author: MILLER, Retired Justice. SABERS, Justice

text:
    2002 SD 155
    John GILCHRIST, Plaintiff and Appellant, v. TRAIL KING INDUSTRIES, INC., Defendant and Appellee.
    No. 22158.
    Supreme Court of South Dakota.
    Argued Aug. 27, 2002.
    Decided Dec. 11, 2002.

      Rick Johnson of Johnson, Eklund, Nicholson & Peterson, Gregory, J.M. Gros-senburg, Winner, South Dakota, Attorneys for plaintiff and appell^it.
    Cheryle Wiedmeier Gering, Susan Brun-ick Simons of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   MILLER, Retired Justice.

[¶ 1.] John Gilchrist sued Trail King Industries, Inc. seeking damages for bad faith, wrongful termination, and intentional infliction of emotional distress. Gilchrist appeals a judgment based upon a jury verdict rendered in favor of Trail King. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] The facts of this case are complex. Further specific details can be found in two of our earlier holdings (Gilchrist v. Trail King Industries, Inc. and Rehabilitation Strategies, Inc., 2000 SD 67, 612 N.W.2d 10 (Gilchrist I) and Gilchrist v. Trail King Industries, Inc., 2000 SD 68, 612 N.W.2d 1 (Gilchrist II)). For purposes of this appeal, however, we will briefly summarize the history of the case.

[¶ 3.] Gilchrist, as an employee of Trail King, was injured while taking inventory on September 1, 1994. He slipped and fell off a lift and was briefly suspended in air when a ring on his pinkie finger caught on a bracket. He sustained immediate injuries to his finger, neck, back, and shoulder. He ultimately developed carpal tunnel syndrome and severe depression.

[¶ 4.] Trail King, which is self-insured for workers’ compensation, paid workers’ compensation benefits to Gilchrist, including the initial cost of his medical care. After a couple months, Trail King employed Risk Strategies, Inc. (RSI) to facilitate Gilchrist’s rehabilitation. Kathy Burns, an employee of RSI, was assigned to Gilchrist’s case and her responsibility was to act as a sort of intermediary between Trail King and Gilchrist’s doctors. Part of Burns’ duties was to attend doctor appointments with Gilchrist and to keep Trail King informed of Gilchrist’s medical status, including when he could return to work.

[¶ 5.] Dr. Cho, one of Gilchrist’s doctors, issued Gilchrist a release to return to work for light duty under the misguided opinion that his health was improving. Furthermore, Dr. Cho was unaware that Gilchrist was suffering other symptoms such as internal bleeding and vomiting. Although Burns, as the person hired by Trail King to oversee Gilchrist’s rehabilitation program, had access to all of Gilchrist’s medical records, she did not inform Dr. Cho of his other medical problems. Apparently, Dr. Cho asked Burns to give her Gilchrist’s other medical records, but Burns did not send them to her. Moreover, in Dr. Cho’s subsequent affidavit, she stated, “Burns ... had not kept me fully advised of John Gilchrist’s ongoing treatment by other physicians at the time opinions were requested of me concerning Mr. Gilchrist’s wrist problems.” She further repudiated her earlier opinion that Gilchrist’s back pain and carpal tunnel syndrome were not related to the work injury after she was furnished with Gilchrist’s other medical records.

[¶ 6.] On December 13, 1994, Norman Tarbell, Trail King’s worker compensation coordinator, met with Gilchrist to discuss his return to work. Gilchrist claims Tarbell told him he would not be receiving any further worker compensation benefits and that unless he returned to work the next day, he would be considered to have voluntarily ended his employment. After Gilchrist allegedly informed Tarbell that he was too sick to work, Tarbell told him to return the next morning and together they could call his doctors. Gilchrist never returned to work after this meeting. On December 14,1994, Trail King sent a certified letter to Gilchrist informing him that because Dr. Cho had issued a return to work slip, he would be considered voluntarily terminated, if he did not return to work in the next forty-eight hours. (This was pursuant to Trail King’s employment policy, outlined in its employee handbook, which provided that if an employee missed more than two consecutive work days without reason, he would be considered to have voluntarily terminated his employment.)

