author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Areece Devon MANLEY, Appellant.
    No. C8-01-1833.
    Supreme Court of Minnesota.
    April 3, 2003.
    As Modified on Denial of Rehearing June 23, 2003.

      John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Minneapolis, for Appellant.
    Mike Hatch, Attorney General; Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, St. Paul, for Respondent.
   OPINION

PAGE, Justice.

Appellant Areece Manley was indicted by a Ramsey County grand jury and subsequently convicted by a Ramsey County jury of first-degree murder in violation of Minn.Stat. § 609.185(a)(6) (2002), Minnesota’s domestic abuse murder statute, and second-degree intentional murder in violation of Minn.Stat. § 609.19, subd. 1(1) (2002), for the November 5, 2000, death of his girlfriend, Latisha Froysland. At sentencing, the trial court sentenced Manley to prison “for the remainder of [his] life.” In this direct appeal, Manley, through his appellate counsel, raises a number of issues. First, he asserts, relying on Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), that he is entitled to a new trial because the state did not prove beyond a reasonable doubt each predicate act comprising a “past pattern” of domestic abuse. Next, he asserts that the trial court erred when it failed to provide, sua sponte, a cautionary instruction with respect to how evidence related to Manley’s past pattern of domestic abuse could be used with respect to the second-degree murder charge. In addition, he asserts that he was deprived of a fair trial due to three evidentiary rulings by the trial court. He also asks this court to review sealed files examined by the trial court in camera to insure that all exculpatory evidence contained within those files was made available to him and to clarify his sentence. Finally, Manley raises a number of issues pro se. We affirm.

The following facts were established at trial. In early 1999, Manley and Froys-land met and started dating. At some point, Manley began living with Froysland and her four children. In October of 2000, Froysland and her children moved to a house located at 426 East Minnehaha Avenue in St. Paul. Manley did not officially move to the new house with Froysland, but did keep his things there. In the early evening on November 5, 2000, three of Froysland’s children went to a neighbor’s home and told the neighbor that their mother was dead. The neighbor called the police, who responded and found Froys-land’s body in an upstairs bedroom at the home. Froysland’s one-and-a-half-year-old daughter was curled up in the fetal position on her chest crying. That evening, the police interviewed Froysland’s five-year-old son, who implicated Manley in his mother’s death. The son told the police that he was sleeping and awoke to see his mother and Manley fighting. In addition, he indicated that he saw Manley with a gun in his mother’s mouth. When asked how he saw that, he said, “I, I went and walked in. And I heard a gunshot from my mom’s room and then saw Reese did it.” He also told the police that Manley stole his mother’s car when he left the house.

The autopsy on Froysland’s body revealed that she had been shot once in the head. There was evidence that she had also been strangled. The medical examiner concluded that Froysland had been killed sometime between 1:00 a.m. and 6:45 a.m. on November 5.

The day before the murder, Steven Mi-chaels, a pastor and the brother of Froys-land’s ex-husband, talked with Froysland and Manley on the telephone at approximately 11:00 a.m. While talking with Froysland, Michaels could hear Manley in the background yelling. When Manley got on the phone with Michaels, he claimed that Froysland had another man in the house the day before. Between 11:00 a.m. and noon that same day, Froysland, scared and,crying, arrived at the home of her cousin, Tanayia Walker. Walker took Froysland back to 426 East Minnehaha to get some clothing for the children. When they arrived, Manley, who was still at the house, attempted to push Froysland, into a bedroom and close the door. Walker intervened, and she and Froysland were eventually able to leave the house. After leaving, Froysland dropped Walker off at work with plans for Walker to drive Froys-land to Froysland’s sister’s house in Man-kato after Walker’s ■ shift ended around midnight. Froysland returned to 426 East Minnehaha with the children.

Around 8:30 that evening, Manley went to the home of the children’s babysitter and inquired as to Froysland’s whereabouts. The babysitter told Manley she had not heard from Froysland; however, shortly after Manley’s departure, the babysitter received a call from Froysland informing her that she would not need a babysitter that evening. Not much else is known about either Froysland’s or Manley’s other activities on November 4 except that between 5:00 p.m. on November 4 and 1:00 a.m. on November 5 Froysland talked with a number of her friends on the telephone, the last call being at approximately 1:00 a.m.

Between 1:30 and 2:00 a.m. on November 5, Manley arrived at the home of Nicole Adams, a woman he had been in a relationship with since July of 2000. According to Adams, Manley left her home at approximately 5:45 a.m., heading for the bus station. On November 7, Adams reported to the police that she had discovered what turned out to be Froysland’s car parked in her garage.

From the bus station, Manley took a bus to Kansas City, Missouri, to visit relatives. When Manley’s relatives asked why he came to Kansas City alone, Manley told them that something had happened at Froysland’s home. He explained that he and Froysland had spent the weekend together at a motel. Upon their return home, he went to the store. When he came home from the store, he found drug dealers at Froysland’s home asking her where he was. He heard someone shout, and heard a gunshot. He then ran down the stairs, jumped out a window, and fled.

Also while in Kansas City, Manley attempted to acquire cash using Froysland’s Electronic Benefits Transfer card. He asked the boyfriend of a woman who referred to herself as Manley’s aunt to assist him in using the card, claiming that he did not know how to use it, although he had used the card without assistance in the past. Following police attempts to locate him in both Kansas City and Minnesota, Manley turned himself in on November 19, 2000.

At trial, several witnesses testified regarding Manley’s past abuse of Froysland. Tammy Vaughn testified about a shoving incident in the summer of 1999 at her home. Vaughn testified that Manley shoved Froysland and told her if she called the police he would kill her. Vaughn also testified that she had seen a number of bruises on Froysland’s arms and legs during the summer of 1999. Ella Hunter, who occasionally lived with Froysland, testified about an incident in 1999 in which she saw Manley holding a knife to Froysland’s neck, and an incident in 2000 that involved a fight in which Manley was choking Froysland. According to Hunter, these incidents stemmed from Manley’s suspicion that Froysland was cheating on him. Tanayia Walker, who also lived with Froysland on occasion, testified that she heard Manley accuse Froysland of cheating on him and say that he would rather have her dead than with another man. Walker also testified that she had seen Manley with a dark-colored handgun.

Froysland’s stepfather, Renaldo Walker, testified that on October 16, 2000, Froys-land arrived at his house in tears and told him that Manley had beaten her, pulled a gun on her, and forced her into the trunk of her car. According to Walker, Froys-land was afraid to call the police. In the end, the police were contacted. The responding officer testified in some detail about the report she took from Froysland regarding the incident with Manley. According to the officer’s testimony, at the time Froysland gave the report, Froysland was shaking and choked up. The officer testified that Froysland reported that Manley broke into her home, woke her, and refused to leave. When Froysland offered to drive him anywhere he wanted to go, Manley stated he wanted to go to his mother’s house. Froysland drove Manley to the area of his mother’s house and told him to get out of the car. In response, Manley pulled a knife on Froysland and made her get into the passenger seat. Later, he forced her into the trunk of the car by showing her a small revolver. He then drove around until the car ran out of gas. When Manley and Froysland walked to a nearby restaurant to call a cab, Manley told her that if she made a scene he would kill her and everyone she loved. The officer took pictures of Froysland’s injuries. Those pictures were admitted as evidence at trial and show Froysland with two black eyes.

In addition, evidence related to an October 12, 2000, order for protection that Froysland obtained against Manley was admitted. That evidence included pictures of the injuries Froysland sustained during the assault that lead to the order for protection. Finally, evidence of Manley’s past abuse of a former girlfriend, Tabetha Lee, was admitted.

I.

Manley argues that the trial court committed reversible error in its instruction to the jury as to the state’s burden of proof with respect to the past pattern of domestic abuse under Minn.Stat. § 609.185(a)(6). According to Manley, the state was required to prove beyond a reasonable doubt each act making up the past pattern. In support of this argument, Manley relies on the United States Supreme Court decision in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). By his argument, he would have this court overturn State v. Cross, 577 N.W.2d 721 (Minn.1998). We decline to do so.

