author: LOVRIEN, Circuit Judge.

text:
    2002 SD 134
    BUTLER MACHINERY COMPANY, Appellant, v. SOUTH DAKOTA DEPARTMENT OF REVENUE, Appellee.
    No. 22202.
    Supreme Court of South Dakota.
    Considered on Briefs May 28, 2002.
    Decided Nov. 6, 2002.

      Ronald G. Schmidt of Schmidt, Schroyer & Moreno, Pierre, South Dakota, Attorneys for appellant.
    Michael T. Kenyon, South Dakota Department of Revenue, Pierre, South Dakota, Attorney for appellee.
   LOVRIEN, Circuit Judge.

[¶ 1.] Butler Machinery (Butler) appeals a Department of Revenue (DOR) ruling that it must pay use tax on the parts that it uses to repair and maintain its rental fleet. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Butler’s business is the sale, lease, and repair of heavy construction equipment. Under the lease agreements it has with its customers, Butler must maintain the leased equipment. To make these repairs, Butler purchases repair parts from its suppliers. Butler does not pay sales tax on these parts at the time of purchase. As equipment needs to be repaired, Butler takes these parts out of inventory and uses them to repair the leased equipment. It is this transaction that the DOR claims is subject to the payment of a use tax by Butler.

[¶ 3.] In computing its rental charges, Butler includes its anticipated repair costs for the equipment. Butler pays sales tax on its rental income. Butler’s typical rental agreement requires the lessee to maintain the equipment and provide all maintenance items such as fuel, oil, filters, etc. during the term of the lease. Butler does not pay sales tax on these maintenance items.

[¶ 4.] Pursuant to the terms of its typical rental agreement, Butler must provide the customer with equipment in good operating condition and make all repairs, except those specified. Butler’s technicians service the rental equipment before it is delivered to a customer, including filling the compartments with the various fluids (oil, grease, wiper fluid, etc.) as necessary. If a customer returns equipment to Butler needing fluids, the company charges that customer for the fluids, plus sales tax.

[¶ 5.] DOR determined Butler was required- to pay a use tax on repair and maintenance parts installed in its rental fleet. Butler filed an administrative appeal and the hearing examiner upheld DOR’s determination. The matter was appealed to the circuit court which also affirmed DOR’s determination. The question on appeal is whether Butler is required to pay use tax on the repair parts and maintenance items installed in its rental fleet? We conclude that it is.

STANDARD OF REVIEW

[¶ 6.] The standard of review in tax matters is well settled in South Dakota: -

The question of whether a statute imposes a tax under a given factual situation is a question of law. Statutes which impose taxes are to be construed liberally in favor of the taxpayer and strictly against the taxing body. Statutes exempting property from taxation should be strictly construed in favor of the taxing power. The- words in such statutes should be given a reasonable, natural, and practical -meaning to effectuate the purpose of the statute. Matter of Sales & Use Tax Refund Request of Media One, Inc., 1997 SD 17, ¶ 9, 559 N.W.2d 875, 877; National Food Corp. v. Aurora County Board of Commissioners, 537 N.W.2d 564, 566 (S.D.1995); Thermoset Plastics, Inc. v. Dept. of Rev., 473 N.W.2d 136, 138-39 (S.D.1991). “Whether a statute imposes a tax under a given factual situation is a question of law and thus no deference is given to any conclusion reached by the Department of Revenue or the circuit court.” Dept. of Rev. v. Sanborn Tel. Coop., 455 N.W.2d 223, 225 (S.D.1990) (alterations in original) (quoting Midcontinent Broadcasting Co. v. Dept. of Rev., 424 N.W.2d 153, 154 (S.D.1988)).

Robinson & Muenster Associates, Inc. v. South Dakota Dept. of Rev., 1999 SD 132, ¶ 7, 601 N.W.2d 610, 612.

ANALYSIS AND DECISION

[¶ 7.] South Dakota imposes a tax on tangible personal property purchased for use in this state. SDCL 10-46-2 provides:

An excise tax is hereby imposed on the privilege of the use, storage, and consumption in this state of tangible personal property purchased on or after July 1, 1939, for use in this state at the same rate of percent of the purchase price of said property as is imposed by §§ 10-45-2 and 10-45-3 [retail sales and service tax] or amendment which may hereafter be made thereto.

The use referred to in SDCL 10-46-2 is defined as “the exercise of right or power over tangible personal property incidental to the ownership of that property, except that it does not include the sale of that property in the regular course of business.” SDCL 10-46-1(12). It is the provisions of this statute that impose a use tax on Butler’s use of various repair parts to maintain its equipment. Butler, however, argues that the use of the repair parts are exempt from the use tax under several statutes.

[¶ 8.] At the outset we note that “exemptions are a matter of legislative grace and doubts are resolved in favor of taxation.” Matter of Townley, 417 N.W.2d 398, 400 (S.D.1987). Statutes allowing tax exemptions are exactingly and narrowly construed in favor of the taxing entity. Watertown Coop. Elevator Association v. South Dakota Dept. of Rev., 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171. Tax exemptions are never presumed. Sales and Use Tax Liability of Pam Oil, Inc., 459 N.W.2d 251, 255 (S.D.1990). We will now consider Butler’s arguments.

[¶ 9.] Butler argues the repair parts were supplied under the terms of the lease agreement they have with their customers. Butler argues that a lease is a retail sale under SDCL 10-45-l(6). Since sales tax has been paid on the gross receipts from its lease rental income, Butler argues no use tax should be paid on these repair parts.

[¶ 10.] Butler argues under SDCL 10-46-2.3, the use, storage, or consumption of tangible personal property actually leased to persons in this state is exempt from the use tax. Butler claims since the repair parts were actually leased to persons in this state, the repair parts are exempt from the use tax.

[¶ 11.] Butler also argues SDCL 10-46-6 stands for the principle that tangible personal property or services should only be taxed once. SDCL 10-46-6 provides:

The use in this state of tangible personal property or services, the gross receipts from the sale of which are to be included in the measure of the tax imposed by chapter 10^15, and any amendments made or which may hereafter be made thereto, is hereby specifically exempted from the tax imposed by the chapter.

Butler argues since sales tax was paid on the gross receipts from its lease rental income, the repair parts supplied under that lease are not subject to use tax.

[¶ 12.] In addressing these arguments, it is essential that we bear in mind the true nature of the transaction between Butler and its customers. What a customer receives in exchange for his payment to Butler under the lease agreement is the use of a working piece of equipment along with the right to use that equipment for its intended purpose for a given period of time. It is this transaction on which sales tax is paid.

[¶ 13.] Wfliile under the terms of this lease, Butler has an obligation to keep the leased equipment in working order, the customer neither buys nor rents the repair parts necessary to do this. Butler’s customers do not lease a collection of parts, including some new parts substituted for defective parts. Rather, Butler’s customers pay for the use of a working piece of equipment. The lease agreement, therefore, does not constitute a sale of whatever repair parts might be necessary to maintain the equipment. The sales tax paid on the lease rental income does not constitute sales tax paid on the repair parts. If the legislature had wanted to specifically exclude repair parts from the application of the use tax it clearly could have, but did not. We will not presume an exemption where one is not clearly provided by the legislature.

[¶ 14.] Wflien Butler takes repair parts out of its inventory and uses those parts to keep its rental fleet in good working order, Butler’s use of those parts is subject to taxation. Since no sales tax was paid on these parts at the time they were purchased, and since they were not sold to the customer under the terms of the lease, the use tax properly applies to this transaction. We do not read the statutes cited as creating an exception to this rule.

[¶ 15.] As to the issue of double taxation, we have long held that the sales tax and the use tax are meant to be complimentary and should not both be used to tax the same transaction. Sioux Falls Newspapers, Inc. v. Sec. of Rev., 423 N.W.2d 806, 810 (S.D.1988). However, in our view, the matter before us involves two separate transactions, each subject to taxation. One transaction is Butler’s use of repair parts to keep its rental equipment in working order. The other is the lease of its equipment to third parties. The fact that the first transaction is necessary to carry out the second does not mean that both are the same transaction. From the facts before us, we perceive no double taxation.

[¶ 16.] Finally, Butler argues that in supplying the repair parts to the leased equipment its actions amount to fabrication, compounding or manufacture which, pursuant to SDCL 10-46-9, is exempt from the use tax. SDCL 10-46-9 provides:

The use in this state of tangible personal property including containers, labels and shipping case thereof which is intended shall, by means of fabrication, compounding or manufacture become a part of other tangible personal property intended to be sold ultimately at retail within or without the state of South Dakota, is hereby specifically exempted from the tax imposed by this chapter. The term tangible personal property shall be construed to include without limiting the meaning of said term, raw material and newspaper print.