[¶ 7.] Gilchrist continued his medical treatment with several doctors, including Dr. Hoversten, with whom Trail King had arranged for an independent medical evaluation. Dr. Hoversten discovered Gilchrist had a right rotator cuff injury and carpal tunnel syndrome in both hands. He scheduled Gilchrist for surgery to correct both of these injuries at the same time. However, before such surgery and about a month later, Dr. Cho determined that the injuries to Gilchrist’s right shoulder and hand were caused by his fall at work, but that the other injuries were not related to the accident. Based on this information, RSI recommended to Trail King that it not pay for the carpal tunnel surgery. After Dr. Hoversten’s office was informed that Trail King would not pay for this part of the surgery, it informed Gilchrist, who in turn cancelled the entire procedure, expressing that he did not have money to pay for the uncovered part. It was Gilchrist’s view that Trail King was “jerking him around.”

[¶ 8.] Gilchrist filed a workers’ compensation action and additionally brought a civil action against Trail King and RSI for wrongful termination, bad faith, and intentional infliction of emotional distress. The South Dakota Department of Labor initially issued a decision ruling that Gilchrist was entitled to rotator cuff surgery and carpal tunnel surgery on his right hand but denying that his severe depression, which Gilchrist claimed resulted in total disability, was caused by the work injury. Gilchrist appealed this decision to the Sixth Judicial Circuit Court which reversed the Department’s ruling. It held that Gilchrist’s psychological disability claim was work related and thus, compen-sable. However, the circuit court remanded the case to the Department for a determination of whether Gilchrist unreasonably refused or neglected to have his right rotator cuff surgery. The Department thereafter ruled Gilchrist did not unreasonably refuse or neglect to avail himself to medical or surgical treatment and granted Gilchrist total disability benefits. That ruling was later affirmed by the Sixth Circuit Judge. In the meantime, before the Department’s initial decision was reversed, Trail King and RSI both moved for summary judgment on the claims against them in the separate civil action. Those motions were heard in the Fourth Judicial Circuit Court. That judge granted summary judgment to RSI (he also entered certification under SDCL 15-6-54(b) so that an appeal could be perfected). Additionally, the circuit judge denied summary judgment to Trail King. Gilchrist appealed the Fourth Circuit Judge’s grant of summary judgment to RSI, and Trail King appealed the Sixth Circuit’s decision regarding the Department’s workers compensation ruling.

[¶ 9.] In opinions filed concurrently, Gilchrist I and Gilchrist II, we affirmed both the circuit courts’ decisions. We held that summary judgment was proper as to RSI and that the Department’s ruling, which the Sixth Circuit affirmed, was not clearly erroneous.

[¶ 10.] Subsequently, a jury trial ensued on Gilchrist’s civil action against Trail King. On October 1, 2001, the jury entered a verdict in Trail King’s favor, dismissing all three of Gilchrist’s cause of actions on their merits. Gilchrist appeals. Specifically, he raises the following issues:

1.Whether the trial court abused its discretion when it granted Trail King’s motions in limine:
a. prohibiting Gilchrist from referring to or presenting evidence about RSI and/or Burns; and
b. prohibiting Gilchrist from referring to añy conduct of Trail King after February 22,1995.
2. Whether the trial court abused its discretion when it did not take judicial notice of certain facts adjudicated in previous proceedings involving Gilchrist’s worker compensation claim.
3. Whether the trial court erred when it gave certain instructions to the jury at the close of the evidence.

STANDARD OF REVIEW

[¶ 11.] A trial court’s evidentia-ry rulings are presumed correct and are reviewed under the abuse of discretion standard. State v. Larson, 1998 SD 80, ¶ 10, 582 N.W.2d 15, 17 (citing State v. Goodroad, 1997 SD 46, ¶9, 563 N.W.2d 126, 129). “The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” Id. (citing Goodroad, 1997 SD 46 ¶ 9, 563 N.W.2d at 129). Additionally, to establish that a trial court’s evidentiary ruling requires reversal, it must be shown it was prejudicial. See Joseph v. Kerkvliet, 2002 SD 39, ¶7, n.l, 642 N.W.2d 533, 534, (citing Carpenter v. City of Belle Fourche, 2000 SD 55, ¶ 7, 609 N.W.2d 751, 756 (citations omitted)).

