text:
    Ronald Vernon HUFF, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-1497.
    Supreme Court of Minnesota.
    June 30, 2005.

      George C. Hoff, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for Appellant.
    Richard B. Bates, St. Paul, MN, for Respondent.
   OPINION

HANSON, Justice.

On March 10, 1999, a St. Louis County jury found appellant Ronald Vernon Huff guilty of first-degree murder while committing domestic abuse under Minn.Stat. § 609.185(6) (1996) for killing Dora Maria Silva. Huff also was found guilty of the lesser-included offense of second-degree unintentional felony murder under Minn. Stat. § 609.19, subd. 2(1) (2004). Because Huff had a prior qualifying conviction for second-degree murder, he was sentenced to life in prison without the possibility of release in accord with Minn.Stat. § 609.106, subd. 2(3) (2004), which provides that defendants convicted of first-degree murder while committing domestic abuse who have “one or more previous convictions for a heinous crime” shall be sentenced to life without possibility of release. On appeal from the denial of his petition for postconviction relief, Huff argues that he was denied the constitutional right to present a complete defense because (1) the district court erroneously excluded evidence supporting his theory that an alternative perpetrator killed Silva, and (2) the court erroneously excluded evidence of the alternative perpetrator’s other bad acts, which would have cast doubt on Huffs guilt. We affirm.

On June 22, 1996, Silva was found dead in the Duluth apartment she shared with Huff. Huff and Silva had met in August 1995 and had been romantically involved for several months. Unexplained circumstances of Silva’s death prompted an autopsy. At Huffs trial, the medical examiner testified that the hyoid bone in Silva’s throat had been fractured, and that Silva had three broken ribs that had not begun to heal. Although the medical examiner speculated that Silva’s ribs were broken during the altercation in which she was strangled, he stated that they could have been broken a week or more earlier. The medical examiner concluded that the cause of Silva’s death was “strangulation most likely occurring during a beating,” and estimated that Silva died at least 2 weeks before her body was discovered, but not more than a month. Thus, according to the medical examiner, Silva died sometime before June 8.

The two primary suspects in Silva’s murder were Huff and Silva’s former lover, Faye Wenell. Wenell had been romantically involved with Silva from 1994 to 1995 and had physically assaulted Silva several times during their relationship. Huff also had physically assaulted Silva several times, including as late as June 1, 1996, just days before her death.

On January 23, 1998, roughly 19 months after Silva’s death, a St. Louis County grand jury indicted Huff for Silva’s murder. At Huffs trial, the state presented evidence that Huff had been arrested on March 17, 1996, and June 1, 1996, for assaulting Silva. The state also presented evidence that Silva had been treated at a hospital emergency room on April 7, 1996, for bruising on her face, neck, chest, abdomen, and a leg. She and Huff were living together at the time, and Silva’s treating physician testified that Silva told him the injuries resulted from “her husband” beating her.

The state also introduced evidence that the police search of Huff and Silva’s apartment revealed a grocery receipt dated June 4, 1996, as well as most items listed on the receipt. The state called as a witness a cabdriver who testified that he picked up a couple from the grocery store who matched Silva’s and Huffs general descriptions and drove them to Silva and Huffs apartment. The cabdriver testified that, during police questioning, he was shown a series of photographs and selected one of Huff as closely resembling the man he picked up, although he was not sure it was the right person.

Finally, the state presented testimony from three witnesses who stated that Huff had confessed he was involved in Silva’s death. First, a volunteer at a Duluth homeless shelter testified that Huff had said he, while drunk, may have killed Silva. Second, Huffs former jail cellmate testified that Huff had told him that he had choked Silva to death. Last, a Duluth police officer testified that during an unrecorded interview Huff had nodded in agreement when asked whether it was possible that Silva had died during a fight between them that Huff could not remember due to his excessive drinking.

Huffs theory of defense was that the lack of direct evidence linking him to Silva’s death — when considered in light of his exculpating testimony and the evidence that Wenell may have killed Silva — precluded the jury from finding that the state had proven guilt beyond a reasonable doubt. Testifying on his own behalf, Huff admitted that he had hit Silva both times he was charged with domestic assault in March and June of 1996, but denied responsibility for injuries Silva sustained on April 6, 1996. Huff testified that after he assaulted Silva on June 1, he was arrested and jailed until June 3. Huff acknowledged that, although he originally had told police that he last saw Silva at their apartment on June 3, he had in fact seen Silva later that day at their landlord’s pawnshop. Huff testified that he had not seen her since, and denied accompanying Silva to the grocery store on June 4. He testified that he returned to the apartment around June 6 to get his tribal newspaper from the mailbox outside the apartment building and did not go inside the building. Huff denied confessing that he had or may have killed Silva and stated that he was not responsible for her death.

Huff called several witnesses to support his theory that Wenell killed Silva. Edna Whiteman, a friend of Huffs, testified that she saw Wenell in Duluth on June 6, 1996. Clint Perrin testified that Wenell told him in the summer of 1998 that she had killed Silva with a pipe. Lupe Herrera, a Minneapolis police officer, testified that in May 1998 Wenell said “her lover was murdered” and that “she did it.” Lynn Goodwin testified that in November 1995 We-nell had told her that she was going to “beat up Ron [Huff]” so she could have Silva “for herself.” James Weir testified that in the summer of 1995 he had observed Silva and another woman, matching Wenell’s description, verbally fighting at the bar he owned, and that the other woman had threatened Silva’s life.

Huff also called eight law enforcement officers who testified about calls in which Silva was injured and in several instances had identified Wenell as the abuser. Officer Jill Wolf testified that in August 1994 she responded to a call in Minneapolis and found Silva bleeding heavily from a head wound, and that Silva stated Wenell had hit her with a metal rod. Deputy Chris Johnson testified that he responded to a 911 call near Duluth in February 1995 and found Silva with a cut lip and a lump on her head and that Silva told him that Wenell had assaulted her. Officer Scott Herr testified that in July 1995 he responded to a call in Bemidji and found Silva with a lump on her forehead, and that Silva told him she feared for her life. Three weeks later, Officer Herr encountered Silva with several large bruises and dried blood on her shirt, hands, and face. Silva told Herr that she had been punched and kicked, and that Wenell threatened to kill her. Officer Kenneth Hudson testified that he responded to a call in September 1995 at a Duluth hotel and found Silva with several large bumps on her head, a black eye, a swollen lip, and bruising on her arms and legs. Silva told him that she had been hit and kicked by Wenell for up to 2 days. The physician who treated Silva for these injuries testified that Silva suffered from multiple bruises, sinus fractures, and a perforated eardrum.

Huff also called two of Wenell’s former girlfriends, who both testified that Wenell had been abusive and threatening. One testified that Wenell had stalked her, and the other that Wenell had broken into her apartment, attacked her, and choked her.

Finally, Huff called Wenell as a witness. On direct examination, Wenell admitted that she had physically abused Silva several times during their relationship, but on cross-examination she denied any involvement in Silva’s death. Wenell testified that she had moved to Arizona in January 1996 and did not return to Minnesota until August 1997, and thus was not in Duluth when Silva was killed. Wenell testified that money was wired to her in Arizona on June 3, 1996, and identified her signature on a Western Union money transfer receipt issued in Arizona.

In his petition for postconviction relief, Huff argued that he was denied his constitutional right to present a complete defense when the district court excluded some alternate perpetrator evidence. Huff made 105 offers of proof, 23 of which he later withdrew and 14 of which became irrelevant when the witness to whom they pertained did not testify. Of the remaining 68 proffers, the court admitted 35. Of the 33 excluded proffers, Huff claims error on 23. These fall into two categories. First, Huff asserts that the court erroneously excluded evidence that connected Wenell to Silva’s murder. Second, Huff asserts the court erroneously excluded evidence regarding Wenell’s other bad acts, including Wenell’s involvement in the death of Michael Grube in 1998.

The district court thoroughly analyzed each offer of proof and stated specific reasons for rejecting each. As is apparent from the discussion above, the court admitted substantial evidence to connect Wenell to Silva’s murder, including considerable evidence of Wenell’s other bad acts. In general, the court’s decision to exclude the remaining items was based on determinations that the evidence was not relevant or lacked probative value. In denying Huffs postconviction petition, the court acknowledged that a criminal defendant is entitled to present a complete defense but concluded “that right does not open the floodgates to evidence that is otherwise inadmissible or so tenuous as to be of doubtful probative value and relevance and overly prejudicial.”

I.

We first address Huffs argument that he was denied the opportunity to defend against the state’s charge that he killed Silva when the district court excluded evidence that directly connected Wenell to Silva’s murder. Evidentiary rulings lie within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). On appeal, the appellant has the burden of establishing that the district court abused its discretion and that appellant was prejudiced thereby. Id.

Huff emphasizes that his case was tried before our decision in State v. Jones, 678 N.W.2d 1 (Minn.2004), which clarified the standards for the admission of alternative perpetrator evidence. According to Huff, the district court incorrectly applied a clear and convincing standard when evaluating evidence connecting Wenell to Silva’s murder, contravening our statement in Jones that “ordinary evidentiary rules” should be applied to such evidence. Id. at 17-18. In its order denying Huffs post-conviction petition, the district court noted the publication of Jones and stated that the rulings on Huffs offers of proof “comported with applicable rules and law.”