[¶ 17.] We are not persuaded that the repair parts used by Butler to maintain its rental fleet became part of the tangible personal property (the rental fleet) by means of fabrication, compounding, or manufacture as contemplated by SDCL 10-46-9. In considering the provision of this statute in the past, we have held that materials which are an essential ingredient of the maker’s finished product are not subject to the use tax. Thermoset Plastics, Inc. v. Dept, of Rev., 473 N.W.2d 136 (S.D.1991).

[¶ 18.] However, Butler does not manufacture or create its rental equipment. It buys repair parts created by others to repair equipment created by others in order to have equipment available that it can lease to others. In our view, the repair parts are not an essential ingredient to the finished product and are not exempt from use tax imposed by SDCL 10-46-9.

[¶ 19.] We have considered Butler’s other arguments and find them to be without merit. The decision of the circuit court is affirmed.

[¶ 20.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and AMUNDSON, Retired Justice, concur.

[¶ 21.] LOVRIEN, Circuit Judge, for ZINTER, Justice, disqualified.

      . It is stipulated that if a use tax does apply, the total amount of this tax is $40,187.29. Butler has paid this amount under protest and seeks a refund.

      . Various other issues were raised before the hearing examiner and the circuit court but are not before us on appeal.

      . SDCL 10-45-1(6): "Retail sale” or "sale at retail,” "the sale of either tangible personal property or services, or both, to the consumer or user thereof, or to any person for any purpose other than for resale.”

      . SDCL 10-46-2.3: "The use, storage or consumption of tangible personal property actually leased to persons in this state is exempted from the provisions of this chapter and the tax imposed by it.”


source: Caselaw Access Project

author: VAITHESWARAN, J.

license: Public Domain

text:
    STATE of Iowa, Plaintiff-Appellee, v. Raymond Dwight DITTMER, Defendant-Appellant.
    No. 01-0478.
    Court of Appeals of Iowa.
    Sept. 25, 2002.

      Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, Thomas J. Ferguson, Black Hawk County Attorney, Kimberly A. Griffith, Assistant County Attorney, for appellee.
    Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
   VAITHESWARAN, J.

Raymond Dittmer entered an Alford plea to: (1) conspiracy to manufacture more than five grams of methamphetamine, in violation of Iowa Code sections 124.401(l)(b) and 124.411 (1999), (2) manufacturing more than five grams of methamphetamine as a second offender in violation of sections 124.401(l)(b) and 124.411, (3) possession of lithium as a second offender, in violation of sections 124.401(4) and 124.411, (4) possession of ephedrine and/or pseudoephedrine as a second offender and habitual offender, in violation of sections 124.401(4), 124.411, 902.8, and 902.9, (5) possession of ether, in violation of sections 124.401(4), 124.411, 902.8, and 902.9, and (6) receipt for unlawful purpose of precursor drugs as a habitual offender, in violation of sections 124B.9, 902.8, and 902.9. On appeal, Dittmer contends: (1) his mental illness prevented him from entering a voluntary and intelligent plea and (2) the district court should have merged his sen-fences for (A) possession of ephedrine and receipt of precursors, as well as (B) conspiracy to manufacture methamphetamine and manufacturing methamphetamine. We affirm in part and vacate in part.

I. Voluntariness of Plea

Following entry and acceptance of his plea, Dittmer filed a motion in arrest of judgment, contending the plea was “not knowingly, voluntarily, and intelligently given due to a mental illness.” This issue implicates Dittmer’s competency. State v. Kempf, 282 N.W.2d 704, 706 (Iowa 1979). The procedure to be followed when competency becomes an issue is set forth in Iowa Code section 812.3, which states in pertinent part:

If at any stage of a criminal proceeding it reasonably appears that the defendant is suffering from a mental disorder which prevents the defendant from appreciating the charge, understanding the proceedings, or assisting effectively in the defense, further proceedings must be suspended and a hearing had upon that question.

A guilty proceeding is a “stage of a criminal proceeding” within the meaning of this section. Kempf, 282 N.W.2d at 707. Where a determination of competency has been made, our review is not de novo, as is usually the case with issues of constitutional magnitude. See State v. Rieflin, 558 N.W.2d 149, 151-52 (Iowa 1996). Cf State v. Kempf, 282 N.W.2d 704, 707 (Iowa 1979) (reviewing defendant’s competency at guilty plea proceeding de novo “[b]ecause constitutional safeguards are implicated.”); Patten v. State, 553 N.W.2d 336, 338 (Iowa Ct.App.1996) (same). Nor does the trial court’s discretion play a role. State v. Edwards, 507 N.W.2d 393, 395 (Iowa 1993). Instead, our review is on error. Rieflin, 558 N.W.2d at 151. We are bound by a district court’s fact-findings if supported by substantial evidence. Id.

The district court determined Dittmer “was on the cutting edge toward realizing what’s best for him and trying to act on acquiring the best deal that he can get under the circumstances.” The court further stated:

[Although he may have psychological problems and he may be on medications to deal with those psychological problems, he is nonetheless at such a stage in his life that he knows what’s best for him, he knows how to get a better deal or at least attempt to get a better deal, and that he is meaningfully assisting defense counsel in the conduct of this case.

We find substantial evidence to support this determination. At the plea proceeding, the district court specifically asked Dittmer what medications he was taking, what the medications were for, the amounts he was taking, when he last took them, and whether he was undergoing psychiatric treatment. The court also asked Dittmer, “the two medications that you are on, when you take them do they ever affect your ability to think and to know what you are doing?” Dittmer responded, “[n]o, that’s what I take them for so I can think right.” When the court asked him where he was and what he was doing at the moment, Dittmer responded he was in the courtroom “[ejntering an Alford plea.” Earlier in the proceedings, Dittmer asked the court to explain the difference between possession of ephedrine and unlawful receipt of a precursor, indicating a general understanding of the charges to which he was pleading and a specific understanding of the merger argument his attorney was making with respect to the fourth and sixth counts of the trial information.

We recognize that a mental health coordinator gave a contrary opinion concerning Dittmer’s ability to understand the plea proceeding. She stated she saw Ditt-mer on the fourth day before the plea proceeding and on the fourth day after and he was psychotic on both days. The coordinator conceded, however, that she did not see Dittmer on the day of the proceeding and further conceded it was possible for a person to be competent on one day and incompetent on another. The competency standard requires the district court to determine whether the defendant has a “present ability” to appreciate the charge, understand the proceedings, and assist effectively in his defense. Rieflin, 558 N.W.2d at 152-53. The district court determined that, on the date of the plea proceeding, Dittmer had that present ability. As the mental health coordinator had no specific knowledge of Dittmer’s mental state on that day, we affirm the district court’s competency determination.

II. Merger

Dittmer contends the district court should have merged the sentences on (A) the fourth (possession of ephedrine) and sixth (receipt of precursor) counts and (B) the first (conspiracy to manufacture) and second (manufacturing) counts. Iowa Code section 701.9, addressing merger, states no person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. In deciding whether one public offense merges with another, our highest court has recently applied the impossibility test. State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001). Accord State v. Rodriquez, 636 N.W.2d 234, 246-47 (Iowa 2001). Under this test, we examine the elements of each crime to determine if the greater offense can be committed without also committing the lesser offense. Id.

A. Merger of Fourth and Sixth Counts. The fourth count charged a violation of Iowa Code section 124.401(4), which provides:

It is unlawful for any person to possess any product containing ephedrine, its salts, optical isomers, salts of optical isomers, or analogs of ephedrine, or pseudoephedrine, its salts, optical isomers, or analogs of pseudoephedrine, with the intent to use the product as a precursor to any illegal substance or an intermediary to any controlled substance. A person who violates this subsection commits a class “D” felony.

The sixth count charged a violation of Iowa Code section 124B.9(2), which provides that “[a] person who receives a precursor substance with intent to use the substance unlawfully to manufacture a controlled substance commits a class “C” felony.”

The sixth count requires (1) receipt of a(2) precursor (3) with the intent to use the substance unlawfully to manufacture a controlled substance. The fourth count requires (1) possession of (2) ephedrine (3) with the intent to use the product as a precursor to an illegal substance. Both proscribe the intentional use of a precursor to manufacture an illegal substance. The only material difference between the two counts and the statutes on which they are based is the use of “receipt” in one and “possession” in the other.

“Receive” means “to come into possession of.” Webster’s New Collegiate Dictionary 956 (1980). Accord Black’s Law Dictionary 1268 (6th' ed.1990) (defining “receive” as “to take into possession and control; accept custody of; collect”). “Possess” means “to instate in as owner” or “to have and hold as property.” Webster’s New Collegiate Dictionary at 897. We can discern no meaningful distinction between these terms as used in sections 124.401(4) and 124B.9(2). Both essentially mean to hold property. Given these meanings, we believe a person cannot commit the crime of receipt of a precursor with the intent to use the substance as a precursor to an illegal substance without also committing the crime of possession of a precursor with the intent to manufacture an illegal substance. Therefore, the two sentences should have merged.

