author: CADY, Justice.

text:
    Norman J. KOLB, Trustee of the Robert James Kolb Memorial Trust, Appellee, v. CITY OF STORM LAKE, Iowa, Appellant.
    No. 06-0067.
    Supreme Court of Iowa.
    July 27, 2007.

      Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, for appellant.
    Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for appellee.
   CADY, Justice.

In this case a charitable trust was established by an altruistic and benevolent family to maintain a flower garden at a designated location in a city park for the enjoyment of the public in the memory of a family member whose young life was tragically cut short. We must decide whether the trust may be modified under Iowa Code section 633A.5102 (2007) to permit expenditures by the trust to maintain the garden at a different location in the park, after the city removed the garden to make room for a major economic development project. The district court refused to modify the trust. We believe section 633A.5102 applies, and we modify the trust as requested. We conclude the settlors’ general charitable intentions were to memorialize a family member by maintaining a flower garden for the enjoyment of the public, and this charitable purpose is superior to the specific language of the trust regarding where the funds were to be spent. In addition, because changed circumstances have made it impracticable, if not impossible, to ever carry out the trust at its original designated location, we conclude the trust may be modified to fund the garden at its new location. The evidence and arguments against the continuation of the trust are moving and substantial, but, in the end, we think it is clear the settlors would have wanted the trust to continue, and such a result is consistent and appropriate under Iowa law. We reverse the decision of the district court and remand for further proceedings.

I. Background Facts and Proceedings.

Almost a century ago Henry and Martha Kolb started a family owned floral business in Storm Lake, Iowa. Over time, the business became a fixture in town, as did the Kolb family. Both grew into prominence, and enjoyed much success. Tragedy, however, gripped the family when the Kolb’s grandson, Robert, died in a hunting accident. This gut-wrenching event led to the creation of a trust, which is the centerpiece of this litigation.

In 1968 Henry established an agreement with the city of Storm Lake (City) to establish a flower garden in memory of Robert. The agreement provided for the “establishment, installation and maintenance of a formal flower garden” at a specific location within the City park on the north shore of Storm Lake. The agreement made it clear the garden was a gift to the City, and that the agreement was to “continue during the period of the trust as created in [Henry’s] Will ... providing for the continued maintenance of said formal flower garden.”

In 1969 Henry and Martha were “desirous of supplementing” their previous gift by establishing a “water fountain on the park area immediately adjacent and West of the land specifically described in [their previous] agreement.” As a result, the Kolbs entered into an agreement with the City in which the City granted the Kolbs permission to install the water fountain next to the garden. This agreement acknowledged the parties’ previous agreement, but did not reference any testamentary trust or period of time the agreement was to last.

The Robert James Kolb Memorial Trust Fund was finally established in 1970. Henry and Martha established the trust by deeding a quarter section of farmland they owned to their sons “Robert H. Kolb and Norman J. Kolb, as Trustees for the use and benefit of the City of Storm Lake.” The warranty deed stated in pertinent part:

It is the purpose of the grantors to hereby establish the Robert James Kolb Memorial Trust Fund out of the real estate above described and the proceeds derived from the sale thereof and/or the income derived therefrom, or any investments created by said trust fund....
The said trust fund shall be used in connection with improvements needed for the planting and upkeep of flower beds, such as annuals and perennials of all kinds, also flowering bulbs and rose bushes as may be put upon the tract of real estate hereinafter described, as follows:
[legal description of the location of the garden that was included in the previous agreements]
The Trustees are further authorized to use said trust fund for the paying of a park custodian to maintain said flower beds on the park area herein referred to. The Trustees are given full power to collect the rents, issues and profits from the above described tract of real estate, pay the necessary costs of operation thereof and the net income derived therefrom shall be used for the purposes herein set out. In event the Trustees determine there is any surplus in the funds to be currently used for the improvement and maintenance of the park area they may invest the funds in Government Bonds and use the principal and income for the maintenance of the park area herein described. If in the future there are enough funds available to handle a larger flower garden, then the Trustees are to ask permission from the Park Board for an extension of the present plot to the East side.
The Trustees are further authorized to borrow money, which may later be repaid out of the income or principal of the trust fund, and with borrowed money, or with the proceeds from income or principal from the trust fund, the Trustees are authorized to construct a water fountain upon park property owned by the City of Storm Lake, adjacent to the tract of real estate herein described as flower beds.

The warranty deed also named the Security Trust & Savings Bank of Storm Lake as the successor trustee.

Three years later, in 1973, Henry and Martha deeded another quarter section of their farmland to their sons, Robert and Norman, as trustees, “for the use and benefit of the City of Storm Lake.” This warranty deed stated “that this shall become a part of the Robert James Kolb Memorial Trust Fund established by the grantors in the year 1970, in order that this trust and the previously established trust may be handled as a single trust.” The language in the 1973 warranty deed was very similar to the previous deed (it contained all but the first and last paragraphs in what is quoted above), but it also stated “[t]he Trustees are fully authorized to cooperate with the Park Board of the City of Storm Lake, Iowa, in carrying out the provisions of this trust.” Neither warranty deed stated when the trust terminated.

The trust operated without much trouble or question for over thirty years under the direction of Robert and Norman as trustees. Norman usually filed the trust’s annual reports. The reports indicated the income produced from the trust res, or farmland, was more than enough to pay for the trust expenses. The trust disbursements mainly consisted of farm, garden and fountain expenses, which often equaled twenty to thirty thousand dollars. A significant portion of these expenses, sometimes ten to twenty thousand dollars, included managerial fees to the trustees for administering the trust. Despite such expenses, over the years the trust accumulated surpluses that were usually invested in CDs or placed in checking accounts.

On one occasion, however, the trustees used surplus trust funds to help the Storm Lake School District purchase additional school property. This transaction was memorialized in a 1980 agreement between Norman and the school district. The agreement specifically acknowledged the trust was “designated to provide for the establishment of flower gardens, park improvements, planting of shrubberies, trees and flower gardens upon publicly owned properties in Storm Lake.” Pursuant to the agreement, the trustees paid $34,605 out of trust funds towards the purchase price of the property.

Henry died testate in 1978 and his wife, Martha, died a short time later. Despite their deaths, the garden and fountain survived for many years with the help of the City’s maintenance and funds provided by the trust. It was a cherished location in Storm Lake, and often provided an ideal spot for weddings and celebrations.

In 2003, however, the existence of the garden and fountain was placed in jeopardy. At this time the City was developing plans for an economic revitalization project called “Project Awaysis,” funded with Vision Iowa grant money. See Project Awaysis, http://www.awaysis.com (last visited July 24, 2007). The plans sought to turn the City’s park on the north shore of Storm Lake and surrounding areas into a Midwest vacation destination. Among other things, the project was to provide a new public beach, a lighthouse, a family playground, a lodge, and an indoor/outdoor water park. Most importantly, the plans called for relocating the memorial gardens and fountain within the City’s park. The project was viewed by its planners, and others, as a vital and necessary move for the City to grow and compete for jobs and residents in the future.

When Norman heard about the project he approached the City with a plan to modify the trust. The plan was contained in a “Petition to Modify.” The petition stated Norman and the City had “entered into meaningful discussion relative to the modification of said trust with the purpose in mind of moving the water fountain and flower garden and to alter the financing of said trust.” It also stated “[t]he trustee believes it would be in the best interest of the beneficiary if the Water Fountain and Flower Garden could be moved from its present location to a new location within the proposed Lakeside development.” Finally, the petition listed several terms and conditions the parties would agree to. These terms included the condition that the garden and fountain “be of the same design and size as it now is,” and that the City convey the better farm to Norman and his family. This petition, however, was never signed or implemented.

Instead, Norman and his attorney met with the City’s attorney and the project director for Project Awaysis. At the meeting, and in a follow-up letter dated June 6, 2005, Norman expressed his position that “the garden and fountain cannot be moved, or reconfigured in any way.” The City responded it could not change the plans for Project Awaysis, and the garden and fountain would be removed in the fall of 2005.

In order to prevent the removal of the garden and fountain, Norman filed a petition against the City. The petition requested the court to issue a temporary and permanent injunction, or, in the alternative, a declaratory judgment that a resulting trust had been created because the original trust had failed. The City eventually filed an amended answer and counterclaim and requested the court to supervise the trust and remove Norman as trustee. It also requested an accounting to justify the managerial fees, and requested Norman reimburse the trust for any excess fees or losses incurred under his supervision. Finally, it alleged the cy pres doctrine precluded declaration of a resulting trust.

Both parties filed motions for summary judgment. On September 5, 2005, the court held a hearing to rule on these motions and Norman’s request for a temporary injunction. The court denied the temporary injunction the same day. Thereafter, the City began to remove the garden and fountain. The court later denied both parties’ motions for summary judgment because a genuine issue of material fact existed as to the purpose of the trust. The matter was then tried before the court in October of 2005.

The court entered a decree finding “the purpose of the trust is to provide funds for the maintenance of a flower garden and fountain on a specific plot of ground.” It noted the decisive issue was whether the cy pres doctrine applied, and answered that question in the negative “because the purpose of the trust has not become impracticable, unlawful or impossible to fulfill.” It based its decision on the fact the City voluntarily destroyed the fountain, and without such destruction “it was possible for [the garden and fountain] to continue in existence for an indefinite time in the future.” As a result, the court entered an order finding the trust’s purpose had been destroyed and that it therefore became a resulting trust to benefit the settlors’ successors. The court also dismissed the City’s counterclaim with prejudice. The City appealed.

