author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Jason Lee BERNARDI, Appellant.
    No. A03-608.
    Court of Appeals of Minnesota.
    April 27, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, and Robert M.A. Johnson, Anoka County Attorney, Marcy Crain, M. Katherine Doty, Assistant Anoka County Attorneys, Anoka, MN, for respondent.
    Daniel Guerrero, Meshbesher & Spence, Ltd., Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; KALITOWSKI, Judge; and MINGE, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant challenges his conviction of first-degree assault — use of deadly force against a peace officer, arguing that there is insufficient evidence to convict him of that crime; that an out-of-court statement made by an unavailable declarant should have been admissible under the hearsay exception in Minn. R. Evid. 804(b)(5); and that the district court erred in prohibiting defense counsel from commenting in closing argument on the state’s decision not to call certain witnesses. Because there is sufficient evidence to support the conviction and the district court did not err in its rulings, we affirm.

FACTS

Coon Rapids police officers Bradley Johnson and Daren Keasling went to appellant Jason Lee Bernardi’s apartment in response to a report of domestic assault. When they arrived they could hear people shouting inside the apartment. Johnson knocked on the door and Bernardi’s girlfriend, Marlena Cook, opened it. She was crying hysterically and stated that Bernar-di had beaten her and had run out the patio door. Keasling pursued Bernardi while Johnson remained behind to speak with Cook.

Keasling saw Bernardi near a parked car and saw him open the door, get inside, and lock the doors. Johnson soon joined Keasling. The officers pounded on the car window and ordered Bernardi to unlock the doors and to get out of the car.

Bernardi ignored the officers and instead backed the car out of its parking space. Johnson moved to the front of the car and Bernardi began to drive toward him. Fearing for his life, Johnson drew his gun. As the car accelerated toward him, Johnson jumped onto the hood of the car and fired his gun several times into the windshield, seriously wounding Bernardi, who then lost control of the ear. Just before the car collided with a parked car, Johnson jumped off. He sustained multiple injuries. Bernardi disagrees with these facts and claims that he never intended to run Johnson over and that he put his hands in the air to give himself up when Johnson shot him.

Bianca Dennie witnessed the incident. During an offer of proof, appellant’s attorney claimed that Dennie stated to a defense investigator that

[s]he was in a position behind the vehicle as it traveled north in the parking lot, that the car began to roll forward, that the police officer jumped on the hood, that he was not in danger, [the car] was traveling approximately 15 miles an hour [when she] observed the driver raise his hands as if to surrender just prior to hearing and observing the gunshots [fired] into the windshield.

The' state charged Bernardi with first-degree assault — use of deadly force against a police officer, and other offenses. Bernardi pleaded not guilty and demanded a jury trial.

Bernardi subpoenaed Dennie to testify at the trial but, by the time she was to be called as a witness, she had left the state. In lieu of Dennie’s live testimony, Bernardi moved to introduce her statement to the investigator under the hearsay exception provided in Minnesota Rules of Evidence 804(b). The district court denied this motion.

The court also granted the state’s motion to prohibit defense counsel from commenting in final argument on the state’s failure to call as witnesses certain persons named on the state’s witness list. These people were available to both parties and Bernardi chose to call them as witnesses.

The jury found Bernardi guilty of first-degree assault and not guilty of the other charges. Bernardi appealed.

ISSUES

1. Was the evidence sufficient to convict appellant of first-degree assault — use of deadly force against a police officer?

2. Did the district court err in refusing to admit an out-of-court statement of an unavailable declarant under the hearsay exception in rule 804(b)(5) of the Minnesota Rules of Evidence?

3. Did the district court err in precluding defense counsel from commenting in closing argument that the state did not call certain witnesses on the state’s witness list?

ANALYSIS

Sufficiency of the Evidence

Bernardi contends that the evidence was insufficient to support his conviction for first-degree assault because it did not show that he intended to use deadly force against a peace officer.

Under Minn.Stat. § 609.221, subd. 2 (2002), a defendant commits first-degree assault of a peace officer when he uses or attempts to use deadly force against the officer while the officer is performing official police duties. “Deadly force” is that degree of force that the actor should reasonably know creates a substantial risk of death or great bodily harm. Minn.Stat. § 609.066, subd. 1 (2002). “Great bodily harm” is any bodily injury that creates a high probability of death or which causes serious permanent disfigurement or permanent or protracted loss or impairment of the function of a bodily member or organ, or other serious bodily harm. Minn.Stat. § 609.02, subd. 8 (2002).

When an appellant challenges the sufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, is sufficient to allow the jury to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). This is especially true when resolution of the matter requires the assessment of conflicting testimony. State v. Piesckke, 295 N.W.2d 580, 584 (Minn.1980). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988). A conviction may rest on the testimony of a single witness. Caldwell v. State, 347 N.W.2d 824, 828 (Minn.App.1984).

There was evidence that Bernardi looked at Officer Johnson as he drove the car straight toward him and accelerated as he did so. One civilian witness testified that, “It looked like the suspect was trying to hit the cop.” There was evidence that Bernardi accelerated after Johnson jumped onto the hood of the car and that the car reached the speed of approximately 30 miles an hour for a few seconds while Johnson was on the hood.

Bernardi acknowledges that the requisite intent for the assault crime of which he was convicted can be established by showing that he reasonably should have known that his conduct created a substantial risk of causing death or great bodily harm. State v. Ortiz, 626 N.W.2d 445, 450 (Minn.App.2001), review denied (Minn. June 27, 2001). He also concedes that “[a] reasonable inference of guilt arises only if the Appellant accelerated with Johnson on the hood, traveling some distance before Johnson felt it necessary to shoot the Appellant.”

The jury could have found that Bernardi drove the car at about 30 miles an hour for at least 120 feet with Officer Johnson lying on the hood. The jury could have concluded that Bernardi reasonably should have known that his conduct created a substantial risk that Johnson would fall off or under or in front of the car and could be run over by the moving vehicle, or strike his head on the car, or strike his head on the pavement, any of which events could result in Johnson’s death or great bodily harm. Because there was sufficient evidence to demonstrate these risks, the jury properly returned a verdict of guilty as to the assault charge, and we affirm.