B. Merger of First and Second Counts. Dittmer also argues the district court erred in failing to merge the first count of conspiracy to manufacture more than five grams of methamphetamine with the second manufacturing count. The State responds that the two counts relate to two separate crimes and the merger argument must, accordingly, fail. We agree with the State. Although both the first and second counts charged Dittmer with crimes that included the date of December 20, 1999, the assistant county attorney explained that the conspiracy to manufacture charge stemmed from a different act with different people at a different time than did the manufacturing charge. Dittmer did not contest this explanation and the district court accepted it, stating “they are two separate and distinct offenses.” Under these circumstances, we conclude the merger argument is inapplicable. See State v. Walker, 610 N.W.2d 524, 526-27 (Iowa 2000). Cf. State v. Maghee, 573 N.W.2d 1, 7 (Iowa 1997) (holding defendant could only be sentenced to a single offense under section 124.401(1), not both conspiracy with intent to deliver and possession with intent to deliver).

III. Disposition

We vacate the judgment and sentence on Count IV: possession of ephedrine. In all other respects, we affirm.

AFFIRMED IN PART AND VACATED IN PART,

      . See North Carolina v. Alford, 400 U.S. 25, 38, 91 S.Ct. 160, 166-67, 27 L.Ed.2d 162, 168 (1970) (plea containing "protestation of innocence”).

      . In reaching this conclusion, we recognize that our court has affirmed jury instructions that distinguish between "receipt” and "possession” in this context. See State v. Knowles, 2000 WL 1421350 (September 27, 2000). We note, however, that our court was not faced with the question of whether the sentences for the two crimes merged. Notably, the district court in that case merged the sentences of its own accord.


text:
    Mark CRAIG, Relator, v. AMERICOLD LOGISTICS LLC and Liberty Mutual Insurance Co., Respondents.
    No. CX-02-1536.
    Supreme Court of Minnesota.
    Nov. 19, 2002.
    Rehearing Denied Dec. 17, 2002.
    Mark L. Rodgers, P.C., Bemidji, for relator.
    Nikki K. Jones, Conley & Borgeson, St. Paul, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 7, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

BY THE COURT

Kathleen A. Blatz Kathleen A. Blatz Chief Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Stephen Louis MADSEN, an Attorney at Law of the State of Minnesota.
    No. C0-02-1741.
    Supreme Court of Minnesota.
    Dec. 3, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Stephen Louis Madsen has committed professional misconduct warranting public discipline, namely, that respondent failed to comply with the discovery provisions of the Minnesota Rules of Civil Procedure that prohibit the use of ex parte subpoenas; agreed to settle and dismiss with prejudice his client’s cause of action without his client’s knowledge or consent; and failed to make a good faith effort to either pay off or arrange for a payment plan for the default judgment entered against him in his client’s subsequent malpractice case, in violation of Minn. R. Prof. Conduct 1.1., 1.2(a), 1.4, 3.4(c), and 8.4(d).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand, payment of $900 in costs and disbursements pursuant to Rule 24, RLPR, and supervised probation for a period of two years subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor respondent’s compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as
respondent’s supervisor within two weeks from the date this stipulation is executed. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (d) below. Respondent shall make active- client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per ealehdar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Within thirty days from the execution of the stipulation, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
f. Within thirty days from the execution of this stipulation, respondent shall contact Mark Magers or his counsel and make a good faith effort to enter into a payment plan for the $98*,812.50 judgment entered against respondent. Respondent shall provide the Director with documentation of his efforts and proof of any payments made on the judgment.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Stephen Louis Madsen is publicly reprimanded and placed on supervised probation for a period of two years, subject to the conditions set out above, and that he pay $900 in costs under Rule 24, RLPR.

BY THE COURT

Paul H. Anderson Paul H. Anderson Associate Justice '


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Respondent, v. Lee Richard HALSETH, Appellant.
    No. C2-02-543.
    Court of Appeals of Minnesota.
    Nov. 26, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.
   OPINION

KLAPHAKE, Judge.

After an incident at his apartment on August 26, 2001, appellant Lee Halseth was charged with second-degree assault and terroristic threats. Halseth waived his right to a jury trial. On stipulated facts, the court found him not guilty of assault and guilty of terroristic threats.

On appeal from his conviction, Halseth concedes that he waived his right to a jury trial, but argues that he did not waive the rights attendant to an adversarial trial, including his rights to testify, confront witnesses, and compel the production of witnesses. He argues that defense counsel’s statements to the court were insufficient to constitute a waiver and failed to meet the requirements of Minn. R.Crim. P. 26.01, subd. 3, which requires a defendant to waive certain rights personally, either in writing or on record. In a pro se supplemental brief, Halseth raises other issues relating to the revocation of his probation, which apparently occurred after his conviction due to his failure to abstain from the consumption of alcohol. Because we agree that the record fails to reflect that Halseth knowingly and voluntarily waived certain fundamental trial rights, we reverse and remand for a new trial.

FACTS

According to police reports and the complaint, on August 26, 2001, police responded to a noise complaint at Halseth’s apartment. Halseth’s downstairs neighbor had called police to report that loud noises were coming from his apartment. When she asked him to stop, Halseth refused and told her that she should call the police.

When police arrived at Halseth’s door and asked to speak with him, they heard what sounded like a gun being cocked and someone yell: “Come on f* * *er * * ⅜

I’ll f* * *ing blow you away * * * Come on in.” The officers heard something strike the door three times while the statements were made. Halseth eventually came out of the apartment unarmed. A double-barreled shotgun'was found inside the apartment, and the officers also observed indentations on the inside of the door.

On the date scheduled for trial, the prosecutor indicated that he and defense counsel had agreed to a “stipulated Court trial,” as follows:

It is my understanding we have agreed to proceed based on a stipulated Court trial. If Mr. Halseth chooses to waive his right to a jury trial and the right to call and cross-examine live witnesses, it is my understanding that the State and defense counsel will submit a copy of the Complaint in this case, as well as all the police reports ⅜ * ⅜, dispatch records, the property inventory, * * * and a copy of the photographs * * *.

Defense counsel added:

Counsel have been discussing the case prior to trial and have reached an agreement whereby' — and this has been discussed by myself and Mr. Halseth' — that Mr. Halseth would waive a jury and submit the stipulated facts to the Court. We anticipate, upon review of the stipulated facts, that the Court would be entering a finding of guilty to the terror-istic threats. And in discussions with the Court, we anticipate that at sentencing, either there would be a stay of imposition of sentence or with good and sufficient reason, the Court may consider a gross misdemeanor disposition following a presentence investigation. So that’s our understanding of how we are to proceed and I’ve spent some time this morning discussing it with Mr. Halseth and I can proceed to make a record with him, if that is appropriate.

Halseth responded affirmatively when asked whether he was freely and voluntarily waiving his right to a jury trial.

Defense counsel then stated:

Just formally note the necessary stipulation for the record. We are stipulating to those police reports. I have had a chance to see them. We’ve gone over the file together. Accordingly, we will stipulate and waive any rights to cross-examination, presentation of evidence, with the understanding with what we have already recited.

(Emphasis added.) The court recited the facts and found appellant guilty of terroristic threats and not guilty of second-degree assault.

Following a presentence investigation and chemical dependency evaluation, the court stayed imposition of sentence and placed Halseth on probation for three years.

ISSUE

Is Halseth entitled to a new trial because the district court failed to obtain a valid waiver by him of his rights to testify, confront witnesses, and compel production of witnesses, as required under Minn. R.Crim. P. 26.01, subd. 3?

ANALYSIS

This court must treat the construction of a rule of criminal procedure as an issue of law subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998). The rule at issue here, Minn. R.Crim. P. 26.01, is strictly construed. State v. Sandmoen, 390 N.W.2d 419, 423 (Minn.App.1986).

Rule 26.01 establishes a “relatively painless and simple procedure” to obtain a valid waiver of rights before a case can be tried to the court on stipulated facts. State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App.2002). A defendant first must personally waive the right to a jury trial in writing or orally upon the record. Minn.R.Crim. P. 26.01, subd. l(2)(a); Sandmoen, 390 N.W.2d at 424. Here, Halseth concedes that he validly waived his right to a jury trial orally on the record and in writing.

But a defendant must also waive other fundamental rights before a case can be tried to the court on stipulated facts. Minn. R.Crim. P. 26.01, subd. 3 is entitled “Trial on Stipulated Facts” and provides in pertinent part:

By agreement of the defendant and the prosecuting attorney, a case may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and waiver shall be in writing or orally on the record.

