author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Daniel E. JONES, Appellant.
    No. A06-1719.
    Court of Appeals of Minnesota.
    June 19, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Hastings, MN, for respondent.
    Charles F. Clippert, Bethel & Associates, St. Paul, MN; and J. Anthony Torres, Minneapolis, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge, MINGE, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appellant Daniel Jones was convicted of third-degree criminal sexual conduct, calling for a presumptive 78-month imprisonment under state sentencing guidelines. Following our earlier remand of the district court’s 24-month upward sentencing departure, that court reaffirmed the departure based on an earlier jury verdict, determining that appellant had also committed lesser offenses of child neglect and child endangerment; the lesser convictions were premised on facts that aggravated the sexual-conduct offense, findings that appellant had failed to seek medical care for the victim of his sexual assault. Because the court’s sentence is not disproportionate to the seriousness of the offense and there is no merit in appellant’s contention that the court’s sentence constitutes multiple sentencing for the same conduct, we affirm.

FACTS

In 2004, appellant was convicted by a jury of third-degree criminal sexual conduct, third-degree controlled-substance crime, felony child neglect, and felony child endangerment, and acquitted of third-degree murder. The charges stemmed from a November 2000 incident and were based on the state’s evidence that appellant had furnished methamphetamine to the 16-year-old victim who, after being sexually assaulted by appellant, died as a result of a methamphetamine overdose. The district court sentenced appellant to 102 months on the sexual offense and concurrent incarceration for the controlled-substance offense. The court explained the 102-month sentence, a 24-month upward departure, by citing appellant’s failure to seek medical care for the victim. Appellant would have faced a 110-month presumptive sentence on the charge of third-degree murder, the offense on which he was acquitted.

We subsequently affirmed the convictions but reversed the upward departure and remanded for resentencing. State v. Jones, No. A04-1303 (Minn.App. Aug.22, 2005), review denied (Minn. Nov. 22, 2005); see State v. Shattuck, 704 N.W.2d 131, 146 (Minn.2005) (severing unconstitutional portion of Minnesota Sentencing Guidelines that provided mechanism for upward dura-tional departures), as amended on rehearing in part (Minn. Oct. 6, 2005).

In the resentencing proceedings, the district court reaffirmed the 24-month upward departure, determining that a departure “was based on factors found by a jury beyond a reasonable doubt.” The court explained that by finding appellant guilty of child neglect and child endangerment, the jury found that he deprived the victim of health care or supervision, causing substantial harm to her health. See Minn. Stat. § 609.378, subd. 1(a), (b) (2000) (defining child neglect and child endangerment).

ISSUES

1. Did the district court’s reliance on a jury’s determination of guilt on a lesser offense to justify the imposition of an upward durational departure on the more serious offense constitute improper double punishment for the same behavioral incident?

2. Is the resulting sentence disproportionate to the severity of the offense?

ANALYSIS

Initially, we address several of appellant’s arguments that conflict with matters of law settled since the inception of this appeal. These arguments were premised principally on the earlier holdings that the Minnesota Sentencing Guidelines were unconstitutional in regards to upward departures. State v. Shattuck, 704 N.W.2d 131, 142 (Minn.2005) (holding that imposition of upward departure from presumptive guidelines sentence is unconstitutional when district court based departure on its findings of aggravating factors without jury determining factors beyond a reasonable doubt); see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (holding that any fact other than prior conviction that increases penalty above statutory maximum must be submitted to jury and proved beyond a reasonable doubt); see also Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004) (holding that for Apprendi purposes the statutory maximum is the maximum sentence that may be imposed based solely on facts reflected in jury verdict or admitted by defendant).

In State v. Chauvin, the supreme court clarified that “Blakely did not remove the ability of a judge to impose an aggravated sentence, it only changed the process by which aggravated sentences may be imposed.” 723 N.W.2d 20, 25 (Minn.2006). The stated rationale of the court included the determination that sentencing was a uniquely judicial function and did not infringe on a legislative function. Id. at 25. The Chauvin court makes it evident that in the aftermath of Shattuck the district court possessed inherent judicial authority to craft sentencing procedures that protected a defendant’s constitutional rights while effectuating the legislative policy of imposing upward sentencing departures where appropriate.

In Hankerson v. State, the supreme court rejected the argument that the imposition of an upward departure for offenses occurring before the 2005 amendments to the sentencing guidelines involves a retroactive application of those amendments because “[njothing in the former language of Minn. Sent. Guidelines II.D prohibits a court from imposing a sentence based on facts found by a jury.” 723 N.W.2d 232, 236 (Minn.2006); see Shattuck, 704 N.W.2d at 147 n. 16 (stating 2005 amendments to Minn. Sent. Guidelines II.D, authorizing district courts to rely on jury findings to impose aggravated sentence, are prospective only). The district court on remand in this case was not limited to imposing the presumptive sentence.

Similarly, current law refutes appellant’s argument that the district court’s sentencing procedure constituted the improper creation of a new crime. Appellant’s argument that aggravating factors are the equivalent of elements of the offense under Apprendi was rejected in Chauvin. In the context of addressing whether the state is required to allege aggravating factors in the complaint, the Chauvin court stated:

Apprendi made the comparison of aggravating sentencing factors to elements in the context of the adequacy of proof to satisfy the Sixth Amendment’s jury trial requirement, not in the context of giving adequate notice of the charges presented to satisfy the Sixth and Fourteenth Amendments’ more relaxed due process and notice requirements.

723 N.W.2d at 30. Moreover, appellant’s indictment informed him that the maximum penalty for the criminal-sexual-conduct offense was 15 years and gave him effective notice of the aggravating factor in the form of the child-neglect and child-endangerment counts. Appellant was on notice and able to prepare a defense to the allegation that he deprived the victim of necessary health care.

Finally, despite appellant’s argument, precedent establishes that the failure to seek medical care is an aggravating factor supporting a departure. State v. Copeland, 656 N.W.2d 599, 604 (Minn.App. 2003).

1.

Appellant argues that the district court’s reliance on the jury’s guilty verdicts on lesser offenses constitutes improper multiple punishment for a single behavioral incident. See Minn.Stat. § 609.035, subd. 1 (2006) (providing, subject to limited exceptions, “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them”); State v. Carr, 692 N.W.2d 98, 101 (Minn.App.2005) (stating that in determining whether multiple offenses are part of single behavioral incident, court considers factors of time and place and whether offenses were motivated by desire to obtain single criminal objective).

The state conceded in 2004, based on its construction of the single-behavioral-incident rule, that appellant could not be sentenced separately on the child-neglect or ehild-endangerment charge. But even if appellant could not be sentenced separately for those offenses, he fails to offer any authority or rationale in support of his contention that the district court should be precluded from relying on the guilty ver-diets for those offenses as the basis for an enhanced sentence on the criminal-sexual-conduct offense.

Appellant relies on the supreme court’s decision in State v. Osborne, which addresses the use of other convictions as aggravating factors. 715 N.W.2d 436, 446 (Minn.2006). But in Osborne the supreme court reviewed the use of other convictions as aggravating facts only insofar as they were lesser included offenses, or elements of the offense, or had already been the basis for sentencing; the supreme court declined to answer, more generally, the question of whether a jury verdict on one crime may “coincidentally satisfy the requirements of Blakely on another crime.” Id. The court stated that it “need not decide whether it is ever possible for the elements of an offense arising out of the same behavioral incident to support an upward departure on another offense.” Id. at 447. Appellant does not assert that child-neglect/endangerment offenses constituted elements of the sexual conduct offense or lesser included offenses, and he does not dispute that the convictions establish that he failed to provide medical care for the victim.

“It is generally proper for the court to consider the conduct underlying the charge of which the defendant is convicted; but reliance on other offenses that are not part of the charge and of which the defendant was not convicted is not a permissible basis for durational departure.” Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003). Unquestionably, if a proposed aggravating factor “only supports defendant’s guilt of some other offense but does not support the conclusion that the defendant committed the instant offense for which he is being sentenced in a particularly serious way, then it cannot be relied upon as a ground for departure.” Id. (quotation omitted). But the failure to seek medical care for the victim not only supported appellant’s guilt on the child-neglect and child-endangerment charges, it also supported the conclusion that appellant committed the criminal-sexual-conduct offense in a particularly serious way. The state accurately depicts a record that appellant was the only person who could have saved the victim’s life but failed to make even a telephone call as the victim neared death after his sexual offense was committed.

Because the jury’s guilty verdict on a lesser offense necessarily involved the jury finding, beyond a reasonable doubt, of facts that also constitute aggravating circumstances on the more serious offense, the district court did not err in relying on that guilty verdict to justify imposing an upward durational departure on the more serious offense.

2.

Appellant argues that the district court’s sentence is disproportionate because the guidelines sentence for the child-neglect or child-endangerment offense would be a stayed sentence, yet the district court imposed a 24-month upward durational departure based on the failure to provide medical care. We review the sentence imposed to determine whether it is unreasonable, inappropriate, excessive, unjustifiably disparate, or otherwise unwarranted by the facts or law. Minn.Stat. § 244.11, subd. 2(b) (2006).

