author: SNELL, Senior Judge.

text:
    STATE of Iowa, Appellee, v. Carl Ernest BERGMANN, III, Appellant.
    No. 00-0778.
    Supreme Court of Iowa.
    Sept. 6, 2001.
    Rehearing Denied Oct. 3, 2001.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Danielle Davis and Mark Taylor, Assistant County Attorneys, for appel-lee.
   SNELL, Senior Judge.

Several searches occurred in this case, justified by different burdens, and conducted in different ways. We have occasion to decide if any were unconstitutional, and, if so, what effect that search had on subsequent searches. Because we agree with the district court that no constitutional rights were violated, we affirm.

I. Factual Background and Procedure

The defendant, Carl E. Bergmann, was parked in an alleyway when Officer Ken Dill noticed his car. Officer Dill was immediately suspicious as this was an area notorious for drug activity and Chester Polk, a well-known narcotics dealer, was standing next to the passenger side of the car. Polk noticed Dill and immediately left. Bergmann then began to drive away quickly. Dill observed that Bergmann’s license plate light was not lit, and decided to pull him over.

Once alongside the vehicle, Officer Dill recognized Bergmann from an arrest he had made in 1996 involving possession of a handgun and a large quantity of marijuana. Bergmann also had two female passengers. Dill testified that at this point he felt concerned for his safety given his past involvement with Bergmann. Dill then asked Bergmann if he had stopped anywhere recently. Bergmann answered that he had not, a fact which Dill knew to be untrue as he had just seen him stopped in the alleyway.

Officer Dill asked Bergmann to step out of the car to show him the unlit license plate. While out, Dill noticed that Berg-mann was acting anxious and impatient. Dill asked to search the car, and Berg-mann refused to give his consent. At this point, Dill decided to call in the canine unit. Before it arrived, Dill patted down Bergmann for weapons. He found none. He also looked under the driver seat for a weapon, the place he had found a weapon in 1996, but again found nothing. Dill testified that the canine and his handler, Officer David McFarland, arrived “within minutes.” Dill speculated that at the most it took Officer McFarland between five and ten minutes to arrive. All passengers were evacuated and the dog walked around the vehicle. The dog was trained to sit when the smell of narcotics was present. The dog indicated he smelled a controlled substance inside the vehicle.

Given this reaction, the officers felt they had probable cause to conduct a search of the entire vehicle. From the search, they found a pouch under the front passenger seat containing a small quantity of marijuana. A larger quantity of marijuana and marijuana paraphernalia were later found in the trunk. Bergmann was arrested and charged with possession of a controlled substance in violation of Iowa Code section 124.401(5) (1999).

Bergmann filed a suppression motion. He argued that the scope of the search was not justified by the facts. He did not take issue with the pat-down search of his person or under his seat, but rather with calling in the canine unit and the search of his vehicle that followed. At the suppression hearing, Bergmann’s attorney admitted: “But based on his past history with Mr. Bergmann, Officer Dill felt that a weapons check was necessary. Now, I can even acknowledge that permissible for the officer’s safety and those types of reasons .... ” Where Bergmann felt the police stop crossed the line of legality was when the dog was called to the scene. Berg-mann argued that because Dill stopped him for a traffic violation, he is bound by this reason for the scope of the encounter. When the encounter escalated to a drug investigation, this exceeded the scope of the traffic stop.

The motion was denied. The court determined that given all of the reasons present for Dill to be suspicious, it was reasonable for the canine unit to be alerted. It stated on the record:

The fact that the taillight or license plate was not functioning did give the officer the right to stop the car. At that point the officer learned that the defendant had been previously involved or arrested or convicted, as I understand it, for possession of marijuana. He also knew that at a prior time he was talking to a known drug dealer. And that would give him ... reasonable grounds to suspect that drug activity may have been involved. I think the summoning of the canine unit under those circumstances is not unreasonable ... and the search in this case is not subject to suppression.

As such, the evidence seized was held admissible against Bergmann. He was later convicted of violating section 124.401(5) and sentenced to 180 days in jail, with 150 of those days suspended.

On appeal, Bergmann argues his prolonged detention to wait for the drug dog cannot be constitutionally justified. He maintains that the search of his vehicle was a search incident to a citation and not based upon probable cause. He also makes the curious argument that the initial pat down prior to the arrival of the canine unit “did not produce any inculpato-ry evidence and, therefore, all of the evidence gathered after those searches should be suppressed as fruits of the poisonous tree.” This is the first time Bergmann has argued that the initial pat down was unconstitutional. In fact, this is a step away from the admission made at the suppression hearing by Bergmann’s attorney that it was within Officer Dill’s right to conduct a pat down for safety purposes.

II. Scope and Standard of Review

When constitutional rights are implicated, we review a court’s ruling on a suppression motion de novo. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000). “In doing so, we independently evaluate the totality of the circumstances shown in the record.” State v. Seager, 571 N.W.2d 204, 207 (Iowa 1997); accord State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). Because this case involves constitutional issues: “We give deference to the district court’s fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings.” State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

III. Preservation of Error

Although the State concedes that error has been preserved on every issue raised on appeal by filing the timely suppression motion, we disagree. Particularly, we do not believe Bergmann preserved the validity of the pat down for error. At no time before the district court did Berg-mann argue his pat down was unconstitutional. His motion did not specifically raise this and the hearing transcript does not show this issue being raised. The court’s ruling on the motion was based on the dog sniff “search” and the search that occurred because of the dog’s alert. No mention was made of the initial pat down. The discussion at the hearing suggests that Bergmann waived this constitutional challenge when his attorney acknowledged that given everything known to Dill, it was proper to do a pat down.

In a similar case we noted and held:

[C]ounsel did not simply remain silent and rely on the questionable objection already made. He affirmatively stated — twice—that he had no objection to the very evidence whose admission he now says amounted to reversible error ....
On the record before us we hold that defendant waived his objection to admission of the [evidence]....

State v. Schmidt, 312 N.W.2d 517, 518 (Iowa 1981); accord State v. Terry, 569 N.W.2d 364, 369 (Iowa 1997). Because Bergmann “cannot have it both ways,” this argument was not preserved for error. Schmidt, 312 N.W.2d at 518; accord Terry, 569 N.W.2d at 369.

However, on appeal Bergmann also makes an ineffective assistance of counsel argument. He asks us not to penalize him if his attorney failed to preserve error on any issue. As such, preservation should not be a problem if it was the result of a counsel deficiency. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). “Ineffective assistance claims operate as an exception to our error preservation requirements.” Id. Although the constitutionality of the pat down was not preserved for error, Bergmann may still allege it through ineffective assistance of counsel.

IV.Issues on Appeal

There are three challenged searches that occurred in this case: (1) the pat down of Bergmann and the search under the driver’s seat before the canine unit arrived; (2) the extended detention and dog sniff; and (3) the search of the car after the dog indicated the smell of drugs was present. We conclude that all three searches were constitutionally conducted.

A. The Pat Down

Police are allowed to pat down a suspect if they have reasonable suspicion that a crime is being or is about to be committed. Terry v. Ohio, 392 U.S. 1, 30-81, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968). They may also do a pat down if there is a reasonable suspicion that the person is armed and the officer’s safety is in danger. Id. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. Two cases are instructive here given our facts. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); State v. Cline, 617 N.W.2d 277 (Iowa 2000). Both cases hold that mere presence in a known narcotics-dealing area does not give police reasonable suspicion of wrongdoing to conduct a pat down. However, when coupled with other factors like flight upon seeing police, nervousness, evasiveness or lying, past experience with the suspect, etc., reasonable suspicion may be justified. See Wardlow, 528 U.S. at 124-25, 120 S.Ct. at 676, 145 L.Ed.2d at 576; Cline, 617 N.W.2d at 282-83.

Here, Bergmann was spotted in a known drug area alongside a nefarious drug dealer. When the drug dealer saw police, he immediately retreated from Bergmann’s car, and Bergmann drove away quickly. Dill recognized Bergmann from a past weapon and drug arrest. Dill felt concern for his safety. Bergmann lied to Dill about where he had been recently. Bergmann acted nervous while outside the car. Given all of these factors, Dill had reasonable suspicion to pat down Berg-mann for weapons. Moreover, once Dill concluded that further investigation was reasonably necessary, he was warranted to assure his protection by ensuring that those in his presence were not armed.

We believe Officer Dill was also justified in looking under Bergmann’s seat for a weapon given his past experience with Bergmann. We have upheld immediate vicinity pat downs where the officer

searched only under the front seat, where he suspected a weapon may be: he limited his search to “what was minimally necessary to learn whether [the suspect was] armed_” Furthermore, by removing [the defendant] from the car and immediately reaching only under the front seat, “[i]t is clear that the intrusion was strictly circumscribed by the exigencies which justified] its initiation.”

State v. Riley, 501 N.W.2d 487, 490 (Iowa 1993) (quoting Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911; Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201, 1221 (1983)). Again, after Dill resolved to call the drug dog, he acted properly to ensure his safety until it arrived. See Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.