(Emphasis added.)

The state agrees that there was no express waiver of these rights by Halseth personally, either in writing or orally. The state nevertheless argues that because Halseth was present when his attorney stated, “we will stipulate and waive any rights to cross-examination [and] presentation of evidence,” Halseth acquiesced and ratified the waivers entered by his counsel.

The only support cited by the state for its position that defense counsel can waive these types of rights for a client is State v. Ford, 276 N.W.2d 178 (Minn.1979). In that case, one of the issues raised by the defendant on appeal was that his “waiver of a jury trial on the entrapment issue was invalid because defendant himself did not waive the defense in open court.” Id. at 183. The supreme court rejected this argument, stating that while such a

waiver should be by defendant, not by his counsel, in this case defendant was present when his counsel made the waiver and defendant may well be said to have ratified the waiver and made it his personal act.

Id.

For several reasons, however, Ford does not support the state’s position here. First, Ford predates the provision in rule 26.01 that requires a defendant’s personal waiver of his or her trial rights. The rule specifically requires'a personal waiver by a defendant and thus precludes.any implied ratification of an attorney’s waiver by a defendant’s mere presence, as in Ford.

Even if a Ford-type ratification is possible under rule 26.01, the facts of this case fail to prove such a ratification. Unlike Ford, there was no discussion here to make Halseth aware that his attorney had just waived a right generally reserved for an accused. In addition, in Ford, there was a bench trial; here, the facts were “stipulated” and Halseth was never given an opportunity to present evidence to the court in his defense. Thus, the record fails to establish that Halseth impliedly ratified his attorney’s waiver of the rights to cross-examination and presentation of evidence. Passing references to these rights by the prosecutor or defense counsel were insufficient to show ratification or acquiescence by Halseth in his attorney’s waiver.

More importantly, as Halseth notes, his right to testify at trial was never discussed or mentioned on the record. The right to testify is a fundamental right that must be personally waived by a defendant. In discussing a defendant’s waiver of rights, the Supreme Court recently stated:

What suffices for waiver depends on the nature of the right at issue. Whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake. For certain fundamental rights, the defendant must personally make an informed waiver. For other rights, however, waiver may be effected by action of counsel.

New York v. Hill, 528 U.S. 110, 114, 120 S.Ct., 659, 664, 145 L.Ed.2d 560 (2000) (quotation and citations omitted). Fundamental rights include the decisions “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983) (citation omitted) (emphasis added).

Nonfundamental rights that an attorney may waive include decisions pertaining to the conduct of trial, such as what arguments to pursue, what evidentia-ry objections to raise, or what evidence to admit. Hill, 528 U.S. at 115, 120 S.Ct. at 664. Because the rights involved here are fundamental, it was imperative that Hal-seth’s waiver be personal, explicit, and in accordance with rule 26.01. See State v. Roberts, 651 N.W.2d 198, 201 (Minn.App. 2002) (“fundamental constitutional rights can be waived if the waiver is knowing, intelligent, and voluntary”).

We note that the requirements for a valid waiver prior to a stipulated court trial are similar to those necessary for a valid guilty plea under Minn. R.Crim. P. 15.01. This analogy is particularly appropriate here, where the record demonstrates that the agreement reached by counsel was not a true court trial on stipulated facts, but more akin to a guilty plea in which it was agreed that the court would find Halseth not guilty of the more serious charge of second-degree assault and guilty of the less serious charge of terroristic threats.

Finally, in a pro se supplemental brief, Halseth raises an issue relating to his subsequent violation of probation. He claims that at the probation revocation hearing, he was “coerced into pleading guilty to a probation violation which he did not commit” in order to be with his dying wife rather than in the workhouse. Given our decision to reverse Halseth’s conviction and., remand for a new trial, we need not address the issues raised by Halseth in his pro se supplemental brief.

DECISION

Minn. R.Crim. P. 26.01, subd. 8 is clear and requires that a defendant personally waive certain fundamental rights on the record or in writing before a case can be tried to the court on stipulated facts. Because this was not done and because the record fails to show that Halseth knowingly and voluntarily waived his rights before the case was submitted to the court on stipulated facts, we reverse and remand for a new trial.

Reversed and remanded.

      . In a pro se supplemental brief, Halseth asserts that his attorney did not believe that he ■ had any credible witnesses and “dismissed his list.” He further asserts that he repeatedly told his attorney "that a jury trial was absolutely necessary." These assertions further illustrate not only the importance of obtaining a personal and specific waiver of the right to a jury trial, but also waiver of other rights when a case is presented on stipulated facts to a court. Halseth obviously was confused about his rights and the differences between a jury trial and a court trial. He likely had no idea that by stipulating to the state's case, as presented in police reports and the complaint, he would have no opportunity to present witnesses, testify on his own behalf, or otherwise present his version of the facts.

      . In applying this analogy, however, we imply no approval of the agreement reached here, which combined the elements of a guilty plea and a Lothenbach stipulation. The supreme court has warned against confusing those two distinct procedures. State v. Verschelde, 595 N.W.2d 192, 194-95 (Minn.1999). A true Lothenbach stipulation does not involve a concession of guilt, and is intended only to preserve the defendant's right of appeal while avoiding an unnecessary jury trial. See id.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Stephen Lari SCHLUTER, Appellant.
    No. C3-02-48.
    Court of Appeals of Minnesota.
    Dec. 10, 2002.

      Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, MN, for respondent.
    Kyle D. White, St. Paul, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant Stephen Lari Schluter appeals from his conviction of felon in possession of a firearm. Because the statute as amended does not violate the prohibition against ex post facto laws, and because Schluter voluntarily consented to the search of his home, we affirm.

FACTS

In 1986, appellant Stephen Lari Schluter pleaded guilty and was sentenced for felony possession of LSD with intent to distribute. His 21-month sentence was stayed, and he was discharged from probation in 1991.

On September 10, 2000, St. Paul police officers responding to a “shots fired call” were approached by Karen Pluff, who claimed that Schluter aimed a pistol at her and shot at her vehicle earlier that evening. She described Schluter’s vehicle and gave his name, description, and address. The information was broadcast to other squad cars.

Officer Michael Conroy was the first to respond to the call and arrive at Schluter’s home. He approached the front of the home while other officers went to the rear of the house to secure the premises. Through the window, Conroy observed Schluter and his wife sitting on a couch watching television. The officer entered the porch and knocked on the door. Schluter answered the door, and Conroy, fearing that Schluter might have a gun, instructed Schluter to turn around and put his hands on top of his head for a pat search. The officers handcuffed Schluter and placed him in the back seat of the squad car.

Conroy then took a couple of steps inside the doorway to talk to Schluter’s wife, who was still sitting on the couch. She asked what the officers were doing there, and before Conroy could reply, she volunteered that her husband had been with her since 8:30 p.m. and had loaned his car to Derrick Schumacher. When Conroy asked her if there were any weapons in the home, she replied in the negative.

Meanwhile, Officer Degree asked Schlu-ter, who was still in the squad ear, the same question. Schluter told him that he had an SKSo assault rifle and a double-barreled shotgun behind the couches, and that the officer could search for them because they were not illegal. Degree went into the home and informed Conroy about the firearms. When Conroy shared this information with Mrs. Schluter, she showed him the rifle behind the back cushion, and he later observed the double-barreled shotgun laying on the floor between the wall and the couch.

Degree obtained a consent-to-search form and returned to the squad car. Degree let Schluter out of the squad car, uncuffed him, and read the form to him. Schluter signed it. A subsequent search of the home revealed (1) some twelve-gauge shotgun ammunition, (2) an empty Uzi assault rifle box, (3) an old-style flintlock rifle, and (4) a magazine for a semiautomatic pistol. The police never found the pistol used to shoot Pluff s car.

Conroy testified that throughout the search Mrs. Schluter remained in the house. However, Mrs. Schluter testified that she was placed in a separate squad car facing her husband. She further claims that she was not fully dressed and that her request to finish dressing was denied. According to Mrs. Schluter, when her husband signed the consent-to-search form, she was allowed to go back into the house. But by that time, the police had already laid out various weapons and tagged them for inventory.

Schluter testified that he was upset that his wife was not allowed to dress. According to Schluter, officers asked him three or four times to sign the consent form, and, in the meantime, the officers were entering the home. Schluter also testified that he signed the consent form only after he was told that his wife was going to jail and that his children, who were in their rooms sleeping, would be sent to child protection.

• After doing a background check, the police learned of Schluter’s 1986 conviction for possession of LSD with intent to sell. As a result, he was charged with felony possession of a firearm by an ineligible person under Minn.Stat. § 624.713 (2000). Schluter was never charged with the shooting at Pluff s vehicle.

