-ing, was named in the action, as were Dawn and the State of Iowa. By the time the matter came to trial in the district court, genetic testing had confirmed Wehl-ing’s paternity. Thus the only disputed issue was the amount of financial relief Randy could claim under section 600B.41A(4).

Randy argued in the district court, and now urges on appeal, that he was entitled to a re-calculation of support owing since the date of the dissolution decree based on the actual state of affairs existing at that time. In other words, he believed any credit against his cumulative arrearage should reflect ab initio his parentage of only two children, not three. He also sought reimbursement from Wehling for past support and obligations he had “erroneously assumed.”

The district court determined that support for two children was fixed in the original judgment in the sum of $327 per month. It therefore ruled that all payments made by Randy under that decree should be applied toward his cumulative obligation for those two children. The court further ordered that the $6227 ar-rearage calculated in 1993 on the basis of three children should be reduced to $5817, a sum equivalent to support at the two-child level of $327 per month for the period in question. As for the claim that Wehling should reimburse Randy for out-of-pocket expenses incurred from Daniel’s birth until Randy and Dawn separated in 1988, the court found no factual or legal basis for the argument. This appeal by Randy followed.

I. Scope of Review.

Actions to establish or overcome paternity are triable as ordinary proceedings and reviewed on appeal for the correction of errors at law. Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996). Related issues pertaining to child support, however, are reviewed by this court de novo. Id.

II. Issue on Appeal.

The parties agree that section 600B.41A relieves Randy from any future support for Daniel following the date of the order overcoming paternity. They also agree that such an order must provide for satisfaction of previously unpaid support. The question is how to accomplish the latter task, required by section 600B.41A(4)(b), where, as here, the original order governed support for three children.

Randy argues on appeal that fairness dictates a recalculation of the original child support award, and that the district court’s failure to do so must be reversed. His argument rests on the theory that the 1993 order was entered “under mistake of fact” and never was “designed” to set a level of support for two children. The appellees counter that principles of res judicata preclude the recalculation Randy seeks. We agree.

To prevail on a defense of res judi-cata, the party asserting the doctrine must prove four prerequisites: (1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. In re Marriage of Van Veen, 545 N.W.2d 263, 266 (Iowa 1996). Clearly the support order before us meets these criteria. Notwithstanding Randy’s assertions to the contrary, the 1993 order plainly establishes the support owing by Randy when there are only two children entitled to his support. Thus the issues, then and now, are identical. The question of support for two children, as well as for three, was not only litigated by these same parties in the former action but was material, relevant, necessary and essential to the former judgment. Randy’s bald assertion that the provision for two children was merely “dicta” is entirely without merit.

Nor are we persuaded by Randy’s alternative argument that recalculation based on current child support guidelines is necessary “to set the matter right based on the true state of affairs” at the time of the 1993 decree. He claims that the guidelines amount for two children for a person earning his income during the pertinent period would be $277.91 per month, not $327 as the decree provides. Again, res judicata prevents the recalculation Randy seeks. And with good reason. The doctrine furnishes necessary finality to judicial decisions. In essence, Randy seeks a retroactive modification of the support order for Daniel’s two siblings. The district court was without authority to grant such relief. See Van Veen, 545 N.W.2d at 266 (“district court has no authority to divest parties of rights accrued under the original decree”).

Finally, we reject Randy’s contention that the fairest result would be to prorate the support due under the 1993 order among the three children in accordance with this court’s decision in State ex rel. Schuder v. Schuder, 578 N.W.2d 685 (Iowa 1998). Schuder involved a specific statutory scheme related to assignment of child support payments to the Iowa Department of Human Services when one child on a multi-child support order is placed in foster care. Schuder, 578 N.W.2d at 686. Precise language in the governing statute calls for an “equal and proportionate” division of the child support award for purposes of calculating the assignment. Id. at 687. The governing statute before us, Iowa Code section 600B.41A(4), contains no comparable language. Moreover, a prorata reduction would effectively reward the parent who delays in paying support or rectifying an erroneous paternity determination. The potential inequity of such a policy is amply demonstrated here. A one-third satisfaction of the $350 per month support award, as requested by Randy, would equal $116.66 per month, leaving unpaid past support for two children of only $233.34 per month, an amount less than the 1993 decreed amount of $239 for one child.

In conclusion, we are convinced the order entered by the district court comports with the statutory requirement without violating principles of res judicata applicable to the child support judgment for Daniel or his two siblings. We therefore affirm the judgment of the district court.

AFFIRMED.

All justices concur except LAVORATO, J., who takes no part.

      . The statute states:
      If the court finds that the establishment of paternity is overcome, in accordance with all of the conditions prescribed, the court sháll enter an order which provides all of the following:

        a. That the established father is relieved of any and all future support obligations owed on behalf of the child from the date that the order determining that the established father is not the biological father is filed.

        b. That any unpaid support due prior to the date the order determining that the established father is not the biological father is filed, is satisfied.
      Iow/a Code § 600B.41A(4).


author: DANIEL F. FOLEY, Judge.

text:
    STATE of Minnesota, Appellant, v. Mark Anthony KOPERSKI, Respondent.
    No. CX-99-2044.
    Court of Appeals of Minnesota.
    June 6, 2000.

      Mike Hatch, Attorney General, St. Paul, and Raymond F. Schmitz, Olmsted County Attorney, Eric John Olson, Assistant County Attorney, Rochester, for appellant.
    John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Minneapolis, and Terrence M. Walters, Rochester, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE, Judge, and FOLEY, Judge
   OPINION

DANIEL F. FOLEY, Judge.

Appellant State of Minnesota challenges the trial court’s order clarifying its August 26, 1999 order and changing respondent’s five-year period of conditional release, imposed as part of his 1995 sentence, to run from January 14, 1999, not April 13, 2001, as determined by the Department of Corrections. Because the sentence originally imposed was inconsistent with Minnesota law, we affirm.

FACTS

On January 27, 1995, respondent Mark Koperski was sentenced to 81 months in prison for third-degree criminal sexual conduct. Koperski was to serve 54 months of prison time and 27 months under supervised release, which was scheduled to begin on January 14, 1999. On January 13, 1999, Koperski was sentenced to 122 months for first-degree criminal sexual conduct for an incident that occurred in 1987. His supervised release period of 27 months was scheduled to begin on April 13, 2001. The 1999 sentence was to be served concurrently with the 1995 sentence. As a result, Koperski would be serving a prison term under his 1999 sentence while on supervised release under his 1995 sentence, and would begin his supervised release term under his 1999 sentence after his 1995 sentence was served. Koperski’s 1999 sentence also included a conditional release period, but it was removed on February 19, 1999, when the court realized that because the crime occurred prior to the enactment of the conditional release statute, it could not lawfully impose such a sentence.