To ensure that sentences are “proportional to the severity of the offense of conviction,” Minn. Sent. Guidelines I, the district court must order the presumptive sentence provided in the sentencing guidelines unless “substantial and compelling circumstances” warrant a departure, Minn. Sent. Guidelines II.D; State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). Whether to depart from the guidelines rests within the district court’s discretion, and this court will not reverse the decision “absent a clear abuse of that discretion.” State v. Oberg, 627 N.W.2d 721, 724 (Minn. App.2001), review denied (Minn. Aug. 22, 2001).

Contrary to appellant’s argument, it is irrelevant what sentence could have been imposed for the child-neglect or child-endangerment conviction, since he has not been sentenced on this conviction. Rather, the question for the district court “in deciding whether to depart durationally is whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Back, 341 N.W.2d 273, 276 (Minn.1983). “[Generally it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced.” Id.

The district court determined that appellant’s actions in sexually assaulting this physically helpless victim, because he also failed to seek medical help for her, warranted a more severe sentence than the typical case. See Minn.Stat. § 609.344, subd. 1(d) (2000) (defining third-degree criminal sexual conduct as sexual penetration with a person the actor knows or has reason to know is physically helpless).

“Departures are intended for a small number of cases,” and “the guidelines endeavor to limit departures to those circumstances that make the facts of a particular case different from a typical ease.” Taylor, 670 N.W.2d at 589 n. 6. But the district court did not abuse its discretion in determining that an upward dura-tional departure was justified by the aggravating circumstances in this case. Moreover, because the crime in this case atypically led to the victim’s death, the 24-month upward durational departure does not result in a disproportionate sentence.

DECISION

The district court did not err in its upward departure when it relied on the jury’s guilty verdict on lesser offenses, which necessarily involved the jury finding beyond a reasonable doubt that appellant failed to seek medical care for the victim. The resulting sentence does not constitute improper multiple punishment for a single behavioral incident, and it is not disproportionate or an abuse of discretion.

Affirmed.

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


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    Diane SILVER, Respondent, v. Paul RIDGEWAY, Sr., Appellant, Lake County, Respondent.
    No. A06-1600.
    Court of Appeals of Minnesota.
    June 19, 2007.

      Timothy A. Costley, The Costley Law Firm, Two Harbors, MN, for respondent Silver.
    Charles H. Andresen, Andresen & But-terworth, P.A., Duluth, MN, for appellant.
    Russell H. Conrow, Lake County Attorney, Two Harbors, MN, for respondent county.
    Considered and decided by STONEBURNER, Presiding Judge; KALITOWSKI, Judge; and HARTEN, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellant challenges the district court’s order vacating a county board’s resolution establishing a cartway over respondent’s land, arguing that the district court erred in holding that (1) the county board acted under an erroneous theory of law that it did not have authority to establish the cartway across a state wildlife-management area and (2) the county board acted against the public’s best interests. We reverse and remand.

FACTS

Respondent Diane Silver and her family own undeveloped land in Lake County. More than 30 years ago, Silver’s father built a road near the Little Manitou River on Silver’s land for the family’s personal use (the Silver road). Silver and her father gave permission to the county and a few individuals to occasionally use the road. The county has made improvements to the road and has used the road for many years to access county land north of Silver’s property to harvest timber and plant trees.

Appellant Paul Ridgeway, Sr. owns two land-locked 40-acre tracts of land, located north of, but not adjacent to, Silver’s property. Ridgeway’s property is surrounded by county tax-forfeit and state park lands. For a period of time, Ridgeway was given permission to use the Silver road to access his property, but after the death of Silver’s father, permission was denied to Ridge-way.

After obtaining an application form, certain legal descriptions, and information about the process of petitioning for a cart-way from Lake County Land Commissioner Thomas Martinson, Ridgeway applied to the Lake County Board of Commissioners (board) for establishment of a cartway under Minn.Stat. § 164.08, subd. 2(a) (2006), to access his land over the Silver road. It is undisputed that the county would benefit from the establishment of this cartway, which would ensure the county’s continued access to its property over the Silver road.

To the east of Silver’s property, an individual named Harris has a road easement (Harris road) granted by the Department of Natural Resources (DNR) across the Caribou Falls Wildlife Management Area (WMA) to access his hunting cabin located on county tax-forfeit land that is adjacent to Silver’s property. The Harris road would provide Ridgeway with access to his property. Silver advocated for the Harris road as an alternate and preferable route for Ridgeway’s cartway because it would not affect Silver’s land along the Little Manitou River as use of the Silver road would.

The DNR, based on information provided to it by Martinson, expressed a preference for the cartway to be established on the Silver road, which Martinson represented to the DNR as “an established road that meets the needs of both the county and [Ridgeway].” The DNR wrote to the board that if Ridgeway and the county were to access their properties over the Harris road, consideration would have to be given to Harris, who built and maintains the road at his own expense. The DNR further stated that access would have to be in the form of a lease to prevent public use and that any additional construction would have to be done in such a manner as to avoid damage to a threatened plant species that has been observed along the Harris road. The DNR’s letter explained that a public road would not be compatible with the purpose of the WMA, noting that there would also have to be a federal review due to federal-aid restrictions contained in the Pittman-Robertson Wildlife Restoration Act and reimbursement for any land taken out of the WMA.

After several meetings and a site visit, the board established a cartway on the Silver road and awarded damages to Silver in the amount of $30,000. Silver appealed to the district court under Minn.Stat. § 164.07, subd. 7 (2004), challenging both the location of the cartway and the amount of damages.

The matter was submitted to the district court based on the record, including the deposition testimony of Martinson and County Commissioner Clair Nelson. The district court concluded that although the board was not required to consider the alternative route advocated by Silver, the board’s decision was based on an erroneous legal theory that it lacked authority to establish a cartway across state land. The district court also concluded that the board acted against public policy because it failed to properly balance the interests of all of the affected landowners. The district court, without reaching the issue of damages, vacated the board’s resolution establishing the cartway and remanded the matter to the board, informing the board “that it may, legally, choose a route that crosses through DNR lands” and instructing the board “to balance [Ridgeway’s], the bounty’s, [Silver’s], and any others’ interests in determining the cartway route.” The district court denied Ridgeway’s request for reconsideration, and this appeal followed.

ISSUES

I. Does a county board, acting under town-road laws, have authority to establish a cartway over state-owned land that is designated as a wildlife-management area?

II. Does the record support a finding that the board acted in a manner that violated the public’s best interests by inequitably balancing the parties’ interests?

ANALYSIS

I. Standard of review

A town or county board “that grants or refuses a cartway petition acts in a legislative capacity and will be reversed on appeal only when (1) the evidence is clearly against the decision, (2) an erroneous theory of law was applied, or (3) the town board acted arbitrarily and capriciously, contrary to the public’s best interest.” Horton v. Twp. of Helen, 624 N.W.2d 591, 595 (Minn.App.2001), review denied (Minn. June 19, 2001). The scope of judicial review of a legislative determination is necessarily narrow. Id.

Here, the district court correctly recognized the narrow scope of review, but reversed the board’s resolution establishing the cartway. The district court held that the decision was based on an erroneous theory of law and that the board acted in a manner that was contrary to the public’s best interests in balancing the competing landowners’ interests.

An appellate court will reverse a district court’s factual findings if they are clearly erroneous. Rice Lake Contracting Corp. v. Rust Env’t & Infrastructure, Inc., 549 N.W.2d 96, 99 (Minn.App.1996), review denied (Minn. Aug. 20, 1996). But we need not defer to the district court’s application of law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). We will not reverse a town board’s decision regarding a cartway unless the evidence is practically conclusive against the board’s decision or if the board acted arbitrarily and capriciously. See Lieser v. Town of St. Martin, 255 Minn. 153, 158, 96 N.W.2d 1, 5 (1959) (discussing review of a legislative act of a town board on petition for town road).

II. Authority of town board to take state land for cartway

Minn.Stat. § 164.08, subd. 2(a) (2006), provides in relevant part that on a petition by the owner of a tract of land of at least five acres, who has no access to the land except by a navigable waterway or over the lands of others, the town board shall establish by resolution a cartway at least two rods (33 feet) wide connecting the petitioner’s land with a public road. “The [board] may select an alternative route other than that petitioned for if the alternative is deemed by the [board] to be less disruptive and damaging to the affected landowners and in the public’s best interest.” Id. For land such as Ridge-way’s, located in an unorganized territory, the county board of commissioners of the county in which the land is located acts as the town board. Id., subd. 2(b) (2006).

There are no cases dealing directly with a town board’s authority to establish a cartway over state land without the state’s permission. We agree with Ridge-way’s assertion that establishment of a cartway under Minn.Stat. § 164.08 (2006), is an exercise of eminent domain, the inherent power of a governmental entity to take privately owned property and convert it to public use, provided the owner is compensated. This conclusion is supported by caselaw holding that establishment of a cartway creates a public road and therefore does not violate the constitutional prohibition against taking private property for a private use. Powell v. Town Bd. of Sinnott Twp., 175 Minn. 395, 397-98, 221 N.W. 527, 528 (1928); Mueller v. Supervisors of Town of Courtland, 117 Minn. 290, 296, 135 N.W. 996, 998 (1912). Additionally, the cartway statute provides that an appeal of a board’s decision on a cartway application is to “be tried in the same manner as an appeal in eminent domain proceedings under chapter 117.” Minn.Stat. § 164.07, subd. 8 (2006).