Further, we are skeptical that Bergmann can raise any successful constitutional challenge regarding this pat down because nothing was found from it that is now being used against Bergmann. The fact that nothing was found also breaks any chain between this search and later searches because the pat down did not disclose any evidence to prompt Dill to continue, which might have tainted later searches. The fruit of the poisonous tree doctrine bars evidence found in subsequent searches only when the evidence was found by virtue of the first illegality. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963). That is not the case here. The canine unit had already been called when the pat down occurred — so it is clear Dill had an independent justification for the later “search” apart from the pat down. Moreover, even if the pat down had never occurred, the drug dog still would have arrived to smell for narcotics. As such, even if the pat down were unconstitutional, there is no link between the pat down and the subsequent searches.

Because arguing that the pat down tainted later searches would have been futile, counsel was not ineffective for failing to challenge it. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (“Trial counsel is not incompetent in failing to pursue a meritless issue.”).

B. The Prolonged Detention and the Dog Sniff

Jurisprudence in this area is fairly clear — a dog sniff that occurs outside a vehicle is not a search under the meaning of the Fourth Amendment. See, e.g., United States v. $101,905.00 in United States Currency, 182 F.3d 643, 647 (8th Cir.1999). See generally United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110, 121 (1983) (providing a general legal discussion for all dog sniffs). Because it is not a search, neither probable cause nor reasonable suspicion must be present to justify it. See generally 2 Wayne R. LaFave et al., Criminal Procedure § 3.2(b), at 58-59 (2d ed.1999).

This issue prompts us to comment on a recent Supreme Court decision. Id. at —, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). In Kyllo, the Supreme Court invalidated the use of thermal imaging technology to gain information inside a home that would not otherwise be apparent without physical invasion. When sense-enhancing technology that is not in general use is utilized on the home, this constitutes a search protected by the Fourth Amendment.

We have said that the Fourth Amendment draws “a firm line at the entrance to the house.” That line, we think, must be not only firm but also bright — which requires clear specification of those methods of surveillance that require a warrant.... Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

Id. at -, 121 S.Ct. at 2046, 150 L.Ed.2d at 106 (quoting Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653 (1980)).

We find that this holding does not disturb the nearly twenty years of precedent regarding dog sniffs and vehicles. As recently as 2000, the Supreme Court held a dog sniff of a car is not a search. City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 453, 148 L.Ed.2d 333, 342-43 (2000).

Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is “much less intrusive than a typical search.”

Id. (quoting Place, 462 U.S. at 707, 103 S.Ct. at 2644, 77 L.Ed.2d at 121).

Kyllo specifically speaks to highly advanced technology that is not readily available to the general public used to search a home, arguably the most sacred of all places under the Fourth Amendment. See Payton, 445 U.S. at 585, 100 S.Ct. at 1379, 63 L.Ed.2d at 650 (“[T]he ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” (citation omitted)). Vehicles have not been given similar favored status where constitutional protections are concerned. Further, we are of the opinion that a drug sniffing dog is not “technology” of the type addressed in Kyllo to merit a divergence from the national and federal case law developed regarding vehicle dog sniffs.

As such, we are persuaded by the following long-standing viewpoint. “Having the trained dog sniff the perimeter of [defendant’s] vehicle, which had been lawfully stopped in a public place, did not of itself constitute a search.” United States v. Jeffus, 22 F.3d 654, 557 (4th Cir.1994). “[T]he airspace around the car is not an area protected by the Fourth Amendment.” Casey v. State, 246 Ga.App. 786, 542 S.E.2d 531, 535 (2000). “Ohio courts have held that police need not have a reasonable suspicion of drug-related activity prior to subjecting an otherwise lawfully detained vehicle to a canine sniff.” State v. Rusnak, 120 Ohio App.3d 24, 696 N.E.2d 633, 636 (1997) (citations omitted) (“If a vehicle is lawfully detained, the exterior sniff by a trained narcotics dog to detect the odor of drugs is not a search within the meaning of the Fourth Amendment to the United States Constitution.”).

To date, all that we have required in Iowa is that the dog sniff be conducted within a reasonable amount of time from the initial, lawful stop and that the stop is not unduly prolonged without a sufficient basis. State v. Aderholdt, 545 N.W.2d 559, 563-64 (Iowa 1996); accord United States v. Bloomfield, 40 F.3d 910, 916-17 (8th Cir.1994). Here, the evidence is that the dog sniff occurred no more than a few minutes after Bergmann was pulled over.

Although a dog sniff is not a search, police cannot unduly prolong their detention of an individual to secure a drug dog or for any other reason without additional suspicion of wrongdoing that warrants expansion of the stop. United States v. Jacobsen, 466 U.S. 109, 125 n. 25, 104 S.Ct. 1652, 1662 n. 25, 80 L.Ed.2d 85, 101 n. 25 (1984) (holding that while the subjection “to a ‘dog sniff Search Term End test [is] reasonable, the seizure [can become] unreasonable [if] its, length unduly intrude[s] upon constitutionally protected interests”). The fact that Officer Dill pulled Bergmann over for a mere traffic violation does not automatically invalidate the use of the drug dog. If, upon reasonable investigation surrounding the stop, the officer has a valid suspicion of other wrongdoing not the purpose of the stop, he can broaden the scope of the detention. We have held:

Even if ... the trooper suspected drug trafficking from the outset, that alone would not invalidate an otherwise valid stop.
Once a lawful stop is made, an officer can conduct an investigation “reasonably related in scope to the circumstances which justified the interference in the first place.” “This reasonable investigation includes asking for the driver’s license and registration, requesting that the driver sit in the patrol car, and asking the driver about his destination and purpose.” If, as here, the detainees’ responses or actions raise suspicions unrelated to the traffic offense, the officer’s inquiry may be broadened to satisfy those suspicions.

Aderholdt, 545 N.W.2d at 563-64 (citations omitted) (quoting United States v. Cummins, 920 F.2d 498, 502 (8th Cir.1990); Bloomfield, 40 F.3d at 915).

In Aderholdt, we held that a fifty-minute detention to summon a drug dog and tow truck did not exceed the reasonable scope of the stop. Id. at 564. Aderholdt and his companions were pulled over for failing to wear their seatbelts and for having improperly tinted windows. While conversing with one of Aderholdt’s companions in the back of the patrol car, the trooper became suspicious the companion was lying to him because the story he was telling the trooper “did not make sense.” Id. at 561. He was very nervous and agitated, speaking in a quick and stuttery matter, and making excited gestures with his hands. Aderholdt also became very nervous when asked by the trooper if he could search the car. At this point the trooper informed the men he was calling in a drug dog. We held that given these facts, it was reasonable for the trooper to broaden the scope of the detention. Id. at 564.

Although Aderholdt does not state a level of suspicion that is required, other jurisdictions have held that an initial traffic stop can be expanded beyond the scope only when there is reasonable suspicion of criminal wrongdoing. United States v. Heir, 107 F.Supp.2d 1088, 1094 (D.Neb.2000) (holding that evasiveness, nervousness, fidgeting, and inattentiveness in the conglomerate may support further detention for a drug dog); see also United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994) (“A trained officer may properly infer from a collection of circumstances, no one of which itself indicates illegal activity, that further inquiry is appropriate.”).

Other jurisdictions have also weighed in on this issue. The Tenth Circuit has held that where “the sniff and detention to accomplish it were supported by reasonable suspicion based on ... the extreme nervousness of the passengers and the inconsistent statements about destination,” the fifteen-minute detention to wait for the drug dog was justified. United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998). Likewise, a defendant’s

agitated demeanor and conflicting accounts of their itinerary given by the vehicle’s occupants then gave the trooper reasonable suspicion to enlarge the scope of his investigation. The arrival of a drug-detection dog on the scene within minutes of the stop afforded the officer the opportunity to “pursue! ] a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant.”

State v. Lopez, 772 So.2d 90, 93 (La.2000) (alterations in original) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 616 (1985)).

Further, some courts have been most interested in the length of the detention. In a similar Florida decision, the court noted and held:

The stop was made at approximately 3:13 a.m. The drug dog arrived on the scene approximately 15 minutes later. The officer testified that he was still writing the ticket for the [traffic] violation when the dog arrived. We will not disturb the trial court’s conclusion that the officer’s testimony was credible and that the stop was not otherwise too lengthy.

Sands v. State, 753 So.2d 630, 632 (Fla.Dist.Ct.App.2000). In United States v. Sharpe, the Supreme Court held that the twenty-minute detention to wait for a better-trained narcotics officer to arrive was reasonable given that the on-scene officer thought he smelled marijuana around the stopped vehicle. Sharpe, 470 U.S. at 684-87, 105 S.Ct. at 1574-76, 84 L.Ed.2d at 614-16.

We also note the contrast shown by those cases where courts did not find it was reasonable to call a drug dog. In United States v. Beck, the Eighth Circuit invalidated the extension of the scope of the detention once the purpose for the initial stop had concluded. United States v. Beck, 140 F.3d 1129, 1140 (8th Cir.1998). The court recognized:

Because the purposes of [the officer’s] initial traffic stop of Beck had been completed by this point, [the officer] could not subsequently detain Beck unless events that transpired during the traffic stop gave rise to reasonable suspicion to justify [the officer’s] renewed detention of Beck. Thus, we must consider whether [the officer] had a reasonable, articu-lable suspicion that Beck’s Buick was carrying contraband or that other criminal activity may have been afoot.