Following a court trial, Schluter was found guilty, convicted,, and sentenced for felon in possession of a firearm. His 60-month sentence was stayed and he was placed on probation for 15 years. On appeal, Schluter challenges the constitutionality of section 624.713 as applied to him, and the finding of the voluntariness of the consent to search his home.

ISSUES

I. Does Minn.Stat. § 624.713, subd. 1(b) (2000), as applied to appellant, who was convicted in 1986 of a felony controlled substance offense, violate the federal or state constitutional prohibitions against ex post facto laws?

II. Did the district court err in finding that appellant’s consent to search his residence was voluntary?

ANALYSIS

I.

Ex Post Facto Violation

Schluter argues that, as applied to him, the 2000 felon-in-possession-of-a-firearm statute violates the Ex Post Facto Clause by retroactively increasing his punishment for his 1986 conviction for possession of controlled substances.

In evaluating constitutional challenges, the interpretation of statutes is a question of law. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993). Minnesota statutes are presumed constitutional and will be declared unconstitutional “only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citing City of Richfield v. Local No. 1215, 276 N.W.2d 42, 45 (Minn.1979)).

Both the United States and Minnesota Constitutions prohibit the enactment of ex post facto laws. U.S. Const, art. I, § 10; Minn. Const, art. I, § 11. An ex post facto law “renders an act punishable in a manner in which it was not punishable when it wag committed.” Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955) (footnote omitted). An ex post facto law is one that applies to events occurring before its enactment, and disadvantages the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). More specifically, a law violates the Ex Post Facto Clause if it: (1) punishes as a crime an act which was innocent when committed, (2) increases the burden of punishment for a crime after its commission, or (3) deprives one charged with a crime of a defense that was available when it was committed. Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990).

The challenged statute, Minn.Stat. § 624.713, subd. 1(b) (2000), prohibits individuals found guilty of a “crime of violence” from possessing a firearm for ten years after their civil rights have been restored. “Crime of violence” is defined by Minn.Stat. § 624.712, subd. 5 (2000). When Schluter was convicted in 1986 of possession of controlled substances, controlled substance offenses were not defined as “crimes of violence.” See Minn.Stat. § 624.712, subd. 5 (1986). In 1987, however, the Minnesota Legislature amended the definition of the term “crime of violence” in the challenged statute to include violations of chapter 152. 1987 Minn. Laws ch. 276, § 3. Schluter claims that applying that amendment to him based on his 1986 conviction under chapter 152 violates the prohibition against ex post facto laws because (1) the legislature failed to instruct that the statute was to have retroactive effect, (2) it increases his punishment for the 1986 crime, and (3) it significantly disadvantages him.

Whether Minn.Stat. § 624.713, subd. 1(b), as amended by Minn.Stat. § 624.712, subd. 5 (1987), can be applied to persons whose chapter 152 offenses were committed prior to the amended statute’s effective date is an issue of first impression in Minnesota. However, several other state and federal courts have held that similar statutes prohibiting felons from carrying weapons may constitutionally be applied to persons who committed the felonies prior to the statutes’ effective dates.

As a preliminary matter, we do not agree with appellant’s reading of and reb-anee on United States v. Davis, 936 F.2d 352 (8th Cir.1991). The challenged statute in Davis was a mandatory minimum-sentence enhancement. The issue in Davis was whether to apply the civil rights restoration laws in effect at the time of conviction or at the time of discharge. Id. at 356. At the time of conviction, part of Davis’s punishment was that his civil rights would only be impaired until discharge. A subsequent law delayed the restoration of rights until ten years after discharge. Unlike this case, the subsequent law in Davis was specifically aimed at enhancing the defendant’s prior sentence and therefore constituted an ex post facto law. Id. at 357.

While we have no controlling precedent from the Eighth Circuit, the Fourth Circuit recently confronted an analogous case. In United States v. Mitchell, 209 F.3d 319 (4th Cir.2000), cert. denied, 531 U.S. 849, 121 S.Ct. 123, 148 L.Ed.2d 78 (2000), the court held that an equivalent federal statute, which prohibited a person convicted of a misdemeanor domestic assault from possessing a firearm, applied to a person convicted of such a crime prior to the statute’s effective date. Just months after Mitchell was convicted of a misdemeanor assault and battery against his wife, Congress made it illegal for a person convicted of a misdemeanor crime of domestic assault to possess a firearm. Id. at 321. Two years later, when Mitchell was convicted of possessing a handgun, he argued that the statute violated the Ex Post Facto Clause, as applied to him, because his prior conviction occurred before the statute’s amendment. Id. at 322. The court determined that it was immaterial that the defendant bought the gun and was convicted of domestic violence before the statute prohibiting firearm possession was enacted. Id. The court concluded that the illegal act was the continuing possession of the firearm, not its purchase or the defendant’s previous conviction, so there was no violation of the Ex Post Facto Clauses. Id. at 322-23.

Other federal circuit courts have concurred with this analysis and have held that a law restricting felons from carrying firearms does not constitute punishment for prior convictions. See United States v. Brady, 26 F.3d 282, 291 (2d Cir.1994) (holding that because crime of felon possessing firearm occurred after effective date' of statute, it was immaterial that prior felony conviction occurred before effective date of illegal possession statute); United States v. Huss, 7 F.3d 1444 (9th Cir.1993) (holding that Oregon law restricting felons from carrying firearms did not constitute punishment for prior crime even though prohibition did not exist when prior crime was committed, and therefore, was not ex post facto law), overruled in ■part on other grounds by 161 F.3d 556 (9th Cir.1998).

Several state courts have also addressed the constitutionality of applying later-enacted felon-in-possession laws to persons previously convicted of crimes and concluded that such laws punish the specific conduct of possession by a felon, not the underlying felony. In State v. Peters, 261 Neb. 416, 622 N.W.2d 918, 923 (2001), cert. denied 533 U.S. 952, 121 S.Ct. 2596, 150 L.Ed.2d 754 (2001), at the time of the defendant’s convictions for various felonies, it was not illegal for him to possess a firearm with a barrel less than eighteen inches in length. Id. at 923-24. After his convictions, the statute was amended to prohibit convicted felons from possessing any deadly weapons. Id. The Peters court concluded that “such amendments are viewed not as further punishment for the underlying felony or felonies, but as a future prohibition on a felon’s conduct.” Id. at 924. We find logical and compelling the Peters court’s analysis that

[the amendment] punishes [the defendant] for the specific conduct of possession of a firearm by a person previously convicted of a felony. It does not punish [the defendant] for the underlying felony. [The defendant’s] status as a felon makes the law applicable to him, but the legal consequences of his past conduct were not changed. Thus, the crime for which [the defendant] was punished was not for the earlier felonies, but for the new and separate crime of which the prior felony convictions are an element.

Id. at 925.

In the same year as Peters, the Washington Supreme Court considered a similar challenge to that state’s unlawful-possession-of-a-firearm statute. State v. Schmidt, 143 Wash.2d 658, 23 P.3d 462 (2001). As in Peters, at the time of Schmidt’s felony convictions, there was no restriction on the possession of rifles by felons. Id. at 464, 466. Subsequently, the unlawful-possession-of-a-firearm statute was amended to prohibit an individual convicted of a “crime of violence” from possessing any firearm. Id. The court held that the amendments “did not punish petitioners for past offenses nor increase their punishment for prior convictions.” Id. at 473. Instead, the court held, the prohibition was intended to regulate ownership, possession, and control of firearms by those who, due to their previous felonies, were unfit to be entrusted with firearms. Id.

The Arizona Court of Appeals adopted similar reasoning in State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (Ct.App.1997), review denied (Ariz. Mar. 17, 1998), concluding that “[t]he amendments are not being applied to [the defendant] retroactively; they are prospective only, punishing conduct that occurred after the effective date of the amendments.” Id. Courts in Iowa and Oregon have reached similar conclusions. See State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999) (holding that application of statute banning possession of firearm by felon whose underlying felony conviction occurred prior to effective date of law did not violate prohibition against ex post facto laws); State v. Lamb, 110 Or. App. 146, 822 P.2d 143, 143 (1991) (holding that prohibition against defendant possessing any firearm did not constitute punishment under Ex Post Facto Clauses of Oregon or federal constitutions).

We are persuaded by the cases outlined above and conclude that the same principles govern the disposition of this case. Minn.Stat. § 624.713, subd. 1(b) does not punish as a crime an act that was innocent when committed. Schluter committed the crime of felon in possession in 2000. The illegal act was possessing the firearm in 2000, not the possession of LSD in 1986. In addition, Schluter’s conviction of felon in possession does not increase the burden of punishment for his 1986 offense. Schlu-ter’s 1986 sentence, long since served, is unaffected by the change in the law; only his status due to that prior conviction has changed, making him subject to Minn.Stat. § 624.713, subd. 1(b). Thus, we conclude that application of Minn.Stat. § 624.713, subd. 1(b), to Schluter, as a result of his 1986 felony conviction, does not violate the prohibition against ex post facto laws.