After the parties filed their briefs, but before oral argument in this ease, this court issued an opinion in State v. Kelbel, 648 N.W.2d 690 (Minn.2002), cert. denied, — U.S. -, 123 S.Ct. 1000, 154 L.Ed.2d 919 (2003). In Kelbel, we addressed the state’s burden of proof under Minn.Stat. § 609.185(5), Minnesota’s child abuse murder statute. The language of that statute, other than its reference to a “past pattern of child abuse” instead of a “past pattern of domestic abuse,” is for all practical purposes identical to Minn.Stat. § 609.185(a)(6), the domestic abuse murder statute. Under section 609.185(a)(5), a person is guilty of first-degree murder when he or she “causes the death of a minor while committing child abuse when [he or she] has engaged in a past pattern of child abuse.” We concluded in Kelbel that the state was required to prove the past pattern of child abuse beyond a reasonable doubt, but was not required to prove each predicate act of the “past pattern of child abuse” beyond a reasonable doubt. Kelbel, 648 N.W.2d at 703. In reaching that conclusion, we relied in part on our rules of statutory construction, our decision in Cross, and the Supreme Court’s decision in Richardson. First, we noted that we have repeatedly held -that when the legislature’s intent is clear “statutory construction is neither necessary nor permitted,” and that in those situations we will apply the plain meaning of the statute. Kelbel, 648 N.W.2d at 701-02 (citing Minn. Stat. § 645.16 (2000)).

We then looked at Cross. In Cross, we held that the plain language of the domestic abuse murder statute requires “proof only that the murder occurred during an act of domestic abuse, that the perpetrator has engaged in a past pattern of domestic abuse, and that the circumstances of the killing manifest an extreme indifference to human life.” Id., 577 N.W.2d at 726-27. While the plain language of the statute alone supported our conclusion in Cross, such a conclusion was further buttressed by the fact that, in the absence of clear statutory direction, to require proof beyond a reasonable doubt as to each act of the past pattern would “create an unnecessarily heavy burden on the state.” Id. at 727; see Kelbel, 648 N.W.2d at 700.

Our concern in both Cross and Kelbel was the difficulty of proving domestic abuse and child abuse, and the potential unfairness to the state if it were forced to prove each of the acts constituting a past pattern of abuse beyond a reasonable doubt. Cross, 577 N.W.2d at 727, Kelbel, 648 N.W.2d at 702. In Cross, we explained that the domestic abuse statute “reflects a recognition of the unique characteristics of domestic abuse” — namely, the hidden nature of the violence and the fact that domestic abuse is one of the most underreported crimes. Cross, 577 N.W.2d at 727. In Kelbel, we recognized that child abuse has the same characteristics. Kelbel, 648 N.W.2d at 702-03. Applying our holding in Cross to Kelbel, we concluded that the child abuse murder statute’s similar language led to the same conclusion that we reached in Cross: it is the pattern, not the individual acts making up the pattern, that must be proven beyond a reasonable doubt. Kelbel, 648 N.W.2d at 702.

We then considered our reasoning from Cross, in light of Richardson, and concluded that Richardson’s analytical framework did not dictate a different result. Kelbel, 648 N.W.2d at 702. That framework required us to examine Minn.Stat. § 609.185(a)(5)’s “language, tradition, and potential unfairness to a defendant” to determine whether the statute’s past pattern language created one or several elements. Kelbel, 648 N.W.2d at 702. As discussed above, we concluded that the statute’s language creates only one element. Id. at 703. In essence, we concluded that the “past pattern” was a means of committing the underlying offense and not the offense itself. Id. at 702. We acknowledged the similarities between our “past pattern” language and the “series of violations” language at issue in Richardson, noting that both a pattern and a series require more than one incident to occur and both our child abuse murder statute and the continuing criminal enterprise statute considered in Richardson require a criminal act to make up the pattern or series. We nonetheless concluded that the two statutes are dissimilar because, “in Richardson, the Court failed to find any legal source defining ‘violations’ as a means of committing an offense rather than the offense itself,” while in Cross, we concluded that the criminal acts that constitute “domestic abuse” are a means of establishing the required pattern rather than separate elements. Kelbel, 648 N.W.2d at 702.

Under Richardson’s analytical framework, we also considered the tradition underlying the statute. Richardson explicitly distinguished sexual abuse statutes because the underlying criminal acts were difficult to prove, and thus those statutes did not require proof of each predicate act. Kelbel, 648 N.W.2d at 700 (citing Richardson, 526 U.S. at 821, 119 S.Ct. 1707). We reached the same conclusion in Cross regarding domestic abuse. 577 N.W.2d at 727. Thus, we noted in Kelbel that this Richardson factor “weighs against interpreting” the “past pattern” language as creating several elements. 648 N.W.2d at 703.

Finally, although we acknowledged Richardson’s concerns regarding potential unfairness to a defendant given a jury’s possible propensity to ignore the factual details of each criminal act, we held in Kelbel that both the plain language of the statute and tradition still weighed against reading “past pattern” as creating several elements. Id. Given that our decision in Kelbel rested on our analysis in Cross and was not undermined by an application of Richardson’s analytical framework, whether we approach Manley’s contentions by way of the plain language of the domestic abuse murder statute or the analytic framework set out in Richardson, our holding today reaches the same conclusion we reached in Kelbel: the “past pattern” language found in Minn.Stat. § 609.185(6), Minnesota’s domestic abuse murder statute, like the “past pattern” language in MinmStat. § 609.185(5), Minnesota’s child abuse murder statute, refers to the means of establishing the pattern rather than separate elements of the underlying offense. Thus, we conclude that the trial court did not err in its instructions to the jury on the state’s burden of proof with respect to the past pattern of domestic abuse.

II.

Manley next claims that the trial court committed plain error when it failed to provide, sua sponte, a limiting instruction with respect to how the evidence admitted to prove the past pattern of domestic abuse was to be used by the jury when considering the second-degree intentional murder charge. When a criminal defendant fails to object to claimed trial errors, our review is for plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740-41 (Minn.1998) The three-prong test for plain error requires that there be (1) error, (2) that is plain, and (3) the error must affect substantial rights. Id. at 740. Each prong of the test must be met in order for our review to proceed. Id. Normally, we would consider each prong of the plain-error test in order, but in this case we need not do so. On its face, Manley’s claim fails because he cannot establish that the claimed error affected his substantial rights. We have said that the requirement that the error affect substantial rights “is satisfied if the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741. Here, in addition to second-degree intentional murder, Manley was convicted of the greater offense of first-degree murder, which we today affirm. Manley does not challenge the admissibility of the past pattern of domestic abuse evidence as it relates to that offense. Nor can he. It was properly admitted for purposes of establishing an element of that offense. Because the past pattern of domestic abuse evidence was properly admitted for purposes of the first-degree murder offense and because we affirm the conviction for that offense, Manley cannot establish that the admission of that evidence as it relates to his second-degree intentional murder conviction was prejudicial and affected the outcome of the case. Therefore, we have no basis to review this alleged error.

III.

Manley also asserts that he was deprived of a fair trial when the trial court removed one of the jurors, refused to allow third-party perpetrator evidence, and granted the Fifth Amendment privilege to a witness. We shall address each of these issues in turn.

A. Removal of Juror

During voir dire, one of the prospective jurors indicated that she had a sister who was a public defender in Ramsey County, where the trial was being held. During questioning about her relationship with her sister and her ability to remain unbiased, the juror stated that she did not feel that her sister’s position would influence her during the trial. The juror was ultimately seated.

As the trial went forward, the trial court noted that the juror’s sister was frequently present in the courtroom observing the trial. Concerned that the sister’s presence might influence the juror, the trial court, out of the presence of the jury, questioned the sister about her conversations with the juror. The trial court took no action as a result of this questioning, which took place on a Friday. The following Monday, the state expressed concerns about the juror’s ability to remain impartial as a result of the sister’s presence in the courtroom during trial and the conversations the sister had with the juror regarding the trial. As a result, the trial court questioned the juror out of the presence of the other jurors regarding the juror’s ability to remain impartial. During questioning, the juror disclosed that her sister had been driving her to and from court every day. The juror also indicated to the trial court that she was not influenced by her sister’s presence. At the end of the questioning, the trial court did not remove the juror, but did remind her of her obligation not to discuss the case with others.