II. Issue and Standard of Review.

We have one issue to decide. The question presented is whether the cy pres doctrine applies to allow the modification the City requests. Never before have we specifically stated our standard of review in deciding such questions. See, e.g., In re Trust of Rothrock, 452 N.W.2d 403 (Iowa 1990) (deciding whether the cy pres doctrine should apply when the trial court determined it did); Simmons v. Parsons Coll, 256 N.W.2d 225 (Iowa 1977) (deciding whether the cy pres doctrine should apply when the trial court determined it did not). Other jurisdictions have indicated an appellate court should review a trial court’s modification under cy pres for an abuse of discretion. See Burr v. Brooks, 75 Ill.App.3d 80, 30 Ill.Dec. 744, 393 N.E.2d 1091, 1097-98 (1979) (“A trial court is allowed considerable discretion in making a Cy pres application and a reviewing court will step in only if the discretion is abused.”); Sherman v. Richmond Hose Co. No. 2, 230 N.Y. 462, 130 N.E. 613, 616 (1921) (“The exercise of the cy pres doctrine always involves a large measure of discretion. Nothing in the record before us shows the improper exercise of that discretion.”). At least one court has indicated the review should be de novo when reviewing a trial court’s decision to apply cy pres or not. See In re R.B. Plummer Mem’l Loan Fund Trust, 266 Neb. 1, 661 N.W.2d 307, 311 (2003) (“The doctrines of cy pres and deviation are equitable doctrines used to adjust the manner in which a trust is administrated. Accordingly, we determine that when the issue is whether a trial court should apply cy pres or deviation, we review the issue de novo on the record.”).

We believe, and the parties agree, our standard of review in this case is de novo. An abuse of discretion standard may be proper when the question is whether the court’s modification under cy pres is appropriate. However, when the question is whether the cy pres doctrine applies we are convinced the standard of review is de novo. See Iowa R.App. P. 6.4 (stating cases heard in equity are reviewed de novo). Thus, we are not bound by the trial court’s findings of fact, but give them weight in our decision because of the trial court’s opportunity to view the evidence and witnesses firsthand. Mahaffey v. Civil Serv. Comm’n, 350 N.W.2d 184, 185 (Iowa 1984).

III. The Cy Pres Doctrine in Iowa.

In French “cy pres” means “as near as,” and is usually pronounced “see pray.” Black’s Law Dictionary 415 (8th ed. 2004); see Ronald Chester, George Gleason Bogert & George Taylor Bogert, The Laxo of Trusts & Trustees § 431, at 113-14 (3d ed. 2005) (noting the French pronunciation is “see pray,” and that if Anglicized, it would be pronounced as if spelled “si press,” but that common usage mistakenly mixes the two so as to be pronounced as if spelled “si pray”) [hereinafter Bogert, Trusts & Trustees]. It is derived from the French Norman expression “cy pres comme possible,” which means “as near as possible.” See In re Gerber, 652 P.2d 937, 939 n. 4 (Utah 1982); see also Rothrock, 452 N.W.2d at 406. Cy pres is a common law doctrine that “permits a court to change the purpose or recipients of a charitable trust under certain circumstances.” Martin D. Begleiter, In the Code We Trust — Some Trust Law for Iowa at Last, 49 Drake L.Rev. 165, 290 (Iowa 2001) [hereinafter Begleiter, Code We Trust]; see Black’s Law Dictionary 415 (defining cy pres as an “equitable doctrine under which a court reforms a written instrument with a gift to charity as closely to the donor’s intention as possible, so that the gift does not fail”). When the doctrine applies, however, the change must be “cy pres comme possible,” or as near as may be, to the settlor’s original intention. See Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 56, 10 S.Ct. 792, 807, 34 L.Ed. 478, 495 (1890) (recognizing the common law doctrine of cy pres, and stating its use is to fulfill the charitable purpose “as near as may be, to the original intention of the donor”).

The cy pres doctrine was not immediately recognized in Iowa. See Filkins v. Severn, 127 Iowa 738, 738, 104 N.W. 346, 346 (1905) (“[T]he cy pres doctrine is not recognized in this state.... ”); Lupton v. Leander Clark Coll., 194 Iowa 1008, 1023, 187 N.W. 496, 502 (1922) (Faville, J„ dissenting) (“I do not care to enter into the discussion of the interesting question as to how far we have recognized the application of the cy pres doctrine in this state.”); see also Bogert, Trusts & Trustees § 433, at 148-49 (explaining why American courts were reluctant to recognize cy pres). Now the doctrine is not only widely accepted by our courts, see, e.g., Rothrock, 452 N.W.2d at 406 (holding the trial court properly applied the common law doctrine of cy pres), but our legislature has codified the doctrine into law, see 1999 Iowa Acts ch. 125, § 86 (codified at Iowa Code § 633.5102 (2001), and creating a new section entitled “Application of cy-pres”); Be-gleiter, Code We Trust, 49 Drake L.Rev. at 290 (recognizing newly enacted Iowa Code section 633.5102 (2001) codified the common law doctrine of cy pres).

As a result, whether the cy pres doctrine applies in this case is dependent upon our construction and analysis of section 633A.5102. Section 633A.5102 states in its entirety:

Unless the terms of the trust provide to the contrary the following apply:

1. A charitable trust does not fail, in whole or in part, if a particular purpose for which the trust was created becomes impracticable, unlawful, or impossible to fulfill.

2. If a particular charitable purpose for which a trust was created becomes impracticable, unlawful, or impossible to fulfill, the court may modify the terms of the trust or direct that the property of the trust be distributed in whole or in part in a manner best meeting the set-

tlor’s general charitable purposes. If an administrative provision of a charitable trust becomes impracticable, unlawful, impossible to fulfill, or otherwise impairs the effective administration of the trust, the court may modify the provision.[]

Iowa Code § 633A.5102. We have never before construed this section, but we are aided by what we have said regarding the common law doctrine of cy pres. See id. § 633A.1104 (“Except to the extent that this chapter modifies the common law governing trusts, the common law of trusts shall supplement this trust code.”); Be-gleiter, Code We Trust, 49 Drake L.Rev. at 902 (noting the similarity between the common law doctrine and our statute). Unless the statute directs otherwise, we will construe section 633A.5102 according to the legislature’s intent as aided by our precedent regarding the common law doctrine of cy pres.

IV. Whether the Cy Pres Doctrine in Section 633A.5102 Applies in this Case.

Courts and commentators typically apply a three-part test to determine whether the common law doctrine of cy pres applies. See, e.g., Obermeyer v. Bank of Am., N.A., 140 S.W.3d 18, 24 (Mo.2004); E. Fisch, The Cy Pres Doctrine in the United States 128-38 (1950). The test requires the presence of three criteria: (1) a charitable trust; (2) a specific trust purpose that is illegal, impractical, or impossible; and (3) a general charitable intention by the donor. See, e.g., Restatement (Second) of Trusts § 399 (1959). We have recognized this test in our case law. See, e.g., Simmons, 256 N.W.2d at 227.

Section 633A.5102 has not changed the basic tripartite test. See Iowa Code § 633A.5102(1) (requiring a “charitable trust” to “become [ ] impracticable, unlawful, or impossible”); id. § 633A.5102(2) (requiring a settlor to have “general charitable purposes”); id. § 633A.1104 (noting the common law supplements the Iowa Trust Code). The statute does, however, begin with a caveat: “Unless the terms of the trust provide to the contrary the following apply-” Id. § 633A.5102. Thus, the requirements of the statute, which embody the common law tripartite test, will not apply if the trust directs otherwise. This is where we begin our analysis in this case.

A. Whether the Terms of the Trust Provide to the Contrary.

The terms of the trust do not indicate the trust should fail in the event a particular purpose of the trust becomes impracticable, unlawful, or impossible. See id. § 633A.5102(1) (stating the trust does not fail when a trust purpose does). The terms also fail to prohibit modification of the trust when a particular purpose becomes impracticable, unlawful, or impossible. See id. § 633A.5102(2) (stating the trust may be modified when a trust purpose fails). Thus, the terms of the trust do not state section 633A.5102 should not apply in this case.

Of course, it is also true the terms of the trust do not specifically endorse the directions provided in section 633A.5102. Section 633A.5102, however, effectively establishes a presumption that cy pres should apply if the trust does not state “to the contrary.” Id. § 633A.5102; see Begleiter, Code We Trust, 49 Drake L.Rev. at 290-91 & n. 844 (“[T]he section appears to create a presumption that cy-pres should be applied in the absence of a provision in the trust stating otherwise.”). This should not be a surprise, however, as the common law has never required a charitable trust to specifically indicate cy pres should apply-

In fact, the common law has always required a similar inquiry. Under the common law we must ask whether the settlor “anticipated the possible failure of the trust and [if he or she] has made alternative disposition of his [or her] property to meet that contingency.” Simmons, 256 N.W.2d at 227. If so, cy pres could not be applied because in the words of our statute, the trust stated “to the contrary.” Iowa Code § 633A.5102.

In this case, the settlors did not anticipate the failure of the trust. The initial 1968 agreement stated the garden was to “continue during the period of the trust as created in [Henry’s] Will.” Henry did not establish a testamentary trust, however, and the inter vivos trust he created does not mention any period of duration or otherwise indicate the settlors anticipated its failure. In addition, there is nothing to indicate the settlors had an alternative plan if there was a failure. See, e.g., Rothrock, 452 N.W.2d at 406 (noting the absence of a forfeiture or reversion clause). As a result, we do not think our statute or the common law initially precludes the application of the cy pres doctrine.

B. Whether the Robert James Kolb Memorial Trust Fund is a Charitable Trust.

Section 633A.5102 only applies to charitable trusts. See Iowa Code § 633A.5102 (listing the section under the subchapter “Charitable Trusts”); Restatement (Second) of Trusts § 399 cmt. a (“The doctrine is not applicable to private trusts.... ”). A trust established to support a city flower garden demonstrates a charitable purpose. See Iowa Code § 633A.5101(1) (noting a charitable trust may be created for any purpose “beneficial to the community”); Restatement (First) of Trusts § 368(e), (f) (1935) (defining governmental or municipal purposes and those that benefit the community as charitable purposes). A flower garden enhances the beauty of its surroundings for the benefit of others who take the time to enjoy it. “Thus, the property was held by the trustee for a charitable purpose and is a charitable trust.” Rothrock, 452 N.W.2d at 405 (citing Restatement (Second) of Torts § 348).