Hearsay Evidence

Bernardi urges that the district court erred by excluding the hearsay statement of Bianca Dennie, which Bernar-di argues was admissible under Minn. R. Evid. 804(b)(5).

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that the appellant was thereby prejudiced;” State v. Amos, 658 N.W.2d 201, 203 (Minn.2003) (citation omitted).

Bernardi does not contend that Dennie’s out-of-court statement fits any of the express hearsay exceptions in rules 803 or 804. Rather, he argues that the statement is admissible under the so-called catchall provision of rule 804(b).

When a hearsay statement does not fit into any of the express hearsay exceptions, it might nevertheless be admissible in evidence if it has circumstantial guarantees of trustworthiness equivalent to those of the express exceptions. Minn. R. Evid. 804(b)(5). There are additional prerequisites to admissibility as well, but the only one on which the district court ruled and the only one addressed on appeal is the trustworthiness requirement.

The assessment of the trustworthiness of a statement offered under rule 804(b)(5) begins with a consideration of the word “equivalent.” Only those statements that have “equivalent circumstantial guarantees of trustworthiness” to the guarantees underlying the express hearsay exceptions may be allowed into evidence. Minn. R. Evid. 804(b)(5) (emphasis added). Some of the principles of trustworthiness evident in the express exceptions are spontaneity (rule 803(2) — excited utterance), contemporaneity (rule 803(3) — existing state of mind), motive (rule 803(4) statements for medical diagnosis and treatment), duty (rule 803(8) — public records), regularity (rule 803(6) business records), use and reliance (rule 803(8) — public records), oath (rule 804(b)(1) — prior testimony), and detriment to the declarant (rule 804(b)(3)— statements against interest).

Caselaw has identified other considerations for the assessment of equivalent trustworthiness. For example, these identified considerations include the voluntariness of the statement; the possibility for some reward or gain for the declarant; the presence or absence of firsthand knowledge as a basis for the statement; the presence or absence of corroboration, such as repetition of the statement; the degree of detail of the declarant’s recollection of the subject of the statement; the identity of the recipient of the statement; time and place of the statement; and the opportunity or lack thereof for cross-examination of the declarant. See State v. Stallings, 478 N.W.2d 491, 495-96 (Minn.1991) (holding voluntariness of statements made, witness’s character for truthfulness and honesty, relationship with defendant and government, motivation to testify, personal knowledge, and corroborating evidence support trustworthiness of statement); State v. Daniels, 361 N.W.2d 819, 830 (Minn.1985) (holding that statements made to several people, along with other indicia of reliability or with some detail as to the incident, indicate some reliability); State v. Hansen, 312 N.W.2d 96, 103 (Minn.1981) (holding statements made during police questioning or in unsupervised setting of an official interrogation, “some time after the incident,” not subject to cross examination, and that did not indicate firsthand observation of what was reported not untrustworthy, but that statements made with some evidence that witness was under threat or intimidation not to make statement may be trustworthy).

Because of Dennie’s unavailability, defense counsel proposed to have William Gowin, an in-house investigator employed by defense counsel’s law firm, testify as to a statement he took from Dennie, who was an eyewitness to Bernardi’s episode with Officer Johnson.

According to defense counsel’s offer of proof, Dennie was a resident of the apartment complex at which the incident occurred. She was in a position to see Ber-nardi drive the car and Johnson jump on the hood. Her testimony would have been “that the car began to roll forward, that the police officer jumped on the hood, that he was not in danger, it was traveling at approximately 15 miles an hour.” The offer of proof further indicated that Den-nie “observed the driver raise his hands as if to surrender just prior to hearing and observing the gunshots into the windshield.”

Gowin interviewed Dennie four months after the incident. He did not take a verbatim statement but rather summarized in a report what he heard Dennie say. Dennie did not sign the statement, and it is not apparent from the record that she even had an opportunity to read it. The statement was not under oath and, obviously, Dennie was not subject to cross-examination about the statement.

There also was evidence that Gowin also took a statement from Marlena Cook but that she refused to sign it because she believed it contained inaccuracies.

We note first that it is likely that this issue involves double hearsay. If defense counsel intended to offer Gowin’s memorandum either as an exhibit or through having Gowin testify from it, the content of that memorandum would be hearsay. Minn. R. Evid. 801(c). Thus, both Gowin’s statement and Dennie’s statement would have to meet some hearsay exceptions to be admissible. Minn. R. Evid. 805.

But even if defense counsel did not intend to offer Gowin’s summary, we agree with the district court that Dennie’s purported statements lacked circumstantial guarantees of trustworthiness equivalent to those of traditional hearsay exceptions. The alleged statement was not particularly fresh in time; it was taken by someone associated with one of the parties; it was not a verbatim statement but rather was the investigator’s impression of what the witness said; and there is no way to be reasonably sure the witness would adopt the statement as being true and accurate. And accuracy is called into question because another witness (albeit likely a biased witness) denied the accuracy of a similar “statement” Gowin took from her. The Dennie statement falls far short of the type and degree of trustworthiness that would qualify it for admission under rule 804(b)(5).

Failure to Call Witnesses

The state moved in limine to preclude defense counsel from commenting in final argument on the state’s failure to call certain witnesses on the state’s witness list to testify. The district court granted the motion. Bernardi argues that ruling was error.

The general rule is that “no adverse inference may be drawn from a party’s failure to produce evidence equally available to both sides.” State v. Swain, 269 N.W.2d 707, 717 (Minn.1978). The district court has the authority to order defense counsel to refrain from commenting on the prosecutor’s failure to call a witness if the witnesses are equally available to both parties. State v. Thomas, 305 Minn. 513, 516, 232 N.W.2d 766, 768 (1975).

Not only were the witnesses equally available to both the state and the defense, defense counsel actually called the witnesses to testify. Thus, the jury saw and heard the witnesses, and they were subject to impeachment by either party. Minn. R. Evid. 607.

Apparently, defense counsel wanted to argue that an adverse inference could be drawn about what those witnesses would say because the state decided not to call them. But such an inference may be argued, if allowed at all, about witnesses who do not testify when it would be natural to expect one party or the other to call them. See State v. Peterson, 266 Minn. 77, 84, 123 N.W.2d 177, 182 (1963) (stating arguments as to adverse inferences may be allowed with sufficient foundation). This is not the case here. There is no merit in the contention that the court’s ruling on the state’s motion in limine was error.