In Jones, we stated that constitutional due process guarantees a defendant’s right to a fair opportunity to defend against criminal charges. Id. at 15-16 (citing Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). A defendant may defend himself against criminal charges by presenting evidence that an alternative perpetrator committed the crime, and the exclusion of such evidence “will almost invariably be declared unconstitutional when it significantly undermines fundamental elements of the defendant’s defense.” Id., 678 N.W.2d at 16 (citations omitted).

In determining the admissibility of alternative perpetrator evidence, district courts must go through a two-step process. First, they must determine whether the evidence offered has an inherent tendency to connect the alternative party with the commission of the crime with which the defendant is charged. State v. Hawkins, 260 N.W.2d 150, 159 (Minn.1977); Jones, 678 N.W.2d at 16. Then, after a defendant has laid a proper “Hawkins foundation” by offering evidence that has an inherent tendency to connect the alternative perpetrator to the commission of the crime, courts may admit “evidence of a motive of the third person to commit the crime, threats by the third person, or other miscellaneous facts” tending to prove the third party committed the crime. Hawkins, 260 N.W.2d at 159. The admissibility of this evidence must be evaluated under the “ordinary evidentiary rules.” Jones, 678 N.W.2d at 16.

We have identified three excluded offers of proof that may have implicated Wenell in Silva’s death. Huff sought to introduce evidence (1) that on the day of Michael Grube’s murder in February 1998, Wenell had been assaultive toward the staff and residents at a detox center and repeated Silva’s name many times; (2) that Wenell had bragged that she killed someone in Duluth and got away with it; and (3) that Wenell had told Ruth Littlewounded in 1996 and 1998 that she had killed before and could kill again.

In determining the admissibility of this evidence, the district court was required to first determine whether Huff had laid a proper Hawkins foundation by offering evidence that had an inherent tendency to connect Wenell to Silva’s death. Jones, 678 N.W.2d at 16. In a Memorandum accompanying its “Pretrial Order Regarding Hawkins fRevexse-Spreigl Issues,” the court concluded that Huff had “made a sufficient showing of ‘connectedness’ between [Wenell] and the death of Dora Silva.” As noted above, the court accordingly admitted substantial evidence tending to show that Wenell had the motive and inclination to murder Silva.

The district court excluded evidence of Wenell’s assaultive behavior and repetition of Silva’s name in February 1998 on the grounds that the evidence was not “probative with regard to any issue tending to show connection between Wenell and the death of Silva” and was “simply not probative, relevant or material as to the circumstances and cause of Silva’s death.” Huff argues that the court’s use of the phrase “show connection” indicates that the court mistakenly required that this proffer demonstrate Wenell was connected to Silva’s death. This would be error under Jones because, once a defendant has laid a proper Hawkins foundation, alternative perpetrator evidence showing motive, threats, or other miscellaneous facts tending to prove the alternative perpetrator committed the act is admissible without further evidence connecting the alternative perpetrator to the crime. Jones, 678 N.W.2d at 16; Hawkins, 260 N.W.2d at 159. But we conclude that the district court used the words “show connection” not as requiring a heightened Hawkins ’ connection but as a proxy for relevance. See Minn. R. Evid. 401. The court provided detailed reasons for rejecting this proffer under ordinary evidentiary rules, consistent with what Jones requires. 678 N.W.2d at 17. Because this proffered evidence was vague and inconclusive, and was at best cumulative of more direct evidence, we conclude that the district court did not abuse its discretion in excluding it.

The district court also excluded Huffs proffers that Wenell had bragged that she killed someone in Duluth and “got away with it” and that she twice said she had killed before and could kill again. The court excluded evidence that Wenell had bragged about killing someone in Duluth because the proffer was “too general to demonstrate connectedness between We-nell and the death of Silva” and lacked “relevance and materiality.” The court excluded Wenell’s statements that she had killed before and could kill again because they were “nonspecific and apparently occurred when Wenell was significantly intoxicated.”

Without addressing whether the district court applied the proper evidentiary standard, we conclude that excluding each of these proffers was an abuse of discretion because each constitutes a “miscellaneous fact” tending to prove that Wenell may have killed Silva. Hawkins, 260 N.W.2d at 159. Minnesota Rule of Evidence 401 defines “relevant evidence” as that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Wenell’s statement that she killed someone in Duluth and got away with it bears on the question of whether Wenell may have killed Silva. Similarly, Wenell’s statements that she had killed before and could kill again constituted miscellaneous facts tending to prove Wenell’s involvement in Silva’s death.

When a court erroneously excludes evidence, the defendant is entitled to a new trial only if he can demonstrate that he was prejudiced. Amos, 658 N.W.2d at 203. In Hawkins, we held that a defendant was prejudiced by the court’s exclusion of evidence when the exclusion deprived the defense of evidence that was crucial to the maintenance of a proper defense. 260 N.W.2d at 160. In the ease at hand, however, we conclude that the excluded evidence was cumulative, not crucial. Witnesses Clint Perrin and Minneapolis Police Officer Lupe Herrera testified that Wenell expressly stated that she had killed Silva. Because the district court admitted evidence of statements by Wenell that she had caused Silva’s death, we conclude that Huff was not prejudiced when the court excluded Wenell’s more generalized statements that she had killed someone in Duluth and that she had killed before and could kill again.

Accordingly, we hold that the exclusion of this evidence connecting Wenell to Silva’s murder did not deny Huff the opportunity to defend himself.

II.

We now turn to Huffs assertion that the district court erroneously excluded evidence of Wenell’s other crimes, wrongs, and bad acts. A defendant may present evidence of other crimes, wrongs, or bad acts committed by an alternative perpetrator in order to cast reasonable doubt upon the identification of the defendant as the person who committed the charged crime. Jones, 678 N.W.2d at 16. This evidence is known as revers e-Spreigl evidence. Id. For revers e-Spreigl evidence to be admitted, the defendant must first meet the threshold requirement of connecting the alleged alternative perpetrator to the commission of charged crime. Id. If the defendant meets this threshold requirement, the proffered revers e-Spreigl evidence is admissible if the defendant has shown (1) by clear and convincing evidence that the alleged alternative perpetrator participated in the revers e-Spreigl incident, (2) that the revers e-Spreigl incident is relevant and material to the defendant’s case, and (3) that the probative value of the evidence outweighs its potential for unfair prejudice. Id. at 16-17. We have explained the parameters of reverse-Spreigl evidence as follows:

[A defendant should] have the right to show that crimes of a similar nature have been committed by some other person when the acts of such other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of defendant as the person who committed the crime charged against him.

State v. Johnson, 568 N.W.2d 426, 433 (Minn.1997) (quoting State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887, 892 (1949)).

A. Michael Grube’s Death

Huff claims that the district court erroneously excluded evidence that, 20 months after Silva died, Wenell killed Michael Grube in a manner that resembled the way Silva was killed. In February of 1998, Grube was found dead in a Duluth motel room. Grube was the former boyfriend of Tamara Bluefog. At Huffs trial, Bluefog testified that she had been in a romantic relationship with Wenell from 1991 to 1993. According to Bluefog, when she attempted to end the relationship, Wenell stalked and threatened her, and was particularly angry that Bluefog had entered a relationship with a man. The day Grube died, he had been seen drinking with We-nell. Wenell rented the motel room in which his body was found, and “Maria”' — • the name by which Wenell referred to Silva — was written backward in soap on the motel room mirror in what appeared to be a woman’s handwriting — and a heart was drawn beneath the name. DNA testing revealed that Grube’s blood was on footwear Wenell was wearing the day of his death.

Two autopsies were performed on Grube’s body, and both pathologists testified as part of Huffs offer of proof regarding similarities between Silva’s and Grube’s deaths. The pathologists agreed that Grube was severely intoxicated at the time he died and that he had sustained multiple soft tissue injuries about the head and face. The first pathologist to examine Grube’s body, Dr. Zlonis, testified that Grube’s neck showed no signs of manual strangulation and that his hyoid bone was intact when he examined Grube. Zlonis stated that he cut the hyoid bone during his examination. Zlonis concluded that, although it was possible another person had contributed to Grube’s death, it was not a “definite” homicide. The second pathologist, Dr. McGee, agreed that there were no signs of manual strangulation on Grube’s neck, but concluded that Grube’s death was a homicide caused by “asphyxia with multiple soft tissue injuries due to an assault,” and noted “acute ethanol intoxication.”

Huff argues that the district court’s exclusion of evidence that Wenell killed Grube under circumstances sufficiently similar to the death of Silva denied him of a right to present a complete defense. According to Huff, although the deaths of Silva and Grube were not identical as to time or location, they were similar in terms of modus operandi. Huff asserts that the proffered evidence that Wenell was responsible for Grube’s murder “compellingly demonstrates that Wenell was an extremely jealous lover who was willing to inflict bodily harm on whomever caused her emotional pain.” Huff argues that because the evidence that Wenell had killed Grube would have cast reasonable doubt on Huffs guilt, the court’s failure to admit the evidence was prejudicial and entitles him to a new trial.

As noted earlier, the district court concluded that Huff had laid a proper Hawkins foundation establishing that Wenell was connected to Silva’s death. Having met this threshold requirement, Huff then needed to show (1) by clear and convincing evidence that Wenell killed Grube; (2) that Wenell’s killing of Grube was relevant and material to Huffs case; and (3) that the probative value of evidence that Wenell killed Grube outweighed its potential for unfair prejudice. Jones, 678 N.W.2d at 16-17.