Id. at 1136 (citations omitted).

In Beck, upon his questioning, the officer did not receive any objectively reasonable facts to make him suspicious of other criminal activity. The answers provided by the defendant dispelled, rather than created, any further suspicion. For this reason, the Eighth Circuit held that the prolonged detention to wait for a drug dog was not reasonable. Id. at 1137. In the present case, the facts known to Officer Dill did reasonably create a suspicion to investigate further. Rather than dispel suspicion, Bergmann’s answer created it by its verified untruthfulness. Dill’s past experience with Bergmann, his recent presence in a known drug area with a reputed drug dealer, and Bergmann’s nervousness being near the trunk of his car, combined to present a scenario more compelling than was present in Beck to make further detention reasonable in the present case.

In another case, the Florida Court of Appeals invalidated a prolonged detention where the officer asked the defendant more than fifty questions prior to writing the citation for speeding in order to allow time for the drug dog to arrive. Maxicell v. State, 785 So.2d 1277, 1279-80 (Fla.Dist.Ct.App.2001). The officer could point to no facts during the stop that made him suspicious that further criminal activity was afoot. Rather than write the speeding ticket, he engaged the defendant in conversation about his employment history, his marital status, and other questions that had nothing to do with the reason for the stop. The Florida court held that without reasonable suspicion that further investigation is necessary, a traffic stop cannot last any longer than the time it should take to write a citation. Id. If, however, a drug dog can be called within that time and sniff the vehicle, there is no constitutional violation. State v. Brown, 691 So.2d 637, 638 (Fla.Dist.Ct.App.1997). In our case, the drug dog was called prior to the completion of the reason for the stop only after Officer Dill began to suspect additional illegality was afoot. Factors that created reasonable suspicion that further investigation was necessary were present and the drug dog arrived within minutes of a reasonable completion of the normal citation process.

Perhaps the most persuasive case comes from the Texas Court of Appeals. Estrada v. State, 30 S.W.3d 599 (Tex.App.2000). This court held:

Articulable facts and circumstances that come to an officer’s attention during the course of a routine traffic stop may justify a continued detention and broader investigation. If the officer has a reasonable suspicion that the automobile contains narcotics, he may temporarily detain it to allow an olfactory inspection by a trained police dog.

Id. at 603 (citations omitted). The facts present in Estrada that validated the extension of the scope were nervousness of the passengers, confusing and contradictory statements made between the individuals, and an air freshener and carpet cleaner visible in the car. This court held that these factors were enough to provide reasonable suspicion that further investigation was necessary and justified. Id.

We find that our facts are equally persuasive given everything known to Officer Dill to satisfy the standard of reasonable suspicion. When the purpose for the initial stop has concluded, in order to expand the scope further, reasonable suspicion of criminal wrongdoing must be present. We believe this standard was met in Aderholdt; our holding now is consistent with that case.

The facts that supported reasonable suspicion for the pat down are the same facts which support the reasonableness of expanding the scope of the stop to wait for a drug dog to arrive. Bergmann’s past contact with Officer Dill, his lying, his nervousness, his presence in a drug area, and his contact with a drug dealer were all facts known to Dill when he called for the drug dog. As such, Dill had reasonable suspicion to expand the scope of the stop beyond the license plate violation. Moreover, Dill called the drug dog prior to concluding the purpose for the initial stop, so any prolonged detention was extremely minimal.

C. Search Incident to Dog Sniff

Contrary to what is suggested by Bergmann, this was not a search incident to citation held to be unconstitutional by Knowles v. Iowa, 525 U.S. 113, 117-18, 119 S.Ct. 484, 487-88, 142 L.Ed.2d 492, 497 (1998). When the dog was alerted by smelling the presence of narcotics, this provided police with probable cause to search the vehicle. Several cases have concluded that a reliable drug dog alert alone is enough to establish probable cause to search. United States v. Booker, 186 F.3d 1004, 1006 (8th Cir.1999); $404,905.00 in United States Currency, 182 F.3d at 647; accord United States v. Sundby, 186 F.3d 873, 876 (8th Cir.1999) (“A dog’s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable.”); United States v. Massie, 65 F.3d 843, 849 (10th Cir.1995) (holding that when the dog was alerted to the presence of narcotics in the car, police had probable cause to search it). Here, no argument has been put forth to challenge the dog’s reliability.

We have said that a warrantless search can be justified under these circumstances: (1) consent to search; (2) the presence of probable cause and exigent circumstances; (3) objects in plain view; or (4) search conducted incident to a lawful arrest. State v. Kubit, 627 N.W.2d 914, 918 (Iowa 2001); State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996). Because the drug dog alert established probable cause, the police legally searched the car without a warrant under the probable cause plus exigent circumstances exception to the warrant requirement. See State v. Predka, 555 N.W.2d 202, 207 (Iowa 1996) (“Exigent circumstances existed because [the defendant’s] car was mobile and its contents could have been lost if a search warrant had to be obtained.”); see also State v. Tucker, 132 Idaho 841, 979 P.2d 1199, 1201 (1999) (“[A]n officer’s investigation at the scene of a stopped automobile can ripen into probable cause as soon as a drug detection dog alerts on the exterior of the vehicle, justifying a search of the vehicle without the necessity of obtaining a warrant.”).

This exception is also known as the automobile exception to the Fourth Amendment. State v. Dawdy, 533 N.W.2d 551, 556 (Iowa 1995) (“The automobile exception to the Fourth Amendment requirement of a search warrant is applicable if probable cause and exigent circumstances exist when the police stop an automobile.”). This is implicated “when the facts and circumstances would lead a reasonably prudent person to believe the automobile contains contraband” and “when the automobile is mobile and the automobile’s contents may never be found again if the police must obtain a warrant.” Id. As both circumstances exist here, the search conducted falls within a recognized exception and did not violate the Fourth Amendment.

AFFIRMED.

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

         Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2001).


source: Caselaw Access Project

author: LANCASTER, Justice.

license: Public Domain

text:
    Paul J. HAGEN, Plaintiff, v. BURMEISTER & ASSOCIATES, INC., Defendant and Third-Party Plaintiff, Respondent, v. American Agency, Inc., Third-Party Defendant, Petitioner, Appellant.
    No. C3-00-496.
    Supreme Court of Minnesota.
    Aug. 2, 2001.
    Rehearing Denied Sept. 27, 2001.

      Joseph M. Sokolowski, David A. Oren-stein, Parsinen Kaplan Rosberg & Gotlieb, P.A. and Leon R. Erstad, Erstad & Riemer, P.A., Minneapolis, for the appellant.
    Eric J. Magnuson, Kimberly T. Ross, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, and Rodney J. Mason, Chandler and Mason, Ltd., St. Paul, for respondent.
   OPINION

LANCASTER, Justice.

A trial court held that insurance agent Paul Hagen was hable to his former employer, respondent Burmeister & Associates, Inc., for breach of contract and for misappropriation of trade secrets in violation of the Minnesota Uniform Trade Secrets Act (UTSA). The trial court also held that Hagen’s current employer, appellant American Agency, Inc., was not vicariously liable to Burmeister for Hagen’s UTSA violation because an employer cannot, as a matter of law, be vicariously liable for an employee’s UTSA violation. Burmeister appealed that holding and the court of appeals reversed, concluding that an employer can be liable for an employ-eé’s UTSA violation. The court of appeals remanded the case for further findings to determine whether Hagen’s UTSA violation fell within the scope of his employment with American. On remand, the district court granted summary judgment for American, and Burmeister appealed for the second time. The court of appeals again reversed. This case comes before us on American’s appeal of that decision. We reverse.

Paul Hagen is an experienced insurance agent who specializes in selling property and casualty insurance. In October 1991, respondent Burmeister & Associates, Inc. (Burmeister), whose sole shareholder and president is Randall Burmeister (Mr. Bur-meister), purchased the assets of Hagen’s insurance agency, the Hagen Agency, Inc. Those assets included the Hagen Agency’s insurance contracts and information about the agency’s policyholders. Three documents were executed in connection with that sale: an asset purchase agreement; a consulting, confidentiality, and noncompet-ition agreement; and a producer agreement. After the sale, Hagen went to work for Burmeister as an independent contractor, but later became an employee. The noncompete and confidentiality agreement Hagen signed with Burmeister prohibited the disclosure of information relating to Burmeister’s policyholders, which, according to the agreement, was “deemed to be ‘trade secrets’ within the meaning of the Minnesota Uniform Trade Secrets Act.” Pursuant to the agreement, Hagen agreed that if and when he left Burmeister’s employ he would not sell or issue property or casualty insurance to Burmeister customers, including the Hagen Agency’s customer accounts sold to Burmeister in 1991, until February 28, 2001.

In November 1994, while still a Bur-meister employee, Hagen met Steven Me-nefee, an insurance agent and branch manager of American Agency, Inc. Hagen contacted Menefee and had a series of meetings with him and other American representatives to explore employment opportunities with American. During these meetings, Hagen told American about the noncompete and confidentiality agreement he entered into with Burmeister. On January 17, 1995, Hagen resigned from Bur-meister.

