author: G. BARRY ANDERSON, Judge.

text:
    HARBOR BROADCASTING, INC., a Minnesota corporation, and Eclectic Enterprises, Inc., a Minnesota corporation, Appellants, v. BOUNDARY WATERS BROADCASTERS, INC., a Minnesota corporation, and The Estate of Suzanna Kuralt, Respondents.
    No. C1-01-667.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.

      Michael C. Mahoney, Mark W. Peery, Mahoney & Hagberg, P.A., Wayzata, MN, for appellants.
    Keith J. Broady, Timothy C. Matson, Abdo and Abdo, P.A., Minneapolis, MN, for respondents.
    Considered and decided by ANDERSON, Presiding Judge, PETERSON, Judge, and FORSBERG, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

Appellants brought an action in state court against respondents for tortious interference with business expectancy. Respondents moved to dismiss appellants’ claim on the theory that the Federal Communications Act of 1934(FCA) preempted appellants’ claim. The district court granted respondents’ motion to dismiss and appellants now argue that the district court erred because (1) there is no irreconcilable conflict between the FCA and the common-law remedy of tortious interference with business expectancy; (2) in the alternative, if there is an irreconcilable conflict, the FCA’s savings clause preserves the common-law remedy of tortious interference with business expectancy because the claim is predicated on rights and duties distinguishable from those created under the FCA. We conclude that there is an irreconcilable conflict between the FCA and appellants’ state common-law tort action and that the FCA’s savings clause does not preserve appellants’ state-law claim because the common-law action is predicated on rights and duties created under the FCA, and thus we affirm.

FACTS

Appellant Harbor Broadcasting, Inc. (Harbor), is a Minnesota corporation and the former owner of WWAX, a radio station located in Hermantown, Minnesota. Appellant Eclectic Enterprises, Inc. (Eclectic), is a Minnesota corporation that managed and operated WWAX before its sale on October 1, 1999. Respondent Boundary Waters Broadcasters, Inc. (Boundary Waters), is a Minnesota corporation and the former owner of WELY, a radio station located in Ely, Minnesota. Respondent Estate of Suzanna Kuralt is a New York estate and the former owner of Boundary Waters.

In 1996, the Federal Communications Commission (FCC) granted Harbor a permit to operate WWAX in Hermantown; Harbor retained Eclectic to manage WWAX. On January 10, 1997, the FCC issued a report and order (Upgrade Order) granting Harbor’s request to increase the power of its radio transmission and to operate on a different frequency (channel 221C3, instead of 221 A). The effect would be an increase in the range of the radio station and, consequently, advertising revenues.

WWAX’s increased transmission power posed a risk of signal interference for WELY because of frequency similarity, and the Upgrade Order required WELY to change its frequency and WWAX to reimburse WELY for reasonable expenses associated with that change.

According to appellants’ complaint, Harbor “took all steps reasonably necessary to guarantee and assure * * * WELY that it would be reimbursed for all such reasonable costs of changing their frequencies,” but Boundary Waters “failed and refused to take any steps whatsoever to comply with the * * * Upgrade Order,” so that “WWAX FM was never allowed to increase its power and take advantage of the increased revenues and enhanced value [of the station].” Harbor claims it sold WWAX to KDQS Acquisition Corporation in October 1999 “for a mere pittance of what it would have otherwise been worth,” resulting in a loss to Eclectic of “potential profits it would have received during the period it could have operated * * * WWAX under increased power.”

On May 22, 2000, appellants served respondents with a summons and complaint, alleging, inter alia, tortious interference with business expectancy. Respondents moved to dismiss appellants’ state-law claims for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e), or in the alternative, for summary judgment under Minn. R. Civ. P. 56.04.

The district court dismissed for failure to state a claim upon which relief can be granted. The court ruled that the FCA’s savings clause preserved “state law causes of action for breaches of duty that are distinguishable from those created under the act.” But the court concluded that appellants’ cause of action was “entirely predicated” on respondents’ alleged failure to negotiate in good faith over reimbursement expenses and did not arise out of a separate contractual relationship, but was based solely on the Upgrade Order. Therefore, the court held that appellants’ claim for tortious interference with business expectancy did not “establish a distinguishable state law cause of action.” This appeal followed.

ISSUE

Whether the FCA preempts appellants’ cause of action for tortious interference with business expectancy?

ANALYSIS

When reviewing cases dismissed for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e), this court determines only

whether the complaint sets forth a legally sufficient claim for relief. It is immaterial to our consideration here whether or not the plaintiff can prove the facts alleged.

Doyle v. Kuch, 611 N.W.2d 28, 31 (Minn.App.2000) (quoting Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670 (1955)). The supreme court has explained,

A claim is sufficient against a motion to dismiss * * * if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded. To state it another way, under this rule a pleading will be dismissed only if it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded.

N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963) (citation omitted).

Appellants argue that their claim for tortious interference with business expectancy is not preempted by the FCA because (1) it does not conflict with the FCA and (2) the FCA’s savings clause permits such a claim even if it conflicts with certain FCA provisions.

A. Implied Preemption: Irreconcilable Conflict

Appellants first argue that the FCA does not preempt a claim for tortious interference with business expectancy because it does not conflict with the FCA. Appellants argue that Congress neither expressly preempted state-law causes of action in the FCA’s statutory scheme nor sought to' occupy the whole field of law touching and concerning FCA-regulated entities. Therefore, because there is not an irreconcilable conflict between a state-law claim for tortious interference with business expectancy and the FCA, appellants argue that their claim should be permitted to proceed.

The United States Supreme Court has cautioned,

In the absence of an. express congressional command, state law is pre-empted if that law actually conflicts with federal law or if federal law so thoroughly occupies a legislative field “ ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ”

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (citations and quotations omitted). Moreover, our supreme court has noted that there is a presumption against preemption:

Preemption of state law by federal statute or regulation is not favored “in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakably so ordained.”

Blackburn v. Doubleday Broad. Co., 353 N.W.2d 550, 554 (Minn.1984) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963)). Therefore, “[i]n determining whether preemption is appropriate, a key question is whether Congress intended to make its jurisdiction exclusive.” Blackburn, 353 N.W.2d at 554 (citations omitted). We recognize, however, that a preemption claim under the FCA “cannot be judged by reference to broad statements about the ‘comprehensive’ nature of federal regulation under the [FCA].” Head v. New Mexico Bd. of Exam’rs in Optometry, 374 U.S. 424, 429-30, 83 S.Ct. 1759, 1763, 10 L.Ed.2d 983 (1963) (citations omitted).

“The [FCA] constitutes a plenary exercise of the federal government’s power to occupy and regulate the broadcast industry.” Blackburn, 353 N.W.2d at 552 (citation omitted). Under the FCA, Congress has delegated to the FCC “comprehensive powers ⅜ * * to administer a ‘unified and comprehensive regulatory system for the industry.’ ” Id. (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 137, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940)). Indeed, the FCA governs many areas of communications law:

The FCC is vested with the authority to assign frequencies to stations and determine the power each station shall use, and to issue regulations necessary to carry out the provisions of the chapter. 47 U.S.C. § 303. The FCC is further vested with the authority to “grant to any applicant therefor a station license provided for by this chapter[,]” 47 U.S.C. § 307(a), and to “make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.” 47 U.S.C. § 307(b). 47 U.S.C. § 308 sets out the requirements for applying for a station license, or a modification or renewal thereof. 47 U.S.C. § 309 sets out the considerations of the FCC in granting licenses, the procedures followed by the FCC in granting applications for licenses, and the procedures for filing petitions to deny applications. 47 U.S.C. § 312 provides administrative sanctions for violations of the chapter or of any rules or regulations promulgated thereunder.

Zimmer Radio of Mid-Missouri, Inc. v. Lake Broad., Inc., 937 S.W.2d 402, 405-06 (Mo.Ct.App.1997).

The only Minnesota case discussing FCA preemption of state-law causes of action is Blackburn, which addressed FCA preemption of private nuisance claims. See Blackburn, 353 N.W.2d at 551. In Blackburn, private citizens sued five radio stations alleging that defendants’ transmissions interfered with the transmissions of radio stations they listened to regularly. Id. at 551-52. Apparently, after the defendant radio stations began operating, their radio transmissions caused substantial interference with other radio stations, and the FCC promptly ordered defendants to decrease transmission power. Id. Subsequently, the FCC opened an investigation to resolve the interference problems; however, in the interim, the plaintiffs brought private-nuisance actions against the radio stations to obtain immediate in-junctive relief and damages. Id. at 552. The plaintiffs claimed that defendants’ transmissions “distorted” their reception and, therefore, they were entitled to relief. Id. at 553.

The supreme court found that the courts, commentators, and the legislative history of the FCA “support[ed] the conclusion that Congress intended to exercise exclusive jurisdiction over regulating interference between radio stations.” Id. at 555; see also Fetterman v. Green, 455 Pa.Super. 639, 689 A.2d 289, 292 (1997). Because Congress intended to retain exclusive jurisdiction over interference disputes, and because a state court could

reach results which conflict with the regulations imposed * ⅜ * by the FCC[,] [s]uch a result is clearly irreconcilable with Congress’ expressed intent that the FCC should exercise exclusive jurisdiction over regulating this subject matter.

Blackburn, 353 N.W.2d at 556; see also Broyde v. Gotham Tower, Inc., 13 F.3d 994, 997 (6th Cir.1994) (“[R]adio signal interference * * * falls within the FCC’s technical domain.”); Still v. Michaels, 166 Ariz. 403, 803 P.2d 124, 125 (Ct.App.1990) (following Blackburn); Zimmer, 937 S.W.2d at 406 (“We think it clear that allowing a state court to second-guess the FCC * * ⅜ would create an obstacle to * * * Qongress’ purposes and objectives in enacting the FCA.”); Smith v. Calvary Educ. Broad. Network, 783 S.W.2d 533, 534-37 (Mo.Ct.App.1990) (following Blackburn).

The district court in this case did not address whether the FCA and the state-law cause of action for tortious interference with business expectancy actually conflicted; rather, the district court apparently assumed that the two were in conflict and proceeded to the question whether the savings clause preserved the claim notwithstanding the conflict.