DECISION

The evidence was sufficient to support appellant’s first-degree assault conviction and the district court did not err in excluding a hearsay statement or in prohibiting defense counsel from commenting in final argument on the state’s failure to call witnesses available to both parties.

Affirmed.


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    In re the Marriage of Patrick M. O’DONNELL, petitioner, Respondent, v. Mary Lou Z. O’DONNELL, co-petitioner, Appellant.
    No. A03-897.
    Court of Appeals of Minnesota.
    April 27, 2004.

      Kay R. Snyder, Jeddeloh & Snyder, P.A., St. Cloud, MN, for respondent.
    Marna L. Anderson, Hicken, Scott & Howard, P.A., Anoka, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; KALITOWSKI, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant, support obligor, challenges the district court’s modification order increasing child support. Appellant claims that the parties had stipulated to child support that the original district court approved, that college tuition payments for an emancipated child and mortgage payments incurred to finance a property division are not recognizable expenses in setting child support levels, and that the other claimed changes in circumstance were foreseeable. Because we determine the district court erred in increasing child support, we reverse.

FACTS

Appellant Mary Lou Z. O’Donnell and respondent Patrick M. O’Donnell dissolved their 20-year marriage in May 2002. Appellant is a ministry support coordinator, respondent an attorney. The parties entered into a marital termination agreement whereby respondent father was granted sole physical custody of the couple’s two minor children. The parties waived their rights to maintenance and stipulated to a downward deviation from the child support guidelines. The child support guidelines would have required appellant mother to pay $546.60 a month, but pursuant to the agreement, she was ordered to pay respondent $250 per month for 30 months, and thereafter $350 per month.

Five months after entry of the stipulated judgment, respondent filed a motion seeking an increase in child support. Respondent claimed that his overall expenses had increased due to, in part, his undertaking to pay college expenses for the parties’ emancipated daughter, an increase in his mortgage payment due to the property settlement, a purchase of a new vehicle, which he claimed was necessary to transport the children, an increase in the cost of health insurance, and an increase in the children’s school activity fees. Respondent argued that because appellant was now living with another individual with whom appellant shares expenses, appellant’s expenses had decreased. But appellant claimed that she had purchased a home and made other financial commitments such that her expenses still exceeded her income.

Following a December 2002 hearing, the district court granted respondent’s motion and ordered an increase in appellant’s child support payments from $250 to $546.60 per month. Appellant now appeals the district court’s order to increase her monthly child support payments.

ISSUES

1. Did the district court abuse its discretion by including the cost of college tuition for an emancipated child in respondent’s reasonable expenses?

2. Did the district court abuse its discretion by including an increase in mortgage payments resulting from the parties’ property settlement in respondent’s reasonable expenses?

3. Did respondent meet his burden of establishing increased expenses justifying modification of stipulated child support?

4. Is child support set forth in a stipulated agreement subject to subsequent modification if it is 20% and $50 lower than that called for in the child support guidelines?

ANALYSIS

On appeal from a district court’s order modifying child support, an appellate court reviews the district court’s decision for an abuse of discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). An abuse of discretion occurs when the district court resolves the matter in a manner that is “against logic and the facts on [the] record.” Id. An appellate court will generally not disturb a district court’s determination of child support if it has a reasonable and acceptable basis in fact. Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn.App.1984). The district court is required to make specific findings on the statutory factors in Minn.Stat. § 518.64,. subd. 2 (2002). Allan v. Allan, 509 N.W.2d 593, 596 (Minn.App.1993).

I.

The first issue is whether the district court erred in adding $417 in college tuition payments for an emancipated child to respondent’s monthly expenses. Appellant argues that this is a voluntarily assumed expense for respondent and an inappropriate basis for modification.

Minnesota caselaw is clear on the issue of college tuition for emancipated children. In Tibbetts v. Tibbetts, we considered whether $1,800 a year for an emancipated child’s college tuition could be added to the appellant’s expenses when considering child support modification, and we held that such an “expense is an inappropriate basis for a modification in child support because only the needs of the minor child are relevant.” 398 N.W.2d 16, 19 (Minn. App.1986).

Here, the parties’ stipulated agreement does not provide for any expenses of emancipated children. Absent such a provision, the district court should not have considered respondent’s college tuition payments for the parties’ emancipated child as part of his reasonable expenses on a motion for child support modification.

II.

The next issue is whether, in considering a request for increased child support, the district court erred in adding to respondent’s expenses an increase in respondent’s mortgage payments caused by his financing obligations under the parties’ property settlement. The property settlement awarded title of the home to respondent and gave appellant a $27,528.84 lien on the property to be paid by respondent. Respondent alleged below that his expenses increased due to the “loan cost to provide [appellant] with her requested half of the equity in our home.” The district court found, “[respondent’s] mortgage expense has increased due to the property settlement. His stated monthly budget is fair and reasonable.” Appellant argues the district court may not consider this type of expense as a basis to modify child support.

This court considered a claim of substantial change in circumstances stemming from an increase of expenses resulting from a property settlement in the case of Abuzzahab v. Abuzzahab, 359 N.W.2d 329 (Minn.App.1984). We held that changes directly resulting from a property division in a dissolution proceeding are not the type contemplated by Minn.Stat. § 518.64, subd. 2. Id. at 332. The district court therefore erred by using increased mortgage expenses arising from the property settlement as a change in circumstances.

III.

The third issue is whether the district court erred in finding that respondent’s other increased expenses constituted a change in circumstances that warranted a modification of child support as set in the stipulated agreement. The district court found that, while appellant’s income had remained the same, she experienced an increase in expenses since the time of the previous order. Nonetheless, the court found that respondent’s expenses had increased enough to create a substantial change in circumstances such that the current order for child support was unfair and unreasonable.

Generally, a stipulation fixing the respective rights and obligations of the parties represents their voluntary acquiescence in an equitable settlement, and the district court should “carefully and only reluctantly” alter its terms. See Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn.1981) (discussing stipulated spousal maintenance). But, the existence of a stipulation does not “bar later consideration of whether a change in circumstances warrants a modification.” Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn.1997). Where child support is concerned, Minnesota caselaw indicates that “[although a stipulation is one factor to be considered in modification motions, child support ‘relates to nonbargainable interests of children and is less subject to restraint by stipulation than are other dissolution matters.’ ” Martin v. Martin, 401 N.W.2d 107, 110 (Minn.App.1987) (quoting Maxson v. Derence, 384 N.W.2d 583, 585 (Minn.App.1986)).