Shortly before Hagen resigned, Mr. Burmeister and Hagen discussed the client accounts that Hagen sold to Burmeister in 1991. Mr. Burmeister said something to the effect that he would understand if Ha-gen’s close family and friends kept their business with Hagen, but if he tried to take 90% of the client accounts he sold to Burmeister, they would have a problem. Approximately one week later, Hagen went to work for American. After Hagen left Burmeister, but before he joined American, he described his parting from Burmeister to Menefee. Menefee understood that Hagen “had a good exit interview and that he was free to solicit some of the accounts * * *.”

On January 29, 1995, Hagen, now working for American, sent out a solicitation letter to more than 200 Burmeister customers from among the accounts he sold to Burmeister in 1991. Those 200 customers accounted for 20 to 30 percent of the accounts Hagen sold to Burmeister. Mene-fee did not read the final version of the solicitation letter, but did review a rough draft. Additionally, Menefee gave Hagen access to, and Hagen used, American Agency stationery and envelopes to send the letter. Menefee did not, however, monitor the number of letters sent out or to whom those letters were sent.

After Mr. Burmeister learned of the solicitation letter, Burmeister’s attorney sent Hagen a letter notifying him that, in Bur-meister’s view, he was in violation of his noncompete agreement. A few days later, on February 6, Hagen filed an action against Burmeister seeking a declaratory judgment that he was not prohibited from competing with Burmeister. About this time, Menefee contacted Mr. Burmeister to discuss the letter from Burmeister’s attorney. Menefee agreed on behalf of American that it would not accept any business from Burmeister clients until the parties could meet and discuss the situation. Shortly thereafter, Hagen, Mr. Bur-meister, Menefee and others met and agreed to send out a joint letter to the clients who received Hagen’s solicitation letter, informing them that they “have a right to select the insurance agent of their choice.” The parties interpreted the significance and effect of this agreement differently: Menefee came away from the meeting feeling that any conflict was essentially resolved, whereas Mr. Burmeister merely viewed the meeting and agreement to send out the joint letter as “damage control,” not affecting his legal options. After the meeting and based on his understanding of its resolution, Menefee permitted Hagen to transfer business from clients who had received his solicitation letter.

Burmeister filed its answer to Ha-gen’s declaratory judgment complaint and asserted counterclaims of breach of contract, unjust enrichment, and misappropriation of trade secrets. Subsequently, Bur-meister filed a third-party complaint against American, claiming tortious interference with contract. Notwithstanding this claim, Burmeister’s theory of recovery against American evolved throughout the proceedings into a respondeat superior claim: Burmeister argued the respondeat superior claim at trial and both parties briefed the trial court on that claim. American never challenged Burmeister’s change in recovery theories. Accordingly, we will treat the respondeat superior claim as if it had been pled. Minn. R. Civ. P. 15.02; see T.W. Sommer Co. v. Modern Door & Lumber Co., 293 Minn. 264, 269, 198 N.W.2d 278, 281 (1972) (stating that issues litigated either by express or implied consent are treated as if they had been pled).

After a four-day bench trial in August 1996, the court held that Hagen was liable for breach of contract, concluding that Ha-gen violated the noncompete clause when he sent the solicitation letter to Burmeis-ter clients. Additionally, the court held that Hagen “misappropriated trade secrets as defined in Minn.Stat. [§ 325C.01] when he improperly solicited customers in violation of the Contracts.” The court awarded damages to Burmeister “for [Hagen’s] misappropriation of Trade Secrets at $28,000 per year for a six year period from January 1995 to February 2001 * * With regard to Burmeister’s third-party claims against American, however, the court held in favor of American:

Defendant American Agency is not liable for violating the Minn.Stat. [§ ] 325[C].01 because [the] Minnesota Trade Secrets Act does not permit recovery against an employer when its employees misappropriate trade secrets. Defendant Burmeister’s claim that [third-party] Defendant American is liable under a common law tort theory of respondent superior is unsupported by law. Moreover, this Court has found that Defendant [American] did not know, and had no reason to know, that Plaintiff [Ha-gen] had not agreed upon a permitted use of [the confidential client list] with Defendant Burmeister * * *. Defendant American Agency erroneously, but not culpably, believed that Plaintiff [Ha-gen] and Defendant Burmeister had reached an agreement on [Hagen’s] use of [the client information].

Burmeister appealed to the court of appeals and argued that the trial court erroneously ruled that American was not vicariously liable for Hagen’s breach of contract or for his misappropriation of trade secrets. Hagen v. Burmeister & Assocs., Inc., No. C8-98-864, 1999 WL 31130, at *2 (MinnApp. Jan.26, 1999) {Hagen I)American also filed a notice of review in connection with the trial court’s decision. In its statement of the case, American proposed that the court of appeals review whether the client list used by Hagen to send out his solicitation letters was in fact a trade secret. A review of the record reveals no subsequent document, including the appellate briefs, where American made any argument to the court of appeals regarding whether the client list was a trade secret.

In Hagen I, the court of appeals held that American was not liable under re-spondeat superior for Hagen’s breach of contract because respondeat superior generally applies to tortious conduct committed by employees, and there was no independent tortious conduct committed by American. Id. at *2-3. However, the court also held that the trial court erred in concluding that, as a matter of law, American could not be liable for Hagen’s violation of the UTSA. Id. at *4. The court of appeals held that the misappropriation of trade secrets is an intentional tort, that respondeat superior can apply to tortious acts committed by employees, and therefore “the general rule for vicarious liability should apply to trade secret torts.” Id. at *3, *4. The court remanded on this issue and stated that “[a]n essential element on retrial will be a factual determination on whether Hagen was acting within the course and scope of his new employment when he mailed his solicitation letter to individuals listed on the confidential customer list.” Id. at *4. Neither Burmeister nor American sought review of this decision.

On remand, American and Burmeister filed cross-motions for summary judgment. American argued, among other things, that Hagen was not acting within the scope of employment when he violated the UTSA because it was not reasonably foreseeable that Hagen would misappropriate trade secrets. However, American also raised an alternative, contract-based argument:

[The trial judge’s] conclusion that Hagen misappropriated trade secrets in violation of the [U] TSA appears to have been based, not upon the [U] TSA, but upon a contract between Burmeister & Associates, Inc. and Hagen that “deemed” the information that Hagen misappropriated to be “trade secrets” under the [U] TSA. Accordingly, the court need look no further for grounds to grant this summary judgment motion because an employer cannot be liable under the doctrine of respondeat superior for an employee’s breach of contract.

In November 1999, the district court granted American’s motion for summary judgment, holding that Hagen did not act within the scope of employment because American did not authorize or ratify his actions and because no evidence demonstrated that misappropriation of trade secrets is a well-known industry hazard. The district court did not rule on American’s alternative argument. Burmeister appealed and the court of appeals again reversed, holding that Hagen was acting within the scope of his employment with American when he violated the UTSA. Hagen v. Am. Agency, Inc., 617 N.W.2d 799, 804-05 (Minn.App.2000) (Hagen II). This case is currently before us on American’s appeal of the Hagen II decision.

As a preliminary matter, we address American’s alternative, contract-based argument. As it contended in its motion for summary judgment, American argues to this court that the trial court did not analyze Hagen’s misconduct under the UTSA elements of a trade secret, but relied on language in Hagen’s contract that “deemed” customer information to be a trade secret. Consequently, American contends, Hagen’s direct liability was based only on his violation of the noncom-pete agreement, not on any UTSA violation. Because an employer can only be vicariously liable for an employee’s torts, not contract violations, and because Ha-gen’s liability is based only on his contract violation, American argues that it cannot be vicariously liable as a matter of law. Burmeister responds that American no longer has the right to challenge the trial court’s holding that Hagen violated the UTSA. Specifically, Burmeister complains that after the trial and after the Hagen I decision, American did not appeal the ruling that Hagen violated the UTSA and therefore failed to preserve its right to challenge that issue on review.

We interpret American’s argument not as a challenge to the conclusion of the courts below that Hagen violated the UTSA, but that because that conclusion was based on Hagen’s breach of contract, any vicarious liability based on the UTSA violation in effect would be based on breach of contract. American further argues that the result of the court of appeals’ ruling, if upheld, would be that vicarious liability is now available for breach of contract.

First, we reject the argument that the court of appeals’ ruling makes vicarious liability available based on breach of contract. The court of appeals in Hagen I held to the contrary, 1999 WL 31130, at *3, and neither party challenges that holding today. Nothing in the appeal following remand changes that reiteration of the law.