On January 4, 1999, the Department of Corrections (department) sent the trial court a letter inquiring whether a conditional release period was going to be added to Koperski’s 1995 sentence. On February 18, the state filed a motion requesting that a five-year term of conditional release be imposed, to which Koperski did not object.

Following the trial court’s decision to impose a conditional release period, the department determined that Koperski’s conditional release period would begin on April 13, 2001, the day after he was released from prison for his 1999 sentence. On July 12, 1999, Koperski filed a motion for clarification supplemented by a letter explaining that the imposed sentence conflicted with the law. Specifically, he argued that it would require him to serve his supervised release period and conditional release period consecutively, which was prohibited under Minn.Stat. § 609.109, subd. 7(a) (1998). Koperski claimed that the conditional release period should begin January 14, 1999, the date he was to begin his supervised release period for his 1995 conviction. On July 14, 1999, the trial court granted Koperski’s motion and modified the dates of his conditional release period, concluding that it should be served concurrently with his supervised release.

ISSUE

Did the trial court err in modifying the conditional release period set by the Department of Corrections?

ANALYSIS

The state argues that the sentence imposed by the department does not violate the law and should not have been modified, and that the relief sought by respondent was only available through Minn. R.Crim. P. 27.03, subd. 4(E)(4). Interpretation of a sentencing statute is a question of law fully reviewable de novo by this court. State v. Flemino, 529 N.W.2d 501, 503 (Minn.App.1995), review denied (Minn. May 31, 1995). Moreover, “[t]he court at any time may correct a sentence not authorized by law.” Minn. R.Crim. P. 27.03, subd. 9. See, e.g., Bangert v. State, 282 N.W.2d 540, 547 (Minn.1979).

Modification of Sentence

The state argues that the date set by the department for when Koperski would begin to serve his conditional release period was not in conflict with the law, and his sentence should not have been modified. Koperski was sentenced for two separate crimes, with the sentences being served concurrently. In 1995, he was given an 81-month-sentence, and eventually, a period of conditional release was attached to this sentence. His prison sentence for this offense was scheduled to terminate on January 13, 1999, and the supervised release was to begin on January 14, 1999. In January 1999, Koperski was given a 122-month sentence for the conviction of a crime committed in 1987. While Koperski was ordered to serve a 10-year period of conditional release for his 1999 conviction, it was lifted when the court realized that because his crim.e occurred prior to the enactment of the. conditional release statute, a period of conditional release could not lawfully be part of his sentence. Under his 1999 sentence, Koperski is scheduled to be released from prison under on April 12, 2001. The department determined that Koperski would begin his conditional release period for his 1995 sentence on April 13, 2001, after he is released from prison under his 1999 sentence and is placed on supervised release.

The trial court concluded that this sentence is in conflict with Minn.Stat. § 609.109, subd. 7(a) (1998). We agree.

If the person was convicted for a violation of section * ⅜ ⅛ 609.344, the person shall be placed on conditional release for five years, minus the time the person served on supervised release.

Id. The conditional release date set by the department requires Koperski to serve both his supervised release and conditional release period without crediting him for the period between January 14, 1999 and April 12, 2001, when he will be on' supervised release under his 1999 sentence. This is contrary to Minn.Stat. § 609.109, subd. 7(a), which explicitly requires that any supervised release time served be deducted from the conditional .release period to be served.

The sentence is also inconsistent with Minnesota c,ase law. This court has held that under Minn.Stat. § 609. 346, subd. 5 (1993), a period of conditional release could not run consecutively to a period of supervised release. State v. Enger, 539 N.W.2d 259, 264 (Minn.App.1995). There, the trial court sentenced the defendant to the statutory five-year conditional release in addition to 29 months of supervised release. In modifying the trial court’s order, this court considered the fact that prior to the 1993 amendment

.the 1992 statute’s use of the term “supervised release” encompassed both the concept of supervised release and that of conditional release as those terms are used in the 1993 statute.

Id. This court explicitly stated that “the 1993 statute eliminates the trial court’s discretion to sentence appellant to more than five years combined supervised and conditional release.” Because the language of Minn.Stat. § 609.846, subd. 5 is identical to the statute applied here, Minn. Stat. § 609.109, subd. 7(a), Koperski’s sentence, as determined by the department, violated not only Minn.Stat. § 609.109, subd. 7(a), but also the holding in Enger.

Notwithstanding the existing law, the state maintains that the case law, the minutes from the House Judiciary Committee meetings, and Minn.Stat. § 609.109, subd. 7(a), indicate that the purpose of the statute is to ensure continual supervision of a sex offender after release from prison. In this case, because Koperski is still in prison on the 1999 sentence, the state argues that the 1996 conditional release term cannot start until 2001, long after the start of his period of supervised release.

To support this argument, the state first cites to State v. Humes, 581 N.W.2d 317, 320 (Minn.1998), which stated:

[T]he conditional release provisions of section 609.346, subd. 5 do not serve to protect any right of the defendant, but rather ensure that supervision of a convicted sex offender will continue after the offender is released.

However, requiring that supervised and conditional release be served concurrently and not consecutively does not defeat the purpose articulated in Humes. Because supervised release allows a defendant to serve the remainder of his sentence outside of prison while remaining under continual supervision, a defendant serving a conditional release term concurrently with a supervised release term will necessarily be supervised. In addition, pursuant to Minn.Stat. § 609.109, subd. 7(a), any conditional release remaining after supervised release is served will be attached to his sentence for that offense, providing for further supervision while out of prison. To hold otherwise is contrary to the statute, which requires that supervised release served be deducted from conditional release to be served.

The state also cites to the minutes from the House Judiciary Committee meetings, taken when it was considering amending the conditional release statute to its current form. The committee recommended that the

five year or ten year conditional release period begin at the end of the term of imprisonment minus any disciplinary confinement time. In other words, it would begin ivhen the individual is released from prison.

Enger, 539 N.W.2d at 263 n. 1 (quoting Hearing on H.F. No. 975 Before the House Comm, on Transp. (Mar. 19, 1993)) (emphasis added).

The state claims that in order to be consistent with legislative intent, conditional release must be assessed when the individual is released from prison. As previously discussed, an individual serving his supervised release and conditional release terms concurrently will unavoidably be supervised, and therefore, the trial court’s determination is not inconsistent with the intent of the legislature. In fact, the state fails to cite a portion of the committee meeting minutes which provides that “the executed sentence of supervised release, would be run concurrently with the five or ten year period of conditional release.” Enger, 539 N.W.2d at 264 n. 1 (emphasis added). There is no doubt that the intent of the legislature was for conditional release and supervised release to run concurrently once the defendant is released from prison and the trial court did not err in so concluding.