ANALYSIS AND DECISION

[¶ 12.] Whether the trial court abused its discretion when it granted Trail King’s motions in limine.

[¶ 13.] In its ruling granting Trail King’s motions in limine, the trial court prohibited Gilchrist from mentioning Burns, the rehabilitation consultant from RSI, during the trial. The trial court also prohibited Gilchrist from introducing evidence or examining witnesses about what Trail King did or did not do after February 22, 1995 ; and, from using the affidavit of doctors or psychiatrists that were made after that date. Gilchrist argues that when the trial court granted these motions in limine, it was an abuse of discretion and that prejudicial error resulted. Specifically, he contends that “the numerous redactions of Kathleen Burns’ name and activities from the evidence provided to the jury ... left a big vacuum on what Trail King knew or should have known or whether their investigation was in good faith.”

[¶ 14.] We ruled in Gilchrist I that the actions of RSI did not support Gilchrist’s causes of action against RSI for bad faith, wrongful termination, or intentional infliction of emotional distress and therefore, summary judgment was proper. Specifically, we held that “RSI has not caused additional injuries to Gilchrist such that an action for bad faith can be sustained”; Gilchrist I, 2000 SD 67, ¶ 23, 612 N.W.2d at 17; RSI could not be liable for wrongful termination because it was not Gilchrist’s employer; Id. at ¶ 24, 612 N.W.2d at 17; and RSI’s actions were not outrageous enough to support a cause of action for intentional infliction of emotional distress. Id. at ¶ 26, 612 N.W.2d at 17.

[¶ 15.] Gilchrist argues that although we previously held that RSI did not cause additional damage to Gilchrist, the actions of RSI were relevant to show what Trail King knew at the time coverage was denied to Gilchrist. He further asserts that by not being able to put any of RSI’s actions into evidence, he was not able to get the full set of relevant facts before the jury and thus, could not present his theory to the jury. We agree.

[¶ 16.] After a careful review of the record, it appears that the trial court misread our holding in Gilchrist I. While it is true that we held that RSI did not cause any additional damage to Trail King, this does not mean that we found that injury was not caused at Trail King’s direction of RSI. Certainly, Gilchrist should have been able to present evidence about what conduct by RSI could have been attributable to Trail King. At the very least, Burns’ interaction with Dr. Cho and the resultant work-release order, could be characterized as troubling. The trial court abused its discretion when it did not allow Gilchrist to present this evidence to the jury.

[¶ 17.] Support of the agency relationship that existed between Trail King and RSI can be found in Gilchrist I, where we found that the “relationship in these circumstances is primarily between the rehabilitation company and the workers’ compensation insurer,” i.e., Trail King in this case. 2000 SD 67, ¶ 18, 612 N.W.2d at 15-16 (citing Cole v. Byrd, 167 Ill.2d 128, 212 Ill.Dec. 234, 656 N.E.2d 1068 (1995)). Burns, in her deposition acknowledges, “I am a coordinator, a communicator between the insurance company, the injured worker, the employer and the medical providers.” Id. at ¶ 17, 612 N.W.2d at 15.

[¶ 18.] Once it is determined that a principal/agent relationship exists, SDCL 59-6-5 provides:

As against a principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.

This statute presumes that an agent will relay to the principal all information that he or she acquires. Shykes v. Rapid City Hilton Inn, 2000 SD 123, ¶ 31, 616 N.W.2d 493, 500. As Trail King asserts, in a claim of bad faith against an employer, the relevant inquiry is what that employer knew at the time it denied coverage to the insured. Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶¶ 6, 8, 562 N.W.2d 117, 119-20. Therefore, relevant in this analysis is the knowledge that should be imputed by RSI/ Burns to Trial King at the time coverage was denied to Gilchrist. Included in this imputed knowledge would be the knowledge that Burns had of Gilchrist’s medical problems, unknown to Dr. Cho but known to Burns, at the time Burns solicited the work release from Dr. Cho.