Second, to the extent that American is arguing that vicarious liability for a UTSA violation cannot be found where the underlying conduct is a breach of contract, we again disagree. As the court of appeals stated in Hagen I, misappropriation of trade secrets is an intentional tort. 1999 WL 31130, at *3; see Micro Data Base Sys., Inc. v. Dharma Sys., Inc., 148 F.3d 649, 664 (7th Cir.1998) (noting that misappropriation of trade secrets is an intentional tort); Tracer Research Corp. v. Nat’l Envtl. Servs. Co., 42 F.3d 1292, 1295 (9th Cir.1994) (noting that misappropriation of trade secrets is a tort claim); World Wide Prosthetic Supply, Inc. v. Mikulsky, 631 N.W.2d 253, 256 (Wis.Ct.App.2001) (stating that misappropriation of trade secrets in violation of the Wisconsin UTSA is a tort); see also Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W.2d 890, 898-99 (Minn.1983) (tracing the history of the common law claim of misappropriation of trade secrets, and noting that this court adopted the Restatement of Torts four-prong test for determining whether information is a trade secret). Tortious conduct can provide the basis for vicarious liability. E.g., Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn.1999). Assuming for purposes of this case that there can be vicarious liability for violation of the UTSA, we reject American’s argument that we should look behind the finding of violation to determine whether the conduct on which it is based should be viewed as a tort or a contract breach.

Having rejected American’s alternative, contract-based argument, we turn to the merits of Burmeister’s vicarious liability claim. The fundamental question before us is whether Hagen acted within the scope of employment when he violated the UTSA. Before we reach that question, we stress that we will assume for purposes of this decision that an employer can, as a matter of law, be vicariously liable for an employee’s UTSA violation, as was decided in Hagen I, 1999 WL 31130, at *4. Neither party challenged that legal conclusion after Hagen I, the issue has never been thoroughly briefed by the parties, and neither party raises the issue before us now. Therefore, our analysis of the narrow legal issue before us occurs against the backdrop of our acceptance — for this case only — of the proposition that there is no legal prohibition to vicarious liability for UTSA violations.

Respondeat superior liability is not based on fault of the employer, but rather is imposed based on a policy choice that liability for acts committed within the scope of employment ought to be allocated to employers as a cost of doing business. Fahrendorff, 597 N.W.2d at 910. Respon-deat superior represents a compromise between two competing policies. On the one hand, we seek to protect and/or compensate those harmed as a result of some business-related activity. On the other hand, we are hesitant to impose liability on an employer not directly at fault for the act that caused the harm. The general policy, then, is that we will not impose such liability unless there is some connection between the tort and the business such that the employer in essence assumed the risk when it chose to engage in the business. See Lange v. Nat’l Biscuit Co., 297 Minn. 399, 403, 211 N.W.2d 783, 785 (1973). That connection is the basis for the scope of employment test outlined below. Fahrendorff, 597 N.W.2d at 912.

In analyzing whether Hagen acted within the scope of employment when he violated the UTSA, the district court and court of appeals applied the scope-of-employment test as enunciated in Kasner v. Gage, 281 Minn. 149, 152, 161 N.W.2d 40, 42 (1968). More recently, however, we have followed the scope-of-employment test as clarified in Lange. Fahrendorff, 597 N.W.2d at 910. Pursuant to that test, an employer is vicariously liable for an employee’s intentional tortious acts when: (1) the tort is related to the employee’s duties; and (2) the tort occurs within work-related limits of time and place. Id. (citing Lange, 297 Minn, at 404, 211 N.W.2d at 786). In Hagen’s ease, there is no dispute the tortious act occurred within work-related limits of time and place. The question is whether the act was related to his duties as an employee.

In Fahrendorff v. North Homes, Inc., we considered whether a program counselor’s illegal sexual advances toward a group-home resident occurred within the scope of employment. 597 N.W.2d at 910-11. Because the counselor’s acts clearly occurred within the work-related limits of time and place, the real question before us was whether his acts were related to the duties of employment. Id. at 910. In considering that part of the test, we noted that “it is a question of fact whether the employee’s acts were foreseeable, related to, and connected with acts otherwise within the scope of his employment.” Id. Putting aside questions about whether Ha-gen’s act was related to or connected with his employment, recent case law indicates that an important consideration in determining whether an act is related to the duties of employment is whether the act was foreseeable. Id. at 911; P.L. v. Au-bert, 545 N.W.2d 666, 668 (Minn.1996); Marston v. Minneapolis Clinic of Psychiatry and Neurology, 329 N.W.2d 306, 311 (Minn.1983).

When reviewing whether an act is foreseeable in the context of respon-deat superior, we do not require that the employer actually foresee the particular tortious act involved. Fahrendorff, 597 N.W.2d at 912. Rather, we require only a measure of foreseeability such that “ ‘an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.’” Id. (citation omitted). Whether an employee’s acts were foreseeable within the context of respondeat superior is a question of fact. Id. at 910. This standard of foreseeability is commonly proven, or a question of fact is raised, when a party establishes that the type of tortious conduct involved is a well-known industry hazard. Id. at 911.

In this case, the trial court found that American did not know or have reason to know that Hagen did not make appropriate arrangements with Burmeis-ter before he sent out the letters — the action that led up to his UTSA violation. Thus, Burmeister was required to introduce at trial some evidence tending to show that Hagen’s tortious act was foreseeable as that term is used in vicarious liability law: for example, evidence showing that the risk of employees misappropriating trade secrets is a well-known hazard in the insurance industry. Fah-rendorff, 597 N.W.2d at 910-12. As the district court noted in its order granting summary judgment for American, however, Burmeister introduced no such evidence at trial. We will not assume, absent introduction of some evidence, that UTSA violations are a common hazard in the insurance industry. See P.L., 545 N.W.2d at 668. Burmeister’s failure to introduce any evidence establishing that it is foreseeable for insurance industry employees to misappropriate trade secrets, and thus its failure to raise a fact question with respect to that issue, is fatal to its respondeat superior claim. Id. Accordingly, we conclude that American is not vicariously liable for Hagen’s UTSA violation.

Reversed.

      . For clarity, we will refer to the court that presided over the trial as the trial court, and the court that, on remand, granted American's motion for summary judgment as the district court.

      . American made no job offer to Hagen until he left Burmeister.

      . The UTSA was enacted in 1980. It "dis-placéis] conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret.” Minn.Stat. § 325C.07(a) (2000). We have not had the opportunity to interpret the meaning of section 325C.07(a).

      . A party against whom vicarious liability for a UTSA violation is asserted may, at the appropriate stage of the litigation, challenge whether the conduct was sufficient to prove a violation of the UTSA, but we do not understand American to be making such a challenge here. Indeed, in the first appeal to the court of appeals, American filed a notice of review and, in its statement of the case, asked for review on whether the list of clients used by Hagen was a trade secret and could therefore provide a basis for a UTSA violation. American abandoned that issue, however, by not briefing it in the appeal. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn.1987) (noting that an argument is deemed waived if a party fails to brief it).


author:
LANCASTER, Justice.
      PAGE, Justice STRINGER, Justice GILBERT, Justice

text:
    In the Matter of the WELFARE OF the CHILDREN OF Deloris COATS.
    No. CX-99-2142.
    Supreme Court of Minnesota.
    Aug. 23, 2001.
    Rehearing Denied Sept. 27, 2001.

      Amy Klobuchar, Hennepin County Attorney, Andrew J. Mitchell, Senior Assistant County Attorney, for appellant.
    Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, for respondent.
    Andrea K. Niemi, John M. Jerabek, Niemi, Barr & Jerabek, P.A., Minneapolis, for guardian ad litem.
   OPINION

LANCASTER, Justice.

In August 1999, appellant Hennepin County Department of Child and Family Services (DCFS) filed a petition seeking termination of respondent Deloris Coats’ parental rights to her four children. A pretrial hearing was scheduled for October 12, 1999, and trial was set for November 23, 1999. Although Coats had received notice of the pretrial hearing, she failed to appear. After allowing Coats’ attorney to withdraw from representation and after hearing testimony from a child protection worker, the district court terminated Coats’ parental rights by default on the merits. The district court denied Coats’ subsequent motion to reconsider or, in the alternative, vacate the default judgment. On appeal, the court of appeals held that the default judgment was void because it violated Coats’ right to due process. We reverse and reinstate the default judgment of the district court.

Coats is the single mother of O.R., J.R., Q.R., and Z.J. Cornell Robinson is the father of O.R., J.R., and Q.R. There is no father of record for Z.J. On October 6, 1998, DCFS filed a petition alleging that Coats’ children were in need of protection or services (CHIPS petition) and the children have been in court-ordered out-of-home placement since then. At the time the petition was filed, the children were between four months and seven years of age.

Following a hearing, the district court found, as Coats admitted, that her history of mental health issues and chemical abuse affected “her children and her ability to care for them”; that “several of her children have special needs”; that “[Coats] will benefit from parenting assistance through Reuben Lindh [Family Services] to help her in addressing and meeting the needs of her children”; and that “[i]t is in the best interests of the children to remain in out-of-home placement until there has been substantial compliance with the case plan ordered herein.” Based on these findings, the district court concluded that the children were in need of protection or services and placed them in DCFS’s custody. The district court ordered a case plan requiring Coats to: (1) submit to substance-abuse testing to demonstrate sobriety; (2) ensure that the children attend all recommended therapy appointments and follow any recommendations requiring her to participate in their therapy; (3) follow all recommendations for a psychological assessment, including undergoing a psychiatric consultation and following any medication recommendations and participating in both group and individual counseling; and (4) participate in an in-home parenting/reunification program with Reuben Lindh Family Services and follow any recommendations from that program.