Finally, the state notes that while the conditional release statute provides that supervised release served must be deducted from conditional release to be served, it further provides that the conditional release period shall be served “after the person has completed the sentence imposed.” Minn.Stat. § 609.109, subd. 7(a). However, this statement does not prove that the conditional release period must be served in addition to supervised release, but instead, can be read together without conflicting. Under the statute, once the defendant has served his. sentence, which includes his prison time plus-, supervised release time, any conditional release period that remains after supervised release served has been deducted, will be added to the defendant’s sentence. This is precisely what occurred in Enger, where this court “reduce[d] the 89 month period of supervised and conditional release to a total of 60 months (29 months supervised plus 31 months conditional).” Id. at 264.

The law requires that Koperski’s conditional release begin at the same time ás his supervised release under his 1996 sentence, with the remaining months of conditional release being served after supervised release ends. Here, some of the remaining months of conditional release will be served while Koperski is- in prison. But, although this produces an anomalous result, “in the absence of statutory authorization, a trial court has no sentencing power.” State v. Lambert, 388 N.W.2d 34, 37 (Minn.App.1986) (citation omitted), rev’d on other grounds, 392 N.W.2d 242 (Minn.1986). This court cannot supply what the legislature has omitted. State v. Lucas, 589 N.W.2d 91, 94 (Minn.1999). While this result may appear unfair, it is the only result that the statute authorizes.

Minn.Stat. § 609.109, subd. 7(a) and Enger explicitly state that supervised release and conditional release periods must run concurrently. This court’s decision in Enger and the minutes from the House Judiciary Committee meeting further support what is already a clear and unambiguous statute. Therefore, the sentence requiring Koperski to serve both supervised release and conditional release separately, was contrary to the existing law. We cannot, nor may the department, provide relief where none is" provided by law.

Adequacy of Relief under Minn. R. 27.03, subd. 9

The state claims that Koperski improperly relied on Minn. R.Crim. P. 27.03,- subd. 9 when seeking relief, and argues that his only relief was through Minn. R.Crim. P. 27.03, subd. 4(E)(4). We disagree. Minn. R.Crim. P. 27.03, s,ubd. 9 provides that “[t]he court may at any time correct a sentence not authorized by law.” Because the conditional release term added to Koperski’s sentence was contrary -to Minn.Stat. § 609.109, subd. 7(a) and this court’s decision in Enger, the trial court properly relied on Minn. R.Crim. P. 27.03, subd. 9 and corrected the sentence. See Humes, 681 N.W.2d at 321 (pursuant to Minri. R.Crim. P. § 27.03, subd. 9, district court has jurisdiction to correct defendant’s sentence to include conditional release when mandated by statute).

DECISION

Because the Department of Corrections imposed a conditional release period that conflicted with the law, the trial court properly decided that it had' to be modified.

Affirmed.

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

      . However, because Koperski was serving another prison term concurrently, he was still in prison at the time.

      . Minn.Stat. § 609.346 was repealed in 1998, and replaced with § 609.109, subd. 7(a), which we apply today. The language in both statutes is identical.


author: CRIPPEN, Judge

text:
    STATE of Minnesota, Respondent, v. James William EGGE, Appellant.
    No. C3-99-1415.
    Court of Appeals of Minnesota.
    June 13, 2000.

      Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, MN; and Mark Steffan, Jackson County Attorney, Jackson, MN (for respondent).
    John M. Stuart, State Public Defender, Susan J. ■ Andrews, Assistant Public Defender, Minneapolis, MN (for appellant).
    Considered and decided by SHUMAKER, Presiding Judge, CRIPPEN, Judge, and KLAPHAKE, Judge.
   OPINION

CRIPPEN, Judge

The issue in this case arises in the context of a felony accusation of harassment, premised on the occurrence of two underlying wrongful acts, one act being the violation of a prior restraining order. Concluding that the evidence is sufficient to find appellant violated the restraining order by instigating the harassment of S.B. by third-party contact, we affirm.

FACTS

In October 1997, a restraining order was issued prohibiting appellant from contacting or harassing S.B. In April 1998, appellant applied for a life insurance policy and named S.B. as a beneficiary. Appellant provided his life insurance agent with S.B.’s phone number and directed the agent to call S.B. to get information needed for the policy application. Appellant does not dispute the significant nature of the harassment thereby occurring but challenges whether this contact was prohibited by a restraining order that did not specifically mention contact initiated by appellant and completed by a third party.

ISSUE

Is the evidence sufficient to conclude that appellant violated the restraining order?

ANALYSIS

When reviewing a challenge to the sufficiency of the evidence, this court reviews the record to determine if “the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Harris, 589 N.W.2d 782, 791 (Minn.1999) (quotation omitted). We assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” Id. (quotation omitted). Our review is limited to determining whether the jury, giving due regard to the presumption of innocence and the state’s burden of proof beyond a reasonable doubt, “could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom.” Id. (quotation omitted).

The evidence is sufficient for the jury to have concluded that appellant violated the restraining order. His instigation of an act of harassment is thorough^ ly demonstrated, as appellant gave the agent S.B.’s phone number, directed him to call S.B. on his behalf, and knew the agent would call S.B.

Minn.Stat. § 609.748, subd. 8, requires that a restraining order include a “conspicuous notice” of the “specific conduct that will constitute a violation of the order.” Minn.Stat. § 609.748, subd. 8(1) (1998). While nothing in the restraining order in this case specifically mentioned contact instigated by appellant and completed by a third party, the order nonetheless required appellant have “no contact with” and “not harass” S.B. There is no less significance or special significance to the contact simply because it was completed by a third party after, being instigated or initiated by appellant. By instigating and initiating such contact, appellant violated the restraining order that prohibited him from contacting or harassing S.B.

DECISION

The evidence was sufficient for the jury to conclude appellant violated the restraining order by instigating contact with S.B. through a third party.

Affirmed.


author: SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Michael Bruce WAINO, Appellant.
    No. CX-99-1315.
    Court of Appeals of Minnesota.
    June 20, 2000.

      Mike Hatch, Attorney General, Robert A. Stanieh, Assistant Attorney General, Aaron E. Woodward, Certified Student Attorney, St. Paul, and Alan L. Mitchell, St. Louis County Attorney, Duluth, for respondent.
    Barry V. Voss, Voss & Hickman, P.A., Minneapolis, for appellant.

      Considered a and decided by G. BARRY ANDERSON, Presiding Judge, RANDALL, Judge, and SCHUMACHER, Judge.
   OPINION

SCHUMACHER, Judge.