The next morning, the juror approached the trial court and asked to be excused, stating, “I just feel like I could be influenced; and not by my sister, but by my association with my sister * * * [a]nd I’m afraid that could influence me, and I wouldn’t be very objective.” Thanking her for her candor, the trial court excused the juror from further service and an alternate juror took her place.

Manley argues that the trial court’s examination of the juror in the first instance and the juror’s eventual removal, without any attempt to rehabilitate the juror, were improper. He also claims that questioning the sister denied him a public trial. In the past, we have not had occasion to address the precise issue presented by this case. We have addressed the somewhat analogous situation in which, during voir dire, the question arises as to whether a prospective juror should be removed for cause. In those situations, we give great deference to the trial court in making its determination. See State v. Logan, 535 N.W.2d 320, 323-24 (Minn.1995); State v. Graham, 371 N.W.2d 204, 206-07 (Minn.1985). We see no reason to treat the circumstances here differently.

The trial court is responsible for ensuring that the trial proceedings are fair. Pederson v. State, 649 N.W.2d 161, 164-65 (Minn.2002). When circumstances arise during trial that raise concerns about the fairness of the proceedings, it is appropriate for the trial court to address those concerns.

Here, based on his knowledge that the juror’s sister was a Ramsey County public defender, coupled with the sister’s presence in the courtroom during trial for extended periods of time, the trial court judge became concerned that the juror might be influenced by the sister’s presence. The judge talked to the sister, but took no action. After the state raised concerns about the sister’s presence at the trial, the judge talked to the juror. Other than reminding the juror that she was not to talk to anyone about the case, the judge took no action. We see nothing improper in the judge questioning the juror and her sister in an effort to ensure that the sister’s presence in the courtroom during trial was not having an impact on the juror’s ability to be impartial. Nor do we see anything improper in the judge taking the juror at her word when, indicating that her association with her sister could influence her and affect her ability to be objective, she asked to be excused.

Manley contends that the trial court should have attempted to rehabilitate the juror following her request for removal. While the judge in the exercise of his discretion might have questioned the juror to see if she could be, as Manley suggests, rehabilitated before excusing her, he was under no obligation to do so. 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 21.3(c) at 729-30 (1984) (cited in State v. Logan, 535 N.W.2d 320, 323 (Minn.1995)) (if during voir dire a juror expresses bias, that juror should be excused unless rehabilitated, but nothing suggests that a trial court is under a duty to rehabilitate). Thus, we conclude that the trial court did not abuse its discretion when it excused the juror from further service.

B. Third-Party Perpetrator Evidence

At trial, Manley claimed that Froysland was murdered by drug dealers who were looking for him. In support of that claim, Manley sought to introduce testimony from an individual who was incarcerated with him at the Ramsey County Adult Detention Center. According to Manley, the individual told his defense investigators that he had overheard a man by the name of Scott admit to killing Froysland. Claiming that he had fabricated the story about Scott, the individual subsequently recanted the story he gave defense investigators.

A criminal defendant may introduce evidence that a third party committed the crime of which the defendant is accused. Woodruff v. State, 608 N.W.2d 881, 885 (Minn.2000). However, before the defendant is allowed to do so, he or she must first lay a foundation of additional evidence sufficient to connect the alleged third-party perpetrator with the commission of the crime. Id. That evidence must be clear and convincing. See State v. Johnson, 568 N.W.2d 426, 433 (Minn.1997). The decision to admit such evidence is within the discretion of the trial court and the trial court’s decision will not be reversed absent an abuse of discretion. See, e.g., State v. Stewart, 643 N.W.2d 281, 292 (Minn.2002). Here, the trial court found that Manley’s proffered third-party perpetrator evidence was not clear and convincing and was thus not admissible. Manley now argues that his defense was compromised because the trial court did not allow him to introduce this evidence.

The only evidence connecting a third-party perpetrator to Froysland’s murder was the statement that the individual who was incarcerated with Manley gave to defense investigators, which the individual subsequently recanted. Once the statement was recanted, there was no evidence in the record sufficient to connect any other individual to Froysland’s murder. Therefore, we cannot say that the trial court abused its discretion when it excluded the proffered evidence because it was not clear and convincing.

C. Fifth Amendment Privilege

Manley also maintains that he was prejudiced when the trial court granted the Fifth Amendment privilege against self-incrimination to a possible witness. During voir dire, a hearing was held, and the witness’s attorney appeared and indicated that his client was asserting his Fifth Amendment right not to testify. Manley’s counsel requested that the court determine if the assertion of privilege was valid. In response, the witness’s counsel indicated that he could not reveal his client’s reasons for invoking the privilege without violating attorney-client privilege.

In this appeal, Manley asserts that the trial court should have examined the witness to determine if he was entitled to invoke the privilege. As we did in State v. Moose, 266 N.W.2d 521 (Minn.1978), we reject this argument. Trial courts have broad discretion in deciding whether a claim of privilege is valid. Id. at 525. In Moose, we stated that the trial court should not require the witness to prove the hazard of incrimination, as to do so would require the witness to “surrender the very protection which the privilege is designed to guarantee.” Id. There is nothing in the record before us to suggest that the trial court, which is in the best position to appraise the claim of privilege, abused its discretion in allowing the witness to assert the privilege. See Moose at 525. Therefore, we conclude that the trial court did not abuse its discretion when it declined to question the witness to determine whether the claim of privilege was valid.

IV.

Finally, we turn to Manley’s supplemental pro se brief, which raises, by our count, 19 separate issues. As an initial matter, the state, in a motion filed July 12, 2002, moved pursuant to Minn. R.Civ.App. Proc. 110.01 and 127 to have this court strike certain portions of Manley’s supplemental pro se brief and appendix because the allegations contained therein are not supported by material in the record. The state further contends that those portions of the supplemental pro se brief are nothing more than Manley’s attempt to place his version of events before the court without testifying and being subject to cross-examination. Finally, the state contends that, to the extent that Manley’s supplemental pro se brief cites any law, the cases do not support the allegations he makes. Specifically, the state requests that we strike numbered paragraphs 2 and 6 of the supplemental pro se brief and pages 19, 20, 22, 23-24, 27, and 29-41 of the supplemental pro se brief, as well as the entire appendix.

Our reading of Manley’s supplemental pro se brief, coupled with our review of the record, leads us to conclude that the matters contained in paragraphs 2 and 6 from the brief are unsupported by any facts in the record. Therefore, we grant the state’s motion to strike with respect to those paragraphs. See State v. Taylor, 650 N.W.2d 190, 204 n. 12 (Minn.2002) (noting that an appellate court may not base its decision on matters outside the record on appeal). As for the remainder of the materials challenged by the state’s motion, our review leads us to conclude that they must also be stricken. The challenged pages contain only argument that is unsupported by facts in the record. Further, they contain no citation to any relevant legal authority and therefore we deem them waived. See State v. Krosch, 642 N.W.2d 713, 719 (Minn.2002). In addition, the supplemental pro se briefs appendix contains materials that are not a part of the record and therefore are not to be considered by this court. See Taylor, 650 N.W.2d at 204 n. 12. As a result, we decline to address five of the issues raised by Manley’s supplemental pro se brief.

Manley’s remaining allegations are summarized as follows:

1. The trial court impermissibly allowed evidence of prior crimes to be introduced at trial.

2. Allowing videotapes of testimony given by Froysland’s sons was reversible error.

3. In admitting the testimony of Froys-land’s sons, the trial court allowed incompetent and inconsistent statements before the jury.

4. In admitting the testimony of a police officer who attested to Tabetha Lee’s state of mind and injuries, the trial court allowed hearsay before the jury.

5. Manley was deprived of a fair trial when he was required to communicate with his trial counsel via a third party during the children’s closed-circuit testimony.

6. Manley was prejudiced by statements at trial that both Froysland and Lee were afraid of him.

7. The trial court committed reversible error by denying the jury the option of a hung jury.

8. The trial court gave an improper circumstantial evidence instruction.

9. Manley received ineffective assistance of trial counsel due to defense counsel’s failure to object to numerous incidents of prosecutorial misconduct.

10. Manley received ineffective assistance of appellate counsel due to appellate counsel’s failure to dismiss his direct appeal and seek posteonviction review.