It is undisputed that the proper inquiry for this court is an implied-preemption analysis. The FCA does not expressly preempt state law; rather we must decide whether the FCA and appellants’ state-law claim are in irreconcilable conflict. See Blackburn, 353 N.W.2d at 555 (“[T]he preemption question turns on whether there exists an irreconcilable conflict between the purposes of the Federal Communications Act and the common-law remedy at issue.”); Fetterman, 689 A.2d at 292. Appellants concede that Blackburn controls this analysis, but claim that Blackburn’s facts are dissimilar to this case. Appellants contend that consideration of their claim for tortious interference with business .expectancy would not require the district court to “examine any * * * scientific issues best reserved for experts.” Rather, according to appellants, the technicalities of the Upgrade Order (and respondents’ alleged noncompliance) are only incidental to the ultimate issues in the case.

Respondents argue that appellants construe Blackburn too narrowly and point out that the Blackburn court cited United States Supreme Court dictum “that the FCC clearly has exclusive control ‘over technical matters such as frequency allocation.’ ” Blackburn, 353 N.W.2d at 555 (quoting Head, 374 U.S. at 430 n. 6, 83 S.Ct. at 1763 n. 6).

We conclude that the FCA impliedly preempts appellants’ state-law claim for tortious interference with business expectancy.

Our conclusion is based on three primary considerations. We recognize that the presumption against implied preemption shifts the burden of showing preemption to respondents. Moreover, in light of the presumption, respondents need to show that Blackburn is controlling in the context of a state-law claim for tortious interference with business expectancy. Nevertheless, we believe that Blackburn is exclusively controlling under these facts and, under Blackburn, appellants’ claim is impliedly preempted.

Although there are some substantive differences between the two cases, we conclude that the instant case and Blackburn are sufficiently similar to reach the same result. In Blackburn, an injunction and damages clearly would have interfered with exclusive FCC prerogatives in regulating radio-frequency allocation, transmission power, and any resulting, interference between radio stations. Here, all of the issues related to the frequency change, including, but not limited to, what expenses were proper and attributable to the change, touch on or involve technical issues that must be decided by “someone” to determine whether certain expenses were appropriate under the Upgrade Order. This “someone” should, and must be the FCC because “the [FCCj’s jurisdiction over technical matters such as frequency allocation * * * is clearly exclusive.” Head, 374 U.S. at 430 n. 6, 83 S.Ct. at 1763 n. 6.

For the district court to evaluate appellants’ claim for tortious interference with business expectancy, it would necessarily have to scrutinize the Upgrade Order. The Upgrade Order outlined the procedure for changing the broadcast frequencies and mandated that appellants reimburse respondents for the reasonable costs of the changeover. The reasonableness of the changeover costs is fundamentally intertwined with the Upgrade Order itself. Although it is not readily apparent at first glance that the parties’ business dispute implicated technical issues, the conclusion is inevitable that technical concerns necessarily follow an inquiry into the business issues.

We conclude that appellants’ state-law claim for tortious interference with business expectancy will necessarily implicate and intertwine frequency allocation and other technical concerns best left to FCC administrative proceedings. Therefore, the FCA and appellants’ state-law claim for tortious interference with business expectancy are in irreconcilable conflict, and we affirm the district court’s dismissal.

B. Savings Clause

Appellants argue, in the alternative, that if we find that appellants’ claim for tor-tious interference with business expectancy and the FCA are in irreconcilable conflict, the FCA’s savings clause preserves their cause of action. Appellants note that they never alleged FCA violations or violations of FCC rules and regulations; rather, they asked the district court for a common-law tort remedy to resolve a business dispute that the FCC has no authority to resolve. The FCA’s savings clause states,

Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.

47 U.S.C. § 414 (1994). The Blackburn court addressed the existence and significance of the savings clause in its comprehensive analysis. The supreme court noted that the United States Supreme Court “has refused to read such clauses so literally.” Blackburn, 353 N.W.2d at 554. The supreme court also quoted with approval a United States Supreme Court case concerning a similar savings clause, in which the Supreme Court commented on the proper scope of such a clause:

That proviso was added at the end of the statute, not to nullify other parts of the Act, or to defeat rights or remedies given by preceding sections, but to preserve all existing rights which were not inconsistent with those created by the statute.

Id. at 555 (quoting Pennsylvania R.R. v. Puritan Coal Mining Co., 237 U.S. 121, 129, 35 S.Ct. 484, 487 (1915)); see also AT & T v. Centr. Office Tel., Inc., 524 U.S. 214, 227-28, 118 S.Ct. 1956, 1965, 141 L.Ed.2d 222 (1998); Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 298-300, 96 S.Ct. 1978, 1984-85, 48 L.Ed.2d 643 (1976). Therefore, the Blackburn court concluded that the FCA’s savings clause has limited significance because even in light of the clause, “the preemption question turns on whether there exists an irreconcilable conflict between the purposes of the [FCA] and the common-law remedy at issue.” Blackburn, 353 N.W.2d at 555; see also Smith, 783 S.W.2d at 586-37 (citing the Blackburn language).

Other courts have not been so quick to dismiss the impact of the savings clause on the preservation of state-law claims under the FCA, but have limited its scope in essentially the same way as the Blackburn court. “Courts in other jurisdictions have held that the savings clause preserves causes of action for breaches of duties distinguishable from those created under the Act.” Coop. Communications, Inc. v. AT & T Corp., 867 F.Supp. 1511, 1516 (D.Utah 1994); see also Kellerman, 98 Ill.Dec. 24, 493 N.E.2d at 1051. The Cooperative Communications court, moreover, noted that the savings clause indicates Congress’s intent to preserve independent state-law causes of action, including intentional interference with prospective economic relations:

In enacting the Communications Act, it is manifest that Congress intended to occupy the field of telecommunications, in order to make available to all people of the United States a rapid, efficient, reasonably-priced communications service, governed by one uniform regulatory scheme. However, inclusion of the savings clause clearly indicates Congress’ intent that independent state law causes of action, such as interference with contract or unfair competition, not be subsumed by the Act, but remain as separate causes of action. Hence, while some state law claims may relate to providers of telecommunications service, [they] nevertheless stand as independent claims not arising under the Communications Act.

Coop. Communications, 867 F.Supp. at 1516; see also A.S.I. Worldwide Communications Corp. v. WorldCom, Inc., 115 F.Supp.2d 201, 207 (D.N.H.2000) (long-distance telephone reseller’s state-law contract and tort claims, including tortious interference with contractual relations, not preempted by the FCA because state regulation not inconsistent with FCA); Ashley v. S.W. Bell Tel. Co., 410 F.Supp. 1389, 1393 (W.D.Tex.1976) (invasion of privacy claim not preempted because FCA remedies “are cumulative to those already existing at common law or by statute” and the FCA “was not designed as a new code for the adjustment of private rights”).

The Missouri Court of Appeals, evaluating the effect of the savings clause under a factual situation (pending upgrade order) similar to the one appellants allege, however, has held that the savings clause does not save a state-law claim for tortious interference with business expectancy. Zimmer, 937 S.W.2d at 405. In Zimmer, plaintiff sued his competitors for tortious interference with business expectancy while his upgrade petition was pending before the FCC. Id. at 403-04. The competitors had allegedly taken counter-action against plaintiff by filing applications with the FCC in order to thwart plaintiffs potential success before the FCC. Id. at 403. The Zimmer court found that a state-law claim for tortious interference with business expectancy “related to a business expectation in a property right [upgrade order] created by the FCA” and, therefore, the FCA “places the exclusive responsibility for [upgrade determinations] with the FCC.” Id. at 405, 406. The plaintiffs state-law claim for tortious interference with business expectancy was therefore preempted. Id. at 406. The savings clause, moreover, did not buttress plaintiffs claim:

If a plaintiffs action “grows out of and depends upon” the FCA, or is based on property rights or duties created under the FCA, the savings clause does not preserve the action.

Id. at 406 (quotation and citations omitted).

In sum, under Blackburn and the cases cited above, in order for the savings clause to preserve a state-law claim, the claim must be based on rights or duties distinguishable from those created under the FCA. Appellants admit that they will have to prove, in order to prevail on a claim for tortious interference with business expectancy:

1. the existence of a reasonable expectation of economic advantage or benefit belonging to Plaintiff;
2. that Defendants had knowledge of that expectation of economic advantage;
3. that Defendants wrongfully and without justification interfered with Plaintiffs’ reasonable expectation of economic advantage or benefit;
4. that in the absence of the wrongful act of Defendants, it is reasonably probable that Plaintiff would have realized his economic advantage or benefit; and
5. that Plaintiff sustained damages as a result of this activity.

Lamminen v. City of Cloquet, 987 F.Supp. 723, 731 (D.Minn.1997) (citing United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632-33 (Minn.1982)).

The district court based the reasons for its order dismissing appellants’ claim for tortious interference with business expectancy on the grounds that, even with the savings clause, the claim is not “distinguishable from those created under the act.” The district court concluded, “The Plaintiffs claims here do not arise out of any separate contractual arrangement * * * but arise solely from the order of the [FCC].” Therefore, the “claims are predicated upon said order and do not establish a distinguishable state law cause of action.”

Respondents claim that Zimmer should guide our analysis. They argue that this set of facts is indistinguishable from Zim-mer because, without the Upgrade Order, appellants would have nothing to support their claim for tortious interference with business expectancy. Respondents allege that appellants’ exclusive remedy for a violation of a FCC order is through FCC or private ■ enforcement in federal district court: We agree.

We conclude that appellants’ claim for tortious interference with business expectancy arose from rights or duties that are indistinguishable from those created under the FCA.

It is undisputed that this controversy arose from respondents’ alleged failure to comply with the Upgrade Order. Although appellants are not asking the district court to enforce the order, modify the order, or rescind the order, they are asking the district court to determine the parties’ legal rights under the Upgrade Order and, consequently, determine what costs would have been reasonable to effect the frequency changeover. The Upgrade Order is essential to appellants’ claim, and, therefore, appellants’ claim is not preserved by the FCA’s savings clause.