It is well established that eminent domain cannot be exercised by a lesser subdivision of government to take state-owned lands absent authority expressly conferred by the legislature or clearly implied from a statutory provision. Minn. Power & Light Co. v. State, 177 Minn. 343, 344, 225 N.W. 164, 164 (1929).

[N]ot all condemnors in the hierarchy of entities having the power of eminent domain enjoy the same rights and powers. The powers of the state are preeminent because of the state’s sovereign authority. It is not correct to equate the sovereign right of the state to condemn land for a public purpose with rights of lesser subdivisions of the government ... to exercise the right of eminent domain.

State by Head v. Christopher, 284 Minn. 233, 238-39, 170 N.W.2d 95, 99 (1969). “[A] general grant of the right of condemnation does not include state property, whether in actual use or not, or whether held in its proprietary or other capacity, unless the state is expressly mentioned therein.” Indep. Sch. Dist. of Virginia v. State (In re Condemnation of Lands in St. Louis County), 124 Minn. 271, 274, 144 N.W. 960, 960 (1914). The supreme court has stated that “[a]s interference with parks, cemeteries, public buildings and property segregated and devoted to the use of public institutions can generally be avoided by a deviation in route, authority to encroach upon such property will not be implied.” Minn. Power & Light, 177 Minn. at 348, 225 N.W. at 166; see also Christopher, 284 Minn. at 239, 170 N.W.2d at 99 (recognizing that the right of eminent domain over public lands should not be exercised where the desired purpose may be accomplished by a slight deviation or change of course).

Silver argues that the statutory language mandating establishment of a cartway “over the lands of others,” if statutory conditions are met, constitutes express authority to establish a cartway over state lands because the language does not limit takings to private land. We disagree and hold that because Minn.Stat. § 164.08 does not expressly provide a town board with authority to take state land for a cartway, the statute grants a town board only general condemnation authority.

Citing eases that state that the authority to condemn public land under a general grant of eminent domain can be implied when the public owner has not put its land to public use when the condemnor’s use is not substantially inconsistent with that of the owner of the public land, Silver further argues that even if the cartway statute is only a general grant of eminent-domain authority, taking of state land for a cart-way in this case can be implied. See, e.g., City of Shakopee v. Clark (In re the Petition in Eminent Domain Proceedings, by the City of Shakopee), 295 N.W.2d 495, 498-99 (Minn.1980) (involving a city’s attempt to condemn, for a street easement, a portion of property owned by the Metropolitan Waste Control Commission for use as a sludge-disposal site).

But the state-owned land in this case has been put to public use as a WMA, and the DNR notified the board that a public road would be inconsistent with that use. On this record, we are compelled to conclude that authority to take state WMA land for the cartway cannot be clearly implied, and the district court erred by holding that the board has authority to establish a cartway over the WMA. We are not insensitive to the impact of this holding on private landowners in areas where the state owns large tracts of land, but given the controlling caselaw, any change would involve matters of public policy for the legislature or the supreme court.

III. The board’s action

The district court also based reversal of the board’s resolution establishing the cartway on its determination that the board balanced the interests of the land owners in a manner contrary to public policy. Silver characterizes this as a finding by the district court that the board acted arbitrarily and capriciously. But there is no evidence in the record that the board failed to properly balance the interests of all of the affected landowners, failed to consider or weigh Silver’s objection to the cartway, or failed to consider Silver’s proposed alternate route.

The board acts on behalf of the county and is accountable to its constituents. The supreme court has noted that “[t]he question of [a town board’s] legislative or administrative policy may be made an issue before the voters. Often it is. The officers elected need not have the unbiased attitude of jurors, nor are they elected as judges.” Rask v. Town Bd. of Hendrum, 173 Minn. 572, 575, 218 N.W. 115, 116 (1928) (quotation omitted) (holding that a town board member’s prehearing opinion on the necessity of a cartway did not make the board’s action arbitrary). Because the record does not support a finding that the board acted “against public policy” or arbitrarily or capriciously in establishing the cartway, the district court’s finding to the contrary is clearly erroneous. We therefore reverse the district court’s vacation of the board’s resolution establishing a cart-way over Silver’s land via the Silver road.

IV. Damages

Because the district court did not address Silver’s challenge to the amount of damages awarded, a remand is appropriate on this issue.

DECISION

The board did not act under an erroneous legal theory when it declined to establish a cartway over an alternate route that would have required the taking of state land designated as a WMA. The district court’s finding that the board acted contrary to public policy is clearly erroneous. The district court’s order vacating the board’s resolution establishing a cartway to Ridgeway’s property over the Silver road is reversed and the matter is remanded to the district court for consideration of Silver’s appeal of the damage award.

Reversed and remanded.

      . The information was obtained from Martin-son by Ridgeway’s son. For this assistance, Ridgeway and his son sent "thank you” notes to Martinson, and Ridgeway’s son sent a gift of some collectible super bowl pins to Martin-son, who promptly returned them.

      . 16 U.S.C. §§ 669 — 669k (West Supp.2007) (providing funds and technical assistance to state-managed wildlife-restoration projects and placing mandatory restrictions on a recipient state's use of its own state monies and state wildlife areas for non-wildlife purposes such as highways).

      . Nelson testified that the board relied on Martinson’s ''expertise.” The district court found that Martinson's assistance to Ridge-way gave “rise to an appearance of impropriety” but did not base its vacation of the board’s resolution on Martinson's involvement in the process.

      . The fact that under Minn.Stat. § 164.08, subd. 2(c), the petitioner for a cartway, rather than the condemning authority, compensates the owner for land taken for a cartway does not affect our conclusion.


author: OPINION ROSS, Judge. KALITOWSKI, Judge

text:
    Lisa GAGLIARDI, Appellant, v. ORTHO-MIDWEST, INC., Respondent.
    No. A06-1318.
    Court of Appeals of Minnesota.
    June 19, 2007.

      Steven Andrew Smith, Adam A. Gillette, Nichols Raster & Anderson, PLLP, Minneapolis, MN, for appellant.
    Stephen G. Andersen, Jennifer J. Kruckeberg, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondent.
    Considered and decided by ROSS, Presiding Judge; KALITOWSKI, Judge; and HALBROOKS, Judge.
   OPINION

ROSS, Judge.

This case requires us to decide whether a saleswoman who worked for an orthopedic-devices distributor has raised facts sufficient to preserve her workplace sexual-harassment and retaliation claims for submission to a factfinder. Lisa Gagliardi appeals from the district court’s grant of summary judgment in favor of her former employer, Ortho-Midwest, Inc. The district court dismissed her lawsuit after it concluded that Gagliardi did not present facts sufficient to sustain her claims of sexual harassment or retaliation by Ortho-Midwest. It also concluded that Ortho-Midwest is not liable for the alleged harassment by the employees of Aircast, Ortho-Midwest’s client. We hold that the district court appropriately dismissed Ga-gliardi’s claims of harassment arising from the alleged conduct of Aircast employees and her claim of retaliation. But we hold that the disputed facts, construed in the light most favorable to Gagliardi’s claims, may allow a factfinder to find that Ortho-Midwest, through the conduct of its sole owner, subjected Gagliardi to a hostile work environment in violation of the Minnesota Human Rights Act. We therefore affirm in part and reverse in part.

FACTS

Lisa Gagliardi’s harassment and retaliation claims arise from conduct that she alleges occurred during her approximately six weeks of employment at Ortho-Mid-west, Inc., from January 15 to February 28, 2005. Ortho-Midwest, a manufacturer’s representative solely owned by Craig Carlander, sells Aircast orthopedic devices and products. The alleged illegal conduct involved personnel at Ortho-Midwest and Aircast, Ortho-Midwest’s largest client. Carlander hired Gagliardi to sell Aircast and other products to hospitals and physicians in Minnesota and to assist Carlander with maintenance and reporting requirements for the product lines. Ortho-Mid-west engaged independent contractors to sell in other regions. Ortho-Midwest has no sexual-harassment policy, no employee handbook, and no human-resources personnel. Employment-related complaints must therefore be made to Carlander. Carlander had an informal agreement with his sales representatives, which she claims he described as, “You don’t sue me, I don’t sue you.”

Beyond indicating that she would be required to travel extensively with Carlan-der, Carlander did not give Gagliardi a specific explanation of her job expectations, goals, or duties. Following Carlan-der’s suggestion, Gagliardi spoke with a former female sales representative to learn more about the job. According to Gagliar-di, the former representative told her that the job had few expectations and no sales goals. She warned Gagliardi to be very firm with Carlander to reject his sexual advances.

During her brief employment at Ortho-Midwest, Gagliardi took four business trips, three of them with Carlander. Ga-gliardi claims that she was subjected to sexually inappropriate comments and groping by Aircast employees during her first business trip with Carlander. She asserts that Carlander made inappropriate romantic or sexual advances and inappropriately touched her during their second trip together. And she claims that Carlan-der’s unwelcome romantic or sexual conduct continued during her third and final business trip with him. She points to other statements and conduct by Carlander to support her allegations of pervasive and severe sexual harassment. Gagliardi told Carlander about one of the incidents of alleged harassment by an Aircast employee, and her boyfriend complained directly to Aircast about romantic emails Gagliardi had been receiving from another Aircast employee. Over about a four-day period at the end of February 2005, Carlander attempted by electronic mail and telephone to contact Gagliardi regarding specific work assignments, requesting her response. Gagliardi did not respond, and, on the evening of February 28, Carlander terminated her employment.