11. Manley’s indictment did not properly inform him of the penalties under Minn.Stat. § 609.185.

12. The trial court erred by failing to determine whether Manley’s statement was voluntary before submitting it to the jury-

13. The jury verdict was in error.

14. The DNA test administered to Manley was faulty.

Issues 1, 4, and 6 involve evi-dentiary rulings by the trial court. Such rulings fall within the discretion of the trial court and will not be reversed absent an abuse of that discretion. See State v. Lindsey, 632 N.W.2d 652, 662 (Minn.2001). With respect to issue 1, we note that Manley does not identify the prior crimes being challenged, nor does he explain how their admission prejudiced him. Given Manley’s lack of specificity, his claim has no merit. To the extent that this issue involves the admission of evidence relating to his past pattern of domestic abuse, that evidence was properly admitted to establish an element of the charged first-degree murder offense. Moreover, with respect to issues 4 and 6, as well as issue 1, we have thoroughly reviewed the record and are satisfied that the trial court did not abuse its discretion in admitting any of the challenged evidence.

With respect to issues 2, 3, and 5, Manley challenges several aspects of the testimony given by Frosyland’s children. He claims that the trial court erred in allowing videotaped statements the children gave to the police to be played at trial, that the children’s testimony was inconsistent and incompetent, and that he was denied his right to confrontation because he was required to view the children’s trial testimony via closed-circuit television and because he was unable to communicate directly with his trial counsel during their testimony.

We first address Manley’s contention that the trial court erred in allowing the children’s videotaped statements to be played at trial. Both Marcus and Michael Froysland were interviewed at the Saint Paul Police Department soon after Froys-land’s body was found. Manley’s trial counsel objected to the use of the videotaped testimony, contending that the statements were inconsistent with the children’s trial testimony. The trial court ruled that the videotapes were admissible under Minn. R. Evid. 801(d) 1(B) as prior consistent statements, and under Minn. R. Evid. 803(24), the residual hearsay exception. The trial court also relied on a number of Minnesota appellate decisions in support of its ruling.

Minn. R. Evid. 801(d)(1)(B) states that an out-of-court statement is not hearsay if the statement is consistent with the declar-ant’s testimony and helpful to the trier of fact in determining whether the declarant is credible. We have previously noted that the 1990 amendments to this rule were specifically intended to broaden the admissibility of prior out-of-court statements while at the same time ensuring that the testimony is both consistent and helpful to the trier of fact in evaluating the credibility of the witness. State v. Nunn, 561 N.W.2d 902, 908 (Minn.1997). Such statements are not automatically admissible. Id. at 909. Before they can be admitted, the witness’s credibility must be challenged and the statement must bolster the witness’s credibility with respect to the challenged aspect. Id. Here, each child’s credibility was challenged during the child’s testimony and the trial court found the videotaped statements to be consistent with the children’s trial testimony and helpful to the trier of fact in evaluating the credibility of the witness.

Based on our review of the record, we conclude that the videotaped statements do fall within Minn. R. Evid. 801(d)(1)(B) and were therefore properly admitted. At trial, both children testified and were subject to cross-examination. Manley’s trial counsel challenged the credibility of each child, asking if they were confused or if they no longer recalled the events surrounding the death of their mother. Comparing their videotaped statements with their trial testimony, we are satisfied that the videotaped statements corroborated their in-court testimony regarding the death of their mother and were therefore “helpful to the trier of fact in evaluating [their] testimony.” Nunn, 561 N.W.2d at 909. As a result, we conclude that the trial court did not abuse its discretion in admitting the children’s videotaped statements.

Manley next asserts that the testimony offered by the children was both inconsistent and incompetent. He fails, however, to point out significant inconsistencies in the children’s testimony. With respect to the children’s competency, Manley argues that one child had trouble remembering whether he was seven or eight years old and had brief difficulty determining how to answer the prosecutor’s fanciful question (“If I told you I was Daunte Culpepper, would I be lying?”).

Because the children were both under ten years of age, the trial court conducted competency hearings to determine their ability to testify. See Minn. Stat. § 595.02, subd. l(m) (2002). The trial court found that both were competent and capable of understanding the difference between truth and falsehood. As we noted in State v. Lanam, 459 N.W.2d 656, 660 (Minn.1990), cert. denied, 498 U.S. 1033, 111 S.Ct. 693, 112 L.Ed.2d 684 (1991):

Competency concerns the child’s ability to be truthful and to understand the importance of telling the truth in court. It also concerns the child’s ability to remember and relate events. Whether a child is easily led goes more to credibility than to competency. Even adults at trial become inconsistent upon cross-examination. It is the jury’s province to sort out the inconsistencies and determine credibility, the court’s province to determine competency. Where the court is in doubt as to the child’s competency, it is best to err on the side of determining the child to be competent.

As with the trial court’s admission of the children’s videotaped statements, we are satisfied that the trial court did not abuse its discretion when it permitted the children to testify at trial.

Finally, Manley contends that he was deprived of a fair trial when- he was required to view the children’s testimony via closed-circuit television and communicate with his trial counsel via another lawyer during that testimony. In this case, the trial court made a determination that, having been witness to Manley’s murder of their mother, the children were sufficiently traumatized as to be unable to testify in Manley’s presence. As a result, the trial court required that the children’s testimony would be taken pursuant to the arrangement about which Manley now complains. Minnesota’s statutory scheme anticipates such situations. See Minn. Stat. § 595.02, subd. 4(2)(c) (2002). Section 595.02, subdivision 4(2)(c), provides:

If the court, upon its own motion or the motion of any party, finds in a hearing conducted outside the presence of the jury, that the presence of the defendant during testimony taken pursuant to this subdivision would psychologically traumatize the witness so as to render the witness unavailable to testify, the court may order that the testimony be taken in a manner that:
(1) the defendant can see and hear the testimony of the child in person and communicate with counsel, but the child cannot see or hear the defendant; or
(2) the defendant can see and hear the testimony of the child by video or television monitor from a separate room and communicate with counsel, but the child cannot see or hear the defendant.

We are satisfied that requiring Manley to view the children’s testimony via closed-circuit television and to communicate with his trial counsel during that testimony through another lawyer was permitted by Minn.Stat. § 595.02, subd. 4(2)(c), and did not deny him a fair trial. Moreover,- Manley did not object to the arrangement at trial, and the matter can properly be deemed waived upon appeal. See State v. Litzau, 650 N.W.2d 177, 182 (Minn.2002).

Issues 7 and 8 challenge jury instructions given by the trial court. In each case, the trial court gave the recommended jury instruction from the jury instruction guide. Manley’s argument as to why the instructions given were improper is not supported by the law. Absent such support, we conclude that the instructions as given were proper.

Issues, 9 and 10 assert that Manley was denied effective assistance of counsel. In order to prevail on such a claim, Manley “has the burden of demonstrating that (1) his counsel’s representation fell below an objective standard of reasonableness and (2) a reasonable probability that the outcome would have been different but for counsel’s errors.” State v. Ture, 632 N.W.2d 621, 632 (Minn.2001). Manley alleges numerous instances of ineffective assistance, but fails to point to anything in the record to support those allegations. As a result, he fails to meet either of the requirements for establishing an ineffective assistance of counsel claim. Moreover, our review of the record satisfies us that Manley was not denied the effective assistance of counsel as asserted.

With respect to the remainder of Manley’s pro se claims, we have thoroughly reviewed the record and conclude that those claims have no merit.

Affirmed.

      . With respect to this issue, it is enough to say that we have examined the confidential records and are satisfied that there was no error on the part of the trial court.

      . To the extent that the trial court's statement at sentencing can be read as the trial court having sentenced Manley to a life sentence without the possibility of release, that statement is in error. Sentencing for those convicted under Minn.Stat. § 609.185(6) is pursuant to Minn.Stat. § 244.05, subd. 4, which provides for a sentence of life imprisonment with the possibility of release after serving a minimum of 30 years. See Minn.Stat. §§ 244.05, subd. 4, 609.106, subd. 2, and 609.185(a)(6).

      . Minnesota Statutes §§ 609.185(5) and 609.185(a)(6) (2002) read:
      (5) causes the death of a minor while committing child abuse, when the perpetrator has engaged in a past pattern of child abuse upon the child and the death occurs under circumstances manifesting an extreme indifference to human life;

        ■ (6) causes the death of a human being while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life[.]