DECISION

Appellants’ claim for tortious interference with business expectancy is impliedly preempted by the FCA because it is in irreconcilable conflict with the FCC’s exclusive jurisdiction over technical issues surrounding frequency allocation and radio signal transmission. In addition, the FCA’s savings clause does not preserve appellants’ claim because their cause of action does not arise out of rights and duties distinguishable from those created under the FCA.

Affirmed.

      . The presumption against preemption is a necessary requirement lor a properly functioning and well-balanced federal system. Other courts have also recognized the inherent threat to our federal system when courts improperly cede power to Congress over areas traditionally regulated by the states:
      This presumption [against preemption] "is crucial in our federal system, '[flor if in close or uncertain cases a court proceeds to preempt state laws where that result was not clearly the product of Congress's considered judgment, the court has eroded the dual system of government that ensures our liberties, representation, diversity, and effective governance.' "

        GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, - S.W.3d -, -, 2000 WL 1047011, at *4 (Tex.App. Sept. 13, 2001) (quotations omitted) (second alteration in original).

      . We recognize that the typical fact patterns involving FCA preemption have involved plaintiffs who brought state-law claims impacting the tariffs or rates that common carriers, such as telephone companies, charge customers. See, e.g., Cahnmann v. Sprint Corp., 133 F.3d 484, 488 (7th Cir.1998) (claims for fraud and breach of contract preempted by the FCA because state-law claims could interfere with the FCC's exclusive responsibility to regulate long-distance telephone tariffs). But see, e.g., Kellerman v. MCI Telecomms. Corp., 112 Ill.2d 428, 98 Ill.Dec. 24, 493 N.E.2d 1045, 1051 (1986) (state-law claims for breach of contract, fraud and deceptive advertising not preempted by the FCA because they do not expressly conflict with the FCA or "interfere with the Federal government's authority over interstate telephone charges or services").

      . We are also aware that Head evaluated New Mexico's attempt to regulate radio advertising, not radio-frequency allocation. The Supreme Court, moreover, found that the FCA did not preempt state radio-advertising regulation:
      In the absence of positive evidence of legislative intent to the contrary, we cannot believe Congress has ousted the States from an area of such fundamentally local concern. * ⅜ ⅜ [Tjhere has been no showing of any conflict between this state law and the federal regulatory system, or that the state law stands as an obstacle to the full effectiveness of the federal statute.

        Head, 374 U.S. at 431-32, 83 S.Ct. at 1764. Although Head is not directly on point, its logic applies here. Head dealt with state regulation of advertising, a concept understood by everyone, or at least better understood than the issue in this case of what expenses, if any, should be attributed to frequency changeover costs. Therefore, our holding is not inconsistent with Head; rather it follows the Supreme Court's framework for evaluating implied preemption issues under the FCA.

      . We decline to decide whether a claim for tortious interference with business expectancy is a valid tort claim under Minnesota law. United Wild Rice, which the federal district court of Minnesota and appellants note as approving a claim for tortious interference with business expectancy, only recognized the tort of intentional interference with prospective contractual relations. United Wild Rice, 313 N.W.2d at 632-33. One of the elements a plaintiff must prove to establish a claim for intentional interference with prospective contractual relations is that the defendant “prevent[ed] the [plaintiff] from acquiring or continuing [a] prospective [contractual] relation.” Id. at 633 (quoting Restatement (Second) of Torts § 766B (1979)). Appellants' complaint alleges that they were wrongfully denied the fruits of a business expectancy of increased advertising revenues; the complaint does not allege that respondents’ failure to comply with the Upgrade Order interfered with WWAX’s prospective contractual relationship with a specific third party. Whether this is a distinction without a difference we leave for another day.

      . Because we review this case from the procedural posture of a motion to dismiss for failure to state a claim upon which relief can be granted, we decline to address the merit of appellants' underlying claim. It is worth noting, however, that the Upgrade Order benefited only appellants and created nothing but inconvenience for respondents.

      . Appellants have not cited any case directly on point that supports their position that a claim for tortious interference with business expectancy is not preempted by the FCA, or preserved by the savings clause. Our independent research, however, has found authority supporting the proposition that claims for tortious interference with business expectancy are not preempted, but all are sufficiently distinguishable from the instant case. See, e.g., KVHP TV Partners, Ltd. v. Channel 12 of Beaumont, Inc., 874 F.Supp. 756, 761-62 (E.D.Tex.1995) (claim for torlious interference with business relations between competing TV stations not preempted because claim ”do[es] not depend on the Communications Act”); Uniden Am. Corp. v. Trunking Assocs., 841 S.W.2d 522, 525-26 (Tex.Ct.App.1992) (savings clause preserves state-law claims for fraud, breach of contract, and deceptive practices, but FCA preempts state court injunction preventing a radio station from re-locating pursuant to an FCC grant).


source: Caselaw Access Project

author: FORSBERG, Judge.

license: Public Domain

text:
    MARSHALL COUNTY, in its legal capacity as a drainage authority under Minn.Stat. Chapter 103E, et al., Respondents, v. The STATE of Minnesota & its Department of Natural Resources, et al., Appellants.
    No. CX-01-716.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.

      Michael 0. Freeman, Amy Reed, Lind-quist & Vennum, P.L.L.P., Minneapolis, MN, for respondents.
    Mike Hatch, Attorney General, Craig L. Engwall, Assistant Attorney General, David P. Iverson, Assistant Attorney General, St. Paul, MN, for appellants.
    Noah D. Hall, Leonard, Street and Dei-nard, Minneapolis, MN, for amici curiae Izaak Walton League, et al.
    Considered and decided by ANDERSON, Presiding Judge, SCHUMACHER, Judge, and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

Appellant State of Minnesota challenges the district court’s grant of summary judgment to respondents, requiring the state to pay assessments on state lands for certain ditch improvements. The state alleges (a) there was no approval of the assessment by the Commissioner of the Department of Natural Resources (DNR) under Minn. Stat. § 84A.55, subd. 9 (2000); (b) the legislative history of that section shows that the state is to control assessments on public lands; (c) the district court misread Minn.Stat. § 84A.55, subd. 12 (2000), to limit the commissioner’s authority to approve assessments; (d) the district court erred in concluding that requiring the commissioner’s approval to put an assessment on state lands violates the landowner’s right to have a ditch repaired; and (e) the lack of administrative rules regarding the determination of benefits for state lands does not preclude application of Minn.Stat. § 84A.55, subd. 9.

FACTS

In the early 20th century, large amounts of land in northern Minnesota deemed unsuitable for agriculture became part of a massive construction project that created a system of public ditches to drain the land. Construction costs were charged back to the landowners benefiting from the system as ditch assessments. But much of this land proved incapable of supporting agriculture — even after these ditches were constructed — and many farms went bankrupt as the result of unpaid ditch liens. The massive forfeitures threatened the financial collapse of the affected counties. The state took title to this land in 1929 as part of a tax-forfeiture bailout, and the DNR now manages more than 1.5 million acres of this tax-forfeited land commonly known as consolidated conservation lands, or “con-con” lands, under the supervision of its commissioner. The acts governing the con-con lands are codified in chapter 84A of the Minnesota statutes. Over the years, the DNR has classified these lands for various purposes, including forestry, wildlife, and flood control.

Marshall, Beltrami, and Roseau counties (respondent counties) in their capacities as drainage authorities have constructed and maintained drainage systems in each of the respective counties for many decades. In order to fund these systems, respondent counties have levied assessments against the lands that purportedly benefit from each system, including state-owned con-con lands.

During the 1980s, the state disputed assessments made by respondent counties against the con-con lands, arguing that the assessments were not in line with the true benefits to those lands. In 1989, the state attempted to work with respondent counties to establish a redetermination of benefits to the con-con lands. In July 1992, the state sent a letter to respondent counties indicating that it would pay the assessments that had been presented over the previous ten years, but would not pay any future assessments until a joint review of the benefits was completed. Then, in 1993, the state ceased paying assessments on Marshall, Beltrami, and Roseau county con-con lands where a redetermination had not taken place. The state continued to pay assessments on lands other than con-con lands and on con-con lands where a redetermination of benefits had taken place.

Respondent counties and certain landowners brought this action in an effort to force the DNR to pay drainage assessments for ditch repairs. The parties brought cross-motions for summary judgment on stipulated facts. The district court granted respondents’ motion for summary judgment, and this appeal followed.

ISSUES

I. Does the Commissioner of the Department of Natural Resources have discretion to decline to pay ditch assessments as determined by counties acting as chapter 103E drainage authorities?

II. May agency action be barred by that agency’s failure to promulgate a rule within a statutory time frame?

III. Does a property right in a drainage system compel the state to pay ditch assessments as determined by counties acting as chapter 103E drainage authorities?

ANALYSIS

The state appeals from summary judgment, arguing that Minn.Stat. § 84A.55, subd. 9 (2000), grants the commissioner discretion in approving or denying assessments on con-con lands. On appeal from summary judgment on stipulated facts, this court’s lone task is to determine if the district court erred in its application of the law. Fingerhut Corp. v. Suburban Nat’l Bank, 460 N.W.2d 63, 65 (Minn.App.1990). Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, to be reviewed de novo. Lefio v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

I.

Respondents argue that chapter 103E makes payment of ditch assessments mandatory. Chapter 103E establishes the rules by which drainage authorities build and maintain public drainage systems. The drainage authority evaluates a proposed project in light of several environmental and land-use criteria to establish whether it is “of public utility, benefit, or welfare.” Minn.Stat. § 103E.015 (2000). State lands used for conservation may be assessed. See Minn.Stat. § 103E.025, subd. 3 (2000). In determining benefits to the state land, “proper consideration must be given to the value of the area for the purpose it is held or used by the state.” Id. The process for assessing drainage benefits and damages is laid out in Minn. Stat. § 103E.315, subds. 5-8 (2000). Upon proper consideration of the proposed project, the drainage authority shall establish file project if, inter alia, it will be of public utility and benefit and the estimated benefits are greater than the total estimated cost. Minn.Stat. § 103E.341, subd. 2 (2000). This determination may be redetermined if it is no longer accurate. Minn. Stat. § 103E.351 (2000).

After the drainage system is established, the drainage authority must maintain it. MinmStat. § 103E.705 (2000). “All * * * costs of * * * repair * * * must be assessed against the property and entities benefited.” Minn.Stat. § 103E.725 (2000).