Minnesota statutes provide that a district court may modify a child support order if two conditions are met: (1) the moving party shows a substantial change in circumstances; and (2) that the change makes the existing award unreasonable and unfair. Stephens v. Stephens, 407 N.W.2d 468, 470-71 (Minn.App.1987). See Minn.Stat. § 518.64, subd. 2(a) (2002). A change of circumstances includes a substantial increase or decrease in a party’s earnings or expenses. Id.

Here, the district court found that respondent’s expenses increased by $1,631, from $4,100 at the time of the decree in May to $5,731 five months later in October. At least $600 of respondent’s increased expenses was based on college tuition and mortgage payments that, as we held above, are an improper basis for modification. The district court identified other expenses based on the needs of the two younger children that also supported a change. Although not discussed in any detail by the district court, the respondent’s affidavit gives some particulars:

I have also discovered that I grossly underestimated the monthly cost of food, household items, and added automotive expenses (since I am the only one driving our children around to their activities and friends’ homes) by at least $250.00-$300.00 per month. The same is true for school, soccer and Scouting fees and costs, which I underestimated by around $30.00-$50.00 per month.

Respondent continued by stating that he needed an additional vehicle to transport the children and their friends and that health insurance costs had increased.

Although respondent encountered an array of expenses, we find it implausible that these expenses were not foreseeable at the time he signed the stipulated agreement. We recognized in Joneja v. Joneja that the needs of children increase with their age. 422 N.W.2d 306, 309 (Minn.App.1988). But, barring dramatic or unanticipated changes, these ordinary expenses faced within five months of the original judgment are insufficient to support its modification. This is especially true where, as here, the parties entered into a stipulated agreement, where both were represented by counsel, where respondent had been actively involved in caring for the children prior to the dissolution and had sufficient opportunity to assess their needs and expenses, where the parties are well educated, where there is no allegation of fraud, mistake, or duress, and most importantly, where there is no claim or finding that the best interests of the children necessitate a change or were adversely affected by a continuation of the support terms of the original judgment.

Accordingly, we conclude that the district court erred in modifying the child support established in the stipulated judgment on the claim of change in circumstances.

IV.

Finally, we consider whether child support specified in a stipulated judgment that deviates from the statutory guidelines is subject to automatic modification based upon the 20%/$50 clause in Minn.Stat. § 518.64, subd. 2(b)(1). That statute provides that a substantial change in circumstances is presumed and the existing support obligation is rebuttably presumed to be unreasonable and unfair when the application of the child support guidelines to obligor’s current income would result in an obligation that is at least 20% and $50 higher or lower than the current obligation. Id. At the same time, Minnesota law recognizes that the district court may approve downward deviation from the statutory guidelines when the parties agree and when findings are made regarding the best interests of the children. Minn.Stat. § 518.551, subd. 5(i) (2002).

Here, application of the guidelines to appellant’s monthly income would produce a child support obligation that is $546.60 per month. This is more than 20% and $50 higher than her current obligation, thus satisfying the statutory formula. The original district court’s judgment and decree approving the downward deviation contains the statutorily required findings that the deviation represents the agreement between the parties and is in the best interests of the children. See Minn. Stat. § 518.551, subd. 5(i). The original district court further noted that the downward deviation was agreed upon due to the level of appellant’s expenses. In the five months since the stipulated agreement, another district court found that while appellant’s income remained the same, her reasonable expenses increased and, in expressing its disapproval of the downward deviation contained in the original court’s judgment, modified the child support to the guideline level of $546.60.

While the statutory presumption embodied in Minn.Stat. § 518.64, subd. 2(b)(1), provides for court modification of child support, it should not be read as mandating such modification. Such a mandate would eviscerate Minn.Stat. § 518.551, subd. 5(i). The statutes should be read as to allow each section to operate. In this regard, we note that Minn.Stat. § 518.64, subd. 2(b)(1) allows a rebuttable presumption that child support that deviates from the guidelines by more than 20% and $50 is unfair and unreasonable. The stipulated judgment with findings is valid and rebuts that presumption of unfairness and unreasonableness, and the propriety of modifying support must then be determined based on whether there has actually been a substantial change in circumstances rendering the existing support obligation unreasonable and unfair. Giving the properly approved stipulated child support this rebuttal function allows both sections of the law to play a role.

In the case before us, the parties entered into a stipulated agreement that was approved by the district court and supported with findings. Both parties were represented by counsel and understood the terms of the agreement. Respondent knowingly and intelligently agreed to a deviation from the guidelines. He now returns five months later and asks for a modification based on an increase of expenses that were reasonably foreseeable at the time of the agreement. But, the facts on the record show that appellant’s income has remained the same and her expenses have increased. There is no claim or showing that the best interests of the children are at issue. Barring a showing of an actual substantial change in circumstance that makes the terms of the order unfair and unreasonable, granting a child support modification simply on the basis that it is 20% and $50 less than the guidelines would be contrary to the parties’ agreement and the judgment of the court. To modify in this setting would produce an unfair and unreasonable result.

DECISION

Because the district court erred in finding that respondent’s expenses included non-recognizable college expenses, certain mortgage payments and other costs that were voluntarily assumed and foreseeable at the time of the stipulated agreement, because a properly approved, stipulated judgment provided for child support, and because under the circumstances in this proceeding, the terms of that judgment are fair and reasonable, we reverse the modification in child support.

Reversed.


author: RANDALL, Judge.

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant, v. NEWMECH COMPANIES, INC., et al, Defendants, and Brighton Development Corporation, Respondent.
    No. A03-1062.
    Court of Appeals of Minnesota.
    April 27, 2004.

      Timothy P. Tobin and Sarah M. Aho, Gislason & Hunter, LLP, Minnetonka, MN, for appellant.
    Patrick J. O’Connor and Katherine L. McGill, Faegre & Benson, LLP, Minneapolis, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and HARTEN, Judge.
   OPINION

RANDALL, Judge.