      . The juror’s sister told the court that she had asked her sister the name of the defendant. When the juror explained she could not talk about the case, her sister assured her that she was free to reveal the defendant's name, the charges, the judge, and the attorneys.


source: Caselaw Access Project

author: PAUL H. ANDERSON, Associate Justice.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST George C. RIGGS, a Minnesota Attorney, Registration No. 127681.
    No. A03-664.
    Supreme Court of Minnesota.
    June 17, 2003.
   ORDER

PAUL H. ANDERSON, Associate Justice.

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent George C. Riggs has committed professional misconduct warranting public discipline, namely, signing a client’s name to an affidavit and then notarizing the purported client signature in violation of Minn. R. Prof. Conduct 8.4(c) and (d). The parties represent to the court that the signing and notarizing of the client’s name do not appear to have been motivated by a desire to defraud, that the contents of the affidavit were accurate, that respondent discussed the affidavit with the client before respondent signed the client’s name, and that respondent immediately admitted his conduct when asked about it during a court hearing.

The parties have entered into a stipulation in which respondent admits his conduct violated the Minnesota Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and the parties jointly recommend that the appropriate discipline is a 30-day stayed suspension, and two years of probation subject to the following conditions:

(i)Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(ii) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(iii) Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
(iv) Within 30 days from the date of the court order, respondent shall provide to the Director a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
(v) Respondent shall pay $900 in costs under Rule 24, RLPR.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent George C. Riggs is suspended from the practice of law for 30 days, that the 30-day suspension be stayed and respondent be placed on probation for two years subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs under Rule 24, RLPR.


author: HANSON, Justice. GILBERT, Justice

text:
    Lori JOHNS, Petitioner, Appellant, v. HARBORAGE I, LTD., a/k/a America Live, a foreign limited partnership, Defendant, FPM, Ltd., Defendant, Jillian’s Entertainment Corporation, et al., Respondents.
    No. C1-01-2161.
    Supreme Court of Minnesota.
    July 3, 2003.

      Frank Vogl, Patrick B. Hennessy, Best & Flanagan LLP, Minneapolis, MN, for Appellant Lori Johns.
    Dan Biersdorf, Biersdorf & Associates, P.A., Minneapolis, MN, for Respondents Harborage I, Ltd., a/k/a America Live, a foreign limited partnership.
    Charles E. Gillin, Stephen F. Buterin, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for Respondents Jillian’s Entertainment Corporation and Jillian’s Gator’s of Minneapolis, Inc.
   OPINION

HANSON, Justice.

In 1993, appellant Lori Johns was employed as a server at the Gators Bar and Restaurant at the Mall of America. In 1995, she brought a sexual harassment action against Gators under both Title VII of the Federal Civil Rights Act, 42 U.S.C. § 2000(e), and section 363.01 of the Minnesota Human Rights Act (MHRA). At the time of the lawsuit, Gators was one of several bars that were organized by two principals, Charles Greener and Joyce McReynolds, who operated each bar through a combination of several legal entities.

Johns obtained two judgments against one of those entities, a limited partnership named Harborage I, Ltd., but Johns was unable to collect the judgments because Harborage I’s assets were liquidated following the sale of Gators to respondent Jillian’s Entertainment Corporation. Post judgment, Johns moved to amend her complaint to assert a claim of successor liability against Jillian’s. Leave to amend was granted and both parties moved for summary judgment. The district court granted Johns’ motion and determined that Jillian’s was liable as a successor to Harborage I. The court of appeals reversed, applying successor-corporation liability law. Before this court, Johns argues that a broader concept of successor-employer liability, as recognized by federal courts in Title VII cases, is the appropriate standard. Johns also asserts that Minn. R. Civ. P. 15.01 permits post-judgment, post-appeal amendments to the complaint. We reverse the court of appeals and reinstate the judgment against Jillian’s.

When Johns was employed at Gators, it was owned and operated by a combination of limited partnerships and corporations, all of which essentially traced a common source to Greener and McReynolds. All the entities shared the same offices in Dallas, Texas. The entities that operated Gators were:

1. FPM, Ltd., a Texas limited partnership whose general partner was a corporation controlled by McReynolds. FPM was the lessee of the premises and the holder of the liquor license.

2. Harborage I, Ltd., a Texas limited partnership whose general partner was a corporation in which McReynolds was one of three directors. Harborage I was the manager of Gators.

3. Harborage, Inc., a Texas corporation in which McReynolds was one of three directors, provided employees to Gators and issued paychecks.

After a bench trial, the district court found that Gators had violated both Title VII and the MHRA; that Harborage I and Harborage, Inc. were so interrelated that both could be treated as the “employer” of Johns for purposes of Title VII; and that Harborage I was liable to Johns under Title VII and the MHRA. The court determined, however, that FPM was not the employer of Johns and thus was not liable under Title VII or the MHRA. The court ordered judgment in favor of Johns against Harborage I in the amount of $25,000 in compensatory damages and $8,500 in punitive damages. Later, a separate judgment for $65,894.46 in attorney fees and costs was also entered. On appeal by Harborage I, the court of appeals affirmed the findings of the district court in all respects save for the grant of punitive damages. Johns v. Harborage I, 585 N.W.2d 853, 864 (Minn.App.1998). The court of appeals awarded Johns’ appellate attorney fees of $12,500. The judgments now total $103,394.46.

When Johns began efforts to collect the judgments, she was unable to do so because the assets of Harborage I had been liquidated and the ownership and operation of Gators had been transferred to Jillian’s. The transfer of Gators to Jillian’s was accomplished by two agreements, an Asset Purchase Agreement (APA) and a Transition Services Agreement (TSA). Each agreement referenced the transfer of several bars connected with Greener and McReynolds. The APA listed eight different entities as the sellers. FPM, the lessee and liquor licensee of Gators, FPM I, the general partner of FPM, and Main Event, a corporation that held McRey-nolds’ limited partnership interest in FPM, were all listed on the APA. Harborage I was not listed on the APA.

Under the APA, Jillian’s assumed all of the “assumed liabilities,” defined as “sellers’ trade payables up to an amount equal to the saleable inventory * * * plus accrued vacation benefits * * *.” Jillian’s did not assume any of the “retained liabilities,” defined as “all liabilities and obligations, absolute or contingent, known or unknown, due or to become due, now existing or hereafter incurred, of seller and the partnerships other than the Assumed Liabilities.” The APA also provided that Jillian’s would be indemnified from any adverse consequences caused by any of the retained liabilities.

Although Harborage I was not a party to the APA, it was a party to the separate TSA with Main Event and Jillian’s. The TSA stated that Harborage I and Main Event rendered substantial and valuable administrative and support services to the parties to the APA. The TSA noted that Jillian’s would require the services of certain employees of Harborage I during the transition of ownership. The TSA also provided that certain “designated employees” of Harborage I would become employed by Jillian’s, while other employees of Harborage I, acting through Main Event and Harborage I, would supply support services to the sites involved in the APA during the transition period. Finally, the TSA stated that compensation for those support services would be paid solely to Main Event.

Pursuant to these two agreements, Jillian’s took over Gators and operated it exactly as Harborage I (and its related entities) had. The name of the bar and location remained the same, the supervisors, managers, and employees were the same, uniforms, pay, and benefits remained the same, and the bar used the same décor, menu, furniture, and equipment.

Johns moved to amend her complaint to add Jillian’s as a defendant. That motion was granted and Johns then moved for summary judgment, as did Jillian’s. In its cross-motion for summary judgment, Jillian’s did not challenge Johns’ factual assertions but rather concentrated on three key points:

1. Harborage I was not a party to the APA by which Jillian’s acquired Gators and the TSA was the only explicit business transaction between Jillian’s and Harbor-age I.

2. Jillian’s could most properly be considered a successor to FPM, which was a party to the APA but had been found not to be liable to Johns.

3. Jillian’s neither explicitly nor implicitly assumed any of the debts or obligations of Harborage I.

The district court, after considering these contentions, found in favor of Johns. Specifically, the district court found that: (1) “the effect, if not the intent” of the APA was to block Johns’ efforts to collect a valid judgment; (2) the APA made clear that Jillian’s was aware of the “vital role” of Harborage I in the operation of Gators; (3) the same management personnel remained following Jillian’s purchase; and (4) Jillian’s entered into the agreements with full knowledge of Johns’ judgments against Harborage I. The district court ruled that Jillian’s was liable as a successor.