Although respondents assert that the whole of chapter 103E evinces a “clear intent” that the state pay assessments on its land, they are unable to cite any provision that is so clear. Section 103E.025, subdivision 5, simply notes the source of the funds from which assessments must be paid; section 103E.315, subdivisions 1 and 2, only provide that benefits and damages must be reported for state lands generally; and section 103E.615, subdivision 5, merely provides that state property is “assessable,” reiterates the location of the funding source to be used for paying assessments, and even specifically provides that the state officer with jurisdiction over the property must certify the assessment first.

The balance of respondents’ chapter 103E argument is that, because it compels the maintenance and establishment of drainage systems, the state is therefore compelled to pay for them. But this conclusion does not follow. Even if the county must maintain certain ditches, respondents fail to cite any rationale for why the state is compelled to pay for them.

In contrast, chapter 84A grants the state discretion in paying assessments on con-con lands. A significant point of emphasis throughout chapter 84A is the power of the commissioner to manage the con-con lands. See Minn.Stat. §§ 84A.02, .21, .32 (2000). Minn.Stat. § 84A.55, subd. 9, provides:

Drainage. The commissioner may make necessary investigations and surveys for and may undertake projects for the drainage of state-owned lands within a game preserve, conservation area, or other area subject to this section so far as the commissioner determines that the lands will benefit from the project for the purposes for which the area was established. The commissioner may pay the cost of drainage projects out of funds appropriated and available for them. If the commissioner finds after investigation that a project for the construction, repair, or improvement of a public ditch or ditch system undertaken by a county or other public agency as otherwise provided by law will benefit the lands for those purposes, the commissioner may cooperate in the project by joining in the petition for the project or consenting to or approving it on any conditions the commissioner determines. The commissioner shall authorize the imposition of assessments for the projects on the lands in any amounts the commissioner determines, or may make lump sum contributions to the county or other public funds established for the payment of the cost of the project. The assessments or contributions must not exceed the value of benefits to the state-owned lands as determined by the commissioner and specified by written certificates or other statement filed in the proceedings. Assessments or contributions are payable only out of funds appropriated and available for them in amounts the commissioner determines.

(Emphasis added.) The repeated use of discretionary language in this provision reveals the intent to grant the commissioner almost total discretion in deciding how much should be paid for assessments on con-con lands.

Respondents assail this provision in several ways. First, they argue that this provision does not address ditch maintenance, but only construction, repair, or improvement of future ditches. But respondents do not indicate how ditch maintenance is distinguishable from ditch repair, and we make no such distinction independently.

Respondents next suggest that section 84A.55, subdivision 12, prohibits the commissioner from declining to pay the assessment as determined by the counties. This provision states:

Nothing shall be done under this section that will interfere with the operation of ditches or drainage systems existing in [the con-con lands] * * *, unless the right to them is first acquired by the commissioner by purchase or condemnation, upon payment of just compensation to the political subdivision, public agency, or person affected and damaged.

At issue here is the meaning of the phrase “nothing shall be done * * ⅜ that will interfere with the ⅜ * * [existing] ditches or drainage systems.” Respondents argue that this is a broadly-worded phrase that prevents the commissioner from refusing to pay assessments as determined by the counties. But that interpretation would certainly conflict with the discretion accorded to the commissioner in section 84A.55, subdivision 9, a disfavored result. See Minn.Stat. § 645.26, subd. 1 (2000) (stating that apparently conflicting statutes should be harmonized where possible). The meaning of section 84A.55, subdivision 12, is narrower than that proposed by respondents. As the state suggests, this provision forbids physical alteration of the ditch system without the state first acquiring property rights. Because section 84A.55, subdivision 12, need not be read to conflict with section 84A.55, subdivision 9, we decline to construe it as broadly as suggested by respondents.

Finally, respondents suggest that to grant this authority to the state would effectively invalidate chapter 103E. But as noted earlier, chapter 103E does not grant authority to the counties to be the final arbiters of the appropriate ditch assessment. Rather, it only prescribes how counties are to make such assessments. Furthermore, even if chapters 84A and 103E did conflict, chapter 84A prevails because, as its focus is limited to con-con lands, it is the more specific statute. See Minn.Stat. § 645.26, subd. 1 (specific statutes prevail over general ones).

The principle emerging from reading all of these statutes together is that chapter 103E permits counties to make assessments to lands (including con-con lands); section 84A.55, subdivision 9, grants the commissioner the discretion to pay such assessments to the extent to which they are beneficial; and section 84A.55, subdivision 12, forbids the commissioner from eliminating or physically altering existing ditches or drainage systems that they do not own — even if the commissioner determines that they are detrimental to the con-con lands.

II.

Respondents next argue that the commissioner’s failure to establish, through the rulemaking process, the procedures for determining benefits for the con-con lands has resulted in an arbitrary agency action. Minn.Stat. § 84A.55, subd. 9, provides that the

commissioner of natural resources shall establish by rule before January 1, 1986, the criteria for determining benefits to state-owned lands held or used to protect or propagate wildlife, provide hunting or fishing for the public, or serve other purposes relating to conservation, development, or use of soil, water, forests, wild animals, or related natural resources.

By all accounts, the commissioner has failed to do so. Respondents suggest that this failure makes the commissioner’s subsequent refusal to pay the assessments an arbitrary state action. The state, on the other hand, argues that this failure is irrelevant — the statute still grants the commissioner discretion.

As the rule-making requirement of section 84A.55, subdivision 9, was not added until 1984, the balance of section 84A.55, subdivision 9 (granting the commissioner discretion in paying assessments), was in effect prior to the requirement that the discretion be exercised pursuant to an established rule. Clearly, prior to 1984, the commissioner could exercise discretion independent of any rule-making requirement. The only issue remaining, then, is whether the addition of the rule-promulgation requirement made determinations after January 1, 1986, arbitrary if made without the benefit of a rule.

Although this question has not been previously addressed in Minnesota, federal courts recognize that the failure of an agency to act within a statutory time frame does not bar subsequent agency action absent a specific indication that the time frame was intended to act as a bar. Idaho Farm, Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1400 (9th Cir.1995) (interpreting clause in endangered-species act requiring secretary of the interior to act on proposed listings within a year by publishing either a rule or a notice withdrawing the rule). This intent may be manifested through legislative history, statutory language prescribing consequences for failure to promulgate the rule, and the availability of a less drastic remedy, such as a suit to compel agency action. Id.

Here, respondents have shown no legislative history, the rule itself does not prescribe any consequence for the agency’s failure, and the counties retained the ability to compel the commissioner, through a mandamus proceeding, to continue with the rule-making process. The fact that respondents chose to not do so speaks more to respondents’ legal strategy than the equity of the matter; if they had sought mandamus, they would have effectively admitted the DNR’s power to independently determine what benefits the agency would finance. We conclude that agency action in this case is not barred by the failure to promulgate an appropriate rule in a timely manner.

III.

Lastly, respondents allege that private landowners affected by a drainage system maintain a property right in the drainage system, and that the DNR’s failure to pay the assessments has improperly divested the other landowners of that property right. Indeed,

when a ditch system is once established, owners of land who * * * have been assessed for benefits for its construction have a vested property right in the maintenance of the ditch in the same condition as it originally was established, which right cannot be divested without due process of law.

Oelke v. Faribault Cty., 244 Minn. 543, 552, 70 N.W.2d 853, 860 (1955); see also Fischer v. Town of Albin, 258 Minn. 154, 158, 104 N.W.2d 32, 35 (1960). While the state quibbles over whether this right extends to, for example, the right to demand a specific repair, it does not contest the existence of such a property right. The existence of this right is further evidenced by the legislature’s specific instruction that the DNR shall not obstruct or interfere with the operation of existing drainage systems unless compensation is made to affected property. Minn.Stat. §§ 84A.32, subd. 1(d), .55, subd. 12.

But the mere existence of a property right does not mean that the DNR must pay the assessments as determined by the counties. It is not a deprivation of property rights to limit assessments to the extent of benefits. In the Matter of the Redetermination of Benefits of Nicollet County Ditch 86A, 488 N.W.2d 482, 486 (Minn.App.1992). Furthermore, the state’s refusal to pay for assessments that it believes are unsupported does not change the property rights of the parties. Respondent counties are not relieved of their duty to maintain the ditches. Although the state-paid portion of the ditch-maintenance costs may decrease, thereby increasing the financial burden on the counties and private landowners, see Minn. Stat. § 103E.728 (2000) (costs of ditch repair assessed “pro rata” on the benefiting property and entities), respondents have not suggested the source of any right to have drainage subsidized by the DNR when the DNR has determined that it receives no benefit from the drainage.

IV.

Respondents’ motion to strike the ami-cus curiae brief and appendix is denied.

DECISION

The Commissioner of the Department of Natural Resources was authorized to decline to pay ditch assessments as determined by counties acting as chapter 103E drainage authorities. The Minnesota Department of Natural Resources’ failure to promulgate a rule pertaining to payment of ditch assessments within the statutory time frame did not bar the department from subsequently declining to pay those assessments. The state is not compelled to subsidize the cost of constitutionally-guaranteed drainage ditches where it has determined that its lands are not benefited by the ditches.

Reversed; motion denied.

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

      . Contrary to respondents’ assertions, this provision does not stand for the proposition that assessments are mandatory for all benefiting property owners. The subject of Minn. Stat. § 103E.725 is "fees and costs” and not "the property and entities benefited.” Therefore this provision refers only to which costs are included (all) and not to whom they might be assessed.

      . Minn.Stat. § 103E.025, subd. 5 (2000), states:
      Assessments for benefits made against the state land or water area in a proceeding must be paid out of money appropriated and available to pay assessments as provided by law.

      . Minn.Stat. § 103E.315, subd. 1 (2000), stales:
      Property owned by the state must have benefits and damages reported in the same manner as taxable lands subject to the provisions relating to conservation areas in section 103E.025.
      Minn.Stat. § 103E.315, subd. 2 (2000), states:
      The viewers shall report the benefits and damages to the state, counties, and municipalities from the proposed drainage project. The property within the jurisdiction of a municipality, whether owned by the municipality or by private parties, may be assessed as benefits and damages to the municipality.