Appellant insurer brought a declaratory judgment action for a declaration as to its obligations under an insurance policy issued to respondent. Respondent developed a condominium building in which mold developed as a result of a faulty mechanical system that pulled moisture into the building. Respondent sought coverage for its cost of property damage, a lawsuit by several tenants, and related costs. The district court granted summary judgment to respondent, finding coverage and awarding costs and attorney fees. On appeal, appellant argues (a) the policy did not provide coverage because respondent breached the cooperation clause by failing-to consult with its insurer and obtain consent before entering into repair agreements; and (b) other exclusions apply; and (c) the award of costs and attorney fees was error. We affirm.

FACTS

Respondent, Brighton Development Corporation (“Brighton”) is a developer of multi-unit residential property. On July 14, 1999, Brighton contracted with Kraus-Anderson Construction Company (“Kraus”), to build the Stone Arch Lofts (the “Project”), a new seven-story, 36-unit condominium building located on the Riverfront in Minneapolis. The contract provided that Paul Madson & Associates, Ltd. (“Madson”) was to perform the architectural work. The contract also permitted Kraus to subcontract with NewMech Companies, Inc. (“NewMech”) to provide the mechanical and electrical systems for the Project.

Construction on the Project began in July 1999, and was scheduled for completion at the end of November 2000. In the meantime, Brighton entered into purchase agreements for the completion of particular condominium units with new unit owners. Brighton also secured a Tailored Protection Policy from appellant, Auto-Owners Insurance Company (“Auto-Owners”). The policy included a Commercial General Liability Policy (the “Policy”), which has been in effect since September 15,1999.

By December 2000, the Project was substantially complete and the first residents began to move into their units. Less than a year later, in August 2001, some condominium unit owners began experiencing excessive humidity conditions. The excessive moisture caused several units to be severely damaged. This damage included water damage, to the sheet-rock that caused mold growth, and warping of the floors, cabinets and other millwork.

In an effort to investigate the problem and determine the appropriate remedy, Kraus hired Legend Technical Services, Inc. (“Legend”) to evaluate the building. Legend reported that there was extensive water damage throughout the building and that there was mold growth in approximately one-half of the units. Brighton and Kraus also investigated the problem and concluded that the air system was defective. Rather than producing a positive pressure, the system created a negative pressure that drew excessively moist outside air into the building’s interior.

On January 14, 2002, Brighton sent a letter to Auto-Owners notifying them of the property damage that occurred at the Project and its plans to remedy the situation. The letter informed Auto-Owners that unit owners were demanding repairs to their units and that defects in the mechanical system be cured. The letter also informed Auto-Owners that Brighton was engaged in negotiations with Kraus for a Rework Agreement to repair the damage and fix the mechanical system.

Brighton, Kraus, and NewMech signed the Rework Agreement on January 24, 2002. In the agreement, the parties agreed that Kraus and NewMech would perform corrective work on the Project and Brighton would accomplish whatever temporary relocation of unit owners was required to complete the repair efforts. Shortly thereafter, on January 28, 2002, Auto-Owners notified Brighton that the claims against them might not be covered under the policy.

After receiving the January 28, correspondence from Auto-Owners, Brighton reached an agreement (the “Repair Agreement”) with the Condominium Association (“Association”) to repair the condominiums. Similar agreements were subsequently entered into between Brighton and various individual owners throughout the winter and spring of 2002. According to Brighton, the primary purpose of these repair agreements was to allow Brighton, Kraus and NewMech to gain access to the units and common areas to undertake repairs.

Despite the efforts to repair the damaged units, three unit owners commenced a lawsuit against Brighton and Kraus on July 25, 2002, alleging that the condominium units were not fit for their ordinary purpose. A few days later, a copy of the complaint was forwarded by Brighton to Auto-Owners. In this letter, Brighton tendered this lawsuit to Auto-Owners for defense and indemnity. On August 13, 2002, counsel for Auto-Owners responded to Brighton informing them that although the insuring clause was arguably triggered, Auto-Owners denied coverage based on Brighton’s alleged violation of the cooperation clause in the policy as well as a denial based on various exclusions of coverage contained in the policy.

After being informed by Auto-Owners that neither a defense nor indemnity was afforded under the Policy, Brighton settled the lawsuit with the three condominium unit owners. However, the insurance coverage issues were still'in dispute. To resolve the coverage issues, Auto-Owners commenced this declaratory judgment action by service of a complaint for declaratory relief on November 12, 2002. Both parties moved for summary judgment. On May 20, 2003, the district court entered judgment in favor of Brighton on its motion for summary judgment. The court determined that Brighton did not breach the cooperation clause; by entering into the Repair Agreements because Auto-Owners denied coverage in the January 28 correspondence. The court then determined that none of the policy exclusions were applicable and that Brighton was entitled to coverage under the policy.

On June 27, 2003, Brighton filed a motion to amend the court’s Order to add attorney’s fees and costs incurred by Brighton in the amount of $36,-765.25. The court amended its previous Order to include attorney’s fees based on Brighton’s affidavit of fees and costs incurred. This appeal followed.

ISSUES

I. ■ Did the district court err by granting summary judgment in favor of Brighton on the basis that Auto-Owner’s insurance policy covers the claims against Brighton?

II. Did the district court err by granting attorney’s fees in favor of Brighton?

ANALYSIS

I.

On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). In making this determination, this court reviews the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). The question of whether an insurer has a duty to defend is a legal question subject to de novo .review. Metro. Prop. Cas. Ins. Co. v. Miller, 589 N.W.2d 297, 299 (Minn.1999). Interpretation of an insurance policy and application of the policy to the facts in a case are questions of law that this court reviews de novo. Am. Family Ins. Co. v. Walser, 628 N.W.2d,605, 609 (Minn.2001).

Here, Auto-Owners contends that its insurance policy does not cover Brighton’s losses because (1) Brighton breached its duty to cooperate when it entered into the Repair Agreements without Auto-Owners’ consent; and (2) various policy exclusions operate to eliminate coverage.

A. Cooperation Clause

The insurance policy issued by Auto-Owners contains a paragraph that is generally referred to as the “cooperation clause.” Paragraph 2(d) of that section, which is referred to at the “voluntary payments” clause, provides:

No insured will, except at that insured’s own cost, voluntarily make payment, assume any obligation, or incur any expense other than for first aid, without our consent.