The court of appeals reversed on a number of grounds. It held that (1) Rule 15.01 of the Minnesota Rules of Civil Procedure did not permit Johns’ post-judgment amendment of the complaint; (2) garnishment was the only method by which Johns could assert a successor liability claim against Jillian’s; and (3) the district court erred as a matter of law in finding that Jillian’s was liable as a successor corporation. Johns v. Harborage I, 645 N.W.2d 761, 762 (Minn.App.2002) (hereinafter Johns II). Johns appeals on all grounds.

I.

Johns contends that the court of appeals erred in holding that Rule 15.01 of the Minnesota Rules of Civil Procedure does not permit a post-judgment, post-appeal amendment of a complaint. Generally, the decision to permit or deny amendments to pleadings is within the discretion of the district court and will not be reversed absent a clear abuse of discretion. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993); LaSalle Cartage Co., Inc. v. Johnson Bros. Wholesale Liquor Co., 302 Minn. 351, 357-58, 225 N.W.2d 233, 238 (Minn.1974). The court of appeals did not focus on an abuse of discretion standard but held, as a matter of law, that Rule 15.01 does not permit amendment of the complaint after judgment has been entered and the appeal is finalized. Johns II, 645 N.W.2d at 765.

Rule 15.01, which is substantively identical to the federal rule, reads in relevant part:

[A] party may amend a pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

Minn. R. Civ. P. 15.01. Jillian’s relies on a number of federal cases that are discussed in Wright and Miller’s Federal Practice and Procedure and hold that once judgment is entered, the court cannot allow amendment of the complaint. See 6 Charles Alan Wright, Arthur R. Miller, & Mary Kaye Kane, Federal Practice and Procedure § 1489 (2d ed.1990). But these cases generally deal with the situation where the proposed amendment represents a challenge to the judgment. This is not true here. Johns does not challenge the judgment, but seeks to enforce it against a successor party.

As such, this case closely parallels the recent United States Supreme Court decision in Nelson v. Adams USA, Inc., 529 U.S. 460, 120 S.Ct. 1579, 146 L.Ed.2d 530 (2000). There, the district court allowed a third-party complaint to be amended to add the sole shareholder as a third-party defendant after judgment had been entered on the third-party complaint against the corporation. Nelson, 529 U.S. at 463, 120 S.Ct. 1579. The amendment was sought because the judgment creditor could not collect from the corporation. Id. at 462-63, 120 S.Ct. 1579. Although the Court reversed the summary judgment entered against the sole shareholder on due process grounds, because his liability had been determined without an opportunity to be heard, the Court allowed the amended complaint to stand and remanded to allow the sole shareholder to present a defense. Id. at 472, 120 S.Ct. 1579.

The Supreme Court, therefore, recognized that there are situations in which it is permissible to amend a complaint after entry of final judgment. Such a view is consistent with the statement of this court that “[u]nder our modern system of pleading and practice the amendment of pleadings is liberally allowed even after judgment has been entered.” Crum v. Anchor Cas. Co., 264 Minn. 378, 389, 119 N.W.2d 703, 710 (1963).

Jillian’s argues alternatively that the amendment was impermissible because the district court lacked subject-matter jurisdiction to grant leave to amend. Jillian’s asserts that the district court’s jurisdiction ceased with the 1997 entry of judgment or, alternatively, with the court of appeals’ affirmance in 1998. However, the cases relied upon by Jillian’s are inapposite. One stands only for the proposition that a district court does not retain jurisdiction to amend an order while an appeal from that order is pending. Marzitelli v. City of Little Canada, 582 N.W.2d 904, 906-07 (Minn.1998). Another merely states that a district court has no jurisdiction to reopen a judgment to allow a party to argue alternative grounds to challenge it after affirmance on appeal. Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 718 (Minn.1987). We conclude that the district court retained jurisdiction to enforce the final judgment after appeal because such enforcement is “independent of the underlying [appellate] decision” and would not “modify the underlying [appellate] decision in any way.” Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn.2000).

II.

The court of appeals concluded that Johns was barred from pursuing her claim against Jillian’s under the amended complaint because the appropriate remedy was garnishment under Minn.Stat. § 571.71-.932 (2000). Johns II, 645 N.W.2d at 765. The court of appeals also held that Johns’ failure to file a supplemental complaint based on Jillian’s denial of a garnishment summons results in the discharge of Jillian’s from any liability. Id. We conclude that garnishment was not the exclusive or even an appropriate remedy to enforce the judgment. Jillian’s apparently agrees because it did not argue this issue before us.

Under Minn.Stat. § 571.73, subd 1, the only property reached by garnishment is the disposable earnings indebtedness, money or property of the debtor in the garnishee’s possession. Minn.Stat. § 571.73, subd. 1 (2002). In other words, a garnishment summons could only be used to enforce Jillian’s liability to Harbor-age I. Because Jillian’s had no liability to Harborage I, garnishment was not an appropriate procedure to enforce Johns’ judgments against Harborage I. Accordingly, we conclude that Johns was not required to file a garnishment action to pursue collection of her judgments and that the failure of Johns to file a supplemental complaint does not bar her claim against Jillian’s.

III.

We now turn to the issue at the heart of this case — whether Jillian’s can be considered a successor employer for purposes of enforcing the judgment obtained against Harborage I. Because this appeal is from summary judgment, our review is twofold, to determine (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. Odenthal v. Minnesota Conference of Seventh-Day Adventists, 649 N.W.2d 426, 430 (Minn.2002).

In holding that Jillian’s did not have successor liability, the court of appeals relied on Black’s Law Dictionary and on Minnesota successor-corporation law. Black’s defines a successor as “A corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation.” Johns II, 645 N.W.2d at 766 (citing Black’s Law Dictionary 1446 (7th ed.1999)). Minnesota successor-corporation law, as codified by statute, provides that “The transferee is hable for the debts, obligations and liabilities of the transferor only to the extent provided in the contract * * Minn.Stat. § 302A.661, subd. 4 (2002); see also J.F. Anderson Lumber Co. v. Myers, 296 Minn. 33, 40-41, 206 N.W.2d 365, 370 (1973) (holding that when one corporation transfers its assets to another, the receiving corporation is not responsible for debts of transferor unless it agrees to assume these debts).

Jillian’s did not have successor-corporation liability under Minnesota’s corporate law because Jillian’s carefully defined the liabilities it would assume, and debts such as Johns’ judgments were not among them. However, the court of appeals did not go far enough in its analysis. In addition to successor-corporation Lability under Minnesota corporate law, a separate and broader concept of successor-employer liability has been recognized in federal decisions under Title VII. Because Title VII provides an alternate basis for the judgments in this case, the federal doctrine of successor-employer liability must be considered.

A. The Federal Doctrine of Successor-Employer Liability

The federal doctrine of successor-employer liability was first recognized in the context of the Labor Act. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 544, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). The Supreme Court was required to determine whether provisions of a collective bargaining agreement survived a merger. Id. at 546, 84 S.Ct. 909. The Court held that the purchaser was obliged to consider the seller’s bargain. Id. at 550-51, 84 S.Ct. 909. In so holding, the Court noted that “substantial continuity of identity in the business enterprise” was a determinative factor. Id. at 551, 84 S.Ct. 909.

The Supreme Court expanded the recognition of successor-employer liability under the Labor Act in Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). There, the question was whether a bona fide purchaser who acquires and continues the business with knowledge of a predecessor’s unfair labor practices is obliged to implement the terms of NLRB orders to rectify those practices. Golden State, 414 U.S. at 170, 94 S.Ct. 414. The Court reasoned that such liability was not unfair to a purchaser who had notice of the orders, stating:

Since the successor must have notice before liability can be imposed, his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller’s unfair labor practices.

Id. at 185, 94 S.Ct. 414 (citations and internal quotations omitted).