[¶ 19.] In Walz v. Fireman’s Fund Ins. Co., we articulated a two-prong test for bad faith in the worker’s compensation context:

[F]or proof of bad faith, there must be an absence of a reasonable basis for denial of policy benefits and the knowledge or reckless disregard [of the lack] of a reasonable basis for denial, implicit in that test is our conclusion that the knowledge of the lack of a reasonable basis may be inferred and imputed to an insurance company where there is a reckless disregard of a lack of a reasonable basis for denial or a reckless indifference to facts or to proofs submitted by the insured.

1996 SD 135, ¶ 7, 556 N.W.2d 68, 70 (citing Champion v. United States Fidelity & Guar. Co., 399 N.W.2d 320, 324 (S.D.1987) (additional citations omitted)).

[¶ 20.] Here, Gilchrist contends that the motion in limine, which excluded evidence relating to Burns’ actions, prevented him from presenting evidence that Trail King did not have a reasonable basis for denying policy benefits. Additionally, he alleges that Trail King acted in reckless disregard, reckless indifference and did not conduct a reasonable investigation into his medical claims. Furthermore, he claims that Trail King and Burns chose to disregard the necessity of coordinating Gilchrist’s medical care by all his doctors and thus, acted to conceal his other medical conditions from Dr. Cho in order to obtain a return to work slip from her. He claims that even after several of his doctors confirmed that he was experiencing carpal tunnel problems and depression, Trail King chose to disregard these facts and to continue to deny him surgical repair and benefits. We find that this evidence was highly relevant and should not have been kept from the jury.

[¶ 21.] Trail King’s main argument in support of its motion in limine is that if an agent is found not liable, then the actions of the agent cannot be used to establish liability of the principal. See Estate of Williams v. Vandeberg, 2000 SD 155, ¶ 15, 620 N.W.2d 187, 191. However, Trail King’s reliance on this point of law is misplaced. As discussed above, RSI was found not to cause further injury to Gilchrist. This does not mean that Trail King should not be held responsible for his original injury. Thus, RSI’s actions were highly relevant.

[¶ 22.] As for Trail King’s contention that any evidence regarding RSI would serve to confuse or mislead the jury, we disagree. We have found that the actions and knowledge of RSI were highly relevant to support the theory of Gilchrist’s case; therefore, its probative value outweighs its prejudicial value. See SDCL 19-12-2 (FRE 402); SDCL 19-12-3 (FRE 403). Furthermore, in order to ensure that the jury does not use evidence of RSI’s actions improperly, Trail King should request the trial court to use a limiting instruction. See SDCL 19-9-12 (FRE 105).

[¶ 23.] Gilchrist did not amend his complaint to allege facts that occurred after February 22, 1995. Therefore, the trial court did not allow into evidence anything that happened after this date. However, Gilchrist may cure this defect in his complaint by asking the court to amend his pleadings. See SDCL 15-6-15(b) (FRCP 15(b)).

[¶ 24.] Based on the foregoing, we do not reach the merits of the remaining arguments.

[¶ 25.] Reversed and remanded.

[¶ 26.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and AMUNDSON, Retired Justice, concur.

[¶ 27.] SABERS, Justice, concurs in part and dissents in part.

[¶ 28.] MILLER, Retired Justice, sitting by Order of the Court for ZINTER, Justice, disqualified.

[¶ 29.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 30.] I concur in all respects except as to paragraph 22, to which I dissent.

[¶ 31.] Even though Gilchrist did not amend his complaint to allege facts that occurred after February 22, 1995, facts occurring after that date were certainly relevant and admissible to show what Trail King knew prior to that date. Furthermore, we have consistently stated that in order to prove bad faith, it must be shown that there was 1) no reasonable basis for denial of policy benefits and 2) knowledge or reckless disregard of the lack of a reasonable basis. Walz v. Fireman’s Fund Insurance Co., 1996 SD 135 ¶ 7, 556 N.W.2d 68, 70; Isaac v. State Farm Mutual Auto. Insurance Co., 522 N.W.2d 752, 759 (S.D.1994). Facts occurring after February 22 arguably show that Trail King persisted in a course of disregard for the opinions of doctors and psychiatrists as to Gilchrist’s disability. That evidence is specifically relevant to the question of whether Trail King had a reasonable basis upon which to deny coverage. Therefore, I would reverse on Issue l.b.