Auto-Owners claims that by its failure to consult with Auto-Owners and obtain its consent prior to entering into the Repair Agreements, Brighton breached the cooperation clause contained in the insurance policy and thereby forfeited its right to coverage under the policy.

It is clear that a breach of the cooperation clause, which is material and prejudices the insurer, can void coverage under the policy. Steen v. Those Underwriters at Lloyds, 442 N.W.2d 158, 162 (Minn.App.1989); see also Juvland v. Plaisance, 255 Minn. 262, 268-69, 96 N.W.2d 537, 541-42 (1959). But when an insurance company completely denies coverage, the insured may independently enter into a settlement agreement in order to “extricate himself or herself.” Buysse et al. v. Bawmann-Furrie & Co., 448 N.W.2d 865, 872 (Minn.1989).

Here, Brighton argues that Auto-Owner’s “breach of cooperation” defense fails, arguing that Auto-Owners has no standing to consent or withhold consent from Brighton’s “Repair Agreements” because Auto-Owners denied coverage for Brighton’s losses. In support of this position, Brighton points to paragraph two of the January 28, 2002 letter, which states that “any costs claimed for the repair and correction of Brighton’s work is (sic) specifically excluded under the policy.”

Auto-Owners asserts that they did not deny coverage in the January 28 letter. Auto-Owners claims that the purpose of the letter was to advise Brighton that any further investigation of the claims was being conducted “under a reservation of rights.” Auto-Owners contends that the letter did not act as a complete denial of coverage, arguing that the letter did not contain specific language denying all claims, and, therefore, the “breach of coverage” defense is still open. We disagree. The January 28 correspondence is not a standard reservation of rights letter. Auto-Owners can argue that it is, but the letter was not titled as such. The letter does not lead off with that clear statement in the first paragraph that states “[d]ear insured: This is a reservation of rights letter. If you have any questions, consult competent legal advice.” Chronologically the letter followed Brighton’s first inquiry, and then the second paragraph states:

Your policy of insurance does not guarantee or warranty your work. Therefore, any cost claimed for the repair or correction of your work is specifically excluded under this policy of insurance.

The second paragraph of the January 28 letter looks like a denial of coverage letter rather than a reservation of rights. The letter does get around to an inference that it is a reservation of rights letter in the last two paragraphs. But taking the document as a whole, we conclude that the document is not a “reservation of rights” letter on its face, meaning it now has to be looked at in the context of the whole file, and we find Brighton’s interpretation that the letter was a denial of coverage to be a reasonable interpretation.

Brighton’s attorneys kept demanding coverage, but as Brighton asserts, an insured and its attorneys don’t stop asking for coverage just because there is an initial denial. An insured is entitled to press its point that there is coverage even in the face of a denial. An insured has a right to protect itself when it is reasonable to assume there is no insurance coverage forthcoming, and we conclude, as did the district court, that Brighton was justified in entering into Repair Agreements to mitigate damages and their monetary losses.

The record is self-evident that both Brighton and Auto-Owners “jockeyed” to get the best advantage for their respective positions. That is nothing more than prudent and reasonable legal tactics on both sides. On appellate review, we cannot find any abuse of discretion or reversible error.

B. Policy Exclusions

Auto-Owners contends that various policy exclusions operate to eliminate coverage. These policy exclusions are: (1) the contractual liability exclusion or “exclusion b;” and (2) the Business Risk Exclusions, which include exclusion j(2), exclusion m, and exclusion n. “[A]n insurer has the burden of proving that a policy exclusion applies,” and courts read such exclusions “narrowly against the insurer.” State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn.1992). Ambiguities in a policy are generally resolved in favor of the insured. Nathe Bros., Inc. v. American Nat’l Fire Ins. Co., 615 N.W.2d 341, 344 (Minn.2000).

1. The Contractual Liability Exclusion

The Contractual Liability Exclusion or “exclusion b,” negates coverage for any damages the insured must pay “by reason of the assumption of liability in a contract or agreement.” Auto-Owners asserts that since the Homeowners’ Complaint made specific reference to Brighton’s liability based upon the Agreements with the Homeowners, Brighton has assumed liability in those Agreements.

A review of the insurance contract reveals that exclusion b does not apply because there is an exception to exclusion b. This exception states that the “exclusion does not apply to liability for damages .... (2) that the insured would have in the absence of the contract or agreement.” Notwithstanding the Repair Agreements (contractual binding Brighton to undertake repairs), Brighton was legally liable for the damage to the condominium units. The damage was less than a year old and statutory warranties were applicable. Brighton was the developer and sold the units to various individuals. Consequently, Brighton would have been liable to the unit owners with our without the Repair Agreement. We conclude exception (2) applies and negates exclusion b.

2. The Business Risk Exclusions

The remaining exclusions that apply include exclusions (j), (m), and (n). In determining whether these three exclusions apply, the primary issue becomes whether the Project constituted “Brighton’s work.” “Brighton’s work” or “your work,” as it is referred to in the policy, is defined in the policy as:

(a) Work or operations performed by you or on your behalf; and
(b) Materials parts or equipment furnished in connection with such work or operations.

The policy further provides that “your work” includes:

(a) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or .use of “your work;” and
(b) The providing of or failure to provide warnings or instructions.

Auto-Owners contends that because Brighton was the developer they should be viewed as an “owner” and not as a contractor, and therefore the “work” was not Brighton’s “work,” but was actually Kraus and NewMech’s work. We disagree. Brighton is a developer, and as a developer its work is to develop projects. Brighton did hire others to design and build the Project, but the policy specifically states that Brighton’s work “is defined in the policy as .... [w]ork or operations performed by you or on your behalf.” The work provided by Kraus and NewMech and their subcontractors was work done specifically on Brighton’s behalf. It cannot be argued that the contractors and the subcontractors did their work idly and for their own reasons.