C. Whether a Particular Trust Purpose has Become Impossible, Impracticable or Unlawful.

We must also determine whether “a particular purpose for which the trust was created [has] become [ ] impracticable, unlawful, or impossible to fulfill.” Iowa Code § 633A.5102(1); see Begleiter, Code We Trust, 49 Drake L.Rev. at 290 (noting one must “[determine whether the original trust purpose was impossible to fulfill, illegal or impracticable — in the sense that to devote funds would not fulfill the settlor’s intention”). There is no claim of unlawfulness; the parties and district court have focused solely on whether the purpose of funding the improvement and maintenance of the garden at the surveyed location has become impracticable or impossible.

A review of the case law on impossibility and impracticability has led many to believe “no precise definition of the standard exists,” and whether something has become impossible or impracticable is up to the “particular facts of each case.” Nancy A. McLaughlin, Rethinking the Perpetual Nature of Conservation Easements, 29 Harv. Envtl. L.Rev. 421, 465 (2005). We agree. We also believe the particular facts of this case reveal it was impracticable to fund the garden at its original location.

The record reveals Project Awaysis is a multi-million dollar endeavor, funded in part by Vision Iowa. The evidence clearly indicates the City devoted considerable thought and planning to the project. Moreover, and although contested, there is evidence the City would have preferred to keep the garden and fountain at their original locations. The project manager plainly testified of the need for the garden and fountain to be moved. Otherwise, the lodge and aquatic facilities could not be built adjacent to each other, which the planners believed was essential to the project’s success. Such a massive project should be planned in a way that maximizes its potential, and when the location of the garden and fountain jeopardize that potential it becomes impractical not to relocate them. As a result, we think it would be impracticable to fund the garden at its original location. See Rothrock, 452 N.W.2d at 406 (applying cy pres because it was impractical to carry out the particular trust purpose).

In addition, it is now certainly impossible to fulfill this particular purpose of the trust. The City voluntarily destroyed the garden and fountain to begin the construction of Project Awaysis. It has no intention of rebuilding them at their original locations. Consequently, it is literally impossible for the trust to fund the garden at its original location.

Of course, it was not impossible for the trust to fund the garden until the City voluntarily destroyed the garden and fountain. Thus, the City caused the impossibility. Furthermore, the City caused the impracticability by planning and moving forward with Project Awaysis. Some courts have recognized that a trustee or donee cannot invoke the doctrine of cy pres when he or she causes the impossibility, impracticability, or illegality. See, e.g., Conn. Coll. v. United States, 276 F.2d 491, 497-98 (D.C.Cir.1960) (“Nor may a trustee by his own act produce changed conditions which frustrate the donor’s intention and still claim the gift through the application of the cy pres doctrine.”). We have at least hinted at such a rule in one of our cases. See Curtis & Barker v. Cent. Univ. of Iowa, 188 Iowa 300, 322, 176 N.W. 330, 338 (1920) (“It occurs to us that [donee], having voluntarily put it beyond its power to carry out the purposes of the donors as to the denominational control of the college, is not in a position to ask that this fund be disposed of cy pres.”).

We do not believe, however, that a per se rule against the cy pres doctrine exists when the trustee or donee causes the impracticability, impossibility, or illegality. The rule against cy pres in such a case has been justified because permitting modification would allow the trustee or donee to “disregard the express terms of the grant or devise.” President & Fellows of Harvard Coll. v. Jewett, 11 F.2d 119, 122 (6th Cir.1925). But there are circumstances when a “natural and unavoidable change in conditions or circumstances” causes the trustee or donee to act. Id. In such cases, we think a proper disregard for the grant or devise may be maintained by the donee or trustee that does not preclude the application of cy pres. See id.; see also Howard Sav. Inst, of Newark v. Peep, 34 N.J. 494, 170 A.2d 39, 47-48 (1961) (noting the changed circumstances “were not merely to serve trustee convenience”). After all, the trustee or donee is the cause of the impossibility or impracticability in most cases. See, e.g., Rothrock, 452 N.W.2d at 404 (noting donee wanted to use trust funds for more than what trust specified). Moreover, our hint in Curtis was dicta, and we commented on “the question [of cy pres] but briefly” because the appellant/donee had not briefed or argued it. 188 Iowa at 321-22, 176 N.W. at 335-37 (resolving the case under “the more important questions” of contract law). Thus, we refuse to adopt a per se rule that a trustee or donee may not invoke the doctrine of cy pres when he or she causes the impossibility, impracticability, or illegality.

We also believe the City’s actions in this case, while causing the impracticability and impossibility, are the result of “natural and unavoidable” changes. It is only natural for a city to respond to the inevitable changes in its economic and societal needs. Project Awaysis provided that response. Moreover, it was unavoidable in the sense that a city has the responsibility to make improvements, whether it is to roads, public buildings, or city parks. It was also unavoidable in the sense we have already indicated: the plans for Project Awaysis required the removal of the garden and fountain. While the settlors specifically wanted the trust to fund the garden at a particular location within the park, the City is not improperly disregarding the express terms of the trust by planning an economic revitalization project that requires the garden to be moved.

D. Whether the Settlors had General Charitable Intent.

We must next consider whether the set-tlor, or settlors in this case, had “general charitable purposes,” or what is recognized at common law as general charitable intent. See Iowa Code § 633A.5102(2) (recognizing the settlor must have “general charitable purposes”); Begleiter, Code We Trust, 49 Drake L.Rev. at 290 (noting the court must next “[determine whether settlor had a general charitable intent — his purpose was not to benefit or accomplish one specific object”). Similar to our evaluation of impracticability and impossibility, there are “no hard and fast rules” to determine whether the settlors had general charitable intent. Miller v. Mercantile-Safe Deposit & Trust Co., 224 Md. 380,168 A.2d 184, 189 (1961). Instead, we must evaluate all the relevant facts and circumstances, which may include extrinsic evidence not included in the trust document, Nat’l Soc’y of Daughters of Am. Revolution v. Goodman, 128 Md.App. 232, 736 A.2d 1205, 1210 (1999), and we will make an effort to find a general charitable intent when possible, Bd. of Trs. of Univ. of N. Carolina v. Unknown & Unascertained Heirs, 311 N.C. 644, 319 S.E.2d 239, 242 (1984).

It is hard to define general charitable intent. Perhaps the best explanation embraces the concept that it would not reject the continuation of the trust when a particular purpose of the trust fails. This concept draws on several cases where we have recognized the lack of a forfeiture or reversion clause supports a finding of general charitable intent. See, e.g., Mary Franklin Home for Aged Women v. Edson, 193 Iowa 567, 571, 187 N.W. 546, 549 (1922). As we noted earlier, there is no such clause in this case.

But there is a clause, in fact several clauses, in the trust that specifically indicate the trust is to fund the garden’s improvement and maintenance at the original surveyed location. Both warranty deeds stated the “trust fund shall be used in connection with improvements [for the garden] upon the tract of real estate hereinafter described, as follows: [legal description of garden location].” They also referred to the funds being used “for the maintenance of the park area herein described.” Such specificity is normally a strong argument that the settlors had specific, rather than general, charitable intent.

Nevertheless, our previous cases have indicated that unless the specific purpose is the primary, dominant or essential purpose, cy pres may still be applied. For example, we have stated

“that, if the mode of application is such an essential part of the gift that you cannot distinguish any general purpose of charity, but are obliged to say that the mode of doing a charitable act was the only one the testator intended or at all contemplated, and that he had no general intention of giving his money to charity, then the court cannot, if the particular mode of doing it fails, apply the money cy pres.”

Hodge v. Wellman, 191 Iowa 877, 883-84, 179 N.W. 534, 537 (1920) (quoting Brown v. Condit, 70 NJ.Eq. 440, 446, 61 A. 1055, 1057 (1905)). In other words, if the specific purpose of the trust is so essential that it becomes the dominant purpose of the trust, then there is no other “general purpose of charity” that can be fulfilled cy pres. See id. (“What, then, was the dominant purpose of the testator?”); Mary Franklin Home, 193 Iowa at 574, 187 N.W. at 549 (looking into the “general or dominant purpose” of the donor).

The location of the garden and fountain was certainly important to the settlors. They felt it provided the ideal setting. But the record discloses no other reason, personal or unique to the settlors, that existed for their choice. Importantly, the garden was not established by the Kolbs to memorialize an event that occurred at the designated location. Moreover, the appellee’s testimony that the set-tlors would not have wanted the trust funds to be spent on the garden at any other location is contradicted by his actions as trustee. He permitted trust funds to buy property for the school district, and he initially supported a petition to relocate the garden. While we must remain focused on the settlors’ intentions, these actions discredit the trustee’s testimony regarding their intentions. Furthermore, the settlors named the trust the “James Kolb Memorial Trust Fund,” and indicated in all the documents an intent to benefit “the City of Storm Lake,” or that the trust was for “the use and benefit of the City of Storm Lake, Iowa.” Under such circumstances, we do not believe funding the garden at the surveyed location was essential, or that it was the dominant or primary purpose. Instead, the settlors’ primary or dominant purpose was to perpetually hon- or their grandson and benefit the City. This is evidence of “ ‘a more general intention to devote the property to charitable purposes,’” and demonstrates the designated site was not part of the broader trust purposes. Simmons, 256 N.W.2d at 227 (quoting the Restatement (Second) of Trusts, § 399).