      .Minn.Stat. § 103E.615, subd. 5 (2000), states:
      State property, including rural credit property, is assessable for benefits received. The assessment must be paid by the state from funds appropriated and available for drainage assessments after the state officer having jurisdiction over the assessed property certifies the assessment to the commissioner of finance.

      . As a preliminary matter, we note that this very argument presumes the relevance of the commissioner's determination.


author: KLAPHAKE, Judge.

text:
    Bryan CORRELL, Relator, v. DISTINCTIVE DENTAL SERVICES, P.A., and Commissioner of Minnesota Department of Human Rights, Respondents.
    No. C4-01-1005.
    Court of Appeals of Minnesota.
    Dec. 11, 2001.

      William J. Egan, Edina, for relator.
    Duane G. Johnson; and John D. Hagen, Jr., Minneapolis, for respondent Distinctive Dental Services.
    Mike Hatch, Attorney General, Erica Jacobson, Assistant Attorney General, St. Paul, for respondent Commissioner.
    Considered and decided by HALBROOKS, Presiding Judge, KALITOWSKI, Judge, and KLAPHAKE, Judge.
   OPINION

KLAPHAKE, Judge.

By writ of certiorari, relator Bryan Cor-rell challenges an administrative law judge’s (ALJ) denial of his request for attorney fees under Minn.Stat. § 363.071, subd. 2 (2000). Correll had filed a complaint with respondent Commissioner of Minnesota Department of Human Rights, alleging that respondent Distinctive Dental Services, P.A. (Distinctive Dental) unlawfully discriminated against him on the basis of his marital status. Because the ALJ has broad authority to award attorney fees under the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363.01-.20 (2000), and because the fees incurred by Correll in petitioning to stay Distinctive Dental’s demand for arbitration were necessary to continuation of the administrative proceedings before the ALJ, we reverse the denial of fees and remand to the ALJ to determine a reasonable amount of fees.

PACTS

Correll began working as a dentist for Distinctive Dental in February 1994. His employment agreement included a non-compete clause. In September 1994, Cor-rell was fired for “breach of contract” after his wife, who is also a dentist, began practicing with one of Distinctive Dental’s competitors.

In September 1995, Correll filed a charge with the department, alleging marital status discrimination under Minn.Stat. § 363.03, subd. l(2)(b) (1994). The department conducted an investigation, made a probable cause determination favorable to Correll, issued a complaint, and scheduled a hearing before an ALJ under Minn.Stat. §§ 363.06, subd. 4(3), .071 (1994).

Shortly before the scheduled hearing, Distinctive Dental filed a demand for arbitration. Correll hired an attorney and, in 1998, filed a petition in district court to stay arbitration under Minn.Stat. § 572.09(b) (1998). He argued that proceedings under the MHRA, while pending, are exclusive under Minn.Stat. § 363.11 (1998). The district court agreed and ordered the arbitration stayed. On appeal, this court reversed, concluding that public policy favors arbitration. Correll, D.D.S. v. Distinctive Dental Servs., P.A., 594 N.W.2d 222 (Minn.App.1999). The supreme court granted review and reversed this court, concluding that charges pending before the department are not subject to arbitration even if the parties have a preexisting agreement to arbitrate. Cor-rell, D.D.S. v. Distinctive Dental Sews., P.A., 607 N.W.2d 440 (Minn.2000). The supreme court thus held that Correll was entitled to a stay of arbitration. Id. at 447.

The matter returned to the ALJ, who found that Distinctive Dental had unfairly discriminated against Correll. The ALJ awarded Correll $34,103.04 in compensatory damages under Minn.Stat. § 363.071, subd. 2 (2000). The ALJ also concluded that the department was entitled to its litigation and hearing costs under Minn. Stat. § 363.071, subd. 7 (2000).

The ALJ refused, however, to award Correll attorney fees incurred in connection with his petition to stay arbitration. The ALJ concluded that because the petition to stay arbitration “revolved around a legal procedural issue, not the merits of the [discrimination] claim,” he was not authorized to award Correll fees under Minn. Stat. § 363.071, subd. 2. This appeal followed.

ISSUES

1. Is Correll inappropriately raising issues for the first time on appeal and does his failure to file a reply brief suggest that his position is weak or without merit?

2. Did the ALJ err in refusing to award Correll fees incurred in connection with his petition to stay arbitration?

ANALYSIS

This case involves the ALJ’s authority to award fees under the MHRA, which is purely a legal issue subject to a de novo standard of review. See State v. Pflepsen, 590 N.W.2d 759, 763 (Minn.1999) (“questions concerning the authority and jurisdiction of the lower courts are legal issues subject to de novo review”); Frosb-Benco Elec. Ass’n v. Minn. Public Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984) (agency’s authority and jurisdiction over particular area is legal issue subject to de novo review); McLain v. McLain, 569 N.W.2d 219, 222 (Minn.App.1997) (“This court reviews legal issues concerning jurisdiction de novo.”), review denied (Minn. Nov. 18, 1997). This case also involves statutory construction and application of a statute to undisputed facts, which constitute questions of law subject to de novo review. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998); O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

I.

Distinctive Dental insists that Cor-rell relies on legal theories that were never raised before the ALJ. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (party may not “obtain review by raising the same general issue litigated below but under a different theory”). We disagree. The arguments now advanced by all parties, including Distinctive Dental, focus on the ALJ’s analysis and stated reasons for denying fees. Because these arguments present legal issues that are necessary to our review of the ALJ’s decision, they are not new issues and are within our .scope of review. See Minn. R. Civ.App. P. 103.04 (appellate court may decide issue in interests of justice).

At oral argument before this court, Distinctive Dental also asserted that Correll’s failure to file a reply brief demonstrates weakness in his case. Again, we disagree. A reply brief is optional. See Minn. R. Civ.App. P. 128.02, subd. 3 (providing that appellant “may” file reply brief, which “must be confined to new matter raised” in respondent’s brief); State v. Kelly, 535 N.W.2d 345, 348 (Minn.1995) (stating that reply briefs are discretionary and limited in scope). Thus, Correll’s failure to file a reply brief does not reflect on the merits of his case.

II.

A party may not recover attorney fees from an opponent unless a statutory or contractual provision expressly allows for such recovery. Hoang Minh Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000). The MHRA allows victims of discrimination to recover attorney fees under a number of provisions, depending on the course of action chosen. See Minn.Stat. §§ 363.14, subd. 3 (authorizing attorney fees to prevailing party in civil action), .071, subd. la (authorizing attorney fees to aggrieved party who requests hearing), .071, subd. 2 (authorizing ALJ to award attorney fees to aggrieved party) (2000).

Minn.Stat. § 363.071, subd. 2, the statute at issue here, gives an ALJ considerable discretion to fashion relief for victims of discrimination. That discretion includes ordering an offending party to cease and desist from discriminatory practices; imposing civil penalties; ordering the hiring, reinstatement, or position upgrading of an aggrieved party; and awarding back pay, treble damages, damages for emotional distress, and up to $8,500 in punitive damages. Id. With respect to attorney fees, Minn.Stat. § 363.071, subd. 2 states: “In all cases, the Administrative Law Judge may also order the Respondent to pay an aggrieved party, who has suffered discrimination, * * * reasonable attorney’s fees[.]” The supreme court has held that courts should not infer limitations on the relief available under Minn. Stat. § 363.071, subd. 2. Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995).

The ALJ nevertheless concluded that he lacked authority to award Correll attorney fees incurred outside the contested case proceeding. He reasoned that when “collateral district court proceedings are involved, the prevailing party’s entitlement to attorney’s fees should be decided by the presiding district or appellate court[.]” Distinctive Dental expands on the ALJ’s reasoning and argues that the authority to award attorney fees on appeal belongs exclusively to Minnesota appellate courts under Minn. R. Civ.App. P. 139.06. This argument is misplaced.

Until there was a contested case hearing and a finding of discrimination Correll was not an “aggrieved party,” and there was no substantive basis for awarding fees under MinmStat. § 363.071, subd. 2. Had Correll sought fees from this court or the supreme court, his request would have been denied, absent some other contractual or legal basis for such an award. Rule 139.06 merely provides a procedure for seeking attorney fees incurred in the appellate courts and provides no substantive basis for claiming fees. Minn. R. Civ.App. P. 139.06 1998 advisory comm. cmt. Although the rule allows for a “pre-decision” award of fees, such an award must be “allowed by law” or have some substantive basis. See Minn. R. CivApp. P. 139.06, subd. 3 (“[wjhere allowed by law, a pre-decision application for fees * * * may be made by motion”); see also Brett v. Watts, 601 N.W.2d 199, 202 (Minn.App.1999) (denying request for attorney fees incurred on motion to strike where other party acted in good faith and no other substantive basis existed to provide exception to general rule that parties are responsible for their own legal costs), review denied (Minn. Nov. 17,1999).

The ALJ further reasoned that he lacked authority to award attorney fees to Correll because the litigation over the arbitration involved a procedural question that was not causally linked to the merits or success of the discrimination claim. This “procedural” or “causal link” requirement was based on the ALJ’s reading of several federal cases in which courts awarded fees incurred in collateral, separate proceedings, when those fees were useful or necessary to resolution of the discrimination claims. See, e.g., Stathos v. Bowden, 728 F.2d 15 (1st Cir.1984) (fees incurred during state declaratory action allowed where underlying issues “virtually identical” to discrimination claims); Stover v. Riley, 30 F.Supp.2d 501, 505-06 (E.D.Pa.1998) (fees allowed under Title VII for work done in mandatory administrative proceeding that was jurisdictional prerequisite to commencement of Title VII action); Spradley v. Notami Hosps. of Fla., Inc., 892 F.Supp. 1459, 1462-63 (M.D.Fla.1995) (same); Williams v. Sec. of the Navy, 853 F.Supp. 66, 70 (E.D.N.Y.1994) (awarding only those fees for work that was useful and necessary to achieve a settlement of the discrimination charge); Petite v. Reno, 822 F.Supp. 815 (D.D.C.1993) (fees incurred in collateral, administrative proceeding allowed where underlying issues “closely tied together” with discrimination claim).