Appellant Michael Bruce Waino challenges his conviction of third-degree assault, arguing insufficiency of the evidence and that the trial court erred in admitting evidence of similar prior conduct. We affirm.

FACTS

The state charged Waino with third-degree assault in violation of MinmStat. § 609.223, subd. 1 (1998), for a September 2, 1998 domestic assault of H.L. At trial the state sought to offer testimony of H.L. detailing multiple acts of domestic violence by Waino against her. Minnesota statutes allow evidence of prior similar conduct by the accused against a victim of domestic abuse. Minn.Stat. § 634.20 (1998). Ruling that the probative value would not be substantially outweighed by the danger of unfair prejudice, the trial court allowed the evidence with the condition that the testimony be presented in a general fashion and be limited to the last 12 months of the relationship.

Waino and H.L. were in a relationship for more than two years, at times living together. H.L. testified that during the 12 months prior to September 2, 1998, there were several incidents of assaults and abuse. H.L. had black eyes from being punched. On one occasion Waino beat, her in a car 'and rammed her head against the dashboard. He told her not to flinch, and every time she flinched.he hit her again. He dragged her from the vehicle and into the house. He beat her head with a telephone. Waino threatened to kill H.L. on a regular basis for the last few months they were together.

On September 2,1998, H.L. had her own residence and had not been living with Waino for some six months. According to H.L., however, Waino often detained her in his house, and on September 2, H.L. and her youngest daughter had been at Waino’s house for several days. H.L.’s older daughter was in Pennsylvania staying with her father. Waino had previously told H.L. that he would give her money toward a return ticket , for her daughter, but later became unwilling to do so. H.L. then contacted a friend and used the friend’s credit card to purchase a ticket. When H.L. told Waino she had purchased the ticket using a credit card he beat her, pulling her hair, throwing her head into the wall and kneeing her. When Waino stopped beating her, she was able to leave the house, walked about two blocks to a friend’s house, and got a ride to the hospital.

Doctor Jon Vanderhagen testified that he treated H.L. on September 2, 1998, for severe pain in her ribs and abdominal area. H.L. initially said that she had an enlarged spleen from a previous fall down tbe stairs, and she had aggravated it by bumping into the corner of a wall. Dr. Vanderhagen noticed a marked tenderness in her left ribs and believed the injuries were consistent with blunt trauma and inconsistent with H.L.’s claims. Dr. Vander-hagen talked to H.L. a second time during which she admitted that she had been punched in the ribs, punched in the head, and the perpetrator had knelt on her stomach and chest. X-rays revealed that she had two non-displaced fractured ribs. The hospital staff notified the police.

Officer Kevin Hudson testified that he and his partner reported to the hospital and attempted to talk to H.L. They learned that she had two daughters and that she did not want to talk to them for fear of retaliation. She stated that she felt powerless and believed no one could help her. She eventually told the police that Waino had beaten and kneed her because he was upset that she had purchased a ticket for her daughter. When the officers left the room so that H.L. could change out of her hospital gown, H.L. slipped out the back door. H.L. later called the police requesting to talk and told them she would press charges. The police arrested Waino. At trial, Waino testified that he had not threatened or beaten H.L.

The court provided the jury a cautionary instruction at the close of trial pursuant to 10 Minnesota Practice, CRIMJIG 3.16 (1999). The court stated:

Now, ladies and gentlemen, in this trial, or during the course of this trial, you also heard evidence about the prior relationship between [Waino] and [H.L.]. This evidence has been presented to you for the limited purpose of assisting you in determining whether [Waino] committed the acts with which he is charged in the Complaint and relating to September 2nd, 1998. You are instructed that [Waino] is not being tried for and may not be convicted for anything occurring at any other time.

The jury found Waino guilty of assault in the third degree. Waino’s sentence was stayed pending this appeal.

ISSUES

1. Did the trial court abuse its discretion in admitting evidence under Minn. Stat. § 634.20 (1998)?

2. Was the evidence sufficient to support conviction of third-degree assault?

ANALYSIS

1. “Evidentiary rulings generally rest within the trial court’s discretion and will not be reversed absent a clear abuse of discretion.” State v. Shannon, 583 N.W.2d 579, 583 (Minn.1998) (quotation and citation omitted). “This court will not reverse a trial court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.” State v. Scruggs, 421 N.W.2d 707, 715 (Minn.1988).

Under Minnesota Rules of Evidence 402 all relevant evidence is admissible except as otherwise provided by the rules, statute or the constitutions. Minn. R. Evid. 402. Rule 403 provides that relevant evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Minn. R. Evid. 403.

Generally, evidence of other crimes or misconduct is not admissible to prove a defendant’s character in order to show that the defendant acted in conformity with that character. Minn. R. Evid. 404(a); State v. Lynch, 590 N.W.2d 75, 80 (Minn.1999). Such evidence may be admitted for the limited purpose of showing “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b). Rule 404(b) provides that in criminal cases such limited purpose evidence may not be admitted unless the defendant’s participation in the prior misconduct is proven by a clear and convincing standard. Consistent with rule 404(b), evidence of a defendant’s prior acts may be admitted for the purpose of “illuminating the relationship” of the defendant and the victim and “placing the incident with which defendant was charged in proper context.” State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999) (quotations and citation omitted); see also State v. Oates, 611 N.W.2d 580 (Minn.App.2000).

The evidence in this case, however, was not admitted under a common law rule 404(b) exception to the general prohibition. Rather, the evidence was admitted under a statutory provision concerning domestic abuse, first enacted in 1985. Minn.Stat. § 634.20 provides:

Evidence of similar prior conduct by the accused against the victim of domestic abuse * * * is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Minn.Stat. § 634.20 (1998). The statutory language tracks rule 403. The supreme court has noted that by this section the legislature has expressed an intent to remove evidence of similar prior conduct in domestic abuse prosecutions from the clear and convincing standard of rule 404(b). State v. Cross, 577 N.W.2d 721, 726 n. 2 (Minn.1998).

Under Minn.Stat. § 634.20, evidence of similar prior conduct by the defendant against the victim of domestic abuse is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice. Applying the statute to the facts in this case involves two inquiries. First, is the challenged testimony evidence of similar prior conduct? Second, is its probative value substantially outweighed by the danger of unfair prejudice? Here, Waino was charged with third-degree assault for beating H.L. H.L.’s testimony of previous beatings and threats by Waino easily satisfies the similar prior conduct requirement. Whether the probative value of prior bad acts outweighs their'prejudicial effect “is a matter left to the discretion of the trial court.” State v. Graham, 371 N.W.2d 204, 208 (Minn.1985).