Gagliardi sued Ortho-Midwest under the Minnesota Human Rights Act, alleging that she was the subject of sexual harassment that created a hostile work environment based on the actions of three Aircast employees and Carlander. She also alleged that Ortho-Midwest retaliated against her because of her boyfriend’s report complaining about the alleged harassment by Aircast employees. The district court granted summary judgment, determining that Gagliardi failed to prove a prima facie case of sexual harassment, that she failed to prove that her termination was illegal retaliation, and that Ortho-Mid-west had a legitimate nondiscriminatory reason for terminating her employment, which she could not show was a pretext for retaliation. This appeal follows.

ISSUES

I. Did the district court err by granting summary judgment and dismissing a discharged employee’s claims of sexual harassment by her employer’s client and her supervisor?

II. Is a report of alleged incidents of sexual harassment conduct protected by the Minnesota Human Rights Act when the report is made by a third-party nonemployee?

ANALYSIS

Summary judgment is proper when, based on the pleadings, discovery, and affidavits filed with the court, there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary judgment, we review de novo whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn.2002). No genuine issue of fact exists when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted). A court deciding a summary-judgment motion, either in the first instance or on appeal, may not weigh the evidence or determine credibility. See id. at 70 (stating that court should not weigh evidence); Forsblad v. Jepson, 292 Minn. 458, 459-60, 195 N.W.2d 429, 430 (1972) (stating that court should not determine credibility). Instead, we must view the evidence in the light most favorable to the party against whom the district court granted summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). We apply this standard first to Gagliardi’s sexual-harassment claims and then to her retaliation claim.

I

Gagliardi argues that the district court mistakenly concluded that she failed to establish a prima facie case of sexual harassment. She asserts that the district court failed to construe disputed facts in a light favorable to her claims and made unfavorable credibility determinations. Viewing the evidence in the light most favorable to Gagliardi, we find that she has not established a prima facie case of sexual harassment with respect to her allegations involving the Aircast employees, but that she has with respect to those involving Carlander.

The Minnesota Human Rights Act prohibits sexual harassment as a form of employment discrimination. Minn.Stat. §§ 363A.03, subd. 13, 363A.08, subd. 2(3) (2006). Sexual harassment includes “unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature.” Id. § 363A.03, subd. 43 (2006). Both parties agree that to prevail on her claim of sexual harassment creating a hostile work environment, Gagliardi must show that:

(1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected grodp; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action.

Goins v. West Group, 635 N.W.2d 717, 725 (Minn.2001).

To be actionable, the sexual harassment must have been so severe or pervasive that it altered the conditions of employment and created an abusive work environment. Id. We determine whether an environment is sufficiently hostile or abusive to support a claim by viewing “the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Wenigar v. Johnson, 712 N.W.2d 190, 207 (Minn.App.2006) (quotation omitted). Although isolated instances of harassment may seem inconsequential, taken together they may demonstrate a course of conduct that creates a hostile environment. Giuliani v. Stuart Corp., 512 N.W.2d 589, 594 (Minn.App.1994).

Aircast Employees’ Alleged Sexual Harassment

Gagliardi introduced her deposition testimony as evidence that three Aircast employees made sexually inappropriate comments to her and that one physically assaulted her during her first business trip with Carlander to San Diego. An employer may be held liable for the sexual harassment of its employees by nonem-ployees, including customers, when the employer is aware of the harassment but fails to take timely remedial action. Costilla v. State, 571 N.W.2d 587, 592 (Minn. App.1997), review denied (Minn. Jan. 28, 1998). The legislature amended the definition of sexual harassment in 2001 by deleting the provision that “in the case of employment, the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action.” 2001 Minn. Laws ch. 194, § 1. Gagliardi footnotes this change but continues to argue, as she did in the district court, that Ortho-Midwest is liable for the conduct of the Aircast employees because it should have known of their sexual harassment. She implies but does not argue that Ortho-Midwest may be strictly liable for the actions of the Aircast employees. It appears that the amendment merely moves the knowledge-and-response element from a plaintiffs prima facie case to an employer’s affirmative defense, tracking developments in federal discrimination law. See Pennsylvania State Police v. Suders, 542 U.S. 129, 143-46, 124 S.Ct. 2342, 2352-54, 159 L.Ed.2d 204 (2004) (describing the holdings of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). But we need not decide the full import of the amendment because actions of Aircast personnel trigger the analysis we established in Costilla as it regards harassment by nonemployees. Under Cos-tilla, which presents the basis for employer-harassment liability in third-party cases, Gagliardi must show that Ortho-Midwest actually knew about but failed to remedy the alleged harassment. Costilla, 571 N.W.2d at 592. She did not make this showing.

In the first incident, Gagliardi introduced her own testimony that an Air-cast sales representative whispered to her in crude terms during dinner, saying that women with thin lips perform the best oral sex. Gagliardi soon left the table. The next evening she reported this incident to Carlander, who reported it to the Aircast vice president of human resources the following morning. Gagliardi alleged no later offensive conduct by this Aircast employee. Ortho-Midwest promptly addressed the single comment appropriately, and this incident cannot form the basis of liability against Ortho-Midwest.

In a second incident, Gagliardi asserts that another Aircast sales representative came to her hotel room ostensibly to provide her with business information. This representative allegedly took obvious romantic interest in Gagliardi; he told her that they made a cute couple and that he was very attracted to her, and he sat beside her at every meeting they both attended, even moving Carlander’s things to do so. Gagliardi asserts that once he was inside her hotel room, the representative put his arms around her and started kissing her. She pushed him away. He told her that when she spoke in his ear during the earlier meeting he “got a hard-on.” She claims that he then touched her buttocks underneath her dress and groped her breasts. Gagliardi told him to leave, but he left only after she agreed that she would go for a walk on the beach with him later. Gagliardi did not report the incident to Carlander or to Aircast, claiming now that she was too overwhelmed and embarrassed to do so. She nonetheless had a duty to alert Carlander to the harassing conduct. See Williams v. Missouri Dep’t of Mental Health, 407 F.3d 972, 977 (8th Cir.2005) (holding that employee is required to notify employer of any alleged sexual harassment or hostility, despite employee’s subjective fears of confrontation or unpleasantness). An employer cannot be liable for harassment by third parties when the harassed employee conceals the harassment, and so this incident also cannot support Gagliardi’s harassment claim.

Gagliardi alleges that on the next night, a third Aircast employee — production manager Ron McNeill — approached her from behind in a lounge and told her that she looked “delicious.” Gagliardi did not report this comment to Carlander or to Aircast. After Gagliardi returned from San Diego, McNeill emailed and telephoned Gagliardi many times, including on Valentine’s Day, expressing his romantic interest in her. Gagliardi did not tell Car-lander about McNeill’s communications, purportedly because she knew that Carlan-der and McNeill were friends. Gagliardi now strongly emphasizes McNeill’s romantic interest in her, and she claims in her brief to this court that she “tried to keep [McNeill’s emails] on a friendship level.” She tells this court that she “was unsuccessful” in her efforts to keep his communication platonic, that she would refuse to answer McNeill’s calls, and that she considered his electronic letters to be “inappropriate.” Gagliardi’s brief even quotes segments of McNeill’s often lengthy and plainly romantic emails, and she includes the full text of 14 of them in her appendix. Looking only to her appellate submissions, Gagliardi’s claims that McNeill pestered her with a unilateral romantic interest would appear to be overwhelmingly supported. This is key, because only his unwelcome sexual attention would constitute sexual harassment. Minn.Stat. § 363A.03, subd. 43 (defining sexual harassment as “unwelcome” conduct); Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn.1997) (emphasizing that conduct alleged as sexual harassment must be unwelcome).

But absent from Gagliardi’s brief, and absent from her appendix, is any reference to Gagliardi’s own lengthy emails and voicemail messages to McNeill. We have reviewed the communications that Gagliar-di chose not to present to us, and they tell a very different and complete story.

Far from suggesting that Gagliardi did not welcome McNeill’s romantic prose, as her brief and selective appellate submissions would indicate, her replies obviously invite and encourage his sexual interest in her and gushingly declare her interest in him. For example, Gagliardi left McNeill a voicemail message late on a Sunday night in which she said, “I apologize for not giving you a call Friday.... I am still trying to find some time where I can actually sit down and respond to all of your wonderful messages that you sent me. There’s no way I am going to be able to even sound near as ... linguistic and beautiful as you do.” She requested that he help secure sales territory for her in Salt Lake City, quipping, “Be my sugar daddy. Come and see me.” She told him she would “try to contact [him] tomorrow,” and encouraged him to “feel free to call me any time.” In another voicemail message, Gagliardi told McNeill that she “absolutely loved the message” that he sent her, and she explained that she felt “nothing would have been better than to walk on the beach” in San Diego with him. She told him, “it would be great to hear from you,” and volunteered, “I’m completely free if you want to call my cell phone, and I would love to talk to you.” She referred to his maudlin, romantic emails as “masterpiece letters.”