Review hearings were held on February 8, March 8, April 12, June 2, and June 30, 1999. The district court found at the February 3 review hearing that Coats had not followed her case plan in that she had, among other things, failed to submit to substance-abuse testing as required, failed to attend group or individual therapy, and failed to take part in a psychiatric evaluation. At the March 8 review hearing, the district court permitted Coats’ attorney to withdraw pursuant to Coats’ request. Although the district court indicated in its written findings from that review hearing that Coats had not been following her case plan “as completely as she should,” the district court cited only her failure to meet with Reuben Lindh Family Services. The district court found at the April 12 review hearing that Coats “appears to have made progress on her case plan but sobriety is still an issue.” At the June 2 review hearing, the district court found that Coats was not complying with her case plan and that there was possible alcohol or drug use. Finally, the district court found at the June 30 review hearing that Coats continued to fail to comply with her case plan, and specifically noted “dirty” urinalysis results or missed urinalysis tests.

Pursuant to MinmStat. § 260.221, subds. 1(b)(2), l(b)(4)-(5), and l(b)(7)-(8) (1998), DCFS filed a termination of parental rights petition on August 23,1999, alleging that termination of the parental rights of Coats, Robinson, and the unknown father of Z.J. was in the children’s best interests. The petition outlined Coats’ lengthy history with DCFS: In 1991, a case was opened when DCFS received a report that O.R. was born testing positive for cocaine in her system. In 1992, the case was closed after Coats completed a case plan that included chemical dependency treatment. In 1996, it was reported that O.R. had been sexually abused by three of Coats’ acquaintances. This case was also closed when, in April 1997, DCFS determined that Coats had demonstrated the ability to protect her children. Later in September 1997, DCFS opened another case when the Minneapolis Police reported that Coats was not providing food for her children, that their personal hygiene was very poor, and that Coats’ apartment was “filthy.” While this case was open, O.R. and J.R. were reported for habitual truancy and a report was filed that Coats left her children with a male friend who beat them with a belt. In December 1997, this case was closed. In June 1998, DCFS opened yet another case after a social worker noted that Coats’ home was filthy and her children’s personal hygiene and clothing were inadequate. This DCFS case was closed when, in October 1998, the children were placed out of home.

On August 24, 1999, Coats appeared pro se at an arraignment hearing on the petition for termination of parental rights. At that hearing, the district court reappointed Coats’ former counsel. Another arraignment hearing was held on September 22, 1999, at which both Coats and Robinson appeared and denied the allegations in DCFS’s termination petition. The district court found that there was probable cause for the termination petition and scheduled a pretrial hearing for October 12, 1999, and also a trial for November 23, 1999. That same day, Coats and Robinson signed a hearing notice acknowledging that they had received notice of the two dates. The hearing notice read:

The next hearing in this case is for PreTrial/Trial at 8:30/9:30 o’clock on Oct. 12/Nov. 23,1999.
The Parent(s) and Child(ren) (12 years of age or over who are participating) are required to appear at Room 231, Juvenile Justice Center, 626 South 6th Street (corner of 6th and Park), Minneapolis, Minnesota, or a JUDGMENT BY DEFAULT MAY BE ENTERED.

On October 12, 1999, the district court convened the pretrial hearing at 9:00 a.m. Although their attorneys were present, neither Coats nor Robinson were present at that time. DCFS moved to proceed by default against Coats and Robinson on the merits of the petition. The district court granted DCFS’s motion over the objection of Coats’ and Robinson’s attorneys. Coats’ attorney then moved to withdraw, stating “in light of the lack of contact I’ve had with my client, I’m not in a position to be able to effectively represent her or oppose the default. I’d ask to withdraw at this point in time.” The district court allowed Coats’ counsel to withdraw.

After taking judicial notice of its CHIPS order, the district court heard testimony from Clare Fossum, one of the DCFS social workers assigned to Coats’ case. Fos-sum testified that Coats had not addressed her substance-abuse problems or followed through with substance-abuse treatment; that after Coats finally underwent a psychological assessment, she refused to follow the treatment recommendations from that assessment; that to date Coats had not successfully completed a parenting program; that Coats had not participated in the children’s therapy and did not have an understanding of their special needs; that Coats had not been willing to discuss the children’s special needs with her; and that she was not aware of Coats having contacted the children’s therapists to inquire about their needs or the services they were receiving. Fossum also testified about DCFS’s efforts to reunite Coats with her children. She testified that there were more visits scheduled between Coats and the children than she had seen in any other case, but that Coats had missed many of them and had canceled a visit that was to have occurred after Coats’ last court appearance on September 22. Fos-sum further testified that Coats was repeatedly offered all of the services outlined in her case plan, and that every month Fossum had encouraged Coats to attend counseling, if for no other reason than to comply with the requirements of the case plan. In addition, Fossum testified that another child services worker and the guardian ad litem expressed concerns about Coats’ inability to focus on the children rather than on herself, and Coats’ failure to follow through on basic childcare issues such as providing food or responding to their simplest needs. Finally, Fossum testified that, in her opinion, termination of Coats’ parental rights to the children was in the children’s best interests.

The district court issued a verbal order terminating Coats’ parental rights to the children. On October 29, 1999, Coats filed a motion under Minn. R. Civ. P. 60.02 (2000) asking the district court to reconsider or, alternatively, to vacate the default judgment. In support of this motion, Coats alleged that she “immediately left messages on counsel’s voicemail indi-catfing] that she had missed the [pretrial] due to the confusion as to the date caused by a change in medication.” The district court denied the motion.

On appeal to the court of appeals, Coats alleged as error both the district court’s refusal to grant her Rule 60.02 motion to reconsider or, in the alternative, to vacate the default judgment, and the court’s order terminating her parental rights. The court of appeals concluded that the district court’s default judgment “did not comply with due process because the termination proceedings exceeded the usual scope of a pretrial hearing, the notice of possible default through failure to appear was ambiguous, and Coats was neither present nor represented by counsel.” In re Welfare of Children of: Delores Coats, No. CX-99-2142, 2000 WL 944513, *5 (MinmÁpp. July 11, 2000). As a result, the court of appeals held that the lack of due process rendered the default judgment void, a basis for relief from judgment under Rule 60.02, subd. d, and remanded the matter to the district court for an expedited hearing on the merits of DCPS’s termination petition. Id. DCFS appealed.

We turn first to DCFS’s argument that the district court did not abuse its discretion in denying Coats’ motion to reconsider or vacate the default judgment pursuant to Minn. R. Civ. P. 60.02. Minnesota Rule of Civil Procedure 60.02 permits courts to grant relief from a final judgment, order, or proceeding for certain enumerated reasons such as mistake, inadvertence, surprise, excusable neglect, or “[a]ny other reason justifying relief.” Minn. R. Civ. P. 60.02(a), (f). In considering whether to grant relief from a default judgment under Rule 60.02, we require the party seeking relief to demonstrate that: (1) she has a reasonable defense on the merits of the case; (2) she has a reasonable excuse for her failure to act; (3) she acted with due diligence after the notice of entry of the default judgment; and (4) the opposing party will not be substantially prejudiced if the motion to vacate the default judgment is granted. Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn.1997). All four factors must be met to justify granting relief under Rule 60.02. Nguyen, 558 N.W.2d at 490. On an appeal from a district court’s decision to deny relief under Rule 60.02, we consider whether the district court’s decision constituted an abuse of discretion. Charson v. Temple Israel, 419 N.W.2d 488, 490 (Minn.1988).

In an apparent attempt to assert a defense on the merits of her case, Coats claimed that she “has repeatedly demonstrated interest in the future health and well being of her children by her previous court appearances and her contact with her children.” The district court held that Coats failed to demonstrate a reasonable defense on the merits, noting that “[w]hile Ms. Coats has attended previous court hearings and visited her children, these efforts do not establish a reasonable defense on the merits. Ms. Coats simply has not undertaken the hard work necessary to correct the conditions resulting in the children’s out-of-home placement * * *.”

Coats’ proffered defense on the merits is deficient because it is supported by no more than conclusory statements. Char-son, 419 N.W.2d at 491 (“[T]he existence of a meritorious claim must ordinarily be demonstrated by more than conclusory allegations in moving papers.”). Therefore, the district court did not abuse its discretion in rejecting it.

Even if we accepted Coats’ proffered excuse, however, the record belies her assertions regarding her demonstrated interest in her children and instead reveals a turbulent and consistently neglectful parental relationship. Coats’ children were initially removed from the home because Coats’ serious mental health and chemical abuse problems resulted in her being unable to meet the basic needs, including the need for food and physical safety, of the children. During the time the children have been out of her care, Coats has had the benefit of a case plan designed to address her challenges. The plan included many visits with her children — Fossum testified that in her years as a social worker, she had never seen more scheduled visits. However, Coats cancelled or missed many of the scheduled visits. In addition, Coats was provided with mental health and chemical dependency services. She repeatedly refused to participate in therapy sessions and continued to abuse drugs, as shown by repeated positive drug tests. All of this leads us to conclude that the district court did not abuse its discretion in rejecting Coats’ claim that she had a reasonable defense on the merits.