Although the Supreme Court has not addressed the doctrine of successor-employer liability in a Title VII case, federal circuit courts have uniformly held that the same doctrine is appropriate under Title VII. The first case to address the issue was EEOC v. MacMillan Bloedel Containers, Inc., 508 F.2d 1086, 1090-91 (6th Cir.1974), where the court concluded:

We are of the view that the considerations set forth by the Supreme Court in these three cases as justifying a successor doctrine to remedy unfair labor practices are applicable equally to remedy unfair employment practices in violation of Title VII.
⅜ ⅝ ⅜ ⅜ ⅜ ⅜
Title VII was molded, to a large degree, after the Labor Act, supra. Indeed, the relief provisions of Title VII were derived from an analogous provision in the Labor Act.
⅜ * * * ⅜ *
Title VII’s ban against unfair employment practices is not mutually exclusive with the Labor Act’s prohibition of unfair labor practices. The two may be used as tools to remedy the same conduct. * ⅜ ⅜ [T]he emphasis that both Acts place on extending protection to and providing relief for the victims of prohibited practices is sufficient, in our view, to warrant imposing liability on a corporate successor for Title VII violations of the predecessor company.

(Citations omitted.) See also EEOC v. G-K-G, Inc., 39 F.3d 740, 747-48 (7th Cir.1994); EEOC v. Vucitech, 842 F.2d 936, 945 (7th Cir.1988); Slack v. Havens, 522 F.2d 1091, 1094-95 (9th Cir.1975); In re National Airlines, Inc., 700 F.2d 695, 698 (11th Cir.1983); Dominguez v. Hotel, Motel, Restaurant & Misc. Bartenders Union Local # 64, 674 F.2d 732, 733 (8th Cir.1982); Trujillo v. Longhorn Mfg. Co. Inc., 694 F.2d 221, 224-25 (10th Cir.1982).

Before this court, Jillian’s has suggested that the federal successor-employer liability rule is dependent on the underlying state law and can be no broader than successor-corporation liability under state law. This assertion misperceives the basis for the federal rule, which does not depend on state law but is a “special federal common law doctrine of successor liability” that is a “departure from the more limited approach of the common law * * G-K-G, Inc., 39 F.3d at 748.

The court of appeals decision does not discuss federal successor-employer liability. It focuses, instead, on the method used to transfer the assets, which is only relevant to state successor-corporation liability. This led to the erroneous conclusion that Jillian’s cannot be a successor to Harborage I because Harborage I was only a party to the TSA, not to the APA, which was the agreement that transferred the assets of Gators to Jillian’s. Johns II, 645 N.W.2d at 766. Under the federal doctrine of successor-employer’s liability, the method of transfer of assets is not determinative of whether a successor has liability. See Golden State, 414 U.S. at 182, n. 5, 94 S.Ct. 414 (refusing to distinguish between mergers or consolidations and asset purchases as long as there is continuity in the employing industry).

We conclude that the federal doctrine of successor-employer liability applies to Johns’ Title VII claims. Because these Title VII claims are identical to the claims made by Johns under the MHRA, and the judgments may be sustained solely on the basis of Title VII, we decline to rule on whether a similar successor-employer liability doctrine is available under the MHRA.

B. The Grant of Summary Judgment

Having determined that the federal doctrine of successor-employer liability applies, the question becomes whether liability under that doctrine exists as a matter of law, based on undisputed facts, or whether there are genuine issues of material fact that preclude summary judgment.

Most of the federal successor-employer liability cases do not arise on summary judgment. In fact, genuine issues of material fact may often exist because, as stated in MacMillan: “Each case, however, must be determined on its own facts. What is required is a balancing of the purposes of Title VII with the legitimate and often conflicting interests of the employer and the discriminatee.” 503 F.2d at 1090-91. But, there are cases where the facts are undisputed and the successor employer liability doctrine has been applied in a summary-judgment context. For example, in G-K-G, Inc., the district court granted summary judgment on the issue of successor-employer liability. 39 F.3d at 747. The court of appeals affirmed, concluding that there were no fact disputes on the elements of continuity of business and notice. Id. at 748.

Jillian’s has not contested the underlying facts or argued that there are genuine issues of material fact. Instead, it has focused on alternative legal theories. Thus, we may consider the facts to be undisputed and determine whether, as a matter of law, Jillian’s is a successor-employer under Title VII.

Continuity of business is a key factor in determining whether an employer is a successor-employer for liability purposes. John Wiley & Sons, Inc., 376 U.S. at 551, 84 S.Ct. 909. Here, substantial continuity is shown by the undisputed facts. Gators is the same restaurant in the same location run by the same people. The continuity of business test should properly focus on the entire business of Gators, not just on one or more of the legal entities that were created to operate that business. Although Greene and McReynolds were free to unbundle the business into as many legal entities as they choose, the policies that underlie Title VII cannot be avoided by attempting to confine the “employer” function to a limited entity that has no purpose independent of the business as a whole. Greene and McRey-nolds were only able to operate Gators by joining the efforts of all of the related entities. By the combination of the APA and TSA, Jillian’s acquired control of all of the entities, or portions of entities, that operated Gators. We agree with the district court that continuity of the business has been established as a matter of law.

Similarly, Jillian’s does not contend that it did not have notice of Johns’ judgment against Harborage I. Indeed, the TSA required Jillian’s to employ Harborage I’s human resources director, who was actively involved in the litigation with Johns. Jillian’s was therefore charged with notice of the judgments and had an opportunity to protect itself in negotiating the price and the terms of indemnification. Indeed, the APA does provide indemnity to Jillian’s from “any adverse consequences [Jillian’s] may suffer resulting from, arising out of, relating to, in the nature of, or caused by any retained liability.” We agree with the district court that notice has been established as a matter of law.

We reverse the decision of the court of appeals and reinstate the judgments of the district court against Jillian’s.

Reversed.

GILBERT, Justice

(dissenting).

I respectfully dissent from the majority’s opinion and would affirm the court of appeals. The majority’s conclusion that Jillian’s is a successor employer represents a major departure in our jurisprudence and produces an unfair result. Moreover, this decision creates a dramatic new risk for those who are either acquiring ongoing business entities or hiring employees of a separate management company in Minnesota. Likewise, it creates an entirely new avenue of responsibility for the disclosure and estimation of liabilities and contingent liabilities of the selling entity and affiliates and an unwieldy , due diligence responsibility for the purchaser and those professionals representing purchasers of ongoing business entities.

The majority correctly points out that Jillian’s did not have successor corporate liability under Minnesota corporate law. All of the companies here were properly registered to do business and they carefully defined the liabilities and debts they wanted to assume and appellant’s debts were not among those. However, the majority goes on and applies a “separate and broader” successor-employer liability doctrine that has emerged in Labor Act cases. The application of this federal doctrine of successor-employer liability here is contrary to the law of this case, as found by the district court, and is contrary to the federal law controlling successor-employer liability for purposes of the Labor Act.

FPM was a Texas limited partnership that was a lessee of the restaurant, was the holder of the restaurant’s liquor license and owned all of the furniture, fixtures and equipment, and inventory. Harborage I, Ltd. managed the restaurant. In deciding the appellant’s underlying sexual harassment claim, the district court found that Harborage I could be treated as an employer under Title VII. The court then entered judgment in favor of appellant against Harborage I in the amount of $33,886.99. At the same time, the court entered the following factual findings: “Defendant FPM, Ltd., while sharing some common ownership, was only the lessee and holder of the liquor license at Gators, but not involved in management or labor relations to a degree sufficient to be considered plaintiffs employer.” Accordingly, the court ordered and adjudged “that [appellant] is entitled to recover nothing from the defendant FPM, Ltd.” Thus, the court absolved FPM of any wrongdoing in appellant’s sexual harassment case, and FPM had absolutely no employment responsibility or liability whatsoever in favor of the appellant in this case. Subsequently, Jillian’s and FPM entered into a purchase agreement for the restaurant’s assets. As part of the agreement, Jillian’s, as purchaser, did not assume or have any responsibility with respect to any retained liabilities.