[¶ 32.] I do agree that the trial court may cure this defect by permitting an amendment to Gilchrist’s pleadings, if any, on retrial.

      . Gilchrist's Complaint alleged events that transpired in December, 1994 through February 22, 1995. February 22, 1995 is the day that a letter was sent to Gilchrist advising him that the laceration on his right hand, the rotator cuff tear of his right shoulder, and his upper back problems were compensable bul that his carpal tunnel was not. Gilchrist did not amend his Complaint to assert any claimed improper actions after February 22, 1995.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 SD 154
    Rosalinda Viannie ANDERSON, Plaintiff and Appellant, v. Keith ANDERSON, Defendant and Appellee.
    No. 22319.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 8, 2002.
    Decided Dec. 11, 2002.

      Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for appellant.
    Dale R. Hansen, Sturgis, South Dakota, Attorney for appellee.
   PER CURIAM.

[¶ 1.] Rosalinda Viannie Anderson (Viannie) appeals the property distribution and denial of alimony in her divorce from Keith Anderson (Keith). We affirm.

FACTS

[¶ 2.] Viannie, a native of the Philippines, and Keith met in that country in 1974. They were married in separate civil and religious ceremonies in Manila in March 1975. At that time, Keith was approximately forty-five years of age and Viannie was twenty-three. This was Vian-nie’s first marriage. Keith was previously married and had four children from that marriage.

[¶3.] After their marriage, Keith and Viannie returned to the United States where Keith continued his pursuits as a successful inventor and businessman. Although Viannie had a college accounting degree and some employment experience, she did not work outside the home. The only exception was during some brief intervals when she worked for Keith or one of his businesses.

[IF 4.J The couple had a relationship characterized by the trial court as tumultuous and stressful. For the most part, Viannie remained in the home caring for the two children born during the marriage. Keith worked hard developing a business that manufactured satellite television receivers. Stress developed in the marriage, and Keith took Viannie to Mexico in 1978 where they obtained a decree of divorce from a Mexican court. Although there was some division of assets by the parties after that proceeding, they remained living together as husband and wife until 1984 when they went through another marriage ceremony.

[¶ 5.] In 1985, Keith sold his business for a substantial sum and the parties’ relationship became more harmonious. Keith essentially retired, the couple traveled, and their children wanted for nothing as they reached adulthood. By 1999 the parties’ relationship again began to deteriorate. Viannie suspected Keith of having an affair with the tenant of a rdntal home they owned. Viannie became violently jealous and, by her own admission, attempted to kill herself and Keith. She did so by grabbing the steering wheel of a car he was driving and she tried to direct it into oncoming traffic. Viannie also initiated other physical confrontations with Keith that led to her arrest for domestic assault. On the other hand, the trial court found that Keith’s procurement of the Mexican divorce and treatment of Viannie, “on an emotional level was shoddy, unfeeling and disloyal.”

[¶ 6.] Viannie started divorce proceedings against Keith in September 2000, but the couple stipulated to a dismissal in an attempt to work things out. When those efforts failed, Viannie refiled her divorce action in March 2001. Following a trial, the court entered findings of fact, conclusions of law and a decree of divorce dividing the marital assets and denying Viannie’s request for alimony. Viannie appeals.

ISSUE

[¶ 7.] Did the trial court abuse its discretion in its property division and denial of alimony?

[¶ 8.] Keith was a successful businessman prior to the marriage. He entered the marriage with property worth $1,229,290 while Viannie entered with no significant assets other than those Keith had given her. The parties’ Mexican divorce in 1978, their remarriage in 1984, and the sale of Keith’s business in 1985 resulted in a practical division of most of the parties’ assets. By the time of this divorce, each party held separate property and funds invested in their own name in separate accounts. They owned and managed these assets with little advice or influence by the other. The property held by Keith was worth $987,000 while the property held by Vian-nie was worth $854,884. It appears to have been largely understood at trial that each party would be awarded this property they already held in their respective names.