Gagliardi not only implied that she was interested in McNeill beyond friendship, she encouraged his reciprocal interest by insisting that she was glad that he had told her, “I should feel lucky that you are interested in me.” She flirted, “I like the thought that I am the only [woman involved in an email romance with you].” She consistently invited his emotional replies to her, noting, “[I] am listening, and waiting for more,” among other enticements. She urged him, “Your messages just put me in a trance and send me to a different, more calm, world.” And she flattered, “I am wondering what triggered this interest in me — you are such a sophisticated, worldly man. To me, you are genuine, caring, intriguing, very handsome, and intelligent.” She referred to him as “sexy.” Rather than to suggest the slightest offense concerning McNeill’s now allegedly sexually harassing interaction with her during and after the trip, Gagliar-di wrote, “I enjoyed the encounters we had in San Diego and find myself thinking how we could see each other again.”

The decision by Gagliardi’s counsel to omit from the briefs to this court any reference or minor hint as to Gagliardi’s seductive emails and phone messages to McNeill is troubling in light of counsel’s bald representation that “Gagliardi tried to keep [McNeill’s emails] on a friendship level. Unfortunately, Ms. Gagliardi was unsuccessful.” It is not difficult to conceive why Gagliardi “was unsuccessful” at keeping McNeill’s communications “on a friendship level.” She plainly never tried to. We easily reach this conclusion, as her counsel must have, by reading only a few of the sexually teasing lines that her counsel withheld from Gagliardi’s appellate presentation, such as, “I do wish you would have grabbed me by the arm — so gently of course because I dislike pain and because I was a bit tipsy and would have fallen to the ground and brought you with me and there we would have been tangled up together ... as the rumors started to flow ... that the famous product manager, Mr. McNe[ill], has drank himself into a stup[o]r and made the new girl cry because he squeezed her arm really tight when she said no to his offer of enjoying a beautiful walk on the beach, and now she is sobbing on the ground with a bump on her head and her dress up above her waist exposing the fact that she forgot to bring appropriate under garments to wear with a dress, so she wore nothing at all.” But in light of her counsel’s obligation to be candid with the court, it is very difficult to conceive of the justification for the documentary omissions and the misleading factual representation that Gagliardi was a mere nonparticipant in someone else’s unilateral and unwelcome romantic fantasy. See Minn. R. Prof. Conduct 3.1, 3.3 (prohibiting lawyers from asserting an issue with no basis in fact and requiring candor in all representations to a tribunal). The rules of civil appellate procedure require that “[t]he facts must be stated fairly [and] with complete candor.” Minn. R. Civ.App. P. 128.02, subd. 1(c). As learned commentators have accurately advised, “a strained and inaccurate statement of the facts may irreparably impair a briefs credibility in the eyes of the appellate court.” 3 Eric J. Magnuson & David F. Herr, Minnesota Practice § 128.6 (2006).

The district court concluded that Ga-gliardi failed to make a prima facie showing that Ortho-Midwest knew or should have known of this alleged harassment by McNeill. The district court was correct. Gagliardi never reported the McNeill emails to Carlander, and she reported them to Aircast only after her termination and after her boyfriend confronted McNeill and complained to Aireast’s human-resources department about McNeill’s emails. Ortho-Midwest is not hable under the Minnesota Human Rights Act for third-party conduct about which it was unaware. Ortho-Midwest is also not liable for the allegedly unwelcome emails because they obviously were not unwelcome. Having reviewed the relevant documents excluded and not mentioned by Gagliardi, we conclude that Gagliardi’s assertion to this court that McNeill unilaterally sought a personal relationship with Gagliardi is objectively false. No reasonable factfinder could find that McNeill’s communication to Gagliardi was unwelcome in the face of the romantic seduction and sexual innuendo in her lengthy telephone messages and electronic letters to McNeill.

Ortho-Midwest is entitled to summary judgment with respect to the three incidents of alleged sexual harassment by Aircast employees. We reach a different result concerning Gagliardi’s claim that Ortho-Midwest’s owner, Carlander, sexually harassed her.

Coriander's Alleged Sexual Harassment

The evidence of Carlander’s interaction with Gagliardi, when viewed in the light most favorable to her claims, establishes a prima facie case of sexual harassment by Ortho-Midwest. Although Gagliardi did not report her allegations about Carlander before he terminated her employment, “[i]n the unique circumstance in which the actual employer — rather than a co-worker or manager — engages in sexual harassment, we may infer that the employer had or, at the very least, should have had knowledge of the sexual harassment.” Munro Holding, LLC v. Cook, 695 N.W.2d 379, 387 (Minn.App.2005). Gagliar-di’s claims as they regard Carlander survive summary judgment because her individual allegations, taken together, at least raise a question for a factfinder to decide whether Carlander created a hostile work environment.

Immediately after returning from the San Diego business trip, Gagliardi and Carlander traveled to Seattle together for three days of meetings. Gagliardi alleges that Carlander began harassing her at the end of that trip. According to Gagliardi’s deposition testimony, Carlander asked Ga-gliardi to check out of her hotel room and await their final preflight dinner in his hotel room. Gagliardi declined the invitation by saying that she would rather rest. But Carlander then checked out of his hotel room and brought his luggage to Gagliardi’s room. After Gagliardi let him into the room, Carlander lay down on her bed, which was the only one in her room. Gagliardi testified that she left the room, but that Carlander then came looking for her. Later that evening, Carlander directed their limousine driver to take them around Seattle. Gagliardi claims that during that drive, Carlander sat very close to her and then laid his head in her lap, face up. Gagliardi claims that this made her very uncomfortable because she was in a dark, “very private place” with Carlander, and putting his head in her lap “was just not something that a boss should do.”

Gagliardi testified that after returning from that business trip but before the next, she was present at Carlander’s home office when he handed her a year-old calendar with sexually suggestive photographic images of his wife. Gagliardi presented evidence that several of the provocative photographs depicted Carlan-der’s wife posed partially in the nude, and that Carlander flipped through the calendar, showing Gagliardi the images. She testified that Carlander then gave her the calendar but that after taking it to avoid offending him, she threw it away. She testified that she found that experience inappropriate and offensive.

Gagliardi claims also that Carlander’s conduct during their third and final business trip together constituted another unwelcome romantic or sexual advance. According to Gagliardi, even though the two of them had reservations at separate hotels, on their arrival Carlander directed their limousine to his hotel and asked the driver to remove both his and Gagliardi’s luggage to be taken to his room. After both sets of luggage had been taken to Carlander’s room, Gagliardi told Carlander that she wanted to stay at her own hotel instead. She claims that Carlander reacted as if he was offended by her refusal to lodge in his hotel room. Gagliardi testified that the next afternoon before dinner, she was with Carlander in his hotel room doing work on the computer. She alleges that while discussing leaving the room for dinner Carlander suggested that he put on a bathrobe, that the two of them remain in his hotel room and order room service, and that Gagliardi also change into a hotel bathrobe that he had already obtained for her. Gagliardi declined, and she ended the trip by returning early to Minnesota. She never returned to work.

Considered from Gagliardi’s perspective, these facts tend to support the contention that almost immediately after Gagliardi joined Ortho-Midwest, the company’s owner, to whom she reported directly, began interacting with her unprofessionally and sexually in the workplace or on work-related trips. These facts might suggest that he required her to join him frequently on business trips during which he attempted to manipulate circumstances for his own romantic or sexual interests. Through his conduct, as alleged, a factfinder might believe that Carlander pressured Gagliardi toward a physical or sexual relationship and that she considered his conduct to be unwelcome and offensive. During this same brief employment period he handed her sexually provocative photographs of his wife within an outdated, otherwise useless calendar. And without invitation he placed his head in her lap. This conduct allegedly impaired Gagliardi’s ability to remain in the workplace and parallels allegations that courts have held sufficient to establish a claim of sexual harassment. See Beach v. Yellow Freight Sys., 312 F.3d 391, 397 (8th Cir.2002) (holding that graffiti that included sexually explicit drawings and phrases was of a graphic sexual nature demonstrating severe and pervasive harassment); Moving v. Ark. Dep’t of Corr., 243 F.3d 452, 456 (8th Cir.2001) (finding single incident in motel room that involved touching thigh and attempting kiss sufficient to create sexual-harassment question for jury); Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 762 (8th Cir.1998) (holding that supervisor’s patting female employee on back, brushing up against her, and telling her she smelled nice could constitute sexual harassment); Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir.1998) (holding that evidence of sexual innuendos and unwanted physical touching raised jury question of whether work environment was hostile); Burns v. McGregor Electronic Indus., Inc., 989 F.2d 959, 964 (8th Cir.1993) (noting that sexual harassment need not consist of only explicit sexual advances, but can occur through sexual propositions, offensive touching, and sexual innuendo); Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 879-80 (D.Minn.1993) (finding after bench trial that sexually explicit visual references of women in graffiti, photographs, and cartoons contributed to hostile work environment); Munro Holding, 695 N.W.2d at 387 (concluding that unwelcome, sexually motivated physical contact created an offensive, intimidating, and hostile work environment). We hold that these facts in the aggregate establish a prima facie case of sexual harassment creating a hostile work environment.