Notwithstanding the fact that FPM was absolved of any responsibility for this wrongful employment conduct and money judgment, now, through the back door, appellant is obtaining a money judgment against Jillian’s. The majority now deems Jillian’s “a successor employer” despite the fact that Jillian’s purchased the operating assets of the restaurant from FPM, and merely hired employees of Harborage I, a separate management company. The appellant is basically accomplishing indirectly what she could not accomplish or prove directly. Now, we have an innocent bona fide third-party purchaser of FPM’s assets obligated for the judgment against Har-borage I. The district court buttressed this result by stating, “If Jillian’s is an innocent party here, its remedy lies against the sellers.” The irony in this is that even if Jillian’s, as the successor in interest, had performed its preacquisition due diligence investigation and had reviewed the underlying judgments and decrees and decisions from the court of appeals, it would not have had any possible means of ascertaining that by purchasing assets from FPM, Ltd. it was in any way responsible for the liability of Harborage I. The foundation for the majority opinion made at the district court is full of fault lines that should not be expanded upon by this court.

The district court embarked upon some creative reasoning to reattach liability to a purchaser of assets (Jillian’s) 3 years after it had absolved the seller of the assets (FPM) of any responsibility in regard to appellant’s claim. First of all, the court acknowledged that Harborage I was not a party to the asset purchase agreement. However, in essence, it brought FPM back into the picture, in part, because the asset purchase agreement “sets out the allocation of the seller’s purchase price, indicates that nearly $3.7 million of the total purchase price was allocated to management fees. These fees were, until shortly before the sale transaction, payable to Harborage I pursuant to its agreement with the selling entities.” This conclusion is misleading because only a small portion of the management fees was allocated to FPM. Of the total amount allocated to management fees, only $352,491 was allocated to FPM. The balance was allocated to four other separate entities that had nothing to do with the appellant or FPM, the actual seller of the assets.

The district court then went on to link this new liability to the asset purchasers (Jillian’s) because of “other ties between Harborage I, Ltd. and the selling entities.” This linkage related to insurance and certain identified benefit plans. The district court then reinforced its reason in that “the Harborage I, Ltd. principals benefited substantially from this sale, while avoiding a valid judgment debt to [the] plaintiff.” This reasoning is problematic for a number of reasons. It ignores the separate, valid and legal existence of the various entities. Moreover, this rationale is used to pierce the separate independent veil of each entity because “the principals benefited” from the sale. A new legal theory has been created in Minnesota, which appears to abolish the distinction between separate legal entities as long as the principals of the various entities benefited from the transaction. Again, the majority fails to cite to authority for this major new proposition.

Furthermore, this new legal theory ignores the fact that these separate companies were long in existence and were not set up to defraud the appellant or anyone else. Appellant was only hired by, worked for, and harmed in the employment context by Harborage I. Now, long after the appellant has left the employment and lost in the first go-around in court against FPM, the district court has successfully bundled up all of these separate business entities to make each one liable for the debts of the others. By concluding that Jillian’s is hable to the appellant as a successor-employer, the district court ignored the fact that FPM was only the seller of these assets and had been previously absolved of any responsibility by this same district court and now 3 years after the initial decision, attributes liability to “the Jillian defendants.”

Moreover, in using the admittedly separate and broader concepts of successor-employer liability under the Labor Act, the majority belies what actually occurred in the federal cases cited for this proposition. The federal cases establishing successor-employer liability either involved a merger, a purchase or a consolidation of businesses. See John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 548, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) (holding “that the disappearance by merger of a corporate employer which has entered into a collective bargaining agreement with a union does not automatically terminate all rights of the employees covered by the agreement, and that, in appropriate circumstances, present here, the successor employer may be required to arbitrate with the union under the agreement.”); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (holding that a bona fide purchaser may be considered in privity with its predecessor).

In contrast, Harborage I, the wrongdoer in the employment case, was not a party to the asset purchase agreement between FPM and Jillian’s. Harborage I was a party to a separate “Transition Service Agreement.” As part of that agreement, Jillian’s agreed to hire the employees of Harborage I on an at-will basis and agreed that other employees of Harborage I would supply support services during the transition period. And while I agree with the majority that the federal courts have refused “to distinguish among mergers, consolidations, and purchases of assets,” they have never bundled together an exonerated seller of assets with a separate management company found to have violated employment laws. Under the “Transition Service Agreement,” Harborage I did not sell, merge or consolidate its business with Jillian’s, nor did Jillian’s purchase any of Harborage I’s assets. Har-borage I merely allowed its employees to be hired by Jillian’s. Accordingly, these federal cases do not support the majority’s conclusion that Jillian’s is a successor-employer.

Our fact situation differs from the federal cases cited in another material respect. One federal case cited had a collective bargaining agreement, which the United States Supreme Court held the purchaser was obligated to consider. John Wiley & Sons, Inc., 376 U.S. at 551, 84 S.Ct. 909. In addition, in Golden State, there was an NLRB order to rectify unfair labor practices. 414 U.S. at 170, 94 S.Ct. 414. This involved the nature of injunctive, equitable relief to remedy the continuing unfair labor practices.

I acknowledge that the appellant’s underlying claim is a very serious claim. However, there is nothing in law or in equity that would foist this liability of Har-borage I onto Jillian’s. Neither entering the Transition Services Agreement with Harborage I nor purchasing separately the assets of FPM under these facts, makes Jillian’s a culpable, successor employer. The successor-employer doctrine in the federal common law is an equitable doctrine and has only been in force when there are equitable principles supporting that. In this case, there are no equitable or legal principles whatsoever supporting holding Jillian’s liable for Harborage I’s judgment as a successor-employer. There in effect has been an effort to accomplish a preordained result notwithstanding the existence of separate entities while ignoring the fact that FPM was absolved of any employment responsibility initially and that Jillian’s is not a successor in interest of the wrongdoer because it did not purchase any assets of the wrongdoer.

I also dissent from the majority’s conclusion that under these facts, the post-judgment amendment of appellant’s complaint is permissible under Minn. R. Civ. P. 15.01. This conclusion allows the post-judgment, post-appeal amendment of appellant’s complaint, which has the effect of adding a judgment debtor to a final judgment that has been in place for almost 3 years. The only citation to Minnesota authority in the majority opinion relating to an amendment of a complaint under these facts is to Crum v. Anchor Casualty Co., 264 Minn. 378, 119 N.W.2d 703 (1963). While we have stated that under our modern pleading system and practice amendments of pleading is liberally allowed even after a judgment has been entered, this proposition is supported only by a citation to Rules of Civil Procedure 15.01 and 15.02. Id. at 389, 119 N.W.2d at 710. However, I find no authority in Rules 15.01 and 15.02 to support an amendment to the complaint under these facts. Rule 15.02 allows such amendments for issues not raised in pleadings if they were tried with consent and then the amendment can conform to the evidence, even after the entry of judgment. Minn. R. Civ. P. 15.02. That is not what has happened in this case and, in fact, the exact opposite has happened. This legal patchwork is being done without consent and long after the final judgment has been entered and is contrary to the law of the case as found by the district court judge.

      . At oral argument Jillian’s acknowledged that Johns could have started a new action against Jillian's alleging successor liability for the judgment against Harborage I, and that Johns’ choice to pursue the claim instead by amendment to the original complaint did not prejudice Jillian's.

      . State courts have concurrent jurisdiction over Title VII claims. In Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 821, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), the Court concluded that Congress did not divest the state courts of their presumptive concurrent authority to adjudicate federal claims under Title VII. In Felder v. Casey, 487 U.S. 131, 139, 147, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), the Supreme Court further instructed that a state court’s enforcement of federal civil rights laws should be done in light of the "purpose and nature” of the law and that a state court may not impose procedural rules that place conditions on "those who [seek] to vindicate their federal rights in state court * * *." Accordingly, state courts acting in Title VII cases are to apply federal substantive law and may not enforce any state procedural laws that would conflict with the "remedial objectives” of the federal right or would "frequently and predictably” produce outcomes different from that which would be commonplace in a federal court. Felder, 487 U.S. at 138, 108 S.Ct. 2302 (dealing with the so-called "reverse-£n'e " considerations in a 42 U.S.C. § 1983 action commenced in state court).

      . Jillian's argument that it is a successor only to FPM fails for this reason. Although we do not fully understand the district court’s decision to not enter judgment against FPM, we do not regard this as fatal to successor-employer liability because, for Title VII purposes, the judgment against Harborage I implicates the entire business of Gators, to which Jillian's succeeded.