Auto-Owners argues that the phrase “work performed on Brighton’s behalf,” refers to work that Brighton was obligated to perform and assign to others. Auto-Owners claims that because Brighton did not hire subcontractors but rather only hired contractors, it was somehow not responsible for the work and therefore the work cannot be considered Brighton’s “work.” We do not follow the argument. All the work performed by the contractors and the subcontractors was performed “on Brighton’s behalf.” The work was necessary to develop the project and Brighton was ultimately responsible for the finished project.

a.Exclusion j

Exclusion j(2) negates coverage for property damage to premises that the insured sold if the property damage arises out of any part of those premises. The exception to this exclusion applies if the premises constitute Brighton’s “work.” Auto-Owners contends that because units were sold, this exclusion applies. Auto-Owners also contends that because the project was not Brighton’s “work,” the exception to the exclusion does not apply. Consequently, Auto-Owners claims that exclusion j(2) bars Brighton from recovery under the policy.

Auto-Owners correctly asserts that the exclusion applies because the units were sold. Brighton never occupied the condominiums nor were they ever rented or held for rental by Brighton. As stated above, the Project is Brighton’s “work.” We again conclude that the exception to exclusion j applies and, thus, the exclusion does not deny coverage to Brighton.

b. Exclusion m

Exclusion m is generally referred to as the “impaired property” exclusion. This exclusion precludes coverage to “property damage” to “impaired property” or property that has not been physically injured, arising out of:

(1) A defect, deficiency, inadequacy or dangerous condition in “your product;” or “your work;” or
(2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms.

The term “impaired property” is defined to mean “tangible property” other than “your product” or “your work.”

Auto-Owners argues that since the Project is not Brighton’s “work,” the definition of “impaired property” has been satisfied and the exclusion applies. Again, the Project is considered Brighton’s “work,” and Auto-Owners’ contention fails.

c. Exclusion n

Finally, exclusion n applies to preclude coverage to:

Damages claimed for any loss, cost, or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of:
(1) ‘Tour product;”
(2) ‘Tour work;” or
(3) “Impaired property.”

Auto-Owners contends that because the Project constituted “impaired property,” this exclusion applies.

Some of the units sustained damage due to the defective make-up air system. Brighton agreed to repair the damage. The units were never withdrawn from the market in the sense of the policy; rather, they were 'just repaired. If you took Auto-Owners literally, there would never be coverage for any loss as, arguably, nothing needing repairs from a covered loss is “impaired.” Exclusion n does not apply.

None of the various policy exclusions do operate to eliminate coverage, and summary judgment was properly granted in favor of Brighton.

II.

The district court awarded costs and attorney’s fees to' Brighton in' the amount of $86,765.25. Auto-Owners contends that the award was an error because Auto-Owners was entitled to discovery and an evidentiary hearing to test the reasonableness of the costs and attorney’s fees. “On review, this court will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion.” Becker v. Alloy Hardfacing & Eng’g. Co., 401 N.W.2d 655, 661 (Minn.1987).

Brighton’s attorneys submitted affidavits detailing the appropriate amount of costs and attorney’s fees that should be awarded. The district court determined that the amount was reasonable. Moreover, the cases cited by Auto-Owners do not stand to support the argument that Auto-Owners is entitled to discovery and an evidentiary hearing in order to test the reasonableness of the attorney’s fees. The district court did not abuse its discretion by awarding costs and attorney’s fees to Brighton.

DECISION

The January 28 correspondence was not a reservation of rights letter, but rather the letter denied coverage for Brighton’s losses under the insurance policy. Because Auto-Owners denied coverage, Brighton did not breach the cooperation clause by entering into the Repair Agreements. None of the policy exclusions operate to eliminate coverage under the policy. We conclude that the district court properly granted summary judgment in favor of Brighton.

Affirmed.


author: ROBERT H. SCHUMACHER, Judge.

text:
    JoAnne C. HINCKLEY, Relator, v. SCHOOL BOARD OF INDEPENDENT SCHOOL DISTRICT NO. 2167, Lakeview, Minnesota, Respondent.
    No. A03-1234.
    Court of Appeals of Minnesota.
    April 27, 2004.

      Roger J. Aronson, Rischmiller, Knippel Aronson, Minneapolis, MN, for relator.
    Patricia A. Maloney, Eric J. Quiring, Ratwik, Roszak Maloney, P.A., Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; SCHUMACHER, Judge; and WRIGHT, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

This is an appeal by writ of certiorari from the decision of respondent School Board of Independent School District No. 2167, Lakeview, Minnesota, to eliminate a principal position and place relator JoAnne C. Hinckley on unrequested leave of absence. Hinckley argues the school district proceeded on an erroneous theory of law in determining she was not properly licensed to supervise a K-12 program located in one building and erred in refusing to realign positions to protect her seniority rights. We affirm.

FACTS

Hinckley was hired by the school district as an elementary school principal in 1998. She is licensed to teach elementary education grades 1-6 and moderate-to-severe mentally handicapped education, grades K-12. She also holds licenses to serve as director of special education and as an elementary school principal. In 1999, the school district hired David Fjeldheim as a high school principal and in 2000 hired Eric Von Broering as a middle school principal. Both Fjeldheim and Von Broering hold a K-12 principal license.

During the 2002-2003 academic year, the school district closed its elementary and middle schools and opened a new school housing its entire K-12 program. During that year, Fjeldheim served as the principal for grades 7-12, Von Broering as the principal for grades K-6, and Hinckley as a principal on special assignment. Hinckley’s duties included supervising federal programs, various title programs, entitlement programs, and special education.

As a result of budget shortages, the school district decided to reduce its administrative staff by one person for the 2003-2004 academic year To this end, the school district created two new administrative positions — K-12 principal and K-12 assistant to the superintendent and the principal. The school board appointed Fjeldheim to the position of K-12 principal and Von Broering to the position of assistant to the superintendenVprincipal. Hinckley’s position was discontinued and, by a majority vote, the school board proposed Hinckley for placement on unrequested leave of absence effective June 30, 2003.

Hinckley requested a hearing regarding her proposed unrequested leave of absence placement pursuant to Minn.Stat. § 122A.40, subd. 9 (2002). The hearing officer determined Hinckley’s license as an elementary school principal did not authorize her to serve as a K-12 principal. Moreover, the hearing officer determined the school district is not required to realign job duties to create a position for which Hinckley would be properly licensed.

ISSUES

1. Did the school district err in determining Hinckley was not properly licensed to supervise a K-12 program located in one building?