Finally, we are guided by our answer to the ultimate question: whether, under the circumstances, would the Kolbs, the set-tlors, have wanted the trust to continue in light of the changes brought on by Project Awaysis? See Nat’l Soc’y of Daughters of Am. Revolution, 736 A.2d at 1210 (describing this as “the pertinent inquiry” when “determining whether the [settlor] possessed a general charitable intent”). The record clearly indicates the settlors wanted the garden and fountain to be permanent additions in the City’s park. They were, in the words of appellee, created by the “blood and guts” of the settlors, constructed to withstand the tests of time, and funded by what seems to be an everlasting trust. No doubt they would have been disappointed about the plans that required the relocation of the garden and fountain, and their ultimate destruction. But we think they would have been even more disappointed in the complete failure of the trust and their eleemosynary ends. After all, the settlors specifically indicated in their original agreement with the City that the trust was to be a “permanent fund.” As a result, we believe the settlors would have preferred the trust to continue under cy pres if they were alive today, so that the City can continue to display the flowers in the lakeside park in honor of the memory of their deceased grandson.

V. Whether the City’s Request to Modify the Trust is Permissible.

In applying cy pres under section 633A.5102, we must keep in mind it “is a liberal rule of construction used to carry out, not defeat, the [settlors’] intent.” Rothrock, 452 N.W.2d at 405-06. Thus, we cannot approve a cy pres modification that would defeat the settlors’ intent. The City has only requested the trust be modified so its funds may be used for the maintenance of the garden at a new location. The record indicates this new location is to be very close to the original location, and the size of the garden is to be about the same. In addition, the record reveals the City would use the memorial plaques and any other vestige from the prior location, including the construction of a new fountain, to accompany the garden at the new location. Our statute clearly allows for such a modification, and we see no reason why this would defeat the set-tlors’ intent in this ease. In fact, it is precisely our belief that it would fulfill the settlors’ intent. Of course, should the City, trustee or any other interested party wish to further modify the trust beyond the scope of what was requested here, another application for cy pres must be made.

VI. Conclusion.

We conclude the cy pres doctrine under Iowa Code section 633A.5102 applies to the trust under the circumstances of this case. All of the conditions required for its application are met, and therefore the trust does not fail. Moreover, the City’s proposed modification fits within what is “cy pres comme possible” to the settlors’ intentions. Such a result is consistent with our general favor for upholding charitable trusts. See Simmons, 256 N.W.2d at 227 (“[C]haritable trusts are favored by the law.”). It is also consistent with our propensity to apply the doctrine when the trust has existed for a long time, rather than failing at the outset. See id. (stating we are more reluctant to apply the doctrine when the “trust failed at the outset rather than after it had been under administration for some time”). In this case, of course, the trust has been in existence for over thirty years, and we see no reason why it cannot continue under the modification we have approved well into the future.

We reverse and remand for proceedings consistent with this opinion, including a hearing on the request for an accounting and the removal — perhaps now the appointment — of trustee. See, e.g., Iowa Code § 633A.4107 (“Removal of trustee.”); Schildberg v. Schildberg, 461 N.W.2d 186, 190 (Iowa 1990) (determining whether the trustee should be removed and recognizing a trustee’s duty to account).

REVERSED AND REMANDED.

      . There was, however, a supplemental agreement made between the City and the Kolbs in 1972 that recognized the Kolbs had completed the construction of the fountain and the City would assume all liability and maintenance of the fountain thereafter.

      . Robert died in 2002, and thereafter Norman acted as sole trustee until his own death just recently in July 2007.

      . The record clearly shows the trust paid $34,605 in 1981 to help the school purchase the land. Curiously, however, this disbursement does not appear to be indicated in the trust’s annual reports.

      .Henry's will, however, did not mention any kind of trust. Therefore, there was no testamentary trust as referred to in the 1968 agreement between Henry and the City.

      . The appellees rely to a certain extent on contract law, and that is not surprising given the close relation between facts that typically surround questions of cy pres and our prior case law dealing with the subject. See Lupton v. Leander Clark Coll, 194 Iowa 1008, 1021, 187 N.W. 496, 502 (1922) (Faville, J„ dissenting) ("I do not think the cy pres doctrine has any application whatever to the facts in this case. As I view it, Leander Clark entered into a valid, binding, and enforceable contract with the college, based upon an adequate and sufficient consideration.”); Curtis & Barker v. Cent. Univ. of Iowa, 188 Iowa 300, 313, 176 N.W. 330, 335 (1920) ("We consider these [contractual issues] the more important questions in this case.”). The agreements in this case, however, both specifically describe the garden and fountain as charitable gifts to the City, and they also reference such gifts as dependent on a trust to be established. As a result, we think the law of charitable trusts governs the outcome in this case.

      . Although normally we decide cases based on the law in existence at the time of the parties' dispute, we choose to cite to and analyze Iowa Code section 633A.5102 (2007) because it simply renumbers the section (by including an “A” after “633”) that was in effect at the time of the parties' dispute — Iowa Code section 633.5102 (2005). See 2005 Iowa Acts ch. 38, § 54 (codified at Iowa Code § 633A.5102 (2007)). In addition, all citations in this opinion are to the 2007 Iowa Code unless otherwise indicated.

      . This last sentence refers to the doctrine of equitable deviation, which we have approved in prior cases. See, e.g., In re Trust Known as Spencer Mem’l Fund, 641 N.W.2d 771, 775-76 (Iowa 2002) (explaining the doctrine of equitable deviation but not referencing then existing Iowa Code section 633.5102(2)). The doctrine of equitable deviation is different from the doctrine of cy pres. See Restatement (Second) of Trusts § 381 cmt. a (1959) (defining the scope of rule, and contrasting it with cy pres). Typically, the difference is explained by differentiating between the methods or administrative provisions of the trust, and the trust’s substantive purposes or ultimate goals. See, e.g., R.B. Plummer, 661 N.W.2d at 312-13 ("The deviation doctrine is applicable to make changes in how a charitable trust is administered, while cy pres is used where a change of the settlor’s specific charitable purpose is involved.”). Thus, deviation has been used "to escape investment restrictions, to authorize transfer of certain trust property to another suitable charitable organization, and to satisfy requirements of the tax codes,” Roger G. Sisson, Comment, Relaxing the Dead Hand’s Grip: Charitable Efficiency & the Doctrine ofCy Pres, 74 Va. L.Rev. 635, 645 (1988) (footnotes omitted), as well as “to increase the number of trustees of a trust, to permit the mortgaging of charitable property, to allow trustees to charge tuition, and to eliminate a racial restriction,” Chris Abbi-nante, Comment, Protecting "Donor Intent” in Charitable Foundations: Wayward Trusteeship & the Bames Foundation, 145 U. Pa. L.Rev. 665, 684 (1997) (footnotes omitted). The difference between the two, however, is often difficult to discern in practice. See, e.g., In re Last Will & Testament of Teeters, 205 Neb. 576, 288 N.W.2d 735, 738 (1980) (“The dividing line between the application of the two doctrines is sometimes difficult to draw.”).
      The difference in proof, in terms of what conditions must exist to apply one doctrine as opposed to the other, however, is readily apparent. At common law, the doctrine of equitable deviation was not confined to charitable trusts, see Restatement (Second) of Trusts § 381 cmt. a (“The rule stated in this Section is the same as the rule applicable to private trusts.”), and because it is not used to change the purposes of the trust, it does not require a finding of general charitable intent on behalf of the settlors, see Wendy A. Lee, Note, Charitable Foundations & the Argument for Efficiency: Balancing Donor Intent with Practicable Solutions Through Expanded Use of Cy Pres, 34 Suffolk U.L. Rev. 173, 186 (2000) (“[TJhere is no need to demonstrate the existence of a general charitable intent.”).
      It is tempting to apply the doctrine of deviation in this case, as the location of the garden is arguably not the settlors' purpose. However, we think the specificity of the deeds regarding the location of the garden demonstrate that it is more of a substantive, as opposed to administrative, term of the trust. Moreover, the parties have not argued deviation applies. Furthermore, we think it is best to resolve this case under the doctrine with the more difficult standard to meet.

      . In fact, there are several circumstances to indicate the settlors intended the trust to last forever and only anticipated its success: it provided the garden could be extended if enough funds were available, it funded a memorial, the fountain was built with incredible durability, and a successor trustee was named.

      . Whether it was impossible or impracticable to fund the fountain at its original location is not specifically a question before us, as the trust only provided for the construction of the fountain, although in practice the funds were used to maintain the fountain, too. Moreover, we do not feel this distinction merits a different analysis regarding the fountain’s relocation. The cy pres doctrine will either permit the relocation of both, or none.


source: Caselaw Access Project

author: PER CURIAM. PAGE, Justice ANDERSON, PAUL H., Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Sergio Roberto ANDRADE, a Minnesota Attorney, Registration No. 261750.
    No. A06-426.
    Supreme Court of Minnesota.
    July 19, 2007.
    Rehearing Denied Aug. 23, 2007.
    Martin A. Cole, Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for petitioner.
    Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, PA, Minneapolis, MN, for respondent Sergio Roberto Andrade.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Sergio, Roberto Andrade after Andrade was convicted of attempted theft by swindle of more than $2,500. We referred the matter to a referee for findings of fact, conclusions of law, and recommendation for discipline. Although both Andrade and the Director disagree with the referee’s recommended discipline, neither Andrade nor the Director contest the referee’s findings of fact or conclusions of law. Based on those findings of fact and conclusions of law, and on the facts of the matter as found by the district court in Andrade’s criminal trial, we conclude that disbarment of Andrade is necessary to protect the integrity of the judicial system and to protect the public.

Andrade’s conviction of attempted theft by swindle stems from his representation of client M, whom Andrade had represented since 1995 or 1996 in some 30 different matters. In 2004, narcotics officers from the Minneapolis Police Department executed a search warrant on M’s home, where they found cocaine and marked bills used in an earlier controlled drug buy from M. Andrade eventually negotiated an agreement between M and the Minneapolis police under which M would not be prosecuted in exchange for M’s assistance in making controlled drug buys from two drug dealers. At the time, M owed An-drade at least $5,500 in legal fees.