In determining the admissibility of evidence that Wenell killed Grube, the district court found for purposes of the analysis that Huff had demonstrated by clear and convincing evidence that Grube’s death was a homicide, and that it resulted “at least in part from asphyxia resulting from violent acts perpetrated upon him by another human being.” However, the court stated that “[t]here is no evidence yet proffered from which the Court can conclude it is ‘highly probable’ or established by ‘clear and convincing evidence’ that [Grube] died of manual strangulation.” The court then stated that it “presumed” for purposes of the analysis that “it is ‘highly probable’ it was Faye Wennel [sic] who inflicted the trauma to Mr. Grube” and that “the circumstances are highly suggestive that Wennel [sic] played a part in causing his death.” We infer from the court’s use of the word “presumed” that, although the court had not found that clear and convincing evidence established that Wenell killed Grube, the court wished to make clear that the proffer did not meet the second and third reverse-Spreigl requirements.

In evaluating whether evidence that We-nell may have killed Grube was relevant and material to Huffs case, the court stated that Wenell’s alleged motive for killing Silva — -jealous rage aimed at a former lover who had spurned her — could not be meaningfully connected to a motive for killing Grube, as Grube was not Wenell’s former lover and he had not recently spurned her. Accordingly, the court concluded that Wenell’s possible involvement in Grube’s death was not relevant to Huffs case.

The court also rejected Huffs assertion that the circumstances surrounding Grube’s death were sufficiently similar to Silva’s death to establish a “signature crime,” noting that, despite certain similarities, circumstances of each death were dissimilar in several ways:

As to similarities, both occurred in a room with a bed, involved use of force applied manually, resulted at least in part from asphyxia, occurred in a setting where feces were left nearby, involved decedents whose remains were left on their backs covered by cloth items, involved trauma to body regions at and above neck level, involved persons known to Wenel [sic], occurred in locations somewhat near one another geographically, and had as victims persons of brown skinned origin * * *.
[However,] [o]ne was in the victim’s home while one was not. One involved a female, the other a male. One was found on the floor, one on a bed. One was clothed; one was not. One was strangled; one was not. One had been drinking; one had not. One had been severely beaten about the face, and as far as can be told, one had not. One had rib fractures; the other did not. One was smeared with feces; one was not. One was covered with bed coverings, the other with a clothing item though bed covering items were close at hand. The door to the room where one was found was locked, the door to the room where the other was found was not. The scene where one was found showed signs of a struggle while the other scene did not. While writing was found on a mirror at one scene, none was present at the other. While one scene was abandoned in a somewhat methodical fashion * * * the scene [where Grube was left] seems to have been more carelessly abandoned * * *

Given the differences between the deaths, the court concluded that evidence that We-nell killed Grube “simply falls outside the penumbra of circumstances sufficiently similar to those of the death of Silva to be relevant, material and useful” to the jury. Further, the court stated that it could not conclude “the prejudice to a fair and evenhanded presentation of the facts for determination by the trier of fact will be balanced, let alone outweighed, by the benefit to be derived by defendant.”

We must determine whether the district court abused its discretion in concluding that evidence that Wenell killed Grube was not relevant and material to Huffs case and that the evidence’s probative value was substantially outweighed by the danger of unfair prejudice. Amos, 658 N.W.2d at 203; Minn. R. Evid. 403. First, we note that the record establishes that the district court approached Huffs proffer regarding the Grube murder with careful deliberation. The court withheld judgment on the issue until the state had rested its case, then heard testimony from two pathologists who examined Grube’s body and issued a thorough, detailed memorandum explaining the reasons for excluding the evidence. Having reviewed the record, Huffs offer of proof, and the court’s memorandum, we conclude that the court did not abuse its discretion in excluding Huffs proffer that Wenell killed Grube under circumstances similar to Silva’s death.

The following dissimilarities between the deaths of Grube and Silva strike us as particularly significant. First, it does not appear that Huff sought to offer any evidence that Wenell was upset about Blue-fog’s relationship with Grube in 1998, 5 years after Wenell and Bluefog parted ways. Thus, although the record indicates that Wenell was angry about Silva’s relationship with Huff near the time that Silva died, there is no indication that Wenell carried lingering resentment regarding her breakup with Bluefog 5 years earlier. To the contrary, the evidence that Wenell and Grube spent a large part of the day drinking together suggests that Wenell had no general animosity toward Grube. Next, although there was no question that Silva was manually strangled, Grube’s hyoid bone was intact during the first autopsy and his neck showed no signs of manual strangulation.

Huff argues that the two deaths were strikingly similar because feces were found in the room adjacent to Silva’s body and feces were smeared on Grube’s clothing. Huff suggests that the feces in Silva’s apartment could have been left as a “signature” by Wenell. It is true that the police search of Silva’s apartment showed the carpet in the bedroom next to where Silva’s body was discovered had been stained by feces. But police did not test for DNA the feces either in Silva’s apartment or on Grube’s clothing, so neither could be identified as Wenell’s. More importantly, Huff confirmed in his own testimony that the fecal staining of the carpet in Silva’s apartment had been caused by Silva when she had a seizure in May, and that neither he nor Silva had cleaned the carpet. Accordingly, Huffs argument that the feces were a “signature” attributable to Wenell cannot be reconciled with Huffs familiarity with the precise location of the feces in the apartment and his explanation of their origin.

Given the dissimilarities between Grube’s death and Silva’s death, we hold that the district court did not abuse its discretion in excluding evidence of We-nell’s involvement in Grube’s death.

B. Other Bad Acts

Finally, we examine whether the district court abused its discretion in excluding proffers regarding Wenell’s other bad acts not related to Grube’s death. Huff argues that the district court excluded the proffers on improper grounds. Specifically, Huff alleges that the court’s explanations for excluding some of the proffers indicated the court incorrectly applied a clear and convincing standard and/or required that each individual proffer have an inherent tendency to connect Wenell to Silva’s murder under Hawkins.

We agree that the district court’s language in explaining its reasons for excluding Huffs proffers is confusing at points. But we disagree that the court’s use of the word of “connection” indicates that the court required each individual proffer to show Hawkins connectedness. Rather, the use of “connection” in the court’s explanations excluding evidence of Wenell’s other bad acts appears responsive to our language in Johnson, where we stated that a defendant has the “right to show that crimes of a similar nature have been committed by some other person when the acts of such other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of defendant as the person who committed the crime charged against him.” 568 N.W.2d at 433.

For example, in excluding Huffs proffer that Wenell had spread feces in a bar restroom, the district court stated, “The Court finds no similarity between [Wenell spreading feces in a bar restroom] and the death of Silva to render defendant’s proffer relevant, useful or convincing as demonstrating Wenell’s connection with the death of Silva.” Here, the judge appears to have used the term “connection” as we used it in Johnson to emphasize that We-nell’s bad act of spreading feces in a bar restroom is not sufficiently connected in “method of operation” to Silva’s death to make the evidence relevant.

Moreover, to whatever extent the district court may have blended Hawlcins foundation requirements with the clear and convincing evidentiary requirements for admission of reverse-Spreigl evidence, we conclude the court cited independently adequate grounds for excluding the proffers in question under the second and third revers e-Spreigl requirements. The court repeatedly emphasized that the proffers were not relevant or material, that they lacked probative value, and that they sought to introduce inadmissible character evidence. See Jones, 678 N.W.2d at 16-17.

Further, it bears emphasizing that the district court admitted a great deal of specific revers e-Spreigl evidence regarding Wenell’s other bad acts. In State v. Washington, we recently noted that trial courts may properly limit the number of Spreigl incidents admitted in order to reduce the risk that juries may become fixated on prior incidents in a way that blurs the line between “proving modus operandi and impugning a defendant’s character.” 693 N.W.2d 195, 203 (Minn.2005). By extension, in revers e-Spreigl contexts, courts may properly limit the number of incidents admitted in evidence where necessary to assure the line between demonstrating the alternative perpetrator’s modus operandi and impugning his or her character does not become blurred. See Minn. R. Evid. 403 (explaining that “needless presentation of cumulative evidence” may be controlled).

Here, the district court admitted testimony from two of Wenell’s former girlfriends who stated that she had abused and threatened them to the point that they feared serious harm. The court also allowed testimony from at least eight law enforcement officials, an emergency room physician, and various other disinterested bystanders who testified to Wenell’s threatening and abusive behavior toward Silva. Because the court allowed Huff to introduce substantial evidence establishing that Wenell was a belligerent, threatening lover who put her girlfriends in fear of their well-being, we conclude that admission of more generalized bad act evidence would have been cumulative and would have created a serious risk of fixating the jury on Wenell’s character rather than her modus operandi. Accordingly, we hold that the district court did not abuse its discretion when it excluded some of Huffs proffers regarding Wenell’s other bad acts.

Affirmed.

      . This is Huff’s first appeal to our court. Although Huff directly appealed his conviction in June 1999, in June 2000 he moved to dismiss his appeal without prejudice in order to pursue a postconviction petition. We granted that motion and dismissed his appeal without prejudice. On February 12, 2004, Huff filed his postconviction petition.

      . We compliment both Huff and the district court for their thoroughness in developing the record on these issues. Huffs offers of proof were detailed and identified the specific witnesses who would provide testimony on each point. The district court addressed the evi-dentiary issues raised by each offer of proof and grounded the rulings in the pertinent rules of evidence.