Coats also did not present a reasonable excuse for her failure to appear at the hearing. Coats’ assertion that a medication change caused her confusion regarding the date of the pretrial hearing is unsupported by any evidence or affidavit. Given her history of chemical dependency, history of missing visits with her children, and the lack of any evidence in the record that Coats was taking prescribed medication at the time of the pretrial hearing, the district court did not abuse its discretion in finding that Coats’ bald assertion did not provide a reasonable defense for failing to appear. In short, because Coats failed to demonstrate that she had a reasonable defense on the merits or that she had a reasonable excuse for failing to appear at the pretrial hearing, the district court did not abuse its discretion when it refused to vacate or reconsider the default judgment. Nguyen, 558 N.W.2d at 490 (“All four of the [Rule 60.02] factors must be satisfied in order to justify relief under the rule.”).

As a final matter, we address the court of appeals’ conclusion that the default judgment was void for lack of due process. Coats never argued to the district court or the court of appeals that she was denied due process. Generally, an appellate court should consider only those issues that were presented and considered by the trial court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). In keeping with this general rule, we have held that “it is proper for an appellate court to decide an issue not raised on appeal only when the reasoning relied upon by the appellate court is neither novel nor questionable. Needless to say, an appellate court should exercise this authority only sparingly.” State v. Glidden, 455 N.W.2d 744, 746 (Minn.1990).

Even if Coats had raised the argument that the default judgment was void for lack of due process and that issue was properly before us, she would not prevail. It is well settled that “where the trial court has jurisdiction of the offense and of the defendant a judgment will be held void for want of due process only where the circumstances surrounding the trial are such as to make it a sham and a pretense rather than a real judicial proceeding.” State ex rel. Butler v. Swenson, 243 Minn. 24, 28, 66 N.W.2d 1, 4 (1954). Here, there is no dispute that the district court had both personal and subject-matter jurisdiction. It is also clear that the circumstances surrounding the default judgment against Coats did not constitute a sham or pretense such that the default judgment was void. To the contrary, the record reveals that the court took evidence and was focused on the welfare of four children who were freed for adoption after waiting for over a year in the limbo of foster care while their mother repeatedly failed at the program that would have brought them home. Accordingly, we hold that the default judgment is not void for lack of due process.

Coats’ parental rights were not terminated because of a mere technical violation on her part; her rights were terminated because, despite many opportunities and much offered assistance, she refused to correct the conditions that required her children to be placed out of her home. Coats knew when the petition for termination of parental rights was filed in August 1999 that failure to cooperate with the case plan, including visiting her children and getting her drug and alcohol abuse under control, would result in a termination of her parental rights. As it was, Coats failed to show during the entire course of the case plan that she could provide a safe and adequate home for her children.

In summary, we reverse the court of appeals’ decision and reinstate the district court’s default judgment.

Reversed.

PAGE, Justice

(dissenting).

DISSENT

I respectfully dissent. The issue before us is not whether the termination of respondent Deloris Coats’ parental rights was justified on the merits. Rather, the issue is whether the district court was justified in terminating her parental rights based on her failure to “appear” at a pretrial hearing. Put another way, was the process fair? I conclude that it was not. Moreover, in reinstating the district court’s decision, this court, like the district court below, has treated Deloris Coats’ parental rights in a wholly cavalier fashion.

As an initial matter, I am at a complete loss to explain how either the district court or this court can justify their conclusion that Deloris Coats failed to appear at the October 12, 1999, pretrial hearing. On the morning of October 12, 1999, the district court convened the pretrial hearing at 9 a.m. Deloris Coats did not attend, but her attorney was present. Because Deloris Coats was not present, DCFS moved to proceed by default on the merits of the petition. The district court granted DCFS’s motion and then proceeded to terminate Deloris Coats’ parental rights.

The notice requiring Deloris Coats to appear at the pretrial hearing stated:

The next hearing in this case is for PreTrial/Trial at 8:30/9:30 o’clock on Oct. 12/Nov. 23, 1999.
The Parent(s) and Child(ren) (12 years of age or over who are participating) are required to appear at Room 231, Juvenile Justice Center, 626 South 6th Street (corner of 6th and Park), Minneapolis, Minnesota, or a JUDGMENT BY DEFAULT MAY BE ENTERED.

Deloris Coats acknowledges that she received this notice. Applying the common meanings to the words used in the notice, the notice cannot be read to mandate Deloris Coats’ personal presence at the pretrial hearing. Clearly, the notice required Deloris Coats to “appear” at the October 12 pretrial hearing. The court asserts that the notice “plainly says ‘[t]he Parents) * * * are required to appear.’ ” This assertion, however, merely begs the question of what it means to “appear.” The court offers no explanation as to what it is about this language or any other language in the notice that would make a person reading it understand that he or she was required to appear personally and not through counsel. Noticeably absent from the notice is any explicit requirement that parents personally appear. Given this absence, the proper recourse is to determine the meaning of “appear.” This court has indicated that a party may appear either personally or through counsel. See Croes v. Handlos, 225 Minn. 247, 249, 30 N.W.2d 471, 472 (1948) (upholding a default judgment ordered against a defendant for failing to appear at a hearing and noting that a defendant must appear and answer either personally or by counsel). We are not alone. At least two courts addressing the specific issue raised in this case have held that a party to a termination of parental rights proceeding may appear either personally or through counsel. See In re M.M., 708 So.2d 990, 992 (Fla.Dist.Ct.App.1998) (holding that a trial court’s decision, in a termination of parental rights proceeding, to enter a default judgment against parents for failing to “appear” at an adjudicatory hearing as required by the summons for the hearing was improper because they “ ‘appeared]’ through their counsel”); In re Brandon A, 769 A.2d 586, 589 (R.I.2001) (defining “an appearance as ‘[a] coming into court as party to a suit, either in person or by attorney’ ”) (quoting Nisenzon v. Sadowski, 689 A.2d 1037, 1048 (R.I.1997)). In that we have indicated that a party may appear either personally or through counsel, how is a party to know, absent express language stating so, that they are required to appear in person? The answer is they cannot know.

In light of Croes and the fact that Deloris Coats appeared at the pretrial hearing through counsel, there was absolutely no basis for the district court to grant DCFS’s motion to proceed by default. Having no basis to proceed by default, the district court had no basis to enter the default judgment terminating Deloris Coats’ parental rights. For this reason alone, the court of appeals’ decision should be affirmed. Yet this court now reverses the court of appeals.

The district court’s entry of the default judgment also violated Deloris Coats’ right to due process because of inadequate notice. This due process violation required the district court to grant Deloris Coats’ motion to vacate the default judgment under Minn. R. Civ. P. 60.02(f) (stating a court may grant relief for any other reason justifying relief). Notice is “universally recognized as essential to due process.” Juster Bros., Inc. v. Christgau, 214 Minn. 108, 119, 7 N.W.2d 501, 508 (1943). In affirming the district court’s decision denying Deloris Coats’ motion to vacate, this court applied the four-factor analysis from cases such as Nguyen v. State Farm Mutual Automobile Insurance Co., 558 N.W.2d 487, 490 (Minn.1997), to analyze Deloris Coats’ Rule 60.02 motion. Although that test ordinarily provides the framework for evaluating such a motion, its use in this case is inapplicable because the notice Deloris Coats received did not comply with due process. See Lyon Dev. Corp. v. Ricke’s, Inc., 296 Minn. 75, 84, 207 N.W.2d 273, 279 (1973) (holding that, for default judgment against a garnishee, failure to give notice of default hearing and obtain court order are “procedural defects of such consequence” that four-factor test for vacating default judgment not applicable).

“It is settled that the nature of due process is flexibility. The amount of process due varies with the circumstances of the case.” In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn.1981). Accordingly, “the determination of what process is due involves a balancing of the interests involved in the specific case under consideration.” Id. In this case, the “pivot point from which we start is that the substantial and fundamental rights of parents to the custody and companionship of their children should not be taken from them except for grave and weighty reasons.” Id. At the same time, it is also true that “[cjhil-dren are not property, * * * but unique and vulnerable small persons entrusted to the care and protection of parents,” id., and that “the law secures parents’ right to custody ‘only so long as they shall promptly recognize and discharge their corresponding obligations,’ ” In re Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn.1985) (quoting H.G.B., 306 N.W.2d at 825).

The notice in this case is deficient with respect to its language concerning when a default judgment may be entered, as well as the scope of such a default. The notice merely warns that “JUDGMENT BY DEFAULT MAY BE ENTERED” for failure to appear. It does not clearly indicate, however, that this warning applies to the pretrial hearing and not just the trial. Even if it is assumed that the statement can be read to apply to the pretrial hearing, it is not clear that the default referred to would go beyond the matters that were the subject of the pretrial hearing, inasmuch as the logical assumption would be that the default would relate to pretrial issues and not the merits of the termination petition, particularly when the trial date had already been set. Finally, the notice did not notify Deloris Coats that she had to appear at the pretrial hearing in person. In sum, Deloris Coats’ failure to personally attend the October 12 pretrial hearing hardly constituted a “grave and weighty” reason justifying the entry of a default judgment on the merits of the termination petition. H.G.B., 306 N.W.2d at 825.