It is undisputed that over the years M had urged Andrade to bribe a judge or the police to eliminate M’s various legal problems and that Andrade had, at least to the point in time when cocaine was found in M’s home, refused. But shortly after making the first of the two required controlled drug buys, M told officers that Andrade had asked for $50,000 to bribe an unnamed high-ranking police official to dismiss the pending drug charges. In a series of meetings, recorded by law enforcement with M’s cooperation, Andrade alternately told M that he had personally paid $25,000 to the official and needed to pay the $25,000 balance, and that he had paid another $15,000 to the “person who is in charge of all the police of the Drug Task Force,” leaving an additional $10,000 to be paid. Andrade further told M that this was not the first time he had asked this person for a favor. At the last meeting between M and Andrade, M gave An-drade $5,000 in cash, provided by law enforcement, as partial payment of the would-be bribe. Andrade was arrested after leaving the meeting with M, and the cash was recovered. There is no evidence that Andrade actually offered or paid any bribe on M’s behalf. Andrade contends in these proceedings that his statements to M were a means of obtaining payment of M’s past-due legal bills but, as the district court observed in the criminal proceedings, the amount of money Andrade sought from M was far more than what M owed Andrade.

On December 12, 2005, the district court found Andrade guilty of attempted theft by swindle of over $2,500, in violation of Minn.Stat. § 609.52, subds. 2(4) and 3(2) (2006). On February 14, 2006, the Director filed a petition for disciplinary action and later filed a petition requesting that we temporarily suspend Andrade pending this court’s final determination of discipline. We denied the petition for temporary suspension but required Andrade to be supervised by another attorney pending final resolution of these proceedings.

We referred the case to a referee for findings of fact and conclusions of law, as provided for in Rule 14, Rules on Lawyers Professional Responsibility (RLPR). The referee conducted an evidentiary hearing at which Andrade testified and called character witnesses on his behalf. At the hearing, Andrade did not dispute the factual findings supporting his felony conviction and agreed that some public discipline was appropriate. Andrade further testified that when M suggested that Andrade bribe a judge or a police officer, Andrade took that as “an opportunity to get paid.” After the evidentiary hearing, the referee concluded that Andrade’s conduct violated Minn. R. Prof. Conduct 1.7(a)(2) and 8.4(b), (c), (d), and (e). Although the presumptive punishment for a felony conviction is disbarment, the referee recommended indefinite suspension with leave to petition for reinstatement after two years.

We give significant weight to the referee’s recommendations for discipline. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). But Andrade has been convicted of a felony, and the presumptive discipline for a felony conviction is disbarment, particularly where the criminal conduct occurs (as in this case) within the practice of law. See In re Perez, 688 N.W.2d 562, 567-69 (Minn.2004). We have ordered a lesser sanction than the presumptive discipline of disbarment where there exist substantial mitigating circumstances. See, e.g., In re Olkon, 324 N.W.2d 192,196 (Minn.1982). In this case, the referee found as mitigating factors An-drade’s lack of prior disciplinary history, his substantial community service and pro bono work in the Hispanic community, his reputation with the judiciary and the practicing bar, his cooperation with the Director’s investigation, and the fact that the violations involved only one person. The referee found as aggravating factors that Andrade’s violations took place within the practice of law and that Andrade initially denied the allegations against him even in the face of recordings of his conduct.

We agree with Andrade that, in the proper case, mitigating factors can warrant a sanction less than disbarment for a felony conviction. For example, in Olkon we cited such mitigating factors as a long history of pro bono work and the attorney’s competence and integrity as justification for not disbarring an attorney convicted of attempted theft by swindle involving insurance fraud. Id. at 196. In In re Daffer, 344 N.W.2d 382, 385 (Minn.1984), we similarly declined to disbar an attorney convicted of mail fraud, citing the referee’s findings regarding the attorney’s remorse, full and prompt restitution, good character, cooperation, and the fact that all of the acts constituting the fraud occurred within a very brief time and arose from a single transaction.

The primary purpose of disciplinary action is “to guard the administration of justice and to protect the courts, the legal profession, and the public.” In re Hanson, 258 Minn. 231, 233, 103 N.W.2d 863, 864 (1960). Accordingly, we consider whether, in light of the mitigating factors found by the referee, a sanction less than disbarment would adequately serve those interests in this case. Daffer, 344 N.W.2d at 385. We conclude it would not.

First, the person Andrade attempted to swindle was his own client. Moreover, Andrade attempted to swindle a long-time client, someone he had represented for many years in some 30 different matters. As we observed in In re Benson, a case in which we also disbarred the attorney, if an attorney would misappropriate funds from a long-time client and friend, “[t]he general public, with no such relationship, would hardly be protected from similar misconduct.” 431 N.W.2d 120,124 (Minn.1988).

Second, although we allowed Andrade to practice under supervision for the brief time this matter has been pending, and although Andrade urges us to impose suspension and supervised probation as an alternative to disbarment, the nature of the supervised probation we impose as a disciplinary sanction is unlikely to detect this type of misconduct. We typically order the appointment of a supervisor to monitor the practice of an attorney who has neglected client matters in the past as a means of ensuring that the attorney meets court-imposed deadlines, returns phone calls and correspondence promptly, and otherwise completes client matters on a timely basis. See, e.g., In re Berndt, 719 N.W.2d 642, 643 (Minn.2006) (outlining conditions of supervision). Andrade makes no argument that supervised probation would have prevented him from committing this crime or that supervised probation would have detected it afterwards. As a result, supervised probation is unlikely to deter similar misconduct in the future.

Finally, Andrade has violated Minn. R. Prof. Conduct 8.4(e). We have rarely been faced with the task of disciplining attorneys charged with implying the ability to improperly influence a government agency or official, but when we have, we have disbarred the attorney. See, e.g., In re Gillard, 271 N.W.2d 785, 805 (Minn.1978). We have done so because such misconduct calls into question the very integrity of the judicial system, a system the attorney has sworn to uphold. And in this case, An-drade’s actions effectively reinforced his client’s cynical view of the legal system as corrupt and subject to influence. The harm of such conduct to the public and to the judicial system outweighs the mitigating circumstances found by the referee.

Andrade urges us to impose upon him only a short suspension followed by supervised probation, comparing his case to that of Olkon. Olkon unwittingly represented two undercover police officers posing as automobile accident victims, and negotiated an insurance settlement on behalf of one of them knowing that the client’s claimed injuries were faked. Olkon, 324 N.W.2d at 193-95. While Olkon was also convicted of attempted theft by swindle, we declined to impose automatic disbarment and instead suspended Olkon and barred him from practicing personal injury law. Id. at 196.

Olkon’s situation differs from Andrade’s in several ways. First, the entity Olkon was convicted of attempting to swindle was an insurance company that was cooperating with the police investigation of insurance fraud. Id. at 194. In contrast, An-drade took advantage of M’s particular legal vulnerabilities and M’s long-standing suspicion of the American judicial system to pressure M to participate in the bribery-scheme. Among the matters in which An-drade was representing M was an effort to obtain legal residency status for M’s wife, with M as her sponsor. Andrade was already attempting to get M’s earlier drug and domestic assault convictions expunged; further criminal charges would spell the end of M’s hopes of sponsoring his wife and presumably culminate in her deportation. Andrade does not now dispute that he told M that unless M gave him $50,000 the police would bring new drug charges as a result of the drugs discovered in the search of M’s home.

Second, the attempted swindle of which Olkon was convicted was not Olkon’s idea. Rather, undercover officers were referred to Olkon by the business manager of a doctor being investigated for insurance fraud. Id. While it is clear that Olkon was aware of the doctor’s questionable diagnoses and expressed doubts about the officers’ injuries, the suggestion to file an insurance claim was not Olkon’s. See id. In contrast, in this case, while M had suggested bribing the police or a judge in the past, it was Andrade who concocted the $50,000 bribery scheme.

Third, by barring Olkon from practicing personal injury law, we were able to effectively eliminate Olkon’s contact with those he was charged with attempting to swindle, namely, insurance companies. In contrast, Andrade urges us not to disbar him so that he can continue to represent private clients in criminal defense matters and, in particular, the Hispanic community. But it was a private client from the Hispanic community in a criminal defense matter that Andrade was convicted of attempting to swindle. We placed Olkon on supervised probation following his suspension, which was likely to detect and deter the type of insurance fraud in which Olkon engaged. In contrast, as we noted above, supervised probation is unlikely to reveal the type of misconduct for which Andrade has been convicted, and thus is of little deterrent effect. Nor can we conceive of any conditions we could place on An-drade’s continued practice that would be likely to reveal further misconduct of this type. As a result, Andrade’s alternative discipline fails to adequately protect the public or the judicial system in the same way our discipline in Olkon did.

For these reasons, Andrade is hereby disbarred, effective 14 days from the date of filing of this opinion. Andrade shall comply with Rule 26, RLPR (requiring notice of disbarment to clients, opposing counsel, and tribunals, and requiring delivery of client papers and property).

Disbarred.

GILDEA, J., took no part in the consideration or decision of this case.

PAGE, Justice

(dissenting).

I respectfully dissent, for two reasons. First, I find the court’s penalty of disbarment disproportionately harsh when compared with the discipline imposed for comparable offenses in the past. Second, I conclude that the lesser penalty of suspension followed by supervised probation would satisfy the purposes of attorney discipline proceedings, as we have articulated them.

The court begins with the premise that the presumptive discipline to be imposed, based on Andrade’s felony conviction, is disbarment, and that lesser discipline is to be imposed only when there exist “substantial mitigating circumstances.” It is true that we have made such blanket statements in the past. See, e.g., In re Pugh, 710 N.W.2d 285, 288 (Minn.2006) (quoting In re Anderley, 481 N.W.2d 366, 369 (Minn.1992)).