      . It bears emphasizing that we use the phrase "alternative perpetrator evidence” to mean evidence that directly implicates the alternative perpetrator in the crime for which the defendant has been charged. As such, “alternative perpetrator evidence” should be distinguished from so-called "reverse-Spreigl" evidence, which describes evidence of other "crimes, wrongs, or bad acts committed by the alleged alternative perpetrator in order to cast reasonable doubt upon the identification of the defendant as the person who committed the charged crime.” Jones, 678 N.W.2d at 16.

      . Prior to Jones, some of our decisions may have erroneously implied that courts should apply a clear and convincing standard to alternative perpetrator evidence, when in fact only reverse.-Spreigl evidence is subject to that heightened standard. Jones, 678 N.W.2d at 17.

      . At the time of Huff's trial in February 1999, Wenell had not been charged with Grube’s murder. Wenell was murdered 3 days after Huffs trial concluded. See State v. Budreau, 641 N.W.2d 919, 921 (Minn.2002).

      . The excluded proffers included, inter alia, evidence that Wenell had engaged in threatening behavior toward a number of people, that Wenell had assaulted various persons, that Wenell had engaged in disorderly conduct several times, and that Wenell had used bodily waste in inappropriate ways.


source: Caselaw Access Project

author: HUSPENI, Judge.

license: Public Domain

text:
    Scott M. NELSON, Relator, v. COMMISSIONER OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, Respondent.
    No. A04-1930.
    Court of Appeals of Minnesota.
    June 28, 2005.

      Bruce P. Grostephan, Ronald G. Marks, Peterson, Engberg & Peterson, Minneapolis, MN, for relator.
    Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent.
    .Considered and decided by RANDALL, Presiding Judge; KALITOWSKI, Judge; and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

Relator brings a certiorari appeal of the decision of a senior unemployment review judge of the Minnesota Department of Employment and Economic Development declining to review, and adopting, the decision of the unemployment law judge that relator did not qualify for trade readjustment allowance benefits under the Trade Assistance Act of 2002, 19 U.S.C. § 2291. Because the weeks relator was locked out from employment by his employer cannot count toward the required number of work weeks before the qualifying separation date, we affirm.

FACTS

Relator Scott M. Nelson began working for ME International, Inc. (MEI), a steel foundry, in 1988. Relator was a member of United Steelworkers of America, Local 1028, and participated in a strike that the union initiated against MEI on August 25, 1999, alleging unfair labor practices. MEI and the union reached a settlement agreement on February 23, 2000. The union then made an unconditional offer to immediately return to work on February 25, 2000. MEI denied the offer and locked out the workers. On August 7, 2000, MEI recalled only the 70 most senior workers to return to work and laid off the others. Because relator was 72nd on the seniority list, he was among those who were laid off. More than two years later, on August 26, 2002, MEI recalled relator to work. He worked for just over a week and then quit on September 5, 2002, to return to school.

On June 25, 2003, the U.S. Department of Labor certified MEI as an eligible employer for benefits under the Trade Assistance Act of 2002, 19 U.S.C. § 2291. The Act provides payment of a trade readjustment allowance (TRA), administered through state unemployment compensation departments, to help workers adversely affected by lack of work due to import competition. Because the impact dates were from April 9, 2000, through June 25, 2005, only workers who separated from employment on or after April 9, 2000, were eligible for TRA benefits.

Relator applied for TRA benefits on October 2, 2003. The application was denied because relator was on strike from August 25, 1999, through February 23, 2000 (26 weeks), was locked out from February 25, 2000, until August 7, 2000 (22 weeks), and was laid off on August 7, 2000. Therefore, his only post-April 9, 2000 separation from employment due to lack of work occurred on August 7, 2000, and he did not meet the requirement under the Act that he have 26 weeks of employment at $30 or more per week in the 52-week period prior to the date of separation. Relator appealed and, after a hearing, an unemployment law judge (ULJ) affirmed the denial stating:

The Minnesota Department of Employment and Economic Development has no legal authority to alter the impact date as certified by the U.S. Department of Labor. [Relator] contends that, “the layoff of the adversely affected workers should be deemed to extend into the date specified in the certification under which the worker is covered.” However, the qualifying separation date is a specific date, not a flexible period that can be “deemed to extend” into a later period of time. The fact that the Trade Act is a remedial statute does not provide authority for disregarding a specific finding of the U.S. Department of Labor.
While August 7, 2000 is after the impact date of April 9, 2000, [relator] does not qualify using that date as the date of separation because he does not have the necessary earnings in the 52 weeks before August 7, 2000.

Relator again appealed, and a senior unemployment review judge (SURJ) declined further review and adopted the ULJ’s decision. Relator filed a writ of certiorari.

ISSUE

Did the senior unemployment review judge err in adopting the decision of the unemployment law judge that weeks relator spent locked out from employment do not count toward the 26 weeks of employment before a qualifying separation date required to receive TRA benefits?

ANALYSIS

A state agency’s decision regarding an applicant’s entitlement to TRA benefits is “subject to review in the same manner and to the same extent as determinations under the applicable State law and only in that manner and to that extent.” 19 U.S.C. § 2311(d) (1999). Under prior law, the commissioner’s representative conducted a de novo review of the ULJ’s decision. See Minn.Stat. § 268.105, subd. 2(a)-(c) (2002). But the law was amended to provide that a senior unemployment review judge (SURJ) conducts the review. Id., subd. 2(a)-(c) (2004). Further, if the SURJ determines that the facts are not in dispute, he or she may decline to conduct a de novo review and instead may issue an order adopting the ULJ’s findings and decision. Id., subd. 2a(a). In this case, the SURJ adopted the ULJ’s findings and decision. This court will review the findings adopted by the SURJ to determine if the record contains sufficient evidence to sustain the determination. Sinykin v. Comm’r of Econ. Sec., 594 N.W.2d 227, 230 (Minn.App.1999). This court exercises its independent judgment regarding the legal conclusions. Id.

Moreover, statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). “When interpreting a statute, [this court] first look[s] to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). The object of statutory interpretation is to ascertain and effectuate legislative intent. Minn.Stat. § 645.16 (2004). But “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Id.

Relator contends that MEI’s lockout should not preclude him from receiving TRA benefits. Under the Trade Act of 2002, 19 U.S.C. § 2291, eligible workers receive benefits if they have lost their jobs due to import competition. The applicable eligibility requirements provide:

(a) Trade readjustment allowance conditions
Payment of a trade readjustment allowance shall be made to an adversely affected worker covered by a certification under subpart A of this part who files an application for such allowance for any week of unemployment which begins more than 60 days after the date on which the petition that resulted in such certification was filed under section 2271 of this title, if the following conditions are met:
(2) Such worker had, in the 52-week period ending with the week in which such total or partial separation occurred, at least 26 weeks of employment at wages of $SO or more a week in adversely affected employment with a single firm or subdivision of a firm, or, if data with respect to weeks of employment with a firm are not available, equivalent amounts of employment computed under regulations prescribed by the Secretary. For the purposes of this paragraph, any week in which such worker—
(A) is on employer-authorized leave for purposes of vacation, sickness, injury, maternity, or inactive duty or active duty military service for training,
(B) does not work because of a disability that is compensable under a workmen’s compensation law or plan of a State or the United States,
(C) had his employment interrupted in order to serve as a full-time representative of a labor organization in such firm or subdivision, or
(D) is on call-up for purposes of active duty in a reserve status in the Armed Forces of the United States, provided such active duty is “Federal service” as defined in section 8521(a)(1) of Title 5, and
shall be treated as a week of employment at wages of $30 or more, but not more than 7 weeks, in case of weeks described in subparagraph (A) or (C), or both (and not more than 26 weeks, in the case of weeks described in subpara-graph (B) or (D)), may be treated as weeks of employment under this sentence.

19 U.S.C. § 2291(a)(1), (2) (emphasis added). Thus, to qualify for benefits under the section, an applicant must have worked during at least 26 weeks, earning at least $30 per week, during the 52-week period before the applicable separation date or meet one of the four listed exceptions.

The unemployment law judge reasoned that because the beginning impact date determined by the U.S. Department of Labor was April 9, 2000, only workers who separated from employment after that date could qualify for TRA benefits. Because relator had been participating in his union’s strike that began on August 25, 1999, and because MEI locked out the employees when they offered to return to work after a settlement on February 25, 2000, relator did not have 26 weeks of work during the prior 52-week period and was thus deemed ineligible for TRA benefits. Thus, relator’s only possible qualifying separation date was August 7, 2000, the date when the 70 most senior employees were recalled to work by MEI and relator, as the 72nd most senior employee, was not among them.

Relator argues, however, that because he and the union offered to return to work on February 25, 2000, and because the employer rejected the offer and locked out the employees, the weeks of the lockout should apply toward the statutory requirement to make him eligible for TRA benefits. To decide otherwise, argues relator, would be tantamount to denying TRA benefits to him despite his good-faith efforts to return to work and his inability to do so because of actions of his employer. Unquestionably, there is reasonableness in relator’s position. He recognizes, however, that while the Act specifies several instances wherein an employee may be absent from work but still be considered to have been in “employment,” a lockout situation caused by the employer is not one of those instances.

Relator also argues that Congress’s intent was to help workers harmed by import competition, that such intent must certainly include workers who were locked out due to import competition and that “the lockout should not be used to defeat the intent of Congress.” Again, relator’s position is reasonable, but the language of the Act must control.