The evidence of similar prior conduct by Waino against H.L. explains the context in which the charged assault occurred and its prejudicial effect is mitigated by the trial court’s cautionary instruction to the jury. The supreme court has “on numerous occasions recognized the inherent [probative] value of evidence of past acts of violence committed by the same defendant against the same victim.” State v. Williams, 593 N.W.2d 227, 236 (Minn.1999). The trial court did not clearly abuse its discretion by admitting, under Minn.Stat. § 634.20, evidence of prior domestic abuse in the form of testimony by the victim.

2. In reviewing a claim of sufficiency of the evidence, this court views the evidence in the light most favorable to the verdict and assumes that the jury disbelieved any testimony conflicting with the result reached. State v. Thames, 599 N.W.2d 122, 126-27 (Minn.1999).

The verdict should be upheld if the jury, giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty of the offense charged.

Id. at 127. The third-degree assault statute provides:

Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

Minn.Stat. § 609.223, subd. 1 (1998).

“Substantial bodily harm” means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.

Minn.Stat. § 609.02, subd. 7a (1998).

The rib fractures suffered by H.L. in this case meet the statutory definition of substantial, bodily harm. Waino asserts that the ribs were likely cracked in a fall and argues that the rib injury predates September 2. But the evidence at trial made it abundantly clear that there had never been any fall — the fall was a cover story made up by H.L. because of her fear of retaliation by Waino. The rib fractures that appeared on the September 2, 1998 x-rays were not shown on prior x-rays taken August 23, 1998. Waino continues to attack H.L.’s credibility, but credibility determinations are properly left to a jury. State v. Doppler, 590 N.W.2d 627, 635 (Minn.1999) (deciding credibility of witnesses is generally exclusive province of jury). A jury could reasonably conclude that Waino was guilty of third-degree assault. Accordingly, the evidence was sufficient to support the conviction.

DECISION

The trial court did not abuse its discretion in admitting evidence of similar prior conduct under Minn.Stat. § 634.20 (1998). The evidence was sufficient to support the conviction of third-degree assault.

Affirmed.


author: SCHUMACHER, Judge

text:
    STATE of Minnesota, Respondent, v. Lovell Nahmor OATES, Appellant.
    No. C9-99-1533.
    Court of Appeals of Minnesota.
    June 20, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, Minneapolis, MN (for respondent).
    Michael C. Davis, St. Paul, MN (for appellant).
    Considered and decided by TOUSSAINT, Chief Judge, SCHUMACHER and SHUMAKER, Judges.
   OPINION

SCHUMACHER, Judge

This appeal is from a judgment of conviction and sentence for second-degree murder and four counts of second-degree assault. See Minn.Stat. §§ 609.19, subd. 1(1), 609.222, subd. 2 (1998). Appellant Lovell Oates was sentenced to an aggregate prison term of 378 months. We affirm.

FACTS

Appellant Lovell Nahmor Oates was indicted on charges of first-degree murder, attempted first-degree murder, and four counts of second-degree assault for a September 21, 1998, shooting incident at the South Beach night club in downtown Minneapolis. Ragan Durrenberger, a South Beach patron, died of a gunshot wound to the head. Justin Vasser and Diamond Porter, two other patrons, suffered gunshot wounds. The state alleged that the three victims were struck after Oates pulled a gun on Ricky Fuller, the intended victim, and Fuller struggled with Oates for the weapon.

The state sought to introduce evidence of six prior incidents involving Oates, three of which also involved Ricky Fuller, that occurred in or just outside various Minneapolis night clubs. The state argued that the three 1995 incidents involving Fuller were admissible to show the relationship between Oates and Fuller. The trial court ruled that the 1995 incidents, an escalating series of encounters in which Fuller mediated a fight involving Oates, then fought with Oates, and lastly was struck by a bullet fired by a man who looked like Oates, were admissible, without the need for a Spreigl analysis.

The trial court also ruled that the state could present, as Spreigl evidence, a 1997 drive-by shooting outside a night club. The court, however, excluded Spreigl evidence of two 1998 incidents at the South Beach night club.

Justin Vasser testified that he went to the South Beach night club with Ricky Fuller the night of the shooting. Vasser testified, over defense objection, that there was “bad blood” between Fuller and Oates. Vasser and Fuller were standing together when Vasser felt a scuffle and saw someone coming at Fuller with a gun. Vasser described the man as wearing a silky Ver-sace paisley shirt. He testified that Fuller wrestled the man for the gun, and he heard a shot. After a pause, he heard more shots coming from around the dance floor that appeared to be fired by the same man, wearing the same shirt, with his hair in French braids.

The state presented the testimony of several eyewitnesses to the shooting, including four South Beach employees who chased after the fleeing gunman. Almost all of the eyewitnesses described the gunman as wearing a brightly-colored, “Ver-sace-style,” patterned silk or satin shirt. Several of the eyewitnesses described his hair as being in French braids or “corn rows.” Two of the eyewitnesses positively identified Oates as the gunman in a photo lineup. Another eyewitness picked out two photographs, one of them Oates’s photo, from the photo lineup.

Ricky Fuller testified that he saw Oates at the South Beach night club on the night of the shooting. He testified he did not get a look at the face of the man who drew the gun on him. Fuller testified about the three 1995 incidents. He admitted on cross-examination that neither of the first two incidents was a “big deal” and that he was not 100% sure of his identification of Oates as the gunman in the third incident. But he testified that he recognized Oates’s car as the vehicle from which the shot was fired.

The state presented the testimony of a forensic firearms examiner who identified the cartridges and bullet fragments found at the scene, as well as one live bullet, as PMC brand 9 mm ammunition. Police officers executed a search warrant at Oates’s residence three days after the shooting. They found several patterned, brightly-colored shirts matching the eyewitnesses’ description. They also found an empty box for a 9 mm gun, as well as a holster, and several boxes of PMC brand 9 mm ammunition.

Oates presented testimony that he was seen at a concert the evening of the shooting and was wearing a suit, along with a solid-colored shirt unlike the shirt described by eyewitnesses. The jury acquitted Oates of first-degree murder, but found him guilty of second-degree murder for the death of Ragan Durrenberger, and of second-degree assault against Justin Vasser, Diamond Porter, Ricky Fuller, and Mohammad Kafi, one of the South Beach employees.

The trial court sentenced Oates to 306 months for the second-degree murder, concurrent 36-month sentences for the second-degree assaults committed against Vassar and Porter, and consecutive 36-month sentences for the second-degree assaults against Fuller and Kafi.