But our jurisprudence has been less rigid. In any number of cases over the past half century, we have imposed discipline short of disbarment for felony convictions, often without any mention whatsoever of mitigating circumstances. We have done so both by accepting the parties’ stipulation to such discipline, and over the objections of the Director. See, e.g., In re Lahlum, 719 N.W.2d 707 (Minn.2006) (imposing by order after stipulation an indefinite suspension for a minimum of 18 months for felony theft with no mention of mitigating circumstances); In re Post, 686 N.W.2d 529 (Minn.2004) (imposing by order after stipulation a six-month stayed suspension and five years’ unsupervised probation for felony DWI with no mention of mitigating circumstances); In re Barta, 461 N.W.2d 382 (Minn.1990) (rejecting Director’s request for disbarment and suspending attorney convicted of tax fraud and evasion, citing as mitigating factors only the attorney’s lack of both client complaints and prior disciplinary actions, three terms as county attorney, and some pro bono service in the form of fee waivers for poorer clients); In re Serstock, 432 N.W.2d 179 (Minn.1988) (suspending attorney indefinitely but for no less than two years for dismissing traffic tickets while a deputy city attorney for friends who had loaned him money and given him other favors and for failing to file income tax returns); In re Kimmel, 322 N.W.2d 224 (Minn.1982) (rejecting Director’s request for disbarment and suspending attorney convicted of felony criminal sexual conduct); In re Scholle, 274 N.W.2d 112 (Minn.1978) (imposing by order after stipulation, along with other conditions, a two-year suspension following attorney’s conviction of conspiracy to import and distribute cocaine with no mention of mitigating circumstances); In re Scallen, 269 N.W.2d 834 (Minn.1978) (rejecting referee’s recommendation of disbarment and imposing an indefinite suspension of no less than five years on an attorney convicted of securities fraud and felony theft of $3 million); In re Swagler, 239 Minn. 566, 58 N.W.2d 272 (1953) (suspending for six months an attorney convicted of criminal negligence in which a person died). To highlight just one example, in In re Singer, 630 N.W.2d 404 (Minn.2001), we accepted without comment the stipulation of the Director and the lawyer to a suspension for a minimum of three years, despite the fact that the lawyer had been convicted in state court of felony theft for misappropriating funds from his attorney trust account.

Our rationale, when we have offered one, for not disbarring the convicted attorney has varied. For example, in Barta, faced with not only a felony conviction but six years of trust account violations and misappropriation of client funds in two matters, we managed to find mitigation in the facts that respondent had not previously been disciplined, that respondent had served three terms as county attorney, that respondent had “from time to time” waived fees for clients, and that an investigation turned up no additional client complaints. 461 N.W.2d at 385. In Swagler, we noted that the respondent’s record “was practically unblemished” before his conviction, and we predicted “it is very doubtful that any occasion for disciplinary action of this lawyer will arise in the future.” 239 Minn, at 567, 58 N.W.2d at 272. In Serstock, the ease of the city attorney who “fixed” a myriad of traffic tickets for friends and creditors, our rationale for suspension appears to be only that the attorney’s misconduct “harmed no one person individually,” even as we acknowledged that the harm “was to the public and the legal system as a whole.” 432 N.W.2d at 185. In Scallen, our rationale for not disbarring an attorney convicted of securities fraud and felony theft appears to have been related to “the caliber and standing in the legal community of the witnesses who came forth to testify” on Scallen’s behalf. 269 N.W.2d at 841.

Andrade’s circumstances are not qualitatively different. For example, there is no dispute that, like Barta, Andrade has served a segment of the population generally underrepresented in legal matters and has performed significant amounts of pro bono legal work. Nor is there any dispute that, like Swagler, Andrade has not previously been disciplined, and that his present difficulties are an aberration in an otherwise exemplary life and career. Andrade has acknowledged his guilt and has cooperated in these proceedings. As in Scallen, the witnesses on Andrade’s behalf — including two sitting judges in Ramsey County— were both unanimous in their support for him and above question in their qualifications. Further, while Andrade’s misconduct, like the misconduct in Serstock, did harm “to the public and the legal system as a whole,” the misconduct “harmed no one person individually.”

And so my analysis of the case starts not from the presumption of disbarment, but with an analysis of what sanction best serves the purposes of attorney discipline, as we have expressed them. As the court states, the primary purpose of disciplinary action is “to guard the administration of justice and to protect the courts, the legal profession, and the public.” In re Hanson, 258 Minn. 231, 233, 103 N.W.2d 863, 864 (1960). I conclude that suspension for a significant period of time, followed by supervised probation, would serve those purposes.

First, I place significant weight in this case on the recommendation of the referee we appointed to make findings of fact and recommendations for disposition. The referee, who listened to Andrade and the other witnesses testify and who is in the unique position to evaluate their credibility, concluded that, in light of “significant mitigating factors,” a suspension would “still serve to protect the public and deter lawyers who may otherwise be tempted to engage in illegal acts.” Because so much of our judgment in this case must rest on an evaluation of respondent’s character, I would heed the conclusion of the referee.

Second, a lengthy suspension — from 24 to 36 months — would express our strong disapproval of Andrade’s conduct. Considering the financial consequences of such a suspension to Andrade and his family, as well as the personal and professional stigma associated with attorney discipline, no one could reasonably conclude that a suspension of 24 to 36 months constitutes leniency on our part.

Third, under Rule 18, Rules on Lawyers Professional Responsibility, a suspension of such length would require that Andrade petition for reinstatement and present evidence of his fitness to resume practice to a fact-finding panel. Only if Andrade presents clear and convincing evidence that he has undergone a moral change and gained sufficient insight into his misconduct so that the misconduct is not likely to recur would Andrade be reinstated to practice. See In re Swanson, 343 N.W.2d 662, 664 (Minn.1984). Thus, the hearing process under Rule 18 affords further protection to the courts, the legal profession, and the public that Andrade will be permitted to resume the active practice of law only after demonstrating his “present ability to adhere to the strict code of professional morality.” In re Peterson, 274 N.W.2d 922, 926 (Minn.1979).

Finally, in my view, reinstatement subject to supervised probation provides further assurance to the public. The court rejects supervised probation with the observation that such probation is “unlikely to detect” the type of misconduct of which Andrade has been convicted. Yet the court allowed Andrade to practice under such supervision while these proceedings were pending. I believe that, upon reinstatement, the court can craft a probation that is reasonably likely to both deter such misconduct in the future and to detect it should it occur. For example, Andrade could be required to provide notice of his supervision to clients and to provide them with the name and contact information of his supervisor. Such information would give clients a ready means of notifying a person of authority of any improper solicitations by Andrade in the future.

For these reasons, I respectfully dissent.

ANDERSON, PAUL H., Justice (dissenting).

I join in the dissent of Justice Page.

ANDERSON, PAUL H., Justice

(dissenting).

Who steals my purse steals trash; ‘tis something, nothing;
‘Twas mine, ‘tis his, and has been slave to thousands:
But he that filches from me my good name
Robs me of that which not enriches him, And makes me poor indeed.
William Shakespeare, Othello act 3, sc. 3.

I respectfully dissent. I join Justice Page’s dissent, but write separately because I believe the sanctions recommended by Justice Page are insufficient. Andrade not only attempted to swindle his client, but in the process he impugned the integrity of the Minneapolis Police Department in general and more specifically that of the person in charge of the department’s Drug Task Force. This latter act warrants more severe sanctions. Therefore, I would suspend Andrade from the practice of law for a period of not less than 48 months and, upon reinstatement, require that he be subject to supervised probation.

The undisputed facts in this case are that Andrade asked his client for money to be used to pay a bribe to an unnamed, high-ranking Minneapolis police official. The bribe was for the official’s assistance in getting the pending drug charges against the client dismissed. The client reported Andrade’s demand to the police; and, in a series of meetings recorded by the police, Andrade indicated to his client that Andrade had either paid $25,000 to the police official and needed another $25,000, or that he had already paid $15,000 and needed an additional $10,000 to pay the balance. The client then gave Andrade $5,000 in cash as a partial payment for the bribe. The money the client paid to Andrade was provided by law enforcement as part of a sting operation.

When soliciting money from his client on the premise of paying a bribe, Andrade violated Rule 8.4(e) of the Minnesota Rules of Professional Conduct. Here, it is important to focus on exactly what Andrade did. For his own personal economic gain, he impugned the integrity of the Minneapolis Police Department and in particular a high-ranking person in that department. In his own words, he impugned the reputation of others because he saw “an opportunity to get paid.” His identification of the individual to be bribed as the “person who is in charge of all the police of the Drug Task Force” was sufficiently specific that very few persons could have fit this description. Undoubtedly, when the report of Andrade’s demand was first received by the police, a question was raised within the police department whether a certain member of the department had done something improper or illegal. We do not know if Andrade’s misconduct led to any type of internal police investigation or distress to any particular officer. What we do know is that Andrade, just like a thief entering a home in the middle of the night to steal personal property, stole, or at a minimum attempted to steal, from some person a very valuable possession — that person’s reputation. Such conduct is not only unprofessional, it is particularly reprehensible.

Finally, there is one other matter on which I disagree with the dissent. Justice Page concludes that no one person was individually harmed by Andrade’s misconduct. I conclude that individuals were harmed by his conduct. In addition to some unnamed, high-ranking police officer, Andrade harmed his client. He did so when his conduct confirmed his client’s cynical view of the American justice system and violated their attorney/client trust relationship.

      . Under Rule 19(a), Rules on Lawyers Professional Responsibility (RLPR), a criminal conviction is conclusive evidence that the lawyer committed the misconduct for which he was convicted.

      . Rule 1.7(a)(2) bars a lawyer from representing a client if "there is a significant risk that the representation * * * will be materially limited * * * by a personal interest of the lawyer.” Although the referee found a violation of Rule 1.7(a)(2), that rule was added effective October 1, 2005, after the conduct at issue occurred. Prior to October 1, 2005, Minn. R. Prof. Conduct 1.7(b) prohibited representation in the same circumstances, although using slightly different language: "A lawyer shall not represent a client if the representation of that client may be materially limited * * * by the lawyer's own interests ⅜ * *.” Minn. R. Prof. Conduct 1.7(b), 14 Minnesota Statutes 1391 (2004) (amended Oct. 1, 2005). Because the substance of the old and new rules is the same, the erroneous citation to the new rule has no effect on the issues or analysis in this case.