Relator correctly asserts that the Act’s purpose is to assist workers who have been adversely affected by import competition return to suitable employment. See Sinykin, 594 N.W.2d at 230. And because the statute’s purpose is remedial, its eligibility provisions should be liberally construed. Id. Moreover, we agree with respondent commissioner’s observation that the equities of this case favor relator. Nonetheless, these considerations do not change the fact that the statute’s language is clear and free from ambiguity. The statute clearly lists only four exceptions to the 26 weeks of work requirement: (1) employer-authorized leave; (2) disability; (3) service as a full-time representative of a labor organization; or (4) call-up to active-duty service from reserved status for the Armed Forces of the United States. 19 U.S.C. § 2291(a)(2)(A)-(D). A lockout from employment is not among them.

We note further the textual canon ex-pressio unius est exclusio atterius instructs that to “include one thing implies the exclusion of the other.” Black’s Law Dictionary 620 (8th ed.2004). Thus, Congress’s failure to include lockouts in the list of exceptions to the work-duration requirement implies that it should not be included. See Klein Bancorp., Inc. v. C.I.R., 581 N.W.2d 863, 867 (Minn.App.1998) (legislature would have adopted statutory language to include what it intended to embrace), review denied (Minn. Sept. 22, 1998).

Caselaw from foreign jurisdictions, while not binding, informs our decision here. In Gratta v. Commonwealth Unemployment Comp. Bd. of Review, 123 Pa.Cmwlth. 642, 555 A.2d 270 (1989), the court concluded that because the Trade Assistance Act does not include an exception for locked-out employees, Congress did not intend to make that exception. Further, the Gratta court noted that Congress had amended section 2291 three times since its adoption in 1974, yet never added an exception for locked-out workers. Gratta, 555 A.2d at 272. The Gratta court also urged Congress to remedy the lack of an exception for locked-out workers in the TRA benefits provision. See Gratta, 555 A.2d at 273 (“Until the Congress chooses to amend this section, this court must reluctantly follow the statute.”). But in the intervening 16 years since the Gratta decision, Congress has added two amendments to the Act — one in 1992 and one in 2002 — but has not included a provision protecting locked-out workers. Therefore, although we share the concern expressed by the Gratta court and join in its urging that an exception be added that would enable relator and those similarly situated to qualify for benefits under the Act, we also are bound to apply the statutory provisions as written.

Finally, relator argues that 19 U.S.C. § 2311(d) gives this court license to look to the protections of state law for locked-out workers. Section 2311(d) states that “[a] determination by a cooperating State agency with respect to entitlement to program benefits under an agreement is subject to review in the same manner and to the same extent as determinations under the applicable State law and only in that manner and to that extent.” Relator interprets this provision to mean that this court should not deny him unemployment benefits because Minnesota state law protects workers from disqualification from unemployment benefits if they are locked out. See Minn.Stat. § 268.085, subd. 13b(c)(2) (2004) (applicant shall not be disqualified from unemployment benefits if “applicant stops working because of a lockout”).

We conclude that relator misconstrues section 2311(d). That section is not applicable to state substantive law; it applies only to state procedural law. See Embaby v. Dep’t of Jobs & Training, 397 N.W.2d 609, 611 n. 2 (Minn.App.1986) (“A determination regarding entitlement to trade adjustment assistance ... is subject to the same review procedures as state unemployment insurance claim benefits.” (emphasis added)); Talberg v. Comm’r of Econ. Sec., 370 N.W.2d 686, 688 (Minn.App.1985) (citing section 2311(d) as authority for using state appellate court procedures for unemployment benefits claims). Because section 2311(d) merely invokes procedural state law and does not invoke the protections of the substantive laws of the states, we are powerless to invoke more generous state law protections for locked out workers without Congressional authorization.

Although relator presents an argument that is, in equity, both reasonable and compelling, his plea must be made to Congress, not to the court. He did not have the 26 weeks of work in the 52-week period prior to his separation from employment on August 7, 2000, that are required for TRA benefits under the Trade Assistance Act of 2002, 19 U.S.C. § 2291. Without a statutory exception for locked-out workers, the lockout period cannot count toward the work-duration requirement. We affirm the determination that relator does not qualify for TRA benefits.

DECISION

Because relator’s weeks of lockout from employment do not count toward the 26 weeks of work earning at least $30 per week before the qualifying separation date required to receive TRA benefits, the senior unemployment review judge did not err by adopting, without further review, the unemployment law judge’s decision denying relator benefits.

Affirmed.

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

      . The only other date after which relator was separated from employment with MEI was September 5, 2002, when relator quit employment with MEI to attend school. This date was not due to a work shortage and cannot be used for TRA purposes. Further, the August 25, 1999 strike date and the February 25, 2000 offer-to-return-to-work date could not be used because they preceded April 9, 2000.


author: PARKER, Judge

text:
    Sharon POLLARD, et al., Appellants, v. SOUTHDALE GARDENS OF EDINA CONDOMINIUM ASSOCIATION, INC., et al., Respondents.
    No. A04-2057.
    Court of Appeals of Minnesota.
    July 5, 2005.

      Gary Van Winkle, Timothy L. Thompson, Lawrence R. McDonough, Law Offices of the Legal Aid Society of Minneapolis, Minneapolis, MN, for appellants.
    Michael J. Tomsehe, Jeanette P. Coge-low, Tomsehe, Sonnesyn and Tomsehe P.A., Golden Valley, MN, for respondents.
    Considered and decided by KALITOWSKI, Presiding Judge; TOUSSAINT, Chief Judge; and PARKER, Judge.
   OPINION

PARKER, Judge

Appellant-residents challenge the district court’s order granting summary judgment in favor of the association and the board of directors of Southdale Gardens of Edina Condominium Association, Inc. (respondents). Appellants contend that the district court erred by holding that a non-waiver clause in the condominium bylaws precluded appellants’ claims of waiver, es-toppel, and breach of duty. Appellants also contend that the district court erred in dismissing one appellant for lack of standing. We reverse and remand.

FACTS

Appellants Sharon Pollard, Richard Locken, and John and Carol Weiland are residents of Southdale Gardens. The condominium rules state in relevant part that residents are not permitted to keep pets, but overnight or day guests may bring pets if certain rules are observed. The condominium bylaws include the following nonwaiver clause:

The failure of the Association or of a member to enforce any right, provision, covenant or condition which may be granted by the Declaration or By-laws shall not constitute a waiver of the right of the Association or member to enforce such right, provision, covenant or condition in the future.

Pollard took occupancy of her condominium unit in 1996 and acquired a cat in March or April 2001. Locken took occupancy of his unit in 1994 and began caring for a dog in January 2002. In September 2002, respondents informed Locken and Pollard that they were violating the condominium pet rule. Effective February 1, 2003, respondents fined Locken and Pollard $10 for each day that they kept then-respective pets. In April 2003, Pollard filed a complaint seeking a declaratory judgment that the pet rule was unenforceable.

The Weilands took occupancy of their condominium unit in September 2002. In June 2003, the Weilands informed respondents that they would be caring for a dog for an undetermined amount of time and that they considered their situation to fall under the “visiting pet rule” because their primary residence was in Florida. In August 2003, respondents informed the Wei-lands that keeping a dog violated the condominium pet rule and that they would be fined $10 for each day that they kept the dog. In September 2003, an amended complaint was filed adding Locken and the Weilands as plaintiffs.

Appellants allege that throughout the period of 1989 to 2002, it was common knowledge among Southdale Gardens residents that a number of residents kept pets. Appellants point to deposition testimony as evidence that in the past, board members had affirmatively accepted and even condoned ownership of pets by residents. Although appellants concede that they were aware of the pet rule when they moved into their respective condominium units, they state that but for respondents’ history of nonenforcement of the pet rule and acceptance of pets on the premises, appellants would not have assumed that it would be permissible for them to own pets.

In their amended complaint, appellants claimed (1) that respondents waived then-right to enforce the condominium pet rule; (2) that respondents were equitably es-topped from enforcing the condominium pet rule against appellants; and (3) that respondents breached a duty to treat residents equally by attempting to enforce the condominium pet rule against appellants but not against other residents.

Respondents filed a motion for summary judgment on all of the above claims. Respondents also requested that Locken be dismissed from the suit for lack of standing because he does not own his condominium unit. The district court granted respondents’ motion for summary judgment. In doing so, the district court stated:

For the purposes of this motion, the Court assumes the facts most favorable to the non-moving party as well as the reasonable inferences to be drawn there from. In this case, that means that the court assumes lack of enforcement or selective enforcement of the no-pet policy. Irrespective of this, summary judgment is appropriate.
Because of [the nonwaiver clause], there can be no claim that Southdale Gardens waived or is estopped from enforcing the no pet policy due to non-enforcement or selective enforcement.

The district court made no mention of appellants’ duty claim or respondents’ standing argument; but the court stated that respondents’ motion for summary judgment was “in all respects granted.” This appeal followed.

ISSUES

1. Did the district court err in granting summary judgment in favor of respondents on appellants’ claim that respondents waived their right to enforce the condominium pet rule?

2. Did the district court err in granting summary judgment in favor of respondents on appellants’ claim that respondents were equitably estopped from enforcing the condominium pet rule against appellants?

3. Did the district court err in granting summary judgment in favor of respondents on appellants’ claim that respondents breached a duty to treat residents equally by attempting to enforce the condominium pet rule against appellants but not against other residents?