II.

Consent to Search

The Minnesota and United States Constitutions prohibit unreasonable searches and seizures of persons and their homes. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Warrantless searches and seizures are per se unreasonable, subject only to recognized exceptions, such as a search conducted pursuant to consent. State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992); State v. Hatton, 389 N.W.2d 229, 232 (Minn.App.1986), review denied (Minn. Aug. 13, 1986). When the state relies on a defendant’s consent to search, the state has the burden to prove that the consent was given freely and voluntarily. State v. George, 557 N.W.2d 575, 579 (Minn.1997).

On appeal, the trial court’s finding of consent will not be overturned unless it is clearly erroneous. State v. Hummel, 483 N.W.2d 68, 73 (Minn.1992). The findings will not be found to be clearly erroneous so long as there is reasonable evidence to support them. State v. Danh, 516 N.W.2d 539, 544 (Minn.1994). This court defers to the trial court’s ability to judge the credibility of witnesses. State v. Larson, 520 N.W.2d 456, 464 (Minn.App.1994), review denied (Minn. Oct. 14, 1994).

Schluter acknowledges that he signed a consent-to-search form but claims that the circumstances surrounding his decision to sign the consent form demonstrate that his consent was involuntary. According to Schluter, prior to agreeing to sign the consent-to-search form, he was continuously asked if he would consent to the search, and each time he refused. He claims that he was upset that his wife was brought outside, partially dressed, and placed in another squad car well within his range of vision. Schluter further claims that he agreed to sign the form only after he was told by police that (1) his wife was having an affair, (2) both he and his wife would be arrested, and (3) the children would be taken by child protective services. Schluter claims that under these circumstances, he felt coerced into consenting to the search.

The record reflects that Schluter admitted signing the consent-to-search form because he believed that he did not have anything illegal to hide. The district court found that Schluter’s claim that he consented to the search out of concern for his wife and children was not credible. Furthermore, the court found that

[h]e signed the consent to search because he had no fear of police finding a handgun and money he believed Karen Pluff had told the police about in connection with the earlier “shots fired” call. The defendant, when he learned the police wanted to search for those items, felt he had been given a “legitimate reason” for the search and consented, confident they would not find what they were looking for.

On these facts, the trial court properly found that Schluter gave his consent knowingly and voluntarily. We find no error in this finding. Because the district court’s finding that consent was voluntary is supported by reasonable evidence, it is not clearly erroneous, and we affirm.

DECISION

The district court correctly concluded that the amendment of Minnesota’s felon-in possession-of-a-firearm statute to include controlled substance felonies could be applied to Schluter without violating the Ex Post Facto Clauses of the Minnesota and United States Constitutions. The court’s finding that Schluter voluntarily consented to the search of his home was not clearly erroneous.

Affirmed.


author: G. BARRY ANDERSON, Judge.

text:
    Wayne R. SWENSON, et al., Appellants, v. WASECA MUTUAL INSURANCE COMPANY, Respondent.
    No. C5-02-651.
    Court of Appeals of Minnesota.
    Dec. 10, 2002.

      Mark S. Brown, Murnane, Conlin, White & Brandt, P.A., St. Paul, for appellants.
    James H. Turk, Blethen, Gage & Krause, P.L.L.P., Mankato, for respondent.
    Considered and decided by HUDSON, Presiding Judge, PETERSON, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Kelly Swenson, 13 years old, suffered an apparent dislocated knee when her snowmobile went into a ditch. A passing motorist, Lillian Tiegs, stopped and, after first unsuccessfully attempting to summon help by way of a cell phone, offered to give Swenson a ride to a nearby hospital in New Prague, Minnesota. Tiegs agreed to make a brief stop at the Tiegs’ residence, less than a quarter-mile away, to allow Swenson’s companions to park their snowmobiles there and accompany Swenson to the hospital. As Tiegs pulled into traffic, a speeding tractor-trailer struck her vehicle. Swenson died as a consequence of the traffic accident.

The respondent insurer, Waseca Mutual Insurance Company, was granted summary judgment by the district court, holding that Tiegs’s actions were protected by Minnesota’s Good Samaritan law. The district court ruled Tiegs was providing assistance at the scene of an emergency and during transit to a hospital and was therefore immune from liability. Minn. Stat. § 604A.01, subd. 2 (2000). Appellant argues that the district court erred as a matter of law by holding (1) that the Good Samaritan law applies to negligent driving while transporting an injured person from an accident scene to a hospital and (2) that Tiegs was acting at the scene of an emergency. We affirm.

FACTS

On January 19, 1998, Kelly Swenson, 13 years old, injured her leg when the snowmobile she was driving struck a drainage culvert in the north ditch along Highway 19, west of New Prague. Swenson apparently dislocated her knee during the accident. With Swenson at the time of the accident were her sister and three friends.

Lillian Tiegs, a passing motorist, in response to waving from Swenson’s companions, stopped her vehicle on the shoulder of Highway 19 and asked if any assistance was necessary. Tiegs first attempted to summon help by calling 911, but she was unable to raise a signal on her cell phone. Tiegs then agreed to drive Swenson to the hospital in New Prague. The rest of Swenson’s group decided to drive their snowmobiles to the home of Tiegs, less than a quarter of a mile away from the scene of the accident. The plan was to leave the snowmobiles at the Tiegs residence and then ride in the Tiegs’ van to the hospital.

After Swenson was placed in the van, Tiegs attempted to make a U-turn from the westbound side of the highway to the eastbound lane. Before Tiegs had completed the U-turn, a tractor-trailer exceeding the posted speed limit and traveling in the eastbound lane struck the passenger side of the Tiegs’ van. Kelly Swenson died as a result of injuries she sustained in this accident.

The Swenson family brought a wrongful-death action against both the tractor-trailer driver and Tiegs. The Swensons settled with the driver of the tractor-trailer and then brought an underinsured-motorist claim against Waseca Mutual, the insurer for Tiegs. Waseca Mutual moved for summary judgment, alleging that under Minnesota’s Good Samaritan law, § 604A.01, subd 2, Tiegs was immune from liability. The district court granted the motion for summary judgment, concluding that Minnesota’s Good Samaritan law does not require the person receiving assistance to be in “grave physical harm.” The district court also concluded that Tiegs had otherwise met the requirements of the statute and was entitled to immunity.

ISSUES

I. Does Minnesota’s Good Samaritan law provide immunity from a negligence claim where a layperson attempts to transport an injured per-
son from the scene of an accident to a health-care facility?
II. Is a layperson who provides transportation for an injured person to a health-care facility, where the transportation utilizes an indirect route, or a brief stop on the way to the facility acting at the scene of an emergency and protected from liability as provided by Minnesota’s Good Samaritan law?

ANALYSIS

On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate courts. Lefio v. Hoggsbreath Enter. Inc., 581 N.W.2d 855, 856 (Minn.1998). Further “statutory interpretation is a question of law subject to de novo review.” Schons v. State Farm Mut. Auto. Ins. Co., 621 N.W.2d 743, 745 (Minn.2001).

I. Does Minnesota’s Good Samaritan law provide immunity from a negligence claim where a layperson attempts to transport an injured person from the scene of an accident to a health-care facility?

Appellant first argues that the district court erred by not directly addressing whether the act of transporting an injured person from the scene of the accident to a hospital falls within'the scope of Minnesota’s Good Samaritan law.

Courts must first look to the language of the statute to determine its meaning and “ascertain and effectuate the intent of the legislature.” Minn.Stat. § 645.16 (2002). If the meaning of a statute is plain and unambiguous on its face, judicial construction is neither necessary nor proper. Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App.2002), review denied (Minn. May 28, 2002). But courts are not to give effect to the plain meaning of the statute if it produces absurd results or it is clearly at odds with the policy of the legislation as a whole. Id.

The words and phrases of a statute are to be construed according to the ordinary rules of grammar and according to their most natural and obvious usage, unless such a meaning would subvert the intent of the legislature. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 383 (Minn. 1999). Every law shall be construed to give effect to all its provisions. Minn.Stat. § 645.16. Whenever possible, no word or phrase will be deemed superfluous. Amaral, 598 N.W.2d at 384. A statute that has more than one reasonable interpretation is ambiguous, and the ambiguity will be resolved by looking to the intent of the legislature. Occhino, 640 N.W.2d at 360. The canons of construction also demand that substantive policy concerns and legislative intent be examined in order to determine the meaning of a statute. Id.