ISSUE

1. Did the trial court abuse its discretion in instructing the jury on evidence of flight?

2. Did the court abuse its discretion in allowing Spreigl and “relationship” evidence?

3. Is the evidence sufficient to support the convictions?

4. Did the trial court err in imposing multiple sentences?

ANALYSIS

1. Oates argues that the trial court abused its discretion in instructing the jury on the inference that can be drawn from evidence of flight. Trial courts are allowed “considerable latitude” in the selection of language for jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986)). In reviewing a claim of error in instructing the jury, a reviewing court will generally not reverse absent an abuse of discretion. See State v. Persitz, 518 N.W.2d 843, 848 (Minn.1994) (discussing refusal to give instruction requested by defense).

The trial court instructed the jury, over a defense objection, as follows:

Evidence of flight - of the flight of the defendant prior to his arrest is a factor that may be considered by you as evidence of the consciousness of guilt.

Oates ‘argues that the evidence did not support any instruction o'n evidence of flight and that, in any event, the trial court’s instruction materially misstated the law.

The state presented two types of “flight” evidence: (1) evidence that Oates was identified as the gunman (or presumed gunman) fleeing on foot from the South Beach night club and then fleeing in a car described by eyewitnesses; and (2) evidence that Oates took a cab from his home more than two hours later and was arrested in Chicago a month after the shooting.

Evidence of flight from the scene of a crime is evidence intimately connected to the crime itself. See State v. Mosby, 450 N.W.2d 629, 632-33 (Minn.App.1990) (holding that evidence defendant attempted to steal a car in which to flee was evidence admissible as part of the proof of the offense, not Spreigl evidence), review denied (Minn. Mar. 16, 1990). Evidence that Oates was identified fleeing from the South Beach night club, as well as descriptions of the fleeing gunman as someone similar in appearance, tended to prove Oates’s guilt directly, as evidence of identity, not indirectly, through an inference of “consciousness of guilt.” There is no need to instruct the jury that a suspected gunman fleeing the scene is displaying a “consciousness of guilt.”

The second type of “flight” evidence— Oates’s cab ride and his arrest in Chicago — had only a slight tendency to prove consciousness of guilt and did not warrant a “flight” instruction. A taxi driver testified he picked up a man he was “60 to 70% [sure]”.was.,Oates two hours after the shooting and drove him to another south Minneapolis location. But there was no evidence as to the significance of that location and no evidence linking this local “flight” with Oates’s eventual arrest in Chicago one month later. Nor was there evidence of how long Oates had been in Chicago, how he got there, or any other circumstance tending to connect that trip to the South Beach shooting.

The supreme court has discouraged trial courts from giving instructions on particular kinds of evidence, especially1 with respect to inferences. State v. Olson, 482 N.W.2d-212, 215 (Minn.1992); see State v. Starfield, 481 N.W.2d 834, 839 (Minn.1992) (stating that instructions “drawing attention to particular kinds of evidence” generally should be avoided). The trial court’s instruction drew attention to the “flight” evidence and may have implied that the jury should credit the state’s theory that Oates did in fact flee to Chicago after the shooting.

There is only limited support in Minnesota for giving an instruction on evidence of flight. See State v. McLaughlin, 250 Minn. 809, 319, 323-24, 84 N.W.2d 664, 671-72, 674 (1957) (holding that when there is sufficient evidence of flight court may give a qualified instruction allowing inference of guilty); cf. State v. Smith, 299 N.W.2d 504, 506 (Minn.1980) (holding that defendant waived issue by failing to object but noting disagreement of courts and commentators on issue). We conclude that it was error to give the “flight” instruction in this case given the minimal evidence of flight. Therefore, we do not address Oates’s argument that the instruction given misstated the law.

An error in instructing the jury is harmless if it can be said beyond a reasonable doubt that the error had no significant impact on the verdict. See Olson, 482 N.W.2d at 216. The state’s evidence of identity was strong, despite Oates’s highlighting of minor inconsistencies in the eyewitness testimony. More importantly, there was eyewitness testimony identifying Oates as the person fleeing the South Beach in a deliberate, conspicuous manner different from that of the terror-stricken patrons scattering in confusion. Given this strong evidence of immediate flight from the scene, the instruction on the minimal evidence of later flight could not have had a significant impact on the verdict.

2. Oates argues that the trial court abused its discretion in admitting Spreigl evidence and “relationship” evidence of his prior encounters with Ricky Fuller. The admission of Spreigl evidence lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn.1996).

The trial court agreed with the prosecutor’s argument that a Spreigl analysis did not apply to evidence of Oates’s prior bad acts that were offered to prove Oates’s relationship with Fuller, the intended victim. The supreme court has held that a Spreigl notice is not required for “relationship” evidence. State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969). But the court has applied a Spreigl analysis to “relationship” evidence. See State v. Bauer, 598 N.W.2d 352, 364 (Minn.1999) (holding that before admitting “relationship” evidence, court must find it to be shown by clear and convincing evidence and to have probative value outweighing potential for unfair prejudice); State v. Williams, 593 N.W.2d 227, 236 (Minn.1999) (same).

The state’s reliance on State v. Cross, 577 N.W.2d 721 (Minn.1998) to establish that Spreigl procedures do not apply to “relationship” evidence is misplaced. Cross involved the domestic abuse homicide statute, in which a “past pattern of domestic abuse,” which is, in effect, the history of the “relationship,” is an element of the offense. See Minn.Stat. § 609.185(6) (1998). Oates’s relationship with Fuller was not an element of any of the offenses charged against him. Evidence concerning the relationship was offered only to prove identity and motive.

Although the trial court erred in failing to conduct a Spreigl analysis on the “relationship” evidence, Oates fails to show that such an analysis would have resulted in a different ruling. Clear and convincing evidence may be established by the testimony of a single witness. See State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998). Fuller provided clear and unequivocal testimony about the first two “relationship” incidents, the argument with Fuller’s nephew’s friend and the flstflght between Oates and Fuller. Neither of these two incidents was very serious or very similar to the charged offense. Therefore, under a Spreigl analysis comparing their probative value to the potential for unfair prejudice, both incidents would still have been admissible. See generally State v. Bolte, 530 N.W.2d 191, 196-97 (Minn.1995) (detailing Spreigl procedural requirements and safeguards). Finally, the two incidents were plainly relevant to prove motive, as well as identity, and the state showed a need for the incidents to establish a connection between Oates and Fuller.

The trial court should have given a Spreigl cautionary instruction for the “relationship” evidence: Oates did not request such an instruction and therefore could be held to have waived this claim of error. State v. LaForge, 347 N.W.2d 247, 251 (Minn.1984). We conclude, however, that this error was harmless, even considered cumulatively with other error.