The ALJ may have correctly concluded that because the dispute over the petition to stay arbitration was unrelated to the merits of the discrimination claim, the services provided in connection with the petition were not necessarily useful or helpful to the discrimination claim. The ALJ failed, however, to properly consider whether the fees were necessary or mandatory to the continuation of the discrimination claim. Although Correll initially had a choice to arbitrate his claim under the terms of his employment agreement, he also had a choice to bring a civil action or file a charge with the department. See Minn.Stat. §§ 363.06, .14 (2000). Once Correll chose to file a charge with the department, and the department issued a probable cause determination and set the matter for hearing, arbitration was no longer an option. See Correll, 607 N.W.2d at 444 (noting that the MHRA specifically allows arbitration only in two circumstances and that “[b]ecause Correll had already filed a charge with the department, which made a probable cause determination and set the matter for hearing before the arbitration demand was made, neither of these circumstances [was] present”).

At that point, Correll’s petition to stay Distinctive Dental’s demand for arbitration was necessary to the continued pursuit of his discrimination claim. Had Correll done nothing and allowed arbitration to proceed, any arbitration award could have been challenged as unenforceable because, as the supreme court held, Minn.Stat. § 363.11 “precludes arbitration of [any] pending human rights act claim.” Con-ell, 607 N.W.2d at 447. We therefore conclude that because the fees incurred by Correll in connection with his petition to stay arbitration were necessary or mandatory to pursuit of his discrimination claim, the ALJ erred in refusing to award Correll fees under Minn.Stat. § 363.071, subd. 2.

This reading of Minn.Stat. § 363.071, subd. 2 properly construes this provision of the MHRA by giving the ALJ broad authority to award reasonable attorney fees when appropriate. See Minn. Stat. § 363.11 (“provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof’). An award of attorney fees here serves to fulfill the fundamental purposes of the MHRA, which include placing individuals who have suffered discrimination in the same position they would have been in had no discrimination occurred, encouraging victims of discrimination to pursue their claims, and encouraging attorneys to represent those victims. See Giuliani v. Stuart Corp., 512 N.W.2d 589, 596-97 (Minn.App.1994) (recognizing that attorneys who prevail in discrimination cases “serve an important public function which accomplishes a social objective identified by the [MHRA] ”).

Finally, Distinctive Dental argues that if this court determines that the ALJ had authority to award fees, the matter must be remanded. We agree. The ALJ found that Correll “incurred $32,463.60 in attorney fees in challenging [Distinctive Dental’s] arbitration demand,” but he made no findings regarding the reasonableness of this amount. Indeed, the parties did not fully address this issue below, and the ALJ believed that he was “not in a position to evaluate Dr. Correll’s counsel’s performance or the reasonableness of his fees.” Because the amount of attorney fees to be awarded under the MHRA is discretionary with the district court or, in this case, the ALJ, we remand for a determination of a reasonable fee award. See Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 630 (Minn.1988).

DECISION

The ALJ’s denial of the request for attorney fees to Correll under Minn.Stat. § 363.071, subd. 2 is reversed. The matter is remanded to the ALJ to determine a reasonable fee award.

Reversed and remanded.

      . The commissioner appears as a respondent, but aligns himself with Correll and urges reversal. Although not a proper respondent in this appeal, the commissioner has not raised separate issues, and Distinctive Dental has not claimed any prejudice. See In re Petitions to Adopt K.L.L., 515 N.W.2d 618, 623 (Minn.App.1994) (refusing to strike respondent’s brief that supports appellant's position, when brief does not raise separate issues and no prejudice established).

      . Minn.Stat. § 363.14, subd. 3, provides that "[i]n any action or proceeding brought pursuant to this section,” a court may award the "prevailing party a reasonable attorney’s fee as part of the costs.” Although this language is virtually identical to that of Title VII, 42 U.S.C. § 2000e-5k (1994), it is different from the language of Minn.Stat. § 363.071, subd. 2, which allows attorney fees in "all cases.” Because Title VII does not provide for administrative hearings on discrimination claims, no statutory counterpart to Minn.Stat. § 363.071, subd. 2 exists in federal law. Thus, while Title VII cases may be discussed by analogy, they do not control here. See Cummings v. Koehnen, 568 N.W.2d 418, 422 n. 5 (Minn.1997) (declining to follow federal Title VII cases where language of MHRA dissimilar to Title VII).


author: MULALLY, Judge.

text:
    In re CONTEMPT OF ECKLUND.
    No. C2-01-385.
    Court of Appeals of Minnesota.
    Dec. 11, 2001.

      Andrew S. Birrell, R. Travis Snider, Eric L. Newmark, Birrell & Newmark, Ltd., Minneapolis, for appellant.
    Mike Hatch, Attorney General, St. Paul; and Michael Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney, Glencoe, for respondent.
    Considered and decided by PETERSON, Presiding Judge, FORSBERG, Judge  and MULALLY, Judge.

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

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

   OPINION

MULALLY, Judge.

The case concerns the assertion of the Fifth Amendment privilege against self-incrimination by Heather Ecklund, who was subpoenaed as a witness during the jury trial of M.A.B.A., a minor. M.A.B.A. was acquitted of the charges against her in relation to the death of Randy Pool. Eck-lund was found to be in contempt for refusing to answer questions at M.A.B.A.’s trial. Because we find that the contempt order violated appellant’s privilege against self-incrimination, we reverse.

FACTS

In July 1999, appellant was involved in the murder of Randy Pool. The state charged appellant with three criminal counts in connection with the crime. Count II was a charge of second-degree murder under Minn.Stat. § 609.19, subd. 1(1) (1998).

Appellant agreed to plead guilty to second-degree murder and all other charges against appellant were dropped. Appellant’s guilty plea was entered on February 3, 2000. The plea agreement did not require appellant to testify against co-defendants, but she could have earned a sentence reduction by doing so.

On March 27, 2000, appellant testified for the state at the trial of an accomplice, Shawn McCollum. Appellant was subsequently sentenced on June 2, 2000, to 36 years in prison, without receiving a sentence reduction for testifying against McCollum. In early 2001, M.A.B.A., a minor, was also charged in connection with Pool’s death. The state subpoenaed appellant to testify. On January 31, 2001, appellant appeared before the district court, but refused to testify, asserting her Fifth Amendment privilege against self-incrimination. The district court heard arguments from the parties regarding appellant’s Fifth Amendment assertion. The district court found appellant waived her Fifth Amendment privilege by testifying at McCollum’s trial. The district court found appellant in contempt and stayed enforcement of the order for two days, to allow appellant to purge her contempt.

On February 2, 2001, appellant again appeared before the district court. The district court heard arguments regarding the waiver issue and took the matter under advisement. On February 21, 2001, the district court issued an order finding appellant in contempt, and sentenced her to 90 days in jail and imposed a $700 fine.

ISSUES

I. Did the district court err in finding that appellant waived her Fifth Amendment privilege against self-incrimination when appellant (a) testified at the trial of an accomplice without a grant of federal immunity and (b) pleaded guilty to second-degree murder, but refused to testify at a later trial against a different alleged accomplice?

II. Did the district court properly consider the-use immunity statute, Minn.Stat. § 609.09 (1998), even though the prosecutor never made a written request under this section to the court?

ANALYSIS

I.

“[WJhether the trial court violated [a witness’s] Fifth Amendment privilege against self-incrimination is a question of law which this court reviews de novo.” State v. Kaquatosh, 600 N.W.2d 153, 156 (Minn.App.1999), review denied (Minn. Dec. 14, 1999).

The Fifth Amendment to the United States Constitution provides that “[n]o person shall be * * * compelled in any criminal case to be a witness against himself * * U.S. Const, amend. V. The Minnesota Constitution provides the same protection against self-incrimination. Minn. Const, art. I, § 7. “The Fifth Amendment privilege is * * * fundamental to our system of constitutional rule * * *." Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966).

The object of the Amendment was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that [s]he [herself] had committed a crime.

Maness v. Meyers, 419 U.S. 449, 473, 95 S.Ct. 584, 598, 42 L.Ed.2d 574 (1975) (White, J., concurring) (quotation omitted). The privilege applies to witnesses, as well as to defendants. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924).

A. Waiver by Testimony at Accomplice’s Trial

The district court found that appellant had waived her privilege against self-incrimination by testifying at the trial of her accomplice, Shawn McCollum. In its conclusions of law, the district court stated,

Ecklund has essentially waived her right to assert a Fifth Amendment privilege, in this proceeding, after testifying during the McCollum trial without any grant of federal immunity.

The district court found that because of the waiver, appellant had no constitutional right to refuse to testify and appellant was in contempt for not complying with the subpoena.

It is clear that a person may waive her Fifth Amendment privilege. Rogers v. United States, 340 U.S. 367, 372-73, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951); see also State v. Falcone, 292 Minn. 365, 371, 195 N.W.2d 572, 578 (1972).

The district court’s conclusion that appellant waived her Fifth Amendment privilege, however, is contrary to prevailing law.

[T]he courts agree that disclosure of incriminating facts in one trial does not bar a witness from refusing to testify as to those same matters in another trial.

1 McCormick on Evidence § 134, at 499 (John W. Strong et al., eds., 5th ed. 1999) (citing State v. Linscott, 521 A.2d 701, 703 (Me.1987) (holding that witness’s invocation of Fifth Amendment privilege was justified because of possible future incrimination)). A witness’s waiver of the privilege is limited to the particular proceeding in which the witness offered her testimony. United States v. Burch, 490 F.2d 1300, 1303 (8th Cir.1974).

Wigmore’s treatise on evidence states “[t]he waiver involved is limited to the particular proceeding in which the witness volunteers the testimony * * *, [n]or is [her] testimony at a first trial a waiver for a later trial.” 8 Wigmore, Evidence § 2276, at 470-72 (McNaughton Rev.1961) (emphasis in original) (citations omitted); see also United States v. Cain, 544 F.2d 1113, 1117 (1st Cir.1976); State v. Knowles, 395 So.2d 678, 680 (La.1981) (holding that a person can waive silence at one trial, but assert Fifth Amendment right as to same matter in a later trial). Relevant commentary also supports this view. See Leslie W. Abramson, Witness Waiver of the Fifth Amendment Privilege: A New Look at an Old Problem, 41 Okla. L.Rev. 235, 245 (1988); see also Alston v. United States, 383 A.2d 307 (D.C.1978). The parties do not cite any Minnesota case directly on point. Therefore, this is a case of first impression in this state.