Minnesota’s Good Samaritan law has two main components. The statute imposes a duty to help on anyone present “at the scene of an emergency” who “knows another person is exposed to or has suffered grave physical harm,” provided that the person can lend assistance without danger or peril to themselves. Minn.Stat. § 604A.01, subd. 1 (2002). The second component of the statute, in dispute here, provides immunity to any person who:

without compensation or the expectation of compensation, renders emergency care, advice, or assistance at the scene of an emergency or during transit to a location where professional medical care can be rendered, * * ⅜ unless the person acts in a willful and wanton or reckless manner in providing the care, advice, or assistance.

Minn.Stat. § 604A.01, subd. 2(a) (Emphasis added).

Appellant contends that the Good Samaritan law’s “during transit” provision does not apply to the mere act of driving an injured party from the scene of an accident to a hospital. Instead appellant argues that the “during transit” provision only protects those who provide some sort of emergency care while the person is being transported to a health-care facility.

The purpose of the statute is to encourage laypersons to help those in need, even when they are under no legal obligation to do so, by providing immunity from liability claims arising out of an attempt to assist a person in peril. Tiede-man by and Through Tiedeman v. Morgan, 435 N.W.2d 86, 89 (Minn.App.1989), review denied (Minn. Mar. 24, 1989). This is consistent with the acknowledged purpose underlying most Good Samaritan statutes, which is to provide protection to “individuals from civil liability for negligent acts or omissions committed while voluntarily providing emergency care.” Danny R. Veilleux, Annotation, Construc tion and Application of “Good Samaritan” Statutes, 68 A.L.R.4th 294, 299-300 (1989).

The issue of whether the Good Samaritan law applies to the simple act of providing transportation from the scene of an emex*gency to a place where medical care can be provided has not been addressed in Minnesota. A few foreign cases have addressed this topic. The Washington Court of Appeals specifically held that Washington State’s Good Samaritan law encompasses transportation. Youngblood v. Schireman, 53 Wash.App. 95, 765 P.2d 1312, 1319 (1988). But the Washington statute specifically provides liability protection for a person who “renders emergency care at the scene of an emergency or who participates in transporting.” Wash. Rev.Code § 4.24.300 (2000) (emphasis added).

The Massachusetts Court of Appeals, analyzing Maine law, recently ruled that transporting another person did fall within the protection of Maine’s Good Samaritan statute. Campbell v. Schwartz, 47 Mass. App.Ct. 360, 712 N.E.2d 1196 (1999). In Campbell, two would-be rescuers on snowmobiles went in search of an extremely intoxicated snowmobile driver stranded in 20-below-zero temperatures. Id. at 1197— 98. After finding the stranded snowmobiler, the party headed back to camp. Id. at 1198. The plaintiff rode on the back of one of the would-be rescuer’s snowmobile while the other rescuer followed behind. Id. The plaintiff fell into the snow, was run over by the trailing snowmobile, and died as a result of the injuries sustained during the accident. Id. Campbell concluded that because the rescuers went in search of a highly intoxicated, stranded snowmobiler and attempted to bring him to safety, they were protected by Maine’s Good Samaritan statute. Campbell, 712 N.E.2d at 1198-1200. But the Campbell court noted that because Maine’s law employed the term “rescue” as opposed to “emergency care,” it was more expansive in scope than most Good Samaritan statutes. Id. at 1200.

Conversely, in Dahl v. Turner, the New Mexico Court of Appeals held that New Mexico’s Good Samaritan law did not cover the mere act of transporting a person from the scene of an accident to another location. Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 823-24 (Ct.App.1969). There are, however, stark differences between the present case and Dahl. In Dahl, the plaintiffs only injury was a cut on the arm, an injury less severe than the dislocated knee suffered by Swenson. Dahl, 458 P.2d at 823. Furthermore, the defendant in Dahl was not giving the accident victim a ride to a place where he could get medical attention. Id, at 824. In fact, the plaintiff in Dahl specifically did not want to see a doctor and asked to be taken to a nearby motel. Id. Here, Swenson, a minor, had more serious injuries, needed and wanted medical attention, and was ultimately headed for a hospital when this tragedy occurred.

The appellant asks us to conclude that the “during transit” language of the Good Samaritan statute does not cover the simple act of transporting an injured person to a hospital. Because statutes are to be construed as to give effect to every provision, before we can identify what acts are excluded from protection of the statute we must first determine the scope of the “during transit” provision. See Amaral, 598 N.W.2d at 384; Minn. Stat § 645.16.

Appellant suggests that the “during transit” provision protects acts of aid or assistance (other than the actual act of driving) given while transporting an injured person. In light of the fact that professional emergency medical technicians are already under a duty to provide competent care, appellant’s interpretation would only protect those laypersons providing emergency care in a vehicle and in transit to a health-care facility while a third person drives the vehicle. Such a narrow interpretation of the law offers little protection. Nor does it offer much encouragement to a layperson to help others in peril. Given this restrictive alternative, and because the purpose of the Good Samaritan law is to encourage non-emergency personnel to help those in peril, see Tiedeman, 435 N.W.2d at 90, there is no other way to interpret the “during transit” provision other than to conclude that it provides a liability shield to laypersons whose only act of assistance is to drive a person from the scene of an emergency to a health-care facility.

To hold, as appellant urges, that transportation' is not a protected activity and not eligible for immunity under the provisions of the Good Samaritan law would have the perverse effect of discouraging an entire class of responses to emergency circumstances. Absent a clear legislative direction that transportation is not a covered activity under the immunity statute, we are not willing to adopt appellant’s argument. We hold that transportation of an injured person by non-emergency personnel is a protected activity under the immunity provisions of the Good Samaritan law.

II. Is a layperson who provides transportation for an injured person to a health-care facility, where the transportation utilizes an indirect route, or a brief stop on the way to the facility acting at the scene of an emergency and protected from liability as provided by Minnesota’s Good Samaritan law?

Appellant argues that even if transporting another from the scene of an accident falls within the scope of the Good Samaritan law, it offers Tiegs no protection because she did not face the statutorily required emergency. Minn.Stat. § 604A.01, subd. 2(a). Appellant argues that because Tiegs did not plan to go from the scene of the accident directly to a hospital, a true emergency did not exist. Instead, Tiegs planned to first drive nearly a quarter-mile back to her house where she would pick up the rest of Swenson’s party after they had parked their snowmobiles. Additionally, appellant also implies that because Swenson did not suffer a life-threatening injury, an emergency did not exist.

An “emergency” has been broadly defined by the supreme court in other contexts “as ‘any event or occasional combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency; * * * an unforeseen occurrence or condition.’ ” Gust v. Minnesota Dep’t. of Natural Resources, 486 N.W.2d 7, 9 (Minn.App.1992) (quotation omitted). However, neither statute nor case law defines “emergency” in the context of the Good Samaritan law.

Coming upon a roadside personal-injury-accident scene is the epitome of an emergency. Flynn v. U.S., 902 F.2d 1524, 1530 (10th Cir.1990) (holding that National Park Service employees who came upon the an accident just moments after it occurred, where an injured pedestrian was lying in the highway, were at an emergency scene as required by Utah’s Good Samaritan law). Further, the protection of the Good Samaritan law is not lost if there is a reasonably brief delay in seeking medical care. See Youngblood, 765 P.2d at 1320. Similarly, an accident victim does not need to be suffering from a life-threatening injury in order for an emergency to exist. Rivera v. Arana, 322 Ill.App.3d 641, 255 Ill.Dec. 333, 749 N.E.2d 434, 442 (2001) (holding that a doctor who treated, at his office and without charge, a boy who had ulcerated and infected feet was protected by Illinois’ Good Samaritan law, because without treatment the boy’s infection could have become worse). Tiegs came across an accident scene not long after the accident had occurred. She encountered an accident victim in a great deal of pain and in need of immediate medical assistance. We conclude that Swenson’s circumstances easily qualify as an emergency scene.

The language of subdivision 2 of the Good Samaritan statute does not require grave or life-threatening injuries nor does the statute prohibit the use of an indirect route to the medical facility, such as occurred here. Further, other states, examining the scope of Good Samaritan statutes, typically have not required life-threatening injuries as a condition precedent to receiving immunity. Arana, 255 Ill.Dec. 338, 749 N.E.2d at 442. The only requirement is that a person render assistance at the scene of an emergency. An emergency is a scene where a combination of events which calls for “immediate action” it is not limited to the threat of grave physical harm. Gust, 486 N.W.2d at 9 (quotation omitted).

Appellant’s parsing of the statute would require good Samaritans to determine the severity of an injury before offering assistance. There is no indication that the legislature intended non-emergency personnel attempting to aid an injured party to make preliminary determinations as to the severity of the injury or the extent of the emergency before entitlement to immunity under the Good Samaritan law. Appellant’s formulation also ignores the probability that less serious injuries, left untreated, may in time become more serious, a risk that would increase under the interpretation urged by appellant.