4. Did the district court err in dismissing one appellant-resident from the suit for lack of standing because he does not own his condominium unit?

ANALYSIS

On appeal from summary judgment, this court asks 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). Summary judgment is appropriate “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). A reviewing court must examine the evidence in the light most favorable to the party against whom summary judgment was granted. Id. A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).

I.

Waiver is a voluntary relinquishment of a known right. Illinois Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 798 (Minn.2004). “The party alleging waiver must provide evidence that the party that is alleged to have waived the right possessed both knowledge of the right in question and the intent to waive that right.” Id. Waiver is ordinarily a question of fact for a jury, unless only one inference may be drawn from the facts. N. States Power Co. v. City of Mendota Heights, 646 N.W.2d 919, 925 (Minn.App.2002), review denied (Minn. Sept. 25, 2002).

It is well settled that a written contract may be modified by subsequent acts and conduct of the parties to the contract. See, e.g., Huver v. Opatz, 392 N.W.2d 237, 241 (Minn.1986). Because a nonwaiver clause may be modified by subsequent conduct, the mere presence of a nonwaiver clause does not automatically bar a waiver claim. See Green v. Minnesota Farmers’ Mut. Ins. Co., 190 Minn. 109, 117, 251 N.W. 14, 17 (1933) (acknowledging an insurance contract’s nonwaiver clause, but holding that evidence of insurance agent’s conduct supported the finding that there was in fact a waiver of the contract’s forfeiture provision); see also Marblestone Co. v. Phoenix Assur. Co., 169 Minn. 1, 12-14, 210 N.W. 385, 386-87 (1926) (holding that insurer’s conduct did not waive the right to limit coverage, even though existence of nonwaiver clause did not preclude the possibility of such a waiver).

Appellants contend that it was an error of law for the district court to grant summary judgment on the basis of the non-waiver clause alone when the evidence shows that respondents failed to enforce the rule for 12 years and even encouraged violation of the rule. Respondents, however, deny failure to enforce the pet rule and state that several Minnesota cases support the use and enforcement of nonwaiver clauses. See, e.g., Minneapolis Cmty. Dev. Agency v. Powell, 352 N.W.2d 532, 535 (Minn.App.1984) (stating that a nonwaiver provision in a public housing lease is not per se unconscionable or void as against public policy). But the cases cited by respondents do not stand for the proposition that a waiver by conduct can never occur where a contract contains a nonwaiver provision, and we find no authority to support such an argument.

The district court assumed that for the purposes of respondents’ summary judgment motion, there was lack of enforcement or selective enforcement of the condominium pet rule. Viewing the evidence in the light most favorable to appellants, the record supports this assumption and creates an issue of material fact as to whether respondents knowingly and intentionally waived their right to enforce the pet rule. Therefore, we are compelled to reverse the district court’s order of summary judgment with respect to appellants’ waiver claim.

II.

“Equitable estoppel prevents the assertion of otherwise valid rights where one has acted in such a way as to induce another party to detrimentally rely on those actions.” Drake v. Reile’s Transfer & Delivery, Inc., 613 N.W.2d 428, 434 (Minn.App.2000). Parties seeking to invoke the doctrine of equitable estoppel must prove (1) that promises or inducements were made; (2) that they reasonably relied upon the promises; and (3) that they will be harmed if estoppel is not applied. Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919 (Minn.1990). The application of equitable estoppel ordinarily presents a question of fact, unless only one inference may be drawn from the facts. Drake, 613 N.W.2d at 434.

Here, the district court held that because of the nonwaiver clause, there could be no claim that respondents were estopped from enforcing the pet rule. Without further analysis, the district court granted summary judgment on appellants’ estoppel claim. We find no authority to support the proposition that a nonwaiver clause precludes estoppel claims.

Respondents contend that summary judgment was appropriate on the estoppel claim because respondents did not make any affirmative promises or inducements to appellants. But we recognize the supreme court’s long-standing position on estoppel as follows:

The authorities are ... substantially all agreed upon the following general propositions. First. To create an estoppel, the conduct of the party need not consist of affirmative acts or words. It may consist of silence or a negative omission to act when it was his duty to speak or act. Second. It is not necessary that the facts must be actually known to a party estopped. It is enough if the circumstances are such that a knowledge of the truth is necessarily imputed to him. Third. It is not necessary that the conduct be done with a fraudulent intention to deceive, or with an actual intention that such conduct will be acted upon by the other party. It is enough that the conduct was done under such circumstances that he should have known that it was both natural and probable that it would be so acted upon.

Dimond v. Manheim, 61 Minn. 178, 182, 63 N.W. 495, 497 (1895) (emphasis added).

Respondents argue that even if Pollard and Locken may properly invoke the doctrine of equitable estoppel, the Weilands cannot. Respondents support this position by underscoring the fact that after the Weilands informed respondents that they would be caring for a dog for an undetermined amount of time under the “visiting pet rule,” respondents notified the Weilands that doing so would violate the condominium pet rule. But appellants maintain that notwithstanding respondents’ notice, the Weilands reasonably relied on respondents’ history of nonenforcement as an indication that the condominium pet rule may no longer be valid. Viewing the record in the light most favorable to the nonmoving party, more than one inference may be drawn from the facts at hand and the Weilands’ estoppel claim is sufficient to survive summary judgment.

The district court erred in holding that as a matter of law, the mere existence of a nonwaiver clause precludes estoppel claims. Moreover, the record creates a genuine issue of material fact as to the merits of appellants’ estoppel claims. Therefore, we must reverse the district court’s order of summary judgment with respect to all of appellants’ estoppel claims.

III.

Appellants contend that, under the Minnesota Common Interest Ownership Act, respondents have a duty to treat all condominium residents equally. See Minn.Stat. § 515B.3-103(a) (2004) (setting forth the standard of care to be exercised by officers and directors of an association). Appellants claim that by attempting to enforce the pet rule against appellants but not against other residents, respondents breached their duty to treat residents equally.

Although the district court made no mention of appellants’ duty claim, the court granted respondents’ motion for summary judgment “in all respects.” It appears that the district court granted summary judgment on appellants’ duty claim based on the nonwaiver clause. We make no determination as to whether respondents had a duty to treat residents equally under the law cited by appellants or as to whether respondents violated this alleged duty. But we find no authority for the proposition that a nonwaiver clause precludes such a claim. Therefore, we must reverse the district court’s order of summary judgment with respect to appellants’ duty claim.

IV.

“Standing is the requirement that a party has a sufficient stake in a justiciable controversy to seek relief from a court.” State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 493 (Minn.1996) (citing Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 1364-65, 31 L.Ed.2d 636 (1972)). Standing is acquired if the plaintiff has suffered some injury-in-fact or the plaintiff is the beneficiary of some legislative enactment granting standing. Id.

In their motion for summary judgment, respondents argued that Locken should be dismissed from the suit for lack of standing because he does not own his condominium unit and is not a member of the condominium association. The district court made no mention of the standing issue, but granted respondents’ motion for summary judgment in “all respects.”

The condominium rules and regulations read in relevant part that they are intended “to provide reasonable guidelines for the residents” of the condominium. The pet rule states that “[r]esidents are not permitted to keep pets.” Because the condominium rules are directed at residents and not limited to occupants who own units, we hold that Locken has standing in this matter and should not have been dismissed from the suit. Therefore, we must reverse the district court’s order of summary judgment with respect to Locken’s standing to sue.

DECISION

The district court erred in concluding that the mere presence of a nonwaiver clause barred appellants’ claims of waiver, equitable estoppel, and breach of duty. The district court also erred in dismissing appellant Locken for lack of standing. The record shows that appellants’ claims involve genuine issues of material fact. Therefore, we must reverse the district court’s order of summary judgment and remand for further proceedings.

Reversed and remanded.

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


author: MARING, Justice.

text:
    2005 ND 116
    In the Interest of D.A. North Dakota State Hospital, Petitioner and Appellee v. D.A., Respondent and Appellant.
    No. 20050174.
    Supreme Court of North Dakota.
    June 22, 2005.

      Thomas E. Merrick, Jamestown, N.D., for respondent and appellant.
    Leo A. Ryan, Special Assistant Attorney General, Jamestown, N.D., for petitioner and appellee.
   MARING, Justice.

[¶ 1] D.A. appeals from the trial court’s order authorizing the North Dakota State Hospital to treat him involuntarily with medication until July 12, 2005. We affirm.

I

[¶ 2] D.A. has been diagnosed with gender identity disorder, mood disorder, alcohol dependence, and borderline personality disorder. On August 26, 2004, the trial court ordered D.A. to undergo alternative treatment at the Dakota Pioneer Crisis Unit for one year. On September 21, 2004, the trial court determined D.A. was not complying with the alternative treatment order, terminated the order, and required D.A. to be hospitalized at the State Hospital for the remainder of the one-year commitment, or until further court order.

[¶ 3] On January 25, 2005, the trial court ordered less restrictive treatment, requiring D.A. to undergo treatment at the Men’s Transitional Living Home on the State Hospital campus until August 25, 2005. The trial court specifically required D.A.: (1) reside at the Men’s Transitional Living Home; (2) cooperate with the rules and regulations of the Men’s Transitional Living Home; (3) not consume alcoholic beverages; and (4) take medications as prescribed.