Appellant argues that In re Neff, 206 F.2d 149 (3d Cir.1953) is on point. In Neff, the defendant answered questions before a grand jury and was indicted and later found guilty of perjury because of her responses before the grand jury. Id. at 150. Later, the defendant was called as a witness in a trial concerning the same matter as her grand jury testimony. The court found defendant in contempt after defendant refused to answer questions at the trial. Id. at 151. The Third Circuit held that the defendant’s prior grand jury testimony did not waive her Fifth Amendment privilege at the subsequent trial. The court, therefore, overturned the defendant’s contempt conviction because she had the right to refuse to answer questions consistent with her Fifth Amendment privilege. The court observed that a witness’s Fifth Amendment rights attach at each proceeding or case, and must be determined without reference to what was said at another proceeding. Id. at 152.

This case is analogous to Neff in some ways. Appellant testified at an earlier proceeding (McCollum’s trial). The district court found appellant in contempt for refusing to answer related questions at a second proceeding (M.A.B.A.’s trial). But here, appellant is not contesting her own conviction for her part in Pool’s death. In Neff, the defendant was simultaneously contesting her perjury conviction and refusing to answer related questions. While Neff does lend some support to appellant’s argument, it is not directly on point.

We conclude, however, that the authorities cited above support the conclusion that any testimony appellant offered at McCol-lum’s trial waived her Fifth Amendment privilege for the pur-poses of that trial only. M.A.B.A.’s trial was a different proceeding. Under Alston, Knoiules, Lin-scott, and the secondary authorities cited above, appellant’s waiver at McCollum’s trial of her privilege against self-incrimination applied only to that proceeding, and did not prevent her from asserting the privilege at M.A.B.A.’s trial.

B. Wavier by G-idtty Plea

Respondent argues that appellant’s guilty plea acted as a waiver of her Fifth Amendment privilege regarding her involvement in Pool’s death. The United States Supreme Court has recognized in dicta that there is an abundance of authority to support the proposition that once a person is convicted of a crime, she no longer has a privilege against self-incrimination. This principle follows because a defendant can no longer be incriminated by later testimony about that particular crime. Reina v. United States, 364 U.S. 507, 513, 81 S.Ct. 260, 264, 5 L.Ed.2d 249 (1960).

Appellant, however, is not concerned with potential new state charges. The State of Minnesota, has already sentenced her for her role in Pool’s death. Appellant is concerned with possible federal indictment. Respondent concedes that there is the possibility of further prosecution under 21 U.S.C. § 848(e)(1)(A) (2000) (prohibiting “continuing criminal enterprise”) and 18 U.S.C. § 3591(b)(1) (2000) (providing sentence of death for certain “continuing criminal enterprise” offenses). The Fifth Amendment privilege applies to a witness in a state prosecution who can show that her testimony could be used against her in a federal prosecution. Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964). Although the Supreme Court has questioned some of the reasoning in Murphy, its holding on the “dual jurisdiction” scope of the privilege has not been overruled. See United States v. Balsys, 524 U.S. 666, 683-84, 118 S.Ct. 2218, 2228, 141 L.Ed.2d 575 (1998) (rejecting Murphy’s “innovative” reconceptualization of the privilege against self-incrimination as being based on a concern for personal privacy).

Because the district court erred by finding that appellant waived her Fifth Amendment rights, the contempt order must be overturned. “[A] witness cannot be cited for contempt for refusing to answer questions on the basis of a valid assertion of the Fifth Amendment privilege * * *.” Minnesota State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 311 Minn. 276, 283, 248 N.W.2d 733, 740 (1976).

II.

Application of MinnStat. § 609.09

Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). The district court stated that it reviewed Minn.Stat. § 609.09, subd. 1 (2000), in its order finding appellant in contempt, and cited § 609.09 in its memorandum of law. The statute states

In any criminal proceeding, * * * if it appears a person may be entitled to refuse to answer a question * * * on the ground that the person may be incriminated thereby, and if the prosecuting attorney, in writing, requests the chief judge of the district or a judge of the court in which the proceeding is pending to order that person to answer the question or produce the evidence, the judge, after notice to the witness and hearing, shall so order if the judge finds that to do so would not be contrary to the public interest and would not be likely to expose the witness to prosecution in another state or in the federal courts.
After complying, and if, but for this section, the witness would have been privileged to withhold the answer given or the evidence produced by the witness, no .testimony * ⅜ * or any information directly or indirectly derived from such testimony or other information may be used against the witness in any criminal ease * ⅜ *.

Minn.Stat. § 609.09, subd. 1 (emphasis added). The supreme court has stated:

Section 609.09 plainly says it is the prosecuting attorney alone who may request use immunity for a witness, and this court has so held. State ex rel. Windschitl v. Landkammer, 299 Minn. 184, 190, 217 N.W.2d 494, 498 (1974). The trial court then decides, based on the statutory criteria, whether immunity will be granted. If the defense wishes to immunize a witness, it should ask the prosecutor to make the written request to the court. Id., 299 Minn. at 191, 217 N.W.2d at 499.

State v. Peirce, 364 N.W.2d 801, 808 (Minn.1985) (footnote omitted) (emphasis added).

It is clear under the statute and caselaw that the prosecutor must request a grant of immunity in writing for Minn. Stat. § 609.09, subd. 1 to be applicable. Respondent does not claim to have requested § 609.09 use immunity. Appellant contends that written notice was not given to the district court by the prosecuting attorney. Furthermore, in reviewing the record, there is no indication that the prosecutor requested use immunity for appellant in writing. Therefore, § 609.09 is inapplicable in this case.

DECISION

The district court erred by finding that the appellant waived her Fifth Amendment privilege by testifying at an earlier trial and by pleading guilty to second-degree murder. Because the privilege against self-incrimination attaches in every proceeding where there is the possibility of further incrimination, appellant maintained such a right in M.A.B.A.’s trial. Minn. Stat. § 609.09 is not applicable here because the prosecutor gave no written notice to the district court.

Reversed.

      . There was some discussion at oral arguments as to the constitutionality of § 609.09. Because the prosecutor in this case failed to follow the requirements of the statute, we do not need to reach that issue.


text:
    Brad M. HANSON, et al., Respondents, v. Dennis THOM, et al., Appellants.
    No. C6-01-650.
    Court of Appeals of Minnesota.
    Dec. 11, 2001.

      Michelle L. Lureen, Dennis P. Moriarty, Shakopee, for respondents.
    Mark A. Olson, Burnsville, for appellants.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, FOLEY, Judge, and FORSBERG, Judge.*

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

   OPINION

G. BARRY ANDERSON, Judge.

This case involves litigation over the use of an appurtenant easement. The district court awarded attorney fees to respondents after it found appellants in contempt. Appellants challenged the award of attorney fees in a post-trial motion. The district court chose not to amend its findings regarding the award of attorney fees. We reverse.

FACTS

In 1976, appellants Dennis and Jane Thom purchased property on Fish Lake in Scott County, Minnesota. Within appellants’ property is a separate parcel of property, then owned by Herbert and Helen McDonald. Keith Unger purchased the property from the McDonalds in 1992. Unger sold the property to Brad Hanson in 1996.

The dominant Hanson property has an express appurtenant easement from the property to Fish Lake burdening appellants’ property. Disputes over the easement have led to litigation and are longstanding.

In July 1993, the district court issued a temporary order, which was meant to protect the then current owner’s (Unger’s) right to use the easement. The order was issued due to earlier interference with the use of the easement. In May 1994, the district court issued a detailed permanent injunction also meant to protect the use and scope of the easement burdening appellants’ property. The parties were again involved in litigation in 1996 (1996 action). This time, Hanson owned the dominant property.

In June 1999, the 1996 action culminated with a district court order finding that Dennis Thom (Thom) had committed nuisance, and Hanson had committed trespass. The district court found that Hanson’s trespass did not injure appellants, but that Thom’s actions interfered with Hanson’s use and enjoyment of his property-

In September 1999, Hanson and Unger (respondents) filed a complaint alleging that Thom was again committing nuisance and alleging that Thom was in contempt of the June 1999 order. The district court found Thom in contempt for erecting a six-foot fence, which turned Hanson’s property into a compound. The district court found that although Minn.Stat. § 549.211 (2000) was not the appropriate statute to allow respondents to recover attorney fees, fees could be recovered under § 588.11.

The district court reviewed billing records submitted by respondents’ attorney and determined that the records showed that approximately $8,000 had been expended to litigate the contempt order. The district court consequently awarded that amount to respondents, pursuant to § 588.11. This appeal followed.

ISSUE

Did the district court err by awarding attorney fees to respondents pursuant to MinmStat. § 588.11, where respondents’ insurance carrier already paid the fees?

ANALYSIS

This case involves a question of law concerning statutory construction of MinmStat. § 588.11. A reviewing court is not bound by, and need not give deference to, a district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Here, the district court found respondents could recover attorney fees under § 588.11, although a title insurance company had already paid those fees. This is a question of statutory interpretation, which this court reviews de novo.

MinmStat. § 588.11-states:

If any actual loss or injury to a party in an action or special proceeding, prejudicial to the person’s right therein, is caused by such contempt, the court or officer, in addition to the fine or imprisonment imposed therefor, may order the person guilty of the contempt to pay the party aggrieved a sum of money sufficient to indemnify the party and satisfy the party’s costs and expenses, including a reasonable attorney’s fee incurred in the prosecution of such contempt, which order, and the acceptance of money thereunder, shall be a bar to an action for such loss and injury.

MinmStat. § 588.11 (emphasis added).

Three factors must be present to uphold an award of attorney fees under § 588.11. First, the fees must be based on proof of actual damages. Westgor v. Grimm, 381 N.W.2d 877, 880 (Minn.App.1986). Second, the award must not penalize the contemnor. Campbell v. Motion Picture Mach. Operators’, 151 Minn. 238, 242, 186 N.W. 787, 789 (1922). Finally, the party receiving the fees must actually incur the fees. Time-Share Sys., Inc. v. Schmidt, 397 N.W.2d 438, 441 (MinnApp.1986).