      . Rule 8.4(b) makes it professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.” Rule 8.4(c) makes it professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Rule 8.4(d) makes it professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(e) makes it professional misconduct for a lawyer to "state or imply an ability to influence improperly a government agency or official.” Rule 8.4 was also amended effective October 1, 2005. The changes in the relevant provisions of Rule 8.4 have no substantive effect on the issues or analysis in this case. Therefore, for simplicity, we cite only the current versions of the applicable rules.

      . Serstock was indicted by a grand jury on three counts of misconduct in office, but the indictment was dismissed on grounds that the facts alleged in the indictment did not constitute an offense and that the language of the indictment was not sufficiently specific. State v. Serstock, 402 N.W.2d 514, 515 (Minn.1987). We affirmed the dismissal of the indictment, noting that "the Lawyers Professional Responsibility Board is free to determine whether respondent’s alleged activities may warrant any disciplinary action." Id. at 520 n. 6.

      . At bottom, Justice Anderson and I disagree only on the length of Andrade's suspension. To Justice Anderson, Andrade’s impugnment of an unnamed (and apparently nonexistent) high-ranking person in the Minneapolis Police Department is particularly reprehensible— reprehensible enough to merit a suspension of at least 48 months, as opposed to my proposed 24 to 36 months. If "[t]he quality of mercy is not [to be] strain’d,” William Shakespeare, The Merchant of Venice act 4, sc. 1, and if Andrade is ever to rebuild his practice, I think something less than 48 months is required. Cf. State v. Streiff, 673 N.W.2d 831, 841-42 (Minn.2004) (Anderson, Paul H., J., concurring).

      . Rule 8.4(e) was amended effective October 1, 2005. The conduct at issue in this case took place before the effective date of the amendment. The amendment does not have any substantive effect on the issues or analysis in this case. Therefore, for simplicity, I cite to the current version of the rule.


author: MEYER, Justice.

text:
    ONVOY, INC., Respondent, v. ALLETE, INC., f/k/a Minnesota Power, Inc., d/b/a Minnesota Power & Light Company, et al., Appellants.
    No. A05-1497.
    Supreme Court of Minnesota.
    Aug. 2, 2007.

      James A. Wade, Roy J. Christensen, Johnson, Killen & Seiler, PA, Duluth, MN, for Appellant.

      Eric J. Nystrom, Christopher H. Yetka, Mark H. Zitzewitz, Lindquist & Vennum, PLLP, Minneapolis, MN, for Respondent.
   OPINION

MEYER, Justice.

We are asked to resolve a dispute over whether a building lease between the parties authorizes respondent Onvoy, Inc. to run a telecommunications cable from its leased space inside appellant ALLETE, Inc.’s building to an exterior wall. We must determine if the district court erred in granting a claim for declaratory relief in favor of Onvoy, Inc. in light of a jury verdict finding that there was no breach of the terms of the lease by ALLETE. The court of appeals concluded that the district court did not err in granting declaratory relief to Onvoy. We reverse and remand.

ALLETE (formerly known as Minnesota Power and Minnesota Power & Light Company), and Onvoy (formerly known as Minnesota Equal Access Network Services (MEANS)) are both involved in the telecommunications business. ALLETE and Onvoy’s business relationship started over 10 years ago in February 1996 when the parties entered into a fiber optic agreement (the Fiber Lease). The Fiber Lease gave Onvoy the right to use twelve of ALLETE’s fiber optic strands, which On-voy intended to use to provide telecommunication services to third parties. Onvoy and ALLETE’s fiber optic systems connected at ALLETE’s General Office Building (GOB) in Duluth. In exchange for use of the fiber optic strands, Onvoy agreed to pay ALLETE for half the cost of constructing the fiber optic route and to make annual installment payments to ALLETE for 20 years.

The Fiber Lease permits Onvoy to use ALLETE’s substations and offices subject to certain fees, which must be established in a separate agreement. On April 10, 1996, a month and a half after entering into the Fiber Lease, Onvoy and ALLETE entered into two separate lease agreements. The first is the Arrowhead Lease, which is not at issue in this case. The second, which is in dispute, is the General Office Building Lease (the GOB Lease), a 20-year lease that provides On-voy with 430 square feet of office space in the basement of the GOB in Duluth “for use and occupancy as a telecommunication equipment room.” The GOB Lease provides that Onvoy

shall have the right, upon written notice to and consent of [ALLETE], which consent will not be unreasonably withheld, to allow collocation[] of telecommunications equipment of local exchange carriers (LECs), competitive access providers (CAPs) or interexchange carriers (IXCs), in Tenant’s leased space provided such collocation of telecommunications equipment is for the purpose of interconnecting Tenant’s network with the network(s) of the collocated party(ies).

After entering into the GOB Lease with ALLETE, Onvoy requested permission to run cable conduit from within its leased space through the common area of the GOB to the GOB’s exterior wall in order to connect Onvoy’s telecommunications equipment with the telecommunications equipment of third-party telecommunications providers outside the GOB. ALLETE refused, contending that Onvoy must negotiate another agreement (and pay an additional fee) in order to run the cable from Onvoy’s leased space to the exterior of the GOB.

Onvoy filed suit in June 2003, claiming breach of contract, unjust enrichment, and intentional interference with contractual relations, and seeking declaratory judgment and reformation. The complaint alleges that the GOB Lease permits Onvoy to establish and operate a “point of presence” for its telecommunication equipment in Duluth and maintains that Onvoy’s “point of presence” can become operational only if Onvoy is able to connect its equipment housed within the GOB to equipment of other providers outside the GOB. The complaint further alleges that ALLETE was trying to force Onvoy to pay it an “exorbitant” monthly fee for the right to connect with other providers even though the cost of installing cables for the purposes of interconnection was minimal and the expense would be borne entirely by Onvoy without any recurring expense for ALLETE or Enventis, ALLETE’s subsidiary.

ALLETE brought a motion for summary judgment on Onvoy’s claims, but the district court denied the motion because there were “legitimate factual disputes over intent and meaning.” The case went to trial, and the claims at law and claims for equitable relief were tried together. At the conclusion of the trial, the jury answered a special verdict form that included questions on both the claims at law and Onvoy’s equitable claims of reformation and unjust enrichment. On the claims at law, the jury found that ALLETE did not breach the GOB Lease with Onvoy and that Enventis intentionally interfered with the GOB Lease, but that Onvoy was not entitled to any damages because of Enven-tis’s interference.

With regard to the claims for equitable relief, the jury made an advisory finding that before entering into the GOB Lease, Onvoy and ALLETE had “a valid agreement that Plaintiff Onvoy, Inc. would use the General Office Building space for the collocation of equipment in order to interconnect Plaintiff Onvoy, Inc.’s network with other telecommunications carriers’ networks by running cable through the General Office Building and outside of Plaintiff Onvoy, Inc.’s leased space.” The jury then found that the GOB Lease failed to express the earlier agreement because of a unilateral mistake by Onvoy. The jury further found that the unilateral mistake by Onvoy was not accompanied by inequitable conduct by ALLETE.

After receiving the jury verdict, the district court entered judgment for ALLETE based on the jury’s answers on the claims at law (breach of contract by ALLETE and intentional interference with contractual relations against Enventis), and made its own factual findings on the claim for declaratory relief. The court found that Onvoy entered into the GOB Lease for the purpose of establishing a “point of presence” that would allow it to interconnect with other telecommunications networks. The court further found that Onvoy and ALLETE understood and agreed that On-voy would use its space within the GOB to interconnect its network to third parties and that interconnection would require a physical connection that involved running cables into and out of Onvoy’s leased space. The district court determined that Onvoy had made repeated requests to interconnect with third parties, which AL-LETE had refused to grant, and that AL-LETE had demanded that Onvoy or the third party enter into separate lease agreements and pay additional fees to AL-LETE and Enventis. The court found that ALLETE’s refusal to allow third-party collocation in Onvoy’s leased space prevented Onvoy from utilizing eight of the fiber strands it had leased under the fiber lease. The court then concluded that the GOB Lease provided Onvoy with a right to run cables into its leased space from outside the GOB in order to connect Onvoy’s equipment with third-party networks and that Onvoy was entitled to a right of access to facilities or conduit space sufficient to allow interconnection of telecommunications equipment without being required to enter into a separate lease agreement with ALLETE or make additional payments to ALLETE or Enventis.

After the district court entered judgment, ALLETE brought a motion for amended findings and conclusions of law, and Onvoy brought a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The court denied all of the motions. ALLETE appealed. The court of appeals affirmed the district court, and ALLETE appealed to this court. We granted review solely on the issue of “whether the district court is bound on declaratory judgment by jury findings.”

We begin our analysis by considering (1) whether the jury’s factual findings that are common to claims at law and claims for equitable relief are binding upon the district court when deciding claims for equitable relief, and (2) if the district court is bound by the jury’s factual findings, what factual findings made by the jury are common to Onvoy’s claims for both legal and equitable relief. When reviewing a declaratory judgment action, we apply the clearly erroneous standard to factual findings, Toombs v. Daniels, 361 N.W.2d 801, 805 (Minn.1985), and review the district court’s determinations of law de novo, see Frost-Benco Elec. Ass’n v. Minn. Pub. Utilities Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

I.