We recognize that Carlander and other witnesses offer a different perspective on Gagliardi’s factual allegations. And Or-tho-Midwest insists that the district court properly discounted the credibility of Ga-gliardi’s allegations about Carlander by pointing to her emails and voice messages to McNeill encouraging and welcoming the conduct that Gagliardi later falsely claimed to be unwelcome and offensive. But weighing the evidence and determining credibility are not among the court’s duties at summary judgment. A trier of fact is free to believe Gagliardi’s claims about Carlander even if Ortho-Midwest presents a conflicting account and even if the fact-finder is aware of her misleading accusations about McNeill.

The dissent maintains essentially that because Gagliardi “never indicated to Carlander at the time that his actions made her uncomfortable,” we must conclude as a matter of law that she welcomed his conduct. As a practical matter, an employee does not carry the burden to affirmatively announce discomfort with objectively abnormal workplace conduct, such as a supervisor putting his head into her lap and presenting her with sexually provocative photographs of his wife. And the law is clear that whether Gagliardi declared discomfort to Carlander is not the test to determine whether she welcomed his conduct. Rather, “the threshold for determining that conduct is unwelcome is whether it was uninvited and offensive.” Burns, 989 F.2d at 962 (quotation omitted). Generally, “[t]he question of whether particular conduct was unwelcome will turn largely on credibility determinations by the trier of fact.” Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir.1996). Unlike Gagliardi’s documented declarations expressly requesting McNeill’s romantic attention, none of the cited emails to Carlander would resolve as a matter of law that she welcomed Carlander’s conduct. The question of whether she invited Carlander’s conduct requires resolution of disputed facts.

We also cannot agree with the dissent’s view that Gagliardi presented no evidence that Carlander’s conduct made her uncomfortable or that the workplace was so offensive to allow a factfinder to conclude that it interfered with Gagliardi’s job. A plaintiff may demonstrate through her conduct that harassment is unwelcome. Beard v. Flying J, Inc., 266 F.3d 792, 798 (8th Cir.2001). Gagliardi claims that she threw away the allegedly offensive photographs of Carlander’s wife soon after he gave her the calendar. On the four occasions that Carlander allegedly attempted to spend time with Gagliardi in one of their hotel rooms, Gagliardi’s discomfort might be inferred from her response each time. She declined the first; she left Carlander behind in her own hotel room during the second; she expressly refused to stay the night in Carlander’s hotel room in the third; and she declined his offer to change into a bathrobe and dine with him in his room during the fourth. She also alleges that her discomfort caused her to prematurely terminate their final business trip and return home without Carlander, never returning to the workplace. Although she admitted to an additional reason for her early return, the admission does not prevent a factfinder from crediting both reasons for leaving early. Gagliardi’s version of the disputed facts implies unwelcomeness and job interference, which precludes summary judgment.

Carlander’s allegedly harassing behavior during the truncated period of Gagliardi’s employment, taken together, depicts a course of arguably sexual conduct that a factfinder may find to have created a hostile work environment. We therefore reverse the district court’s summary judgment decision as to Carlander’s conduct only.

II

Gagliardi contends that the district court also erred by granting summary judgment on her retaliation claim. We disagree. The Minnesota Human Rights Act prohibits retaliation by an employer against an employee who has filed a complaint about an unfair, discriminatory practice. Minn.Stat. § 363A.15 (2006). A prima facie case of retaliation requires a showing that the complainant engaged in statutorily protected conduct, the employer took adverse action against the complainant, and a causal connection exists between the two. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 548 (Minn.2001). Although causation is generally a question of fact for the factfin-der, Paidar v. Hughes, 615 N.W.2d 276, 281 (Minn.2000), summary judgment is appropriate when a plaintiff cannot prove an essential element of her claim, Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995).

Gagliardi argues that Ortho-Midwest retaliated by terminating her employment shortly after her boyfriend complained to Aircast about the alleged incidents of sexual harassment by Aircast’s employees. The district court concluded that Gagliardi failed to establish a prima facie case because her boyfriend is not an employee and because he reported to Aircast, not to Gagliardi’s employer. We agree with the district court’s reasoning. The plain language of the Minnesota Human Rights Act defeats Gagliardi’s argument. The Act makes it unlawful for an employer “to intentionally engage in any reprisal against any person because that person” engaged in protected conduct. Minn.Stat. § 363A.15 (emphasis added). Gagliardi was not “that person” in this case.

Gagliardi cites several federal cases to support her assertion that an employer may not retaliate against an employee because of the protected activity of a family member or friend. But we find Gagliardi’s support to be unpersuasive. Of all the cases she cites, only one, De Medina v. Reinhardt, 444 F.Supp. 573, 580 (D.D.C. 1978), appears to support Gagliardi’s expansive reading of Title VII that retaliation claims may be based on the protected activity of a nonemployee family member or friend. Both the Third and Fifth Circuit Courts of Appeals have disagreed with its holding, and various other federal courts have declined to follow it. Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 568-69 (3rd Cir.2002); Holt v. JTM Indus., Inc., 89 F.3d 1224, 1226 (5th Cir. 1996). The Eighth Circuit has expressly considered and rejected the proposition that Title VII’s anti-retaliation provision prohibits employers from taking adverse employment action against employees whose spouses or acquaintances engaged in the allegedly statutorily protected activity. See Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir.1998) (holding that plaintiff bringing Title VII retaliation claim must establish that she personally engaged in protected conduct). The other cases cited by Gagliardi involved protected conduct by family members who were either current or former employees.

We hold that an employee must personally engage in protected conduct to establish a prima facie case of retaliation under the Minnesota Human Rights Act. Because Gagliardi cannot base her claim on her boyfriend’s report to Aircast, she has failed to establish every element of a reprisal claim. We therefore do not reach Gagliardi’s challenge to the district court’s decision that Ortho-Midwest presented legitimate reasons for her discharge. The district court properly granted summary judgment in favor of Ortho-Midwest on Gagliardi’s unsupported reprisal claim.

DECISION

Gagliardi failed to establish prima facie cases of sexual harassment by Aircast employees and retaliation by Ortho-Midwest. We affirm the district court’s summary judgment on these grounds. But we reverse summary judgment on Gagliardi’s sexual-harassment claim against Carlander because resolution of the claim depends on factual determinations and, viewing the facts in the light most favorable to Gagliar-di, she presented a prima facie case of sexual harassment.

Affirmed in part, reversed in part.

KALITOWSKI, Judge

(concurring in part, dissenting in part).

I concur that the district court did not err in dismissing appellant’s claim of sexual harassment arising from the alleged conduct of Aircast employees and her claim of reprisal discrimination. But because the district court correctly determined that appellant failed to produce any evidence that the alleged actions taken by Carlander were unwelcome and offensive to her or that Carlander’s actions interfered with her employment or created a hostile work environment, I respectfully dissent.

An employee alleging sexual harassment must prove that the conduct in question is unwelcome and that the conduct has the purpose or effect of “substantially interfering with an individual’s employment” or “creating an intimidating, hostile, or offensive employment.” Minn.Stat. § 363A.03, subd. 43(3) (2006).

I.

The district court correctly determined that appellant failed' to raise a material issue of fact concerning whether Carlan-der’s conduct was unwelcome. With regard to each of the specific incidents of alleged sexual harassment by Carlander the record supports the district court’s finding that appellant never indicated to Carlander at the time that his actions made her uncomfortable. And it is undisputed that on the sole occasion that appellant told anyone about any alleged incident of sexual harassment, appellant mentioned the offensive comment of the Aircast sales representative to Carlander and Carlander reported the matter to the Vice President of Human Resources for Aircast the next day.

In addition, as with her sexual harassment claims against McNeill, appellant’s after the fact complaints concerning the unwelcome nature of Carlander’s conduct are belied by evidence in the record including the e-mail messages she sent to him. Shortly after the business trip during which appellant alleges that she was sexually harassed when Carlander watched a movie on her hotel room bed and put his head in her lap while riding in a limo, appellant sent Carlander an e-mail stating:

Hope your trip to Wisconsin went well and I will see you in the morning — I anticipate a call from you to set up a time and place.
I can’t believe I had to eat cereal for dinner last night! And where was my driver today? ?
I actually had to put gas in my car myself!
:) See you soon.Lisa

Similarly, during their final business trip together, appellant told Carlander her son was ill and she needed to fly home early. Appellant, who now claims she left early in part because she was sexually harassed by Carlander’s comments regarding hotel bathrobes, sent the following e-mail to Carlander the night she arrived home:

Hi Craig,
Just wanted to update you — but still don’t know the dx. Flight went fine. I’m exhausted. Thx for first class!! You’re the best. Tell Dr. Nagle hi if you see him. Talk soon.
Sorry again — I’m missing a great meeting and more great meals I’m sure.
Take it easy.
Lisa

On this record the district court was correct when it stated: “The Court has seen no evidence in the record that Mr. Carlander made Ms. Gagliardi uncomfortable, nor has it seen evidence that any of his conduct towards Ms. Gagliardi was unwelcome.”

II.