[¶ 4] On March 17, 2005, D.A. was returned to the State Hospital after he skipped work, consumed alcohol, got into a scuffle with police, and was briefly incarcerated. During this incident, D.A. made suicidal statements and became agitated to the point of requiring restraints. On March 18, 2005, State Hospital officials filed an application for emergency admission and notice of detention with the trial court. The application described the incident, noting D.A. was in jail for drinking, not taking his medication, being harmful to others, and fighting with police and staff. The application also recommended D.A. be hospitalized for the remainder of his commitment.

[¶ 5] On March 31, 2005, D.A. again left the State Hospital without permission for several hours. During this absence, D.A. consumed several beers at a bar before being returned to the State Hospital.

[¶ 6] On April 5, 2005, Dr. William Pryatel, D.A.’s treating physician, and Dr. Diana Robles, an independent examiner and licensed psychiatrist, submitted a request to treat D.A. with proposed medication, specifically Risperdal and Haloperi-dol. D.A. had previously been prescribed Seroquel, an anti-psychotic drug available only in oral form. The doctors requested the authority to treat D.A. with Risperdal and Haloperidol, injectable drugs with similar efficacy to Seroquel, to serve “as a back up” in case D.A. again refused the oral medication. The doctors asserted the proposed medications are clinically appropriate and necessary to treat D.A.; a reasonable expectation exists that if D.A. is not treated as proposed, a serious risk of harm to D.A., other persons, or property exists; D.A. was offered the medication and refused it; the proposed medication is the least restrictive intervention necessary to meet D.A.’s treatment needs; and, the benefits of the medication outweigh the known risks.

[t 7] Following a hearing, the trial court terminated the January 25, 2005, order for less restrictive treatment and ordered D.A. be hospitalized at the State Hospital until August 25, 2005, the remainder of the one-year commitment, or until further court order. The trial court also issued an Order to Treat with Medication, granting the State Hospital the authority to medicate D.A. involuntarily with Risper-dal and Haloperidol for a period not to exceed ninety days from the date of the hearing.

[¶ 8] D.A. appeals the Order to Treat with Medication.

II

[¶ 9] On appeal, D.A. argues that because he had been taking Seroquel and other prescribed medications without incident for approximately two weeks at the time of the hearing, and because no evidence in the record shows he refused to take either Risperdal or Haloperidol, he has not refused treatment under N.D.C.C. § 25-03.1-18.1(l)(a)(2). He further argues Haloperidol should not be included in the Order to Treat with Medication because he previously used Haloperidol and it caused severe, uncontrollable muscle movements, leaving him unable to communicate. The State Hospital argues D.A. did refuse medication necessary to his treatment and the trial court’s Order to Treat with Medication is necessary to continue D.A.’s treatment if he again refuses prescribed medication.

[¶ 10] Under N.D.C.C. § 25-03.1-18.1(l)(a), before a trial court authorizes involuntary treatment with prescribed medication, the treating psychiatrist and another licensed physician must certify, and the court must find by clear and convincing evidence:

(1) That the proposed prescribed medication is clinically appropriate and necessary to effectively treat the patient and there is a reasonable expectation that if the person is not treated as proposed there exists a serious risk of harm to that person, other persons, or property;
(2) That the patient was offered that treatment and refused it or that the patient lacks the capacity to make or communicate a responsible decision about that treatment;
(3) That prescribed medication is the least restrictive form of intervention necessary to meet the treatment needs of the patient; and
(4) That the benefits of the treatment outweigh the known risks to the patient.

The court must consider all relevant evidence presented, including:

(1) The danger the patient presents to self or others;
(2) The patient’s current condition;
(3) The patient’s treatment history;
(4) The results of previous medication trials;
(5) The efficacy of current or past treatment modalities concerning the patient;
(6) The patient’s prognosis; and
(7) The effect of the patient’s mental condition on the patient’s capacity to consent.

N.D.C.C. § 25 — 03.1—18.1(2)(a). Further, medication may not be imposed solely for punishment or for the convenience of the hospital’s staff. N.D.C.C. § 25-03.1-18.1(2)(b).

[¶ 11] This Court’s review of an appeal under N.D.C.C. ch. 25-03.1 is limited to a review of the procedures, findings, and conclusions of the trial court. In the Interest of J.D., 2002 ND 50, ¶ 13, 640 N.W.2d 733. Balancing the competing interests of protecting a mentally ill person and preserving that person’s liberty, requires trial courts to use a clear and convincing standard of proof while we use the more probing clearly erroneous standard of review. Id. A trial court’s finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction “it is not supported by clear and convincing evidence.” Id. (quoting In Interest of R.N., 513 N.W.2d 370, 371 (N.D.1994)).

[¶ 12] D.A. argues that because he was taking other prescribed medications without incident for approximately two weeks at the time of the hearing, and because no evidence in the record shows he refused to take either Risperdal or Haloperidol, he has not refused treatment under N.D.C.C. § 25-03.1-18.1(l)(a)(2).

[¶ 13] We have previously affirmed a trial court’s order authorizing treatment with a number of different medications, including Lithium, Geodone, Seroquel, Prolixin, Haldol, and Olanzapine under N.D.C.C. § 25-03.1-18.1. See In Interest of D.Z., 2002 ND 132, ¶¶ 14-16, 649 N.W.2d 231. In that case, the treating physician and board certified psychiatrist testified they did not seek to use all of the medications simultaneously, but only those that provided the most benefit, least side effects and that were best tolerated. Id. We have concluded a trial court must specify the medication to be involuntarily administered, at least by generic name, in its order for involuntary medication. Arevalo v. J.S., 528 N.W.2d 367, 369 (N.D.1995).

[¶ 14] Here, Dr. Pryatel, D.A.’s treating physician, and Dr. Robles, the appointed independent examiner, properly requested court authorization to treat D.A. specifically with Risperdal and Haloperi-dol, which are anti-psychotic medications. Dr. Pryatel testified D.A. had a history of being noncompliant relative to medication and had specifically refused Seroquel, an anti-psychotic medication. He further testified Seroquel is available only in oral form. Dr. Pryatel sought the medication order to treat D.A. with Risperdal and Haloperidol, injectable drugs with similar efficacy to Seroquel, to serve “as a back up” if DA. again refused to take Seroquel. D.A., by refusing to take Seroquel, the oral equivalent of the prescribed anti-psychotic medication, has refused the type of medication necessary to his treatment. Dr. Pryatel testified it was clinically appropriate and necessary to treat D.A. with the prescribed medication, the prescribed medication was the least restrictive form of treatment necessary to meet D.A.’s needs, and the benefits of the treatment outweigh known risks. The trial court found the statutory factors were proven by clear and convincing evidence, and we conclude from the significant evidence in the record the trial court’s finding is not clearly erroneous. Further, although D.A. was taking the Seroquel at the time of the hearing, we believe a mistake was not made in authorizing the use of Risperdal and Haloperidol, in light of the recent history of refusal of Seroquel and the relative brevity of the ninety-day Order to Treat with Medication.

Ill

[¶ 15] D.A. argues Haloperidol should not be included in the Order to Treat with Medication because he previously used Haloperidol and it caused severe, uncontrollable muscle movements, leaving him unable to communicate. D.A. has a right to be free of unnecessary medication. N.D.C.C. § 25-03.1-40(10). The forced medication statute is “ ‘designed to safeguard a patient’s right to be free of forced medication unless the prescribed medication is necessary to effectively treat the patient, unless the medication is the least restrictive form of intervention available for the patient’s treatment, and unless the benefits of the medication outweigh its known risks to the patient.’ ” In the Interest of R.A.J., 554 N.W.2d 809, 812 (N.D.1996) (quoting State v. Nording, 485 N.W.2d 781, 787 (N.D.1992)). D.A. asserts that because there was no expert testimony refuting his claim of adverse side effects and because Risperdal performs the same function, the inclusion of Haloperidol in the order is clearly erroneous. “The statute calls for the least restrictive form of intervention, not the least intrusive form of intervention.” Interest of R.A.J., at 812. Dr. Pryatel’s testimony addressed the potential side effects of the requested medication. He noted the benefits outweigh the risks, and the injectable forms of the anti-psychotic drugs were necessary only if D.A. refused to take the oral form of the medication. Dr. Pryatel further testified that neither Risperdal nor Haloperidol would be used if D.A. continued to take the Seroquel orally. The trial court’s inclusion of Haloperidol in the Order for Treatment with Medication is supported by the evidence and is not clearly erroneous.

IV

[¶ 16] We affirm the trial court’s order authorizing the State Hospital to medicate D.A. involuntarily with Risperdal and Hal-operidol until July 12, 2005.

[¶ 17] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2005 ND 118
    RIVERWOOD COMMERCIAL PARK, LLC, Plaintiff and Appellant v. STANDARD OIL COMPANY, INC., Defendant and Tesoro Refining and Marketing Company, Defendant and Appellee.
    No. 20040314.
    Supreme Court of North Dakota.
    June 22, 2005.

      Chad C. Nodland, Bismarck, ND, for plaintiff and appellant.
    Michael Geiermann (argued), and Timothy D. Lervick (on brief), Schulz Lervick Geiermann & Bergeson Law Offices, P.C., Bismarck, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Riverwood Commercial Park, LLC (“Riverwood”) has appealed from a judgment dismissing its eviction action against Standard Oil Company (“Standard”) and Tesoro Refining and Marketing Company (“Tesoro”). We affirm, concluding an eviction action under N.D.C.C. ch. 33-06 is not an available remedy.