Article I, section 4 of the Minnesota Constitution guarantees that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy.” This right to a civil jury trial applies only to claims at law. Morton Brick & Tile Co. v. Sodergren, 130 Minn. 252, 254, 153 N.W. 527, 528 (1915). No right to a jury trial attaches to claims for equitable relief, but the Minnesota Rules of Civil Procedure permit district courts to try claims at law and claims for equitable relief in the same action. Minn. R. Civ. P. 18.01. To do so, a district court may empanel an advisory jury on claims for equitable relief, but findings of the advisory jury as to solely equitable claims are not binding upon the court’s adjudication of those equitable claims. Minn. R. Civ. P. 39.02, 52.01; see In re Estate of Murphy, 269 Minn. 393, 404, 131 N.W.2d 220, 227 (1964) (noting that an advisory jury’s role is “only to advise the court and its findings are merely to reinforce the court’s own decision on the disputed fact — not to supplant it”).

We have not previously addressed how jury findings that are common to claims at law and claims for equitable relief impact the district court’s, decisions on the claims for equitable relief. In the federal courts, when claims at law and claims for equitable relief turn on the same operative facts, the jury must decide the claims at law first in order to preserve the jury trial right. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Further, the federal courts of appeals, relying on Beacon Theatres and its progeny, have made it clear that when claims at law and claims for equitable relief turn on the same operative facts, the jury’s findings as to the claims at law bind the district court in its determination of parallel claims for equitable relief. See, e.g., Ag. Servs. of America, Inc. v. Nielsen, 231 F.3d 726, 730 (10th Cir.2000) (“[Wjhen a case involves both a jury trial and a bench trial, any essential factual issues which are central to both must be first tried to the jury, so that the litigants’ Seventh Amendment jury trial rights are not foreclosed on common factual issues. Moreover, the court is bound by the jury’s determination of factual issues common to both the legal and equitable claims.” (quoting Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1442-43 (10th Cir.1988))); Snider v. Consolidation Coal Co., 973 F.2d 555, 559 (7th Cir.1992) (“[Wjhen common issues are simultaneously tried to both a judge and a jury, the jury’s findings with respect to those common issues are binding upon the judge.”); Ward v. Texas Employment Comm’n, 823 F.2d 907, 908-09 (5th Cir.1987) (“When a party has a right to a jury trial on an issue involved in a legal claim, the judge is of course bound by the jury’s determination of that issue as it affects his disposition of an accompanying equitable claim.” (quoting Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir.1983))); Garza v. City of Omaha, 814 F.2d 553, 557 (8th Cir.1987) noting that when legal and equitable “claims are tried jointly, the [legal] theory to the jury and the [equitable] theory to the court, a jury verdict on the issue of discrimination would collaterally estop the parties with respect to that issue on the [equitable] claim” (quoting Goodwin v. Circuit Court of St. Louis County, Mo., 729 F.2d 541, 549 n. 11 (8th Cir.1984)).

Additionally, several states, noting the parallels between their state systems and the federal system, have applied the reasoning of Beacon Theatres to cases involving both claims at law and claims for equitable relief. See, e.g., Lee v. Aiu, 85 Hawai’i 19, 936 P.2d 655, 666 (1997) (noting that in the context of the state right to a civil jury trial, claims at law should be decided first and the district court is bound by the jury’s findings of fact when ruling on the claim for equitable relief); Zions First Nat’l Bank v. Rocky Mountain Irrigation, Inc., 795 P.2d 658, 661-62 (Utah 1990) (noting that its analysis of a right to a civil jury trial under Utah’s constitution was in line with the U.S. Supreme Court’s analysis of the federal right to a jury trial and adopting the reasoning of Beacon Theatres); Wood v. Wood, 166 Vt. 608, 693 A.2d 673, 675 (1997) (citing Beacon Theatres to support the proposition that claims at law should be decided by the jury before the district court decides any claims for equitable relief and further concluding that when claims at law and claims for equitable relief are tried simultaneously, jury findings on common issues of fact are binding on the district court).

We agree with the weight of authority on this issue and hold that factual findings that are common to both claims at law and claims for equitable relief are binding upon the district court. In making this determination, we recognize the parallels between the state and federal rights to a civil jury trial and note that these parallels support extending the reasoning of Beacon Theatres to our state courts. The Seventh Amendment of the United States Constitution preserves the right to a jury trial in civil actions at common law. The right to a jury trial under the Minnesota Constitution protects essentially the same jury trial rights as those provided under the federal constitution. Compare Parsons v. Bedford, 28 U.S. 433, 446-47, 3 Pet. 433, 7 L.Ed. 732 (1830) (determining that in the Seventh Amendment “[b]y common law, they meant what the constitution denominated in the third article ‘law;’ not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized”), with Whallon v. Bancroft, 4 Minn. 109 (Gil. 70, 74) (1860) (stating that Article I, section 4 of the Minnesota Constitution was intended to continue, unimpaired and inviolate, the right to trial by jury as it existed in the Territory of Minnesota when our constitution was adopted), and Morton Brick & Tile Co., 130 Minn, at 254, 153 N.W. at 528 (recognizing that Article 1, section 4 was meant to protect the right to a civil jury trial as it existed when the Minnesota Constitution was adopted and noting that the right to the jury trial extended only to actions at law). Making a jury’s factual findings that are common to claims of law and claims for equitable relief binding on the district court not only helps protect the right to a jury trial by ensuring that proper weight is given to jury findings by the district court, but it also prevents inconsistent decisions between claims at law and claims for equitable relief, thus maintaining the integrity of the judiciary.

II.

Having determined that a jury’s factual findings as to legal claims bind the district court as to claims for equitable relief, we must now determine whether the district court erred in granting declaratory relief for Onvoy. Minnesota’s Uniform Declaratory Judgments Act grants courts the power “to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Minn. Stat. § 555.01 (2006). Parties to a written contract “may have determined any question of construction or validity” arising under the contract. Minn.Stat. § 555.02 (2006). But the court has no jurisdiction over a declaratory judgment proceeding unless there is a justiciable controversy. Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 281, 290 N.W. at 802, 804 (1940). A justiciable controversy exists if the claim (1) involves definite and concrete assertions of right that emanate from a legal source, (2) involves a genuine conflict in tangible interests between parties with adverse interests, and (3) is capable of specific resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion. State ex rel. Smith v. Haveland, 228 Minn. 89, 92, 25 N.W.2d 474, 476-77 (1946); Seiz, 207 Minn, at 281, 290 N.W. at 804.

Before we can determine whether a jus-ticiable issue remained after the jury’s verdict, we must apply the principles announced in Part I of this opinion and establish which, if any, of the jury’s factual findings were binding upon the district court. ALLETE asserts that the jury’s conclusion that there was no breach of contract by ALLETE necessarily means that the jury concluded that Onvoy did not have a right to use space outside of its leased space in the GOB. Thus, the court was bound by that factual determination and there was no basis for the court to conclude that equitable relief under the GOB Lease was available to Onvoy. On-voy counters that there are several possible factual bases for the verdict because ALLETE offered numerous theories as to why there was no breach of contract and, therefore, a justiciable controversy still existed after the jury’s verdict.

We have carefully reviewed the district court’s findings of fact, conclusions of law, and order for judgment on the equitable claims tried to the court. The court concluded that “based on the agreements between Onvoy and Alíete” Onvoy was entitled to run cable from within its leased space to the exterior of the GOB without having to make financial payment. Nowhere does the court reference the jury’s finding that ALLETE had not breached its contract with Onvoy and there is no discussion of the binding effect, if any, of that jury’s finding on the court. Establishing what factual findings are common to the breach of contract claim and claim for declaratory relief requires a determination of what findings are explicit in or necessarily implied by the jury’s verdict on the breach of contract claim. See Ag. Servs. of America, 231 F.3d at 731; Butler v. Pollard, 800 F.2d 223, 225-26 (10th Cir. 1986). In making this determination, we are mindful that any jury findings solely addressing claims for equitable relief are advisory under Minn. R. Civ. P. 39. In this case, where the jury’s factual findings on the breach of contract claim may involve the same facts necessary for the district court to rule on the claims for equitable relief, the district court must determine what the jury’s factual findings are and whether those findings are also implicated in the claim for equitable relief. Therefore, we remand the case to the district court so that the court may determine which of the jury’s findings on the claims at law are common to Onvoy’s claims for equitable relief. The district court may not enter a declaratory judgment that is inconsistent with the jury’s findings as to any common factual disputes.

The decision of the court of appeals is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.

HANSON, J., took no part in the consideration or decision of this case.

      . On July 21, 2000, Onvoy merged with a subsidiary, Minnesota Equal Access Facilities Corporation (MEANFCO). Onvoy is the surviving corporation and has assumed all property rights, interests, and liabilities of MEAN-FCO.

      . Collocation is "the physical interconnection of lines and equipment owned and operated by different carriers typically on the premises of the major incumbent carrier.’’ Harvey L. Zuckman, et al., 3 Modem Communication Law 521 (West Group Practitioner’s ed.1999).

      . The intentional interference with contractual relations claim is against ALLETE's subsidiary, Enventis Telecom, Inc.

      . Under Minn. R. Civ. P. 39.02, the court may use an advisory jury when trying a claim for equitable relief.

      . Reformation of a written contract requires: (1) a valid agreement between the parties expressing their real intentions; and (2) a written agreement that fails to express those intentions; (3) due to either mutual mistake of the parties or unilateral mistake by one party accompanied by fraud or inequitable conduct by the other party. Nichols v. Shelard Nat’l Bank, 294 N.W.2d 730, 734 (Minn.1980).

      . The district court declined to address the reformation claim because Onvoy was the prevailing party on the claim for declaratory relief. The court also did not address the unjust enrichment claim because the jury "probably found damages speculative,” and "[t]o now find unjust enrichment would constitute an end-around attack on the jury's findings.”

      . We note that under this rule, if a district court believes that a jury’s verdict is unsupported by the evidence, the court may enter judgment notwithstanding the verdict, but the district court cannot both uphold the verdict and make contrary findings of fact with regard to the claims for equitable relief. Ag. Servs. of America, 231 F.3d at 731; see Garza, 814 F.2d at 557.