The trial court properly admitted as Spreigl evidence police testimony that Oates fired shots outside the Riverview night club in November 1997. The testimony met the clear and convincing standard for Spreigl evidence. Moreover, the evidence of Oates’s guilt is quite strong. The state presented two firm eyewitness identifications, along with one tentative identification, coupled with Fuller’s testimony that he saw Oates in the South Beach club that night.

The erroneous admission of “other crimes” evidence may be harmless if the other evidence of guilt is sufficiently strong. See State v. Dolbeare, 511 N.W.2d 443, 446 (Minn.1994). The supreme court has indicated that Spreigl error must be harmless beyond a reasonable doubt, i.e., the verdict must be surely unattributable to the error. State v. Shannon, 583 N.W.2d-579, 585 (Minn.1998). The eyewitness identifications were corroborated by discovery in Oates’s residence of the same brand of ammunition as the fatal bullet, along with several shirts of the same type that the gunman wore. The state also presented the first two “relationship” incidents establishing some relationship between Oates and Fuller. We conclude that the failure to' give a Spreigl cautionary instruction or to engage in Spreigl analysis for the “relationship evidence” was harmless error. The verdict was “surely unattributable” to this error, even considered cumulatively to the error in instructing the jury on flight evidence.

3. Oates argues that the evidence is insufficient to support his conviction. He contends that the evidence is insufficient to prove beyond a reasonable doubt that he was the shooter or that he had an intent to kill.

In reviewing a claim of insufficient evidence, this court must view the evidence in the light most favorable to the verdict and assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Johnson, 568 N.W.2d 426, 435 (Minn.1997). The court must review the record to determine whether the jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences to be drawn from them and given the necessity of proof beyond a reasonable doubt. Id.

Óates points to inconsistencies and uncertainties in the eyewitness testimony about the shooter. But identification is a question of fact for the jury to determine. State v. Otten, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (1972). Despite some inconsistencies and less-than-certain identifications among the eyewitnesses, it is the jury’s function to determine the weight and credibility of individual witnesses. State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990).

There was ample corroboration of the eyewitness identifications. First, police found in Oates’s home 9 mm ammunition made by the same manufacturer as the cartridge casings and bullet fragments found at the scene. Second, police found in the residence a box for a 9 mm semiautomatic of the same type used in the shooting. Third, police found, again at Oates’s residence, a number of shirts of the same type as that worn by the gunman. Finally, there was evidence that Oates had some motive to assault Fuller.

rors, however, were harmless, even considered cumulatively. The evidence is sufficient to support the conviction, and the trial court did not abuse its discretion in imposing consecutive sentences for assault.

We also find no merit to Oates’s claim that the evidence is insufficient to prove intent to kill. Intent must generally be inferred from a defendant’s words or acts in light of surrounding circumstances. State v. Andrews, 388 N.W.2d 723, 728 (Minn.1986). This court has held that a single shot, even one fired from a moving car, may be sufficient to establish an intent to kill. State v. Chuon, 596 N.W.2d 267, 271 (Minn.App.1999), review denied (Minn. Aug. 25, 1999). Firing up to seven shots, in close quarters in a crowded bar, after putting a gun to the head of the intended victim, provides ample evidence of intent to kill.

4. Oates argues that the trial court erred in imposing sentences on the assault convictions because they occurred in the course of a single behavioral incident. See Minn. Stat. § 609.035 (1998). But there is a court-created multiple-victim exception to that statute’s limitation on multiple sentencing. The court may sentence on one offense per victim, even for conduct that is part of the same behavioral incident, as long as the overall sentence does not exaggerate the criminality of the defendant’s conduct. See State v. Cole, 542 N.W.2d 43, 53 (Minn.1996). We reject Oates’s argument that the aggregate sentence of 378 months exaggerates the criminality of his conduct. Firing several shots in a crowded bar, with intent to kill one individual but heedless of the mortal risk posed to countless others, is not comparable to the typical homicide.

DECISION

The trial court erred in instructing the jury on evidence of flight and in admitting “relationship” evidence without following a Spreigl analysis and without giving a Spreigl cautionary instruction. These er-

Affirmed.


author: SHUMAKER, Judge.

text:
    MINNESOTA HUMANE SOCIETY, Appellant, v. MINNESOTA FEDERATED HUMANE SOCIETIES, Timothy J. Shields, Respondents.
    No. C3-99-2063.
    Court of Appeals of Minnesota.
    June 20, 2000.

      Michael D. Beach, Faegre & Benson, LLP, Minneapolis, for appellant.
    Thomas H. Goodman, Siegel, Brill, Gre-upner, Duffy & Foster, P.A., Minneapolis, for respondent Minnesota Federated Humane Societies.
    Bruce G. Bromander, Bloomington, for respondent Shields.
    Considered and decided by SCHUMACHER, Presiding Judge, HARTEN, Judge/and SHUMAKER, Judge.
   OPINION

SHUMAKER, Judge.

Appellant Minnesota Humane Society sued respondents Minnesota Federated Humane Societies and Timothy J. Shields, Esq. After the .parties twice attempted to finalize a settlement, the district court granted respondents’ motion to dismiss the action for failure to prosecute. Without first holding a hearing on respondents’ motion for fees and costs, the court also awarded attorney fees and costs against appellant for bad-faith settlement negotiations. Minnesota Humane Society appeals, contending the district court abused its discretion in dismissing the case, in awarding attorney fees without a hearing, and in setting an excess fee amount. We reverse and remand.

FACTS

Appellant Minnesota Humane Society (MHS) filed a civil action against Minnesota Federated Humane Societies (Federated) and Timothy J. Shields in Hennepin County on June 25,1997.

The district court set the case for trial to begin June 1, 1998. On May 22, 1998, the parties’ attorneys told the court that they had reached a settlement. The court struck the case from the trial calendar.

Contending that MHS failed to prepare a written settlement agreement, Federated filed a motion on December 16, 1998, seeking fees and enforcement of the settlement, or, in the alternative, a dismissal of MHS’s action.

The court scheduled the motions to be heard on January 7,1999. By letter, MHS told the court that it would oppose the motions and asked for a continuance to try to resolve the dispute. The court did not hold a hearing on the motions but rather directed the parties to try to negotiate a second settlement. On January 14, 1999, the parties met with the court in chambers and agreed to a settlement, subject to approval by their respective boards of directors. MHS was to prepare a final, written settlement agreement. Respondents admitted on the record that the parties had engaged in good-faith negotiations.