[¶ 9.] The property in dispute was some Meade County real estate that included the marital home (valued at $600,000) and some gold Krugerrands (valued at $80,000). Keith argued that the real estate should not be included in the marital estate because he owned the property long before his marriage to Viannie. He also argued that the Krugerrands should not be included because they would be gifted to his children (including his two children by Viannie) on his death. The trial court included the disputed property in the value of the marital estate which was valued at $2,521,884. The trial court then awarded the separately held property to the party holding it. That included cash, bank accounts, brokerage accounts and investment property of $854,844 to Viannie and $987,000 to Keith. The court also awarded the Meade County property and the Krugerrands to Keith. The court finally required Keith to make a cash payment to Viannie in the amount of $60,000.

[¶ 10.] Viannie requested alimony of $300 to $500 per month to purchase health insurance (which Keith had never carried). The trial court denied that request finding that the investment property awarded to Viannie would provide her with sufficient income to obtain insurance. On appeal, Viannie challenges the property division and the denial of alimony.

[¶ 11.] This Court reviews a trial court’s division of property and determination of alimony under the abuse of discretion standard. See Feldhaus v. Schreiner, 2002 SD 65, ¶9, 646 N.W.2d 753, 755; Christians v. Christians, 2001 SD 142, ¶ 8, 637 N.W.2d 377, 380; Billion v. Billion, 1996 SD 101, ¶ 14, 553 N.W.2d 226, 230. The property division and decision on alimony must be considered together to determine if their combined effect shows an abuse of discretion. Urban v. Urban, 1998 SD 29, n. 3, 576 N.W.2d 873, 876. An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. Christians, 2001 SD 142 at ¶ 8, 637 N.W.2d at 380. To obtain a reversal under the abuse of discretion standard, the appellant must show that no judicial mind could have reached the same conclusion in view of the law and circumstances of the case. Feldhaus, 2002 SD 65 at ¶ 9, 646 N.W.2d at 755.

[¶ 12.] In making an equitable property division, the trial court must consider the following factors: (1) the duration of the marriage; (2) the value of the property; (3) the age of the parties; (4) the health of the parties; (5) the parties’ competency to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income-producing capacity of the parties’ assets. Roupe v. Roupe, 1996 SD 25, ¶ 14, 544 N.W.2d 540, 543. “When a party requests ... alimony ‘they must establish that they have a need for support and that their spouse has sufficient means and abilities to provide for part or all of that need.’ ” Urban, 1998 SD 29 at ¶ 7, 576 N.W.2d at 875 (quoting Fox v. Fox, 467 N.W.2d 762, 767 (S.D.1991)). Factors considered in determining the need for alimony and its amount and duration are: (1) length of the marriage; (2) respective earning capacity of the parties; (3) their respective age, health and physical condition; (4) their station in life or social standing; and (5) relative fault in the termination of the marriage. Urban, 1998 SD 29 at ¶ 8, 576 N.W.2d at 875; Christians, 2001 SD 142 at ¶ 16, 637 N.W.2d at 381.

[¶ 13.] Here, based upon the trial court’s findings, we note the following facts relating to these property division and alimony factors.

Duration of the Marriage

[¶ 14.] Even if the Mexican divorce was valid, an issue over which there was some dispute at trial, the parties were married for twenty of the last twenty-six years and lived together for the last twenty-six years. Moreover, they had two children together. Thus, the parties were “married a significant length of time[.]”

Value of the Property

[¶ 15.] The total marital estate was valued at $2,521,884 with property worth $1,607,000 awarded to Keith and property worth $914,884 awarded to Viannie. There were no marital debts beyond normal monthly living expenses.

Age of the Parties

[¶ 16.] At the time of the divorce, Keith was seventy-two years of age and Viannie was fifty.

Health of the Parties

[¶ 17.] Keith sustained a fall just before the divorce and, at that time, was suffering from the residual effects of the fall, perhaps exacerbated by his age. Viannie suffered from rheumatoid arthritis, a progressive disease. The future risks and costs of these respective medical conditions were unknown.

Competency to Earn a Living

[¶ 18.] Both parties are intelligent and resourceful. Keith could probably do some consulting work if he desired. Vian-nie’s lack of work experience and the uncertainty over the progression of her arthritis limits her job opportunities.