2. Did the school district err in refusing to realign positions to protect Hinck-ley’s seniority rights?

ANALYSIS

1. A school district acts in an administrative capacity when making personnel decisions. State ex rel. Quiring v. Indep. Sch. Dist. No. 173, 623 N.W.2d 634, 637 (Minn.App.2001), review denied (Minn. Mar. 20, 2001). A reviewing court will reverse a school board’s determination “when it is fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law.” Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 675 (Minn.1990). A court in a school case “is not at liberty to hear the case de novo and substitute its findings for those of the school board.” Kroll v. Indep. Sch. Dist. No. 593, 304 N.W.2d 338, 342 (Minn.1981). Statutory interpretation, however, presents a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

The court’s goal in statutory interpretation is to give effect to the intention of the legislature in drafting the statute. Education Minnesota-Chisholm, v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn.2003); see also Minn.Stat. § 645.16 (2002) (stating, “object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature”). We first look to see whether the statute’s language, on its face, is clear or ambiguous. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). A statute is only ambiguous when its language is subject to more than one reasonable interpretation. Id. In the absence of ambiguous language, we need not consider legislative history because the words evince the clear intent of the legislature. Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995).

Hinckley argues the school district proceeded on an erroneous theory of law in determining she was not properly licensed to supervise a K-12 program located in one building. Hinckley points to language in Minn.Stat. § 123B.147, subd. 1 (2002), stating: “If pupils in kindergarten through grade 12 attend school in one building, one principal may supervise the building.” She notes that in 1991, when this language was added, only two types of principal licenses existed — elementary school principal and secondary school principal. 1991 Minn. Laws ch. 265, art. 9, § 35 (showing above quoted change to section 123B.147’s predecessor Minn.Stat. § 123.34, subd. 10 (1990)); Minn. R. 3510.0200, 3510.0400 (1991) (providing for either elementary principal’s license or secondary principal’s license).

Hinckley argues, therefore, that the legislature’s intent in enacting the contested language was to allow a principal with either an elementary or secondary school principal license to supervise a K-12 program located in one building. To buttress this argument, Hinckley points to legislative history regarding a proposed clarifying amendment to section 123B.147 that was never codified into law.

Section 123B.147, subdivision 1, provides that “[e]ach public school building ... may be under the supervision of a principal” and “[i]f pupils in kindergarten through grade 12 attend school in one building, one principal may supervise the building.” Section 123B.147 further provides that each principal “shall hold a valid license in the assigned position of supervision and administration.” Minn.Stat. § 123B.147, subd. 2 (2002). Under the canons of statutory interpretation “shall” means mandatory. MinmStat. § 645.44, subd. 16 (2002).

The language of section 123B.147 is unambiguous. It provides that one principal may supervise a K-12 program located in one building but makes no exception to the stated rule that each principal must hold a license for the assigned supervisor’s position. We must effectuate the legislature’s intent as expressed in its clear choice of words and may not substitute Hinckley’s proposed interpretation, which is based on legislative history. See Phelps, 537 N.W.2d at 274 (refusing to consider legislative history when legislature’s intent is clearly manifested by unambiguous language).

Hinckley possesses an elementary school principal license and does not possess either a secondary school principal license or a K-12 principal license. We note current licensure rules provide a mechanism by which the holder of an elementary school principal license may obtain a K-12 principal license. See Minn. R. 3512.0200, subp. 4 (2003) (providing person holding elementary school principal license must complete field experience of at least 200 hours in secondary administration to qualify for K-12 principal license). To allow Hinckley to act as K-12 principal or K-12 assistant principal would violate the unambiguous language of section 123B.147. Thus, the school district did not proceed under an erroneous interpretation of the law.

2. Hinckley argues the school district erred when it refused to “realign” positions to protect her seniority rights. Hinckley points to testimony by the school district’s superintendent that Hinckley is licensed to perform all but two of the duties included in the job description for the position of K-12 assistant to the superintendent/principal. Based on this testimony, Hinckley appears to argue the school district, because of her seniority, had a duty to reassign job duties so as to retain her in an administrative position. Hinckley cites Strand v. Special Sch. Dist No. 1, 392 N.W.2d 881 (Minn.1986), to support her position. Strand holds that under the Teacher Tenure Act a school district is obligated to attempt realignment of teaching assignments in order to retain senior teachers. Id. at 886; see Westgard v. Indep. Sch. Dist. No. 745, 400 N.W.2d 341, 344 (Minn.App.1987) (extending holding of Strand to school districts that are not in cities of first class), review denied (Minn. Apr. 17, 1987). The same principles applied to teachers in Strand apply to principals. See MinmStat. § 122A.40, subd. 1 (term “teacher” includes principals); Buys v. Indep. Sch. Dist. No. 891, 398 N.W.2d 622, 625 (Minn.App.1986) (stating same), review denied (Minn. Mar. 13,1987).

But realignment does not require a school board to change the job duties of a position to accommodate the licensure of a more senior teacher. In Strand, a teacher’s position was discontinued, and she could not directly bump a less-senior teacher because she was “not licensed” for the position held by the less-senior teacher. Strand, 392 N.W.2d at 883. The remedy imposed in Strand’s favor did not require the school district to change the job duties of the position held by the less-senior teacher to comport with the license held by Strand. Rather, realignment was imposed, which involved reassigning a teacher more senior to Strand. The reassignment opened a position for which Strand was properly licensed. In sum, realignment resulted in the laying off of the least-senior teacher. Id. at 886.

Here, there is no Strand realignment available to Hinckley because she does not hold a valid license to serve as a K-12 principal or K-12 assistant principal. See, e.g., Matter of Nelson, 416 N.W.2d 848, 850-51 (Minn.App.1987) (refusing to impose Strand realignment where senior teachers were not “qualified” for proposed area of assignment), review denied (Minn. Mar. 18, 1988); State ex rel. Haak v. Indep. Sch. Dist. No. 625, 367 N.W.2d 461, 467 (noting, “person whose position has been discontinued may have reassignment rights to positions ... for which the person is qualified”).

DECISION

The school district’s decision to place Hinckley on unrequested leave of absence was not arbitrary or unreasonable and was not based on an erroneous theory of law.

Affirmed,