I

[IF 2] In 1953, Standard owned an oil refinery in Mandan, and the Northern Pacific Railway Company (“NP”) owned land between the refinery and the Heart River. On March 23, 1953, NP executed a written permit granting Standard permission to “construct, operate, and maintain” a sewer pipeline along NP’s right-of-way from the refinery to the Heart River. The permit provided that Standard could not transfer or assign the permit without NP’s written consent. A twenty-two inch underground sewer pipeline, including a large manhole, was constructed across NP’s property from the refinery several miles south to the Heart River.

[¶ 3] In 1998, NP sold a portion of its property containing the sewer pipeline to Marmot Properties. Since 1953, Standard has gone through a series of name changes and eventually became British Petroleum (“BP”). In 2001, BP sold the Mandan refinery to Tesoro. On May 17, 2004, Tesoro filed a “Notice of Permit,” with a copy of the 1953 permit attached, with the Morton County Recorder’s Office. On June 15, 2004, Marmot Properties sold the property involved in this case, with the sewer pipeline running beneath it, to Riv-erwood.

[¶ 4] On August 5, 2004, Riverwood served a Notice of Eviction upon Tesoro and Standard. On August 11, 2004, River-wood commenced this summary eviction action under N.D.C.C. ch. 33-06 against Tesoro and Standard, seeking immediate possession of the property, removal of the defendants from the property within five days, removal of the pipeline, and damages. Riverwood claimed that the 1953 permit was nonassignable, that Tesoro was a mere trespasser, and that the presence of the pipeline was interfering with River-wood’s ability to develop and market the property.

[¶ 5] Tesoro moved for judgment on the pleadings. The district court concluded that eviction was not an available remedy under N.D.C.C. eh. 33-06 and ordered dismissal of the complaint. A judgment of dismissal was subsequently entered.

II

[¶ 6] Eviction actions are governed by N.D.C.C. ch. 33-06. An eviction action under N.D.C.C. ch. 33-06 is a summary proceeding to recover possession of real estate. H-T Enters. v. Antelope Creek Bison Ranch, 2005 ND 71, ¶ 6, 694 N.W.2d 691; Minto Grain, LLC v. Tibert, 2004 ND 107, ¶ 8, 681 N.W.2d 70; Anderson v. Heinze, 2002 ND 60, ¶ 11, 643 N.W.2d 24. Section 33-06-02, N.D.C.C., provides for an expedited procedure, with the defendant allowed between three and fifteen days to appear and defend in the action. Minto Grain, at ¶ 8; Anderson, at ¶ 11; Stonewood Hotel Corp., Inc. v. Davis Dev., Inc., 447 N.W.2d 286, 289 (N.D.1989). If the court finds for the plaintiff, the court must enter judgment granting immediate restitution of the premises to the plaintiff, but the court may delay execution in case of hardship for a reasonable period not exceeding five days. N.D.C.C. § 33-06-04. The statute strictly limits the parties’ ability to combine the eviction with other claims and precludes the defendant from interposing a counterclaim, except as a setoff to the plaintiffs claim for damages, rent, or profits. N.D.C.C. § 33-06-04. The proceeding is limited to a speedy determination of the right to possession of the property, without bringing in extraneous matters. See Minto Grain, at ¶ 8; VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 11, 672 N.W.2d 445; Anderson, at ¶ 11. The purpose of the statute is to provide an inexpensive, expeditious, and simple means to determine possession. Leevers Foods, at ¶ 18.

[¶ 7] Section 33-06-01, N.D.C.C., lists the various factual circumstances which may give rise to an eviction action:

An action of eviction to recover the possession of real estate is maintainable in the proper district court when:
1. A party, by force, intimidation, fraud, or stealth, has entered upon the prior actual possession of real property of another and detains the same.
2. A party, after entering peaceably upon real property, turns out by force, threats, or menacing conduct the party in possession.
3. A party, by force or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise.
4. A lessee, in person or by subtenant, holds over after the termination of the lease or expiration of the lessee’s term, or fails to pay rent for three days after the rent is due.
5. A party continues in possession after a sale of the real property under mortgage, execution, order, or any judicial process and after the expiration of the time fixed by law for redemption, or after the execution and delivery of a deed, or after the cancellation and termination of any contract for deed, bond for deed, or other instrument for the future conveyance of real estate or equity therein.
6. A party continues wrongfully in possession after a judgment in partition or after a sale under an order or decree of a district court.
7. A lessee or a person on the premises with the lessee’s consent acts in a manner that unreasonably disturbs other tenants’ peaceful enjoyment of the premises.
8. The lessee violates a material term of the written lease agreement between the lessor and lessee.

[¶ 8] Riverwood argues that “[t]he question before the court, thus, is whether an eviction action may be properly pursued by a landowner seeking to evict a trespasser, who is ‘unlawfully occupying, holding and keeping possession of a portion of the landowner’s property.” Riverwood’s view of the availability of the statutory procedure is too simplistic. The statute does not say all trespassers may be evicted using the summary eviction procedure under N.D.C.C. ch. 33-06. Rather, N.D.C.C. § 33-06-01 enumerates eight specific factual grounds which will give rise to an eviction action. A party seeking to employ the expedited eviction procedure must demonstrate that one of those eight subsections is applicable. Riverwood concedes that subsections (5) and (6) are inapplicable in this case, but argues that all of the remaining subsections apply.

[¶ 9] Subsections (1), (2), and (3) of N.D.C.C. § 33-06-01 generally allow eviction if a party has entered upon or remains upon property by use of force, threats, or fraud. Riverwood contends Te-soro and Standard entered upon and detained Riverwood’s property by force or fraud, asserting that a padlock placed upon the manhole cover on the property constituted “force” and that Tesoro’s claim that it has a right under Standard’s nonassignable permit constituted “fraud.” River-wood has provided no citations to relevant authority or supportive reasoning for these novel assertions, and we find them unpersuasive. We conclude subsections (1), (2), and (3) of N.D.C.C. § 33-06-01 do not apply under the facts in this case.

[¶ 10] Riverwood also contends that Tesoro and Standard’s conduct falls within subsections (4), (7), and (8) of N.D.C.C. § 33-06-01. Each of those provisions expressly applies only to lessees, requiring a showing that there is a lease. The 1953 permit created, at best, a license or easement, not a lease. A lease “gives the lessee a right of possession of the property leased and the exclusive use or occupation of it for all purposes not prohibited by the terms.” Lee v. North Dakota Park Serv., 262 N.W.2d 467, 470 (N.D.1977); see also Lindvig v. Lindvig, 385 N.W.2d 466, 472 n. 7 (N.D.1986) (party whose use of the property was not exclusive was not a lessee). A license, by contrast, merely grants permission to use the land for a specific purpose under certain conditions and restrictions. See Lee, at 473; see also Hector v. Metro Centers, Inc., 498 N.W.2d 113, 117 (N.D.1993) (a license is merely a privilege to do what otherwise would be unlawful). An easement is an interest in land “consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road).” Black’s Law Dictionary 548 (8th ed. 2004); see also 4 Powell on Real Property § 34.01[1] (2005) (an easement “may grant to A the right to do acts that, were it not for the easement, he would not be privileged to do, such as maintaining a driveway or a sewage pipe across B’s land”).

[¶ 11] The major distinction between a lease and an easement or license is that a lease confers exclusive use and possession of the property against the world, including the landowner, whereas an easement or license merely grants a right or permission to nonexclusive use of the land for a specific, limited purpose. See Lee, 262 N.W.2d at 467, 472-73; see also Lindvig, 385 N.W.2d at 472 n. 7; 52 C.J.S. Landlord and Tenant § 337 (2003). Riverwood has at all times had possession of its property. The 1953 permit did not grant Standard exclusive use and possession of any part of NP’s land, but merely permitted non-exclusive use of a portion of NP’s land for the specific, limited purpose of maintaining a sewer pipeline. The 1953 permit is not a lease, neither Tesoro nor Standard is a lessee under the permit, and therefore subsections (4), (7), and (8) of N.D.C.C. § 33-06-01 on their face are inapplicable in this case.

[¶ 12] Riverwood has chosen the wrong remedy to attempt to resolve its claims against Tesoro and Standard, and Riverwood’s attempt to “shoehorn” this case into the summary eviction procedure is unpersuasive. Summary eviction under N.D.C.C. ch. 33-06 is primarily designed to quickly place a landowner back in possession in certain circumstances when there is little or no dispute to his right to possession. The expedited, summary procedure provides no meaningful opportunity for discovery and places the landowner back in possession within a matter of days of serving the summons and complaint. This remedy is- particularly ill-suited to resolve complex legal and factual issues arising from an underground sewer line which has been in place for half a century. Cf. State v. Meyer, 361 N.W.2d 221, 222-23 (N.D.1985) (a criminal action for obstructing a public road was not the proper forum to resolve whether the road had become a public road by prescription). Although Riverwood may perhaps have some other remedy against Tesoro or Standard, such as an action for trespass or breach of the 1953 permit, it is not entitled to invoke the expedited summary eviction procedure under N.D.C.C. ch. 33-06.

[¶ 13] The judgment dismissing River-wood’s eviction action is affirmed.

[¶ 14] DALE V. SANDSTROM and MARY MUEHLEN MARING, JJ., concur.

[¶ 15] The Honorable CAROL RONNING KAPSNER disqualified herself subsequent to oral argument and did not participate in this decision.

[¶ 16] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.