There is little doubt that the award here was based on actual damages; the district court made its determination based on its review of the billing records reflecting the amount of attorney fees incurred. No reason has been advanced to this court to disturb that finding.

Next, an award of attorney fees may not be imposed on a contemnor as a penalty. Campbell, 151 Minn. at 242, 186 N.W. at 789. The district court carefully reviewed litigation costs and awarded only those fees incurred in bringing the contempt action. There is no evidence in the record that the modest award here was a penalty.

Finally, there must be proof that respondents incurred fees; otherwise, no award of fees should be made. TimeShare Sys., 397 N.W.2d at 441. Further, the party that incurred the fees must be “aggrieved,” and the award must indemnify the party. Minn.Stat. § 588.11.

Here, appellants argue that to reimburse respondents for the cost of their attorney fees would incorrectly apply § 588.11 because respondents never “incurred” attorney fees. Appellants contend that it is undisputed that respondents’ title insurance company paid the attorney fees; therefore, respondents should not be awarded those fees.

When a statute is unambiguous, this court is required to effectuate the plain meaning of the statute. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996); see also Minn.Stat. § 645.08(1) (2000).

Minn.Stat. § 588.11 uses very specific language. The statute requires the contemnor to “pay the party aggrieved.” “Aggrieved” is defined as, “[h]aving suffered loss or injury; damni-fied; injured.” Black’s Law Dictionary 65 (6th ed.1990). Second, the payment must “indemnify” the party, satisfying the aggrieved party’s costs and expenses. “Indemnify” is defined as, “to restore the victim of a loss, in whole or in part, by payment, repair, or replacement.” Id. at 769. Finally, the fees must have been “incurred” in the prosecution of the contempt.

The definition of incur is ‘to become liable for,’ as distinguished from actually ‘pay for.’ This definition has been well fixed and delineated in the case law * * *

Collins v. Farmers Ins. Exch., 271 Minn. 239, 244, 135 N.W.2d 503, 507 (1965) (footnote omitted).

Applying these principles, respondents are not entitled to attorney fees under § 588.11. Respondents have not suffered loss or injury because their title insurance company paid their attorney fees, and they are, therefore, not aggrieved. Second, because they suffered no loss, there is no way to indemnify respondents, because they are already “whole.” Respondents have made no payment towards the attorney fees, nor has anyone suggested they have an obligation to do so.

Because we find respondents are not aggrieved or entitled to indemnification, and are thus not eligible for an award under § 588.11, it is unnecessary to consider, in some theoretical sense, whether respondents might have incurred liability for the attorney fees.

Because the plain language of § 588.11 does not permit an award of attorney fees to respondents, the judgment of the district court is reversed.

DECISION

Respondents are not aggrieved and are not entitled to indemnification because they have no costs or expenses. Therefore, respondents are not entitled to an award of attorney fees under Minn.Stat. § 588.11.

Reversed.


author: GORDON W. SHUMAKER, Judge.

text:
    Karen A. STONE, Appellant, v. Wade S. STONE, Respondent.
    No. C6-01-874.
    Court of Appeals of Minnesota.
    Dec. 11, 2001.

      Ronald R. Frauenshuh, Jr., Ortonville, for appellant.
    Harry D. Hohman, Wojtalewicz & Hoh-man Law Firm, Ltd., Appleton, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge, TOUSSAINT, Chief Judge, and SCHUMACHER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant-mother challenges the district court’s order vacating her registration in Minnesota of the parties’ South Dakota post-dissolution order modifying child support and visitation, claiming that the refusal to register the orders violates (1) Minn. Stat. § 518D.305(a) (2000), which governs registration of foreign child-custody determinations, and (2) Minn.Stat. § 518C.602 (2000), which governs registration of foreign child-support orders. We affirm.

FACTS

Appellant Karen A. Stone and respondent Wade S. Stone dissolved their marriage in South Dakota in 1989. Although nothing in the court file or the parties’ submissions discloses the number of minor children involved in this matter, it appears that there are at least two. They are in appellant’s custody and respondent pays child support.

At some point after the dissolution, the parties moved out of South Dakota. Appellant now lives in Minnesota with the children and respondent lives in Missouri.

On July 30, 1996, respondent moved the South Dakota circuit court for modification of the amount of his child-support obligation. The court granted the motion and ordered a modification. Then in February 1997, the parties stipulated to a modification of child support and visitation. The South Dakota court ordered the modification as stipulated.

On January 26, 2001, appellant registered the 1996 and 1997 South Dakota orders in Minnesota. Respondent then brought a motion in the Minnesota district court to vacate the registration of the South Dakota orders and for an award of attorney fees. Appellant followed with a motion to have the Minnesota court assume jurisdiction over custody, support, and health insurance, and to require respondent to provide proof of life insurance.

On May 1, 2001, after a hearing, the Minnesota district court ordered the vacation of the registration of the South Dakota orders and denied respondent’s motion for attorney fees and all of appellant’s motions. The court ruled that appellant failed to meet the statutory requirements for registration of foreign orders and that there is no basis for the exercise of jurisdiction in Minnesota.

On May 2, 2001, appellant filed a motion in Minnesota to modify child support. That motion apparently is pending.

Appellant challenges the district court’s order vacating her registration of the South Dakota orders.

ISSUES

1. Did the district court err in vacating the registration of a foreign child-support order because appellant failed to allege arrearages and failed to show that she was not a resident of Minnesota?

2. Did the district court err in vacating a foreign visitation order when there was no custody or visitation dispute and when appellant failed to comply with the registration requirements of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?

ANALYSIS

Appellant contends that Minnesota statutory law permits her to register the South Dakota visitation and support orders in Minnesota. Issues as to the jurisdiction of courts and the interpretation of statutes raise questions of law, which this court reviews de novo. Kasdan v. Bemey, 587 N.W.2d 319, 321 (Minn.App.1999).

1. Registration of Support Order

Minnesota has adopted the Uniform Interstate Family Support Act (UIF-SA). Minn.Stat. §§ 518C.101 — .902 (2000). That law allows the registration of a support order from another state “for enforcement.” Minn.Stat. § 518C.601. Among the procedural prerequisites for registration is the filing of a sworn or certified statement “showing the amount of any arrearage.” Minn.Stat. § 518C.602(a)(3). There are no arrearag-es in child support here. Thus, there is no “enforcement” issue as to the South Dakota support order and appellant is not enti-tied to register it for enforcement in Minnesota.

Minnesota law also allows the registration of a child-support order from another state for modification or for modification and enforcement. Minn.Stat. § 518C.609. The Minnesota court may modify the foreign support order only if it finds, among other things, that the petitioner is a nonresident of Minnesota. Minn.Stat. § 518C.611(a)(l)(ii). Appellant, the petitioner, is a resident of Minnesota and thus cannot satisfy the requirements for modification of the South Dakota support order.

Because appellant is unable to satisfy the statutory requirements for registration of the South Dakota support order for enforcement or for modification, the district court did not err in vacating the registration of that order.

2. Registration of Visitation Order

Appellant claims that, because Minnesota is the home state of the children and thus the proper state for jurisdiction, the district court was required under Minnesota law to register the South Dakota orders and assume jurisdiction over custody issues.

Minnesota recently adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) for all custody issues raised after January 1, 2000. Minn.Stat. §§ 518D.101 — .317 (2000). The uniform custody laws were established to resolve jurisdictional issues involving interstate child-custody disputes and must be interpreted accordingly. See Nazar v. Nazar, 505 N.W.2d 628, 636 (Minn.App.1993) (noting purpose of UCCJA as formerly codified under Minn.Stat. § 518A.01, subd. 1(a) (1992)), revieiv denied (Minn. Oct. 28, 1993). In general, under the UC-CJEA, the state that issued a child-custody determination will maintain exclusive, continuing jurisdiction so long as the state remains the residence of the child or a parent or any contestant of the custody proceeding. Minn.Stat. § 518D.202. A Minnesota court may modify South Dakota’s determination if Minnesota is currently the child’s home state and South Dakota no longer has exclusive, continuing jurisdiction. Minn.Stat. § 518D.203. A custody determination includes an order providing for visitation with respect to a child. Minn.Stat. § 518D.102(d).

A child-custody determination made by a court of another state may be registered in Minnesota with or without a simultaneous request for enforcement. Minn. Stat. § 518D.305(a). A party requesting registration of a child-custody order under the UCCJEA must send to the district court in Minnesota a letter or other document requesting registration of another state’s child-custody order, copies of the child-custody order, and the names and addresses of the party seeking registration and the party awarded custody or visitation. Id.

In this case, Minnesota has jurisdiction to modify the South Dakota custody or visitation determination because Minnesota is currently the home state of the mother and the children, who have lived here for more than four years. See Minn.Stat. §§ 518D.102, .201, .202 (providing Minnesota with jurisdiction to make a child-custody determination if state is child’s home state, defined as state where child has lived for at least six consecutive months before commencement of proceedings). However, appellant has not alleged an existing custody dispute and has not registered the South Dakota order under the UCCJEA. Although appellant initially attempted to register the South Dakota orders under the Uniform Interstate Family Support Act (UIFSA), she failed to register the South Dakota order as required by the UCCJEA. Custody matters must be registered under the UCCJEA and child-support matters must be registered under the UIFSA. See Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700, 705 (Minn.App.1996) (noting that UCCJA and UIFSA operate under different standards); In re Henderson, 982 S.W.2d 566, 567 (Tex.App.1998) (noting that UCCJA is appropriate statute in matters of child custody, but when a party seeks to modify a child-support order issued by another state, appropriate statute to apply is UIF-SA). Minnesota cannot take jurisdiction of custody issues when there is neither proper registration under the UCCJEA nor assertion of an existing custody dispute. Thus, the district court did not err in denying appellant’s motion to have the court take jurisdiction over the visitation issue.

DECISION

Because appellant failed to comply with the registration requirements of UIFSA and UCCJEA, the district court properly vacated the registration of South Dakota support and visitation orders.

Affirmed.

      . South Dakota law is still modeled after the Uniform Child Custody Jurisdiction Act (UC-CJA). S.D. Codified Laws ch. 26-5A (1999 & Supp.2000).