When Tiegs came upon the accident, she had no way of knowing the true extent of Swenson’s injuries. Nor could she contact help. She was at the scene of an emergency: a situation calling for “immediate action or remedy; pressing necessity; exigency; * * * an unforeseen occurrence or condition.” See Gust, 486 N.W.2d at 9 (quotation omitted). The de minimus delay occasioned by the planned indirect route to the hospital did nothing to lessen the nature of the emergency encountered by Tiegs.

DECISION

Tiegs acted at the scene of an emergency and gave assistance to an injured person by attempting to transport an accident victim to a hospital. Her actions fall within Minn.Stat. § 604A.01, subd. 2 (2002), and, because there were no genuine issues of material fact and Tiegs was otherwise entitled to the immunity provisions of Minnesota’s Good Samaritan law, we affirm the district court’s grant of summary judgment.

Affirmed.

      . Tiedeman gives a brief historical overview of the Minnesota’s Good Samaritan law, noting that when it was first passed in 1971, it only contained the liability-protection provision. Tiedeman by and Through Tiedeman v. Morgan, 435 N.W.2d 86, 89 (Minn.App. 1989). The duty to assist language was added in 1984. Id. The Tiedeman court ultimately concluded that the Good Samaritan statute did not apply in that case because the defendants had a preexisting duty to assist the plaintiff. Id.


author: ROBERT H. SCHUMACHER, Judge.

text:
    Nancy SARGENT, Colleen Barrett and Michelle Nisbit, on behalf of themselves and all others similarly situated, Respondents, v. BETHEL PROPERTIES, INC., Appellant.
    No. C0-02-430.
    Court of Appeals of Minnesota.
    Dec. 10, 2002.

      Kay Nord Hunt, Barry A. O’Neil, Lom-men, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for respondents.
    Michael C. Lindberg, Molly Thompson Prokott, Johnson & Lindberg, P.A., Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, SCHUMACHER, Judge, and KLAPHAKE, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Bethel Properties, Inc., a manufactured-home park owner, challenges the district court’s order granting partial summary judgment and injunctive relief to respondents Nancy Sargent, Colleen Barrett and Michelle Nisbit, on behalf of themselves and all other similarly situated (Sargent, Barrett, and Nisbit), residents in Bethel’s park. Bethel argues that the court’s ruling is based on an erroneous interpretation of Minn.Stat. § 327C (2002). We affirm.

FACTS

The relevant facts in this matter are undisputed. Bethel owns and operates a manufactured-home park in which Sargent; Barrett and Nisbit rent lots. Sargent, Barrett and Nisbit’s lease agreements provide that water and sewer services are included in each respondent’s monthly lot-rental fee. In a June 1999 letter, Bethel announced that it would soon begin charging Sargent, Barrett and Nisbit for water and sewer services in addition to rent.

Sargent, Barrett and Nisbit brought a class action complaint alleging, among other things, that Bethel’s addition of water and sewer fees was a new rule that substantially modified their existing rental agreements, thereby violating both Minn. Stat. §§ 327C.01-12 (2002) and Sargent, Barrett, and Nisbit’s rental agreements, which contained language modeled on chapter 327C. Bethel argued that the utility fees were a permissible rent increase. Sargent, Barrett, and Nisbit moved for summary judgment on the statutory and breach of contract claims and requested injunctive relief precluding Bethel from charging the fees. The district court granted Sargent, Barrett and Nisbit’s motion and issued the injunction requested. This appeal followed.

ISSUE

Did the district court err by concluding that Bethel’s addition of utility charges to Sargent, Barrett, and Nisbit’s rental agreements was a new rule that substantially modified the agreements and that was consequently unenforceable under Minn.Stat. § 327C.02 (2002)?

ANALYSIS

On appeal from summary judgment, we consider whether any genuine issue of material fact exists and whether the district court erred in applying the law. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). Where, as here, a district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion that we review de novo. Lefto v. Hoggsbreath Enter., Inc., 581 N.W.2d 855, 856 (Minn.1998).

Bethel argues that the addition of water and sewer charges constituted a permissible rent increase pursuant to Minn.Stat. §§ 327C.01-.12 (2002), and not a prohibited rule modification, as Sargent, Barrett, and Nisbit argue. We disagree. Minn.Stat. § 327C.02, subd. 1(c), requires a manufactured home park rental agreement to specify “all rules applicable to the resident.” A “rule” is a “provision, regulation, rule or policy through which a park owner * * ⅜ seeks to control or affect the behavior of residents.” Minn.Stat. § 327C.01, subd. 10.

Bethel argues that its decision to impose separate water and sewer charges was intended to increase revenue, not to control Sargent, Barrett, and Nisbit’s behavior, and is therefore a rent increase. But Be-thel’s June 1999 letter clearly states that the purpose of the separate charges was to “closely monitor” park residents’ “extraordinary” water consumption. The letter states that payment for the utility “charges will be due along with [Sargent, Barrett, and Nisbit’s] rent payment.” The letter never states or implies that the fees will be incorporated into the rent payment. After Bethel began charging for sewer and water, Sargent, Barrett, and Nisbit’s monthly bills listed “current rent due” and “sewer and water” as separate charges. We note that Bethel did not reduce the amount of rent due when it began charging separately for water and sewer services.

Bethel argues that the imposition of utility charges constituted a rent increase because it complied with Minn.Stat. § 327C.06, which expressly authorizes park owners to increase rent up to two times a year, provided residents affected by the increase are given 60 days’ written notice. But Bethel’s decision to provide the required notice proper for a rent increase when imposing utility charges has no bearing on whether utility charges added to an existing lease constitute a rent increase or a rule modification.

Bethel also argues its decision to charge Sargent, Barrett, and Nisbit for water and sewer services was legal and enforceable pursuant to Minn.Stat. § 327.04, which expressly authorizes park owners to install water meters and charge park residents for utility services, including water and sewer, provided the charges are accurate and applied at a permissible rate. Minn.Stat. § 327.04, subds. 1-3. But Bethel’s general statutory authority to charge for utilities does not also authorize Bethel to alter existing rental agreements by adding utility charges.

We are not persuaded by Bethel’s contention that treating the addition of utility charges as a rule modification rather than as a rent increase will lead to inconsistent results by preventing park owners from complying with all of section 327C’s provisions. A new or amended rule is unenforceable against a resident with an existing rental agreement unless the “rule is reasonable and is not a substantial modification of the original agreement.” Minn. Stat. § 327C.02, subd. 2. A “substantial modification” is

any change in a rule which: (a) significantly diminishes or eliminates any material obligation of the park owner; (b) significantly diminishes or eliminates any material right, privilege or freedom of action of a resident; or (c) involves a significant new expense for a resident.

Minn.Stat. § 327C.01, subd. 11. The district court did not err by finding that Bethel’s decision to add utility charges to Sargent, Barrett, and Nisbit’s lease agreements constituted a new rule and not a rent increase.

We conclude that each statutory criterion was satisfied when Bethel shifted the burden of utility payments to Sargent, Barrett, and Nisbit. See Lemke v. VanNess, 436 N.W.2d 784, 787 (Minn.App.1989) (holding that new rule substantially modified manufactured-home park rental agreement by requiring residents, instead of park owner, to repair storm-damaged property).

Bethel argues that because Minn. Stat. § 327C.04 authorizes park owners to charge residents for utilities, metered utility charges are presumptively legal as long as the rates are “permissible” under the statute, regardless of whether the charges substantially modify existing rental agreements. See Minn.Stat. § 327.04, subd. 3 (defining permissible utility rate as the amount a resident would pay for comparable service from a comparable provider in the same market area). But the statute’s prohibition against enforcing substantial modifications of existing rental agreements makes no exception for modifications imposing otherwise permissible utility fees when those fees are imposed through a substantial modification of an existing rental agreement.

We hold that the separate water and sewer charges were substantial modifications of Sargent, Barrett, and Nisbit’s rental agreements under Minn.Stat. § 327C.02 and were therefore unenforceable as a matter of law. The district court appropriately granted Sargent, Barrett, and Nisbit partial summary judgment. We further hold that the district court properly enjoined Bethel from continuing to charge the illegal utility fees. See Hvamstad v. City of Rochester, 276 N.W.2d 632, 632 (Minn.1979) (stating that decision to issue injunction is reviewed for abuse of discretion); Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965) (listing factors to consider before granting injunctive relief).

DECISION

Under Minn.Stat. § 327C.02, subd. 2, and the terms of Sargent, Barrett, and Nisbit’s rental agreements, Bethel’s addition of utility charges to the agreements was a new rule that substantially modified the agreements and was therefore unenforceable. The district court properly granted Sargent, Barrett, and Nisbit partial summary judgment and injunctive relief.

Affirmed.