In a letter to the court on April 9, 1999, Federated contended that MHS had again failed to prepare a written settlement agreement. Federated requested a ruling on its pending motions for enforcement of the settlement or dismissal, and for attorney fees and costs. MHS’s response letter alleged that Federated had not complied with certain settlement terms and urged the court to deny the motions.

On April 29, 1999, Federated filed a new motion to dismiss the action for failure to prosecute. The court heard the motion on May 20, 1999. The arguments focused on whether or not a particular matter was part of the settlement agreement. The court noted that “there certainly could be interpreted to be an ambiguity about this other matter * * *.” But the court concluded that the settlement was not conditioned on the other matter and granted Federated’s motion to dismiss:

I’m dismissing this case because of a bad faith claim by [MHS] that an issue that you have raised as being part of a settlement agreement was not part of a settlement agreement.

The court then awarded attorney fees against MHS:

[B]ecause of that, all of the attorney’s fees that have been incurred by [Federated and Shields] from the time of the initial * * * agreement ⅜ ⅜ * are going to be borne by your client.

Saying the matter was now resolved, the court immediately concluded the hearing and issued written orders on August 10, 1999 and September !, 1999. In the August 10 order, the court granted a dismissal with prejudice. In the September 1 order, the court awarded attorney fees and costs to Federated in the sum of $15,976.48 and to Shields in the sum of $1,818.65 “because of MHS’ bad faith settlement negotiations in this matter.”

On appeal, MHS argues that the court abused its discretion by dismissing the action, by awarding attorney fees and costs to Federated, and by awarding excessive fees.

ISSUES

1. May a district court dismiss a case for failure to prosecute without calling the case for trial?

2. May a district -court dismiss a case for failure to finalize a proposed settlement agreement?

3. May a district court impose attorney fees as a sanction under Minn.Stat. § 549.211 without notice and an opportunity to be heard?

ANALYSIS

Dismissal

We review a district court’s' dismissal of a claim with prejudice under an abuse of discretion standard.' Firoved v. General Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967). A trial court may dismiss a case for failure to prosecute. Minn. R. Civ. P. 41.02(a). Because a dismissal with prejudice is the most punitive sanction that can be imposed for failure to prosecute, it should be granted only under exceptional circumstances. Firoved, 277 Minn, at 283, 152 N.W.2d at 368.

“[A] case may not be dismissed for lack of prosecution until it has been called for trial.” Reichert v. Union Fidelity Life Ins. Co., 360 N.W.2d 664, 667 (Minn.App.1985). When this case was called for trialj the parties agreed that it could be stricken because they had reached a settlement. The court did not reset the matter for trial. Before the court may properly find a failure to prosecute, it must call the case for trial:

Had appellant been given an opportunity to prosecute his case and then refused to do so, the trial court could have properly exercised its discretion in dismissing this action.

Chahla v. City of St. Paul, 507 N.W.2d 29, 32 (Minn.App.1993).

In the memorandum attached to its order dismissing the ease, the court states that, “MHS has had numerous opportunities to either take its case to trial or follow through on promised settlements. It has done neither.” The record does not show that the court ordered the parties to trial at any time after it struck the case from the trial calendar in May 1998. Subject to the possibility of reasonable continuances, it is the court and not the litigants that controls the call of a case for trial. A condition precedent to a proper dismissal for failure to prosecute is the court’s order that the parties proceed ,to trial. That condition was not satisfied here. The district court abused its discretion in dismissing the action for failure to prosecute.

Moreover, a dismissal for failure to prosecute necessarily operates on the presumption. that the case has not been settled. Federated believed the case had been settled. The court believed the same and stated that in its dismissal order:

Agreement was ultimately reached between the parties on January 14, 1999. The parties placed their agreement of a full and final settlement on the record before this Court in chambers.

Despite the existence of a full and final settlement, the court declined to enforce the agreement and opted instead to dismiss the lawsuit. Jallen v. Agre, 264 Minn. 369, 373 119 N.W.2d 739, 742-43 (1963) (a definite settlement of a lawsuit is contractual in nature and will be enforced). This, too, was error because MHS had no legal right to take a settled case to trial.

Finally, although a court may strongly encourage and facilitate a settlement, it may not order litigants to settle a case. Cf. Olson v. Lovett, 457 N.W.2d 224, 225 (Minn.App.1990) (acknowledging that, while courts may order parties to participate in nonbinding alternative dispute resolution proceedings, such proceedings are not intended to preclude either parties’ access to trial). Because parties to civil litigation have no legal duty to settle, a refusal to do so is not tantamount to a refusal to prosecute. Although a court might sanction a party for conduct in settlement negotiations, the court cannot dismiss a case for refusal to settle.

Attorney .Fees

This court will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). A trial court may award monetary sanctions against a party who engages in action to cause unnecessary delay in litigation. Minn.Stat. § 549.211, subd. 2(1) (1998).

The trial court has authority to award monetary sanctions only if, “after notice and a reasonable opportunity to respond, the court determines that subdivision 2 has been violated.” Minn. Stat § 549.211, subd. 3 (1998); see also Uselman v. Uselman, 464 N.W.2d 130, 143-44 (Minn.1990) (“[t]o facilitate an orderly and uniform approach to the imposition of sanctions,” the supreme court established minimum procedural guidelines of “fair notice of both the possibility of a sanction and the reason for its proposed imposition * * * [and] an opportunity to respond to the notice of a possible * * * sanction).”

“A sanction imposed for violation of this section must be limited to what is sufficient to deter repetition of the conduct * * *.” Minn.Stat. § 549.211, subd. 5(a) (1998). Furthermore, “the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.” Minn. Stat. § 549.211, subd. 5(c) (1998).

The court assessed against MHS all fees and costs that Federated and Shields had incurred from the time of the May 1998 settlement to the date of the May 20, 1999, hearing, despite respondents’ admission in January 1999 that all parties were negotiating in good faith. Accordingly, the court did not give MHS notice of the possibility of that sanction and did not give MHS an opportunity to be heard. Further, the court did not distinguish between fees and costs attributable to good-faith settlement negotiations and conduct constituting bad faith or delay tactics. Thus, the court abused its discretion in imposing attorney fees and costs without notice and an opportunity for hearing and in broadly awarding all fees and costs incurred without differentiating appropriate from inappropriate conduct.

Because we find that procedural safeguards were not afforded to MHS, we do not reach the issue of whether the fees awarded were excessive.

DECISION

Because the district court abused its discretion in dismissing the case for failure to prosecute without first calling the case to trial, we reverse the dismissal and remand. Because the district court abused its discretion in awarding attorney fees as a sanction for bad-faith conduct without first giving MHS notice and an opportunity to be heard, we reverse the award of attorney fees and remand.

Reversed and remanded.