The district court should consider the totality of the circumstances in ascertaining whether an environment is sufficiently hostile or abusive to support a claim. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998). In making this determination a court is to consider the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. Id. at 787-88, 118 S.Ct. at 2283.

Here, the district court correctly determined that appellant “has completely failed to produce any evidence that actions taken by Mr. Carlander interfered with her employment or created a hostile work environment.” Appellant has made no allegations that Carlander’s conduct in any way prevented appellant from performing her job duties. Nor, as the district court found, has appellant “indicated she ever felt threatened by Mr. Carlander or humiliated by him.”

The district court followed the law and considered the totality of the circumstances, including: (1) appellant’s e-mail messages to McNeill and Carlander; (2) the undisputed fact that appellant maintained a friendly working relationship with Carlander; and (3) the fact that prior to the termination of her employment appellant neither objected to Mr. Carlander’s alleged conduct or indicated to anyone that his alleged conduct made her uncomfortable. The district court correctly concluded that appellant has failed to raise a material issue of fact as to whether Carlander’s conduct substantially interfered with appellant’s employment or created an intimidating, hostile, or offensive employment environment.

I would affirm the district court in all respects.


author: MARING, Justice.

text:
    2007 ND 84
    Ryan G. DIETZ, Plaintiff and Appellant v. Sarah M. DIETZ, nka Sarah M. Wilkins, Defendant and Appellee.
    No. 20060229.
    Supreme Court of North Dakota.
    June 7, 2007.
    Rehearing Denied July 25, 2007.

      Arnold V. Fleck, Fleck Law Office, Bismarck, N.D., for plaintiff and appellant.
    Todd D. Kranda, Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Ryan Dietz appeals from a district court order denying his motion for a change of custody of his three minor children, for an interim order placing temporary custody of the children with him, for a finding that his former wife, Sarah Wilkins, was in contempt of court, for appointment of a psychologist and a child custody investigator, and for attorney fees. We conclude the district court misapplied the law in deciding Dietz had not established a prima facie case for modification of custody, and we reverse and remand.

I

[¶ 2] Wilkins and Dietz were divorced in 2002. They had three children during their marriage, a daughter born in 1994, a daughter born in 1996, and a son born in 1999. At the time of the divorce, Wilkins was attending medical school in Grand Forks and Dietz lived in Bismarck. The initial divorce decree awarded Wilkins physical custody of the parties’ three children for nine months during the school year and awarded Dietz physical custody of the children during the summer. Each party received visitation when the children were in the custody of the other parent. In 2003, Wilkins moved to Bismarck with the children. In January 2004, the judgment was amended to award the parties joint legal custody of the children, with Wilkins receiving primary physical custody subject to visitation by Dietz.

[¶ 3] In June 2006, Dietz moved for an order awarding him custody of the children under N.D.C.C. § 14-09-06.6, for an interim order placing temporary custody of the children with him pending his motion for change of custody, for an order finding Wilkins in contempt for denying and interfering with his visitation rights and right to contact the children under the amended judgment, for an order appointing a psychologist and a child custody investigator, and for an order awarding him attorney fees. In support of his motion, Dietz filed several affidavits and other documentary evidence which he asserted supported his allegations that Wilkins had willfully and persistently interfered with his visitation and contacts with the children; that Wilkins had engaged in a pattern of domestic violence, including two incidents that resulted in serious bodily injury to one of the children and to one of Dietz’s friends; that continued custody of the children with Wilkins would endanger the children’s emotional and physical health and welfare; that Wilkins had moved with the children from Bismarck to Fargo without permission from him or the district court; that Wilkins had failed to engage in any discussions with him about the children’s extracurricular activities; that Wilkins had not attended or completed a “Children of Divorce” class, as required by the January 2004, amended judgment; that Wilkins had used the children to spy on him by recording his telephone conversations with them; that in July 2006, Wilkins would begin a medical residency program that would leave her less than one day a week to spend with the children and would require her to move several different times during the next five to six years; that Wilkins had maintained multiple relationships with different men since the January 2004, amended judgment; that in April 2006, Wilkins married a man whom the “children hardly even know” and because of Wilkins’ medical school requirements, would be the primary caregiver for the children while she pursued her medical career; and that Wilkins’ lifestyle and manner of disciplining the children had endangered, or likely would endanger, the children’s emotional and physical health.

[¶4] Dietz’s affidavit stated the children had expressed a preference to live with him; Wilkins had routinely denied him telephone contacts and visits with his children from June 2005 through October 2005; Wilkins had moved with the children from Bismarck to Fargo; Wilkins had hit the youngest child on one occasion and bloodied his nose leaving a noticeable scab and permanent scar on his lip; and the oldest child sometimes had been left to care for the youngest child.

[¶ 5] Wilkins responded with affidavits and other evidence detailing the parties’ tumultuous history regarding custody and visitation since the divorce, and faulting Dietz for those difficulties. Wilkins’ affidavit stated Dietz’s allegations of abuse and neglect were completely false and unfounded; she provided the children with structure and discipline and had never hit the children in an inappropriate manner; her school and work schedule would allow her to play an active role in the children’s lives; the problems with visitation and telephone contacts were attributable to Dietz; Dietz’s behavior “had comprised constant verbal abuse and harassment of [Wilkins], the children, and [Wilkins’] parents”; “Dietz is a liar [and] a cheat”; he leads an unstable life; and the information presented by Dietz was “completely false or very twisted versions of the truth.”

[¶ 6] Dietz scheduled a July 10, 2006, hearing on his motion for the interim order for temporary custody of the children pending his motion for change of custody. The district court cancelled that scheduled hearing, stating it would consider Wilkins’ response to Dietz’s motion to modify custody to decide whether Dietz had established a prima facie case for modification under N.D.C.C. § 14-09-06.6(4), and if the court decided he had established a prima facie case, the court would then consider issuing an interim order. The court thereafter rejected Dietz’s request to file “a brief in reply to the brief and affidavits” submitted by Wilkins, stating there was no provision in N.D.C.C. § 14-09-06.6(4) “establishing a right [to] ‘a brief in reply to the brief and affidavits the defendant submits.’ ”

[¶ 7] In considering Dietz’s motion to modify custody, the district court said it “must weigh the conflicting evidence in the affidavits.” Based upon the documentary evidence presented on the motion, the court decided Dietz had failed to establish a prima facie case for modification of custody, Dietz had not shown changed circumstances, Dietz’s allegations were insufficient to justify a modification of custody, and there was no need for an evidentiary hearing on the custody issue. The court quoted extensively from a memorandum decision preceding the January 2004, amended judgment and said that since that decision, the parties’ affidavits indicated nothing had changed in terms of visitation problems, phone calls, changes of addresses and phone numbers, lack of cooperation, and general acrimony. The court rejected Dietz’s claim that Wilkins’ remarriage was a material change in circumstances. The court also said Wilkins’ move from Bismarck to Fargo was an in-state move that was not precluded by N.D.C.C. § 14-09-07, and was not a material change in circumstances. The court decided there was no need for an interim order and no need for appointment of a psychologist or child custody investigator. The court also declined to find Wilkins in contempt for failing to attend the “Children of Divorce” class, stating her failure was a “trifle” when compared to the continuing acrimony between the parties. The court decided each party was responsible for their own costs and attorney fees.

II

[¶ 8] Dietz argues he established a prima facie case for custody modification under N.D.C.C. § 14-09-06.6(4), and the district court erred in denying his motion without an evidentiary hearing.

[¶ 9] Before custody may be modified after a two-year period following a prior custody order, the district court must consider whether a material change in circumstances has occurred and, if the court finds a material change in circumstances, the court must decide whether custody modification is necessary to serve the best interests of the child. N.D.C.C. § 14-09-06.6(6). A moving party demonstrates a material change in circumstances by establishing a prima facie case under N.D.C.C. § 14-09-06.6(4), which deals with limitations on post-judgment custody modifications and provides:

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

[¶ 10] In Logro v. Logro, 2005 ND 151, ¶¶ 16-17, 703 N.W.2d 322 (citations omitted), we outlined the standard for establishing a prima facie case:

A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradieted, would support a custody modification in favor of that party. Generally, the opposing party must rebut a prima facie case by going forward with evidence showing the moving party is not entitled to the relief requested. Where the opposing party presents counter affidavits which conclusively establish that the allegations of the moving party have no credibility or where the movant’s allegations are, on their face, insufficient, even if uncontra-dicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing.

[¶ 11] In Tank v. Tank, 2004 ND 15, ¶ 12, 673 N.W.2d 622 (citations omitted), a majority of our Court held:

A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. A prima facie case is only “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” It is a bare minimum.

[¶ 12] In Lausen v. Hertz, 2006 ND 101, ¶ 7, 714 N.W.2d 57, we recently discussed this Court’s standard of review of a district court’s denial of an evidentiary hearing under N.D.C.C. § 14-09-06.6(4):

In Logro, 2005 ND 151, 703 N.W.2d 322, this Court, with four justices participating, recently considered the standard of review for the denial of an evi-dentiary hearing on a motion for a change of custody under N.D.C.C. § 14-09-06.6. Two justices applied an abuse-of-discretion standard for review of the denial of an evidentiary hearing, concluding the movant had not established a prima facie case. Id. at ¶¶ 14, 25. One justice concurred in the result. Id. at ¶ 25. A dissent said it was improper to change what had previously been a question of law into a matter of discretion. Id. at ¶¶ 34-35 (Kapsner, J., dissenting).