Nor do any of the surrounding circumstances suggest that the “extreme sanction” of a default judgment was warranted in this case. Hennepin County ex rel. Bartlow v. Brinkman, 378 N.W.2d 790, 793 (Minn.1985). Deloris Coats had no history of failing to make required court appearances. Nor does the record demonstrate misconduct on her part during the termination of parental rights proceedings, or suggest that she was unable or unwilling to participate in the proceedings. Rather, the record shows that she had a number of court appearances in both the child protection and termination of parental rights proceedings and attended all of them except the October 12 pretrial hearing. Although she may have failed to attend a number of appointments required under her case plan, those failures go to the merits of the termination petition and not to her compliance with the procedural requirements of the termination proceedings. Further, nothing in the record suggests that DCFS would have suffered any prejudice if the district court had vacated the default judgment against Deloris Coats. The motion to vacate the default judgment was made well before the scheduled November 23 trial date, so DCFS would not have been prejudiced by proceeding to trial at that time. In any event, DCFS needed to appear for the November 23 trial because it still had to proceed on its petition to terminate the parental rights of Cornell Robinson, the biological father of three of Deloris Coats’ four children. Given these circumstances, the balance of interests implicated was clearly in Deloris Coats’ favor, and more process was due. It is therefore clear that Deloris Coats established “any other reason justifying relief’ from the default judgment based on due process. Minn. R. Civ. P. 60.02(f). The district court erred both in granting the default judgment against Deloris Coats and in failing to vacate that judgment. Thus, the court of appeals’ decision should be affirmed.

Finally, I am compelled to comment on what is alleged to be a common practice in Hennepin County District Court — granting default judgments at pretrial hearings in termination of parental rights cases. It appears that in many cases the only reason for holding such pretrial hearings is to see whether the parents will appear in person as opposed to appearing through counsel and, if not, to enter a default judgment against them on the merits of the termination petition. It also appears to be the practice in Hennepin County District Court to allow attorneys appearing on behalf of parents who are not physically present to withdraw during default proceedings, leaving the parents’ rights completely unprotected.

What is more disturbing is the fact that victims of these practices, like Deloris Coats, are likely to be poor people and/or people with chemical dependency or mental health problems. When it comes to due process, these practices treat them as second-class citizens. But their parental rights are no less valuable and should be accorded no less respect than the rights of any other person. I simply cannot imagine that a default judgment on the merits for failure to personally appear at a pretrial hearing attended by their counsel would ever be entered against people who were not poor. This disparity in treatment is irreconcilable with a legal system that purports to dispense equal justice under the law. Nor can I imagine that counsel for parents with financial wherewithal would ever seek to withdraw from their representation in such a situation. These practices are “so offensive to a civilized system of justice that they must be condemned.” State v. Williams, 535 N.W.2d 277, 287 (Minn.1995). Yet this court condones them and in the process gives truth to the proverb, “the court is most merciful when the accused is most rich.”

I am appalled and dismayed, but, more than anything, I am disappointed.

STRINGER, Justice

(dissenting).

DISSENT

I join in the dissent of Justice Page in part. When Coats’ attorney appeared at the October 12, 1999, pretrial hearing, I agree that Coats was present by her counsel’s representation and the district court erred in permitting her counsel to withdraw and then finding Coats in default; the court erred in failing to vacate the judgment of default. I would therefore affirm the court of appeals.

GILBERT, Justice

(dissenting).

DISSENT

I would affirm for many of the reasons stated in the dissent of Justice Page. I therefore respectfully dissent.

      . Section 260.221 was repealed in 1999 and recodified at Minn.Stat. § 260C.301 (2000). Act of May 11, 1999, ch. 139, art. 3, § 29, 1999 Minn. Laws 567, 678-80.

      . The dissent's reading of the hearing notice Coats signed on September 22, 1999, is that the notice does not require appearance in person but can be read to permit appearance by counsel. We disagree. The notice plainly says "[t]he Parent(s) * * * are required to appear” (emphasis added). In any event, Coats has never argued that her attorney’s presence satisfied her obligation to appear.

      . Robinson arrived before the hearing closed, and the district court vacated the order allowing DCFS to proceed by default against him and reinstated the November 23, 1999, trial date. Robinson's parental rights were subsequently terminated by order filed January 5, 2000.

      . At the time Coats moved the district court to reconsider or vacate the default judgment pursuant to Minn. R. Civ. P. 60.02, the Rules of Juvenile Procedure did not include a rule comparable to Rule 60.02, Since that time, however, Minn. R. Juv. P. 81.02 has been adopted and is basically a counterpart to Minn. R. Civ. P. 60.02. Compare Minn. R. Juv. P. 81.02 (2000) (providing that, upon a party’s motion, the court may grant relief from a final order or proceeding), with Minn. R. Civ. P. 60.02 (providing that, upon a party's motion, the court may grant relief from a final order, judgment, or proceeding).

      . The dissent states that the four-factor analysis used in connection with a Rule 60.02 motion is inapplicable in this case "because the notice Coats received did not comply with due process.” In support of its statement, the dissent cites Lyon Dev. Corp. v. Ricke’s Inc., 296 Minn. 75, 207 N.W.2d 273 (1973).

        Lyon Development is readily distinguishable from Coats' case. In Lyon, a garnishee argued that a default judgment entered against it violated Rule 15(b) of the District Court Code of Rules. Lyon Development, 296 Minn, at 82, 207 N.W.2d at 277. Rule 15(b) required that "[jjudgment against a garnishee shall be entered only upon notice to the garnishee and the defendant * * Id. The plaintiff in Lyon admitted that it had not given to the garnishee the notice required by Rule 15(b), but argued that Rule 15(b) conflicted with the Rules of Civil Procedure and that those rules did not require such notice. Lyon Development, 296 Minn, at 82, 207 N.W.2d at 277. We disagreed, holding that Rule 15(b) did not conflict with any civil procedure rule and that the plaintiff was required to provide the notice. We further held that the plaintiff's failure to give the notice "in and of itself is grounds to set aside the default judgment entered against the garnishee”; thus, we did not require the garnishee to show each of the four elements of the Rule 60.02 analysis before vacation of the default judgment. Lyon Development, 296 Minn, at 84-85, 207 N.W.2d at 278-79. Unlike the Lyon case, in this case Coats did receive a notice. Furthermore, Coats has never complained that the notice was deficient and violated her due process rights. Thus, Lyon does not apply here and, as Coats herself recognizes, Rule 60.02 provides the framework for our analysis.

      . Coats never complained of the due process violations imagined by the dissent; for instance, she never complained that the notice was ambiguous. The dissent adopts arguments not made, supported by factual assertions for which there is absolutely no support in the record.

      . Yel the court’s reading of the notice in this case implies that every notice instructing a party to "appear” actually requires a personal appearance by that party. I suspect members of the practicing bar will be surprised to learn that at each court hearing they attended over the years without their client physically present, the client was subject to default for failure to appear.

        . The court attempts to distinguish Lyon as involving a complete absence of notice rather than, as Deloris Coats argues, inadequate notice. Noticeably absent, however, is any explanation as to why this so-called distinction alters any aspect of the due process analysis or changes the proper remedy upon a finding of insufficient notice. This is hardly surprising because the distinction put forth is without significance.

      . The fact that the default judgment was entered against Deloris Coats at the pretrial hearing demonstrates even greater reason to vacate the default judgment than in cases such as Brandon and M.M. At least the default judgments in those cases were entered at a hearing on the merits rather than at a mere pretrial hearing. M.M., 708 So.2d at 991; Brandon, 769 A.2d at 588.

      . I note with considerable dismay the court's myopic focus on Deloris Coats' alleged failure to argue before either the district court or the court of appeals that she was denied due process, that the notice was ambiguous, or that her attorney's presence at the October 12 pretrial hearing satisfied her obligation to "appear.” Significantly, however, in her motion to reconsider, Deloris Coats complained of not having an opportunity to present the court with evidence of her commitment to her children or to respond to the allegations against her. The opportunity to be heard is the fundamental due process requirement. In

        re Kirby, 354 N.W.2d 410, 415 (Minn.1984). Therefore, although inartful, Deloris Coats' assertions were sufficient to preserve a due process claim.
      Moreover, while the court’s focus on Deloris Coats’ alleged failure to argue that the notice was ambiguous and that she appeared at the October 12 pretrial hearing may provide the court some legal comfort, the fact remains that the notice is ambiguous and she did appear. "[I]t is the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be 'diluted by counsel's oversights, lack of research, failure to specify issues or to cite relevant authorities.’ ” State v. Hannulcsela, 452 N.W.2d 668, 673 n. 7 (Minn.1990) (citation omitted). Further, this court may, in its discretion, address issues raised for the first time on appeal "when the interests of justice require their consideration and addressing them would not work an unfair surprise on a party.” State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). This is such a case. The default termination of Deloris Coats’ parental rights based on the notice resulted in a callous and unjustifiable violation of those rights. Nor should it be overlooked that this practice has an impact that goes far beyond the family involved in this case. "No oppression is so heavy or lasting as that which is inflicted by the perversion and exorbitance of legal authority.” Joseph Addison, available at http://www.cybernation.com/victory/quota tions/authors/quotes-addison.joseph.html (last visited Aug. 8, 2001).