In Lausen, at ¶ 8, we concluded that under either standard of review, the movant had failed to establish a prima facie case for a material change in circumstances. Here, we conclude that, under either standard of review, the district court misapplied the law and erred in deciding Dietz had not established a prima facie case for custody modification.

[¶ 13] The district court said problems with visitation, phone calls, Wilkins’ failure to notify Dietz of her change of address, and the general lack of cooperation and acrimony between the parties was merely a continuation of conduct that had occurred before the January 2004, amended judgment. A party’s failure to comply with the terms of a judgment or order is not excused merely because the parties had previously been violating the judgment or order, and this Court has recognized that although a denial or frustration of visitation and telephone contacts, by themselves, may not be enough to ultimately modify custody, they are relevant to whether there is a significant change in circumstances when those actions are detrimental to the children’s best interests. See Clark v. Clark, 2006 ND 182, ¶¶ 19-20, 721 N.W.2d 6; Bladow v. Bladow, 2005 ND 142, ¶ 10, 701 N.W.2d 903; Frieze v. Frieze, 2005 ND 53, ¶4, 692 N.W.2d 912; Roberson v. Roberson, 2004 ND 203, ¶ 13, 688 N.W.2d 380; Tank, 2004 ND 15, ¶¶ 17-20, 673 N.W.2d 622; Anderson v. Resler, 2000 ND 183, ¶9, 618 N.W.2d 480; Hendrickson v. Hendrickson, 2000 ND 1, ¶¶ 18-19, 603 N.W.2d 896. Evidence of physical child abuse in an environment that endangers a child’s physical or emotional health also constitutes a material change in circumstances. See Mock v. Mock, 2004 ND 14, ¶¶7-10, 673 N.W.2d 635; Quarne v. Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256. The district court also said Wilkins’ move with the children from Bismarck to Fargo did not constitute a material change in circumstances because N.D.C.C. § 14-09-07 does not prevent a custodial parent from moving with children within the state. However, an instate move with the children may be a material change of circumstance. See Mock, 2004 ND 14, ¶7, 673 N.W.2d 635; Kelly v. Kelly, 2002 ND 37, ¶19, 640 N.W.2d 38; Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924. The marriage of a parent may also constitute a significant change in circumstances. Gietzen, at ¶ 10. Moreover, a mature child’s reasonable preference to live with one parent also may constitute a significant change in circumstances. E.g., Volz v. Peterson, 2003 ND 139, ¶ 11, 667 N.W.2d 637.

[¶ 14] The specific allegations in Dietz’s numerous supporting affidavits, if believed and considered together, establish a prima facie case through several specific facts that could demonstrate a material change in circumstances and support a change in custody. Dietz’s evidence, if believed, indicates that Wilkins may have persistently and willfully denied and interfered with Dietz’s visitation to such an extent that it may be detrimental to the best interests of the children; Wilkins moved with the children from Bismarck to Fargo; Wilkins accepted a position in a medical residency program that will require her to commute from Fargo to Grand Forks to work 75 to 80 hours per week; Wilkins’ residency program will require her to move frequently over the next five years; the children have expressed a preference to live with Dietz; and Wilkins had physically injured one of the children.

[¶ 15] Although Wilkins has submitted opposing arguments and affidavits challenging Dietz’s assertions, those affidavits do not conclusively establish that Dietz’s allegations have no credibility or that his allegations are insufficient, on their face, to justify custody modification. Wilkins’ affidavits raise conflicting fact issues about some of Dietz’s allegations, and in considering whether a movant has established a prima facie case, a court may not weigh conflicting allegations. Roberson, 2004 ND 203, ¶6, 688 N.W.2d 380; Mock, 2004 ND 14, ¶ 10, 673 N.W.2d 635; Volz, 2003 ND 139, ¶ 14, 667 N.W.2d 637; O’Neill v. O’Neill, 2000 ND 200, ¶ 7, 619 N.W.2d 855. We emphasize, however, that allegations of harm that prove to be unfounded and not made in good faith subject the parent making the allegations to court costs and attorney fees under N.D.C.C. § 14-09-06.5. We conclude the district court misapplied the law in “weighting] the conflicting evidence in the affidavits.” We therefore reverse the order denying Dietz’s motion to modify custody, and we remand for an evidentiary hearing.

[¶ 16] In conjunction with this issue, Dietz also claims the district court erred in denying him an opportunity to serve a reply brief to Wilkins’ brief and affidavits in opposition to his motion. Dietz contends he has the right to serve and file a reply brief within five days after service of an answer brief under N.D.R.Ct. 3.2(a), which deals with motion practice and provides in part:

(a) Submission of motion.
(2) Briefs. Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have ten days after service of a brief within which to serve and file an answer brief and other supporting papers. The moving party may serve and file a reply brief within five days after service of the answer brief. Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted to the court unless counsel for any party requests oral argument on the motion.

[¶ 17] Here, the district . court said N.D.C.C. § 14-09-06.6(4) does not include a “provision establishing a right [to] ‘a brief in reply to the brief and affidavits the defendant submits.’ ” Although N.D.C.C. § 14-09-06.6(4) does not explicitly establish a right to a reply brief, N.D.R.Ct. 3.2(a)(2) allows a moving party to serve and file a reply brief within five days of service of an answer brief. This Court has the authority to promulgate rules of procedure in courts of this state under N.D. Const, art. VI, § 3, and when construing a procedural rule and a statute, we harmonize them if possible. Traynor v. Leclerc, 1997 ND 47, ¶8, 561 N.W.2d 644. We conclude the district court erred in not allowing Dietz an opportunity to file a reply brief in response to Wilkins’ answer brief and in denying Dietz an evidentiary hearing on his motion to modify custody.

III

[¶ 18] Dietz argues the district court erred in summarily denying his motion for an interim order placing temporary custody of the children with him pending the resolution of his motion for change of custody. He claims he was entitled to an evidentiary hearing under N.D.R.Ct. 8.2(d), which provides that if an interim order is sought, “the court shall hold a hearing no later than 30 days from the date of filing the motion.”

[¶ 19] In Whitmire v. Whitmire, 1997 ND 214, ¶ 11, 570 N.W.2d 231, this Court said that N.D.R.Ct. 8.2 was “expressly intended for all ‘interim orders in domestic relations cases,’ [and a] post-decree motion seeking to modify the terms of custody or visitation in a divorce decree is a domestic relations case.” However, Whitmire, involved a proceeding that occurred before the 1997 adoption of the requirements for a prima facie case in N.D.C.C. § 14-09-06.6. If a prima facie case is not established as a preliminary matter under N.D.C.C. § 14-09-06.6(4), a hearing on an interim order pending the proceeding for the motion to change custody is not necessary. The district court may revisit this issue on remand.

IV

[¶20] Dietz argues the district court erred in summarily denying his motion to find Wilkins in contempt. Dietz argues he was entitled to a hearing under N.D.C.C. § 27-10-01.3(l)(a), which provides:

The court on its own motion or motion of a person aggrieved by contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter.

Wilkins responds that the district court did not abuse its discretion in finding she was not in contempt of court, and Dietz waived his right to a hearing because he failed to secure and notice a hearing for the contempt portion of his motion.

[¶ 21] Dietz’s motion asked the district court to hear his contempt motion with his motion to modify custody, but said if the court concludes he had not established a prima facie case for custody modification, he would schedule and serve notice for an evidentiary hearing on the contempt motion. The court denied Dietz’s motion for contempt without an evidentiary hearing after deciding Dietz had not established a prima facie case for custody modification. Dietz was entitled to a hearing on his contempt motion under N.D.C.C. § 27-10-01.3(l)(a), and nothing in this record indicates he voluntarily, intentionally, and knowingly waived a hearing. See Lawrence v. Delkamp, 2006 ND 257, ¶¶ 7-12, 725 N.W.2d 211. We conclude the district court erred in denying Dietz a hearing on his contempt motion.

V

[¶ 22] Dietz argues the district court erred in denying his request for a psychological examination of the children and appointment of a custody investigator. Because we conclude Dietz has established a prima facie case for custody modification, the district court may reconsider these issues on remand.

VI

[¶ 23] Dietz claims he is entitled to an award of attorney fees incurred in this appeal. We reject Dietz’s claim and conclude he is not entitled to attorney fees for this appeal.

VII

[¶24] Dietz also asks this Court to issue a supervisory writ and assign the remanded case to a different district court judge because the judge who denied Dietz’s motion has prejudged important and disputed issues in this case. The district court judge’s initial decision in this case was based on a misapplication of the standard for a prima facie case, and we reject Dietz’s request that we reassign this case to a different judge on remand. See Johnson v. Johnson, 2002 ND 151, ¶ 27, 652 N.W.2d 315; T.F. James Co. v. Vakoch, 2001 ND 112, ¶¶ 18-20, 628 N.W.2d 298; Schiff v. Schiff, 2000 ND 113, ¶50, 611 N.W.2d 191.

VIII

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

[¶ 26] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, and DANIEL J. CROTHERS, JJ., concur.

DALE V. SANDSTROM, I concur in the result.