Contribution to Accumulation of Property

[¶ 19.] Keith entered into the marriage with $1,230,000 in assets including the disputed real property in Meade County now valued at $600,000. Keith testified that he actually purchased the Meade County property before 1960. Viannie entered into the marriage with $10,500, $10,000 of which was given to her by Keith before the marriage. During the marriage, Keith worked hard developing his business while Viannie contributed valuable resources as a wife and mother. The marital estate is now valued at $2,521,884.

Income Producing Capacity of Assets

[¶ 20.] The individual funds held by each party and awarded to them by the trial court generate income dependent upon the portfolio mix, investment decisions and the market. The Krugerrands awarded to Keith are not an income investment. The Meade County property awarded to Keith is income producing only to the extent of rental income from a trailer of $450 per month. However, the trailer home was held in Viannie’s name and was awarded to her as part of her property. At the time of the divorce, Keith wanted the trailer removed from the Meade County property almost immediately-

Station in Life or Social Standing

[¶ 21.] The parties’ lifestyle has not been particularly extravagant although they have enjoyed traveling extensively. Both parties have sufficient assets to maintain their lifestyle without working another day. Keith desires to keep his home located on the disputed Meade County property and Viannie wishes to move to California.

Fault in Termination of the Marriage

[¶ 22.] Both parties are equally at fault in the termination of the marriage and both were granted a divorce by the trial court on grounds of extreme cruelty and irreconcilable differences.

CONCLUSION

[¶ 23.] Based upon the foregoing standards and factors, we find that Viannie has failed to establish that the trial court abused its discretion in the property division and denial of alimony. The majority of the marital investment assets were divided according to the agreement of the parties. $620,000 of the $680,000 in disputed assets were awarded to Keith. This award was the real property and marital home that Keith brought into the marriage as part of his original $1,229,290 contribution. While the trial court was not obligated to consider when and how this property was accumulated when it divided the marital assets, neither was it prohibited from doing so. See Buseman v. Buseman, 299 N.W.2d 807, 809 (S.D.1980) (while trial court may consider when and how property was accumulated, it is not obligated to do so).

[¶ 24.] Moreover, this Court has previously accepted property divisions that have accounted for a disproportionate contribution to the marital estate by one of the parties either by setting some assets aside in the valuation process or through the final distribution of assets. See e.g., Fel-dhaus, supra (46%/54% property split upheld partially on basis that one party contributed twice as much as the other toward accumulation of marital assets); Pellegrin v. Pellegrin, 1998 SD 19, 574 N.W.2d 644 (no abuse of discretion in allowance of set-aside for value of family land as premarital contribution); Billion, supra (set-aside of three assets held by wife as non-marital property no abuse of discretion).

[¶ 25.] Several factors also support the trial court’s similar methodology here. Keith entered into the marriage owning the Meade County property, which he owned before 1960 and throughout the duration of his first marriage. In addition to the Meade County property, his capital contribution at the inception of the marriage was not only substantial, but it provided virtually all of the assets on which the later financial success and prosperity of both of the parties was built. As the trial court noted, all of Viannie’s separate assets can be traced to Keith’s monetary contributions. Because of Keith’s contributions, Viannie’s own net worth substantially increased during the marriage. The trial court found that the total marital estate grew by 1.3 million dollars and that Viannie realized 66% of that growth in the final property distribution.

[¶ 26.] It is also significant that Keith’s net worth increased and decreased during the marital relationship, especially after the parties’ remarriage in 1984. After 1984, Keith’s assets decreased in value by approximately $1,028,000 while Viannie’s increased by approximately $733,000. Part of this disparity in growth was attributed to substantial monetary gifts Keith made to his children and to Viannie’s relatives during the marriage, thus reducing his separate assets. Representative of these gifts are the gold Krugerands which Keith claims he is gifting to his children (including his children by Viannie). In addition, most, if not all, of the property taxes and income taxes on the marital assets (including Viannie’s), and all of the parties’ monthly living expenses were paid from Keith’s separate funds. Viannie’s funds were thus not dissipated for these purposes. Based upon all of the foregoing circumstances, we find no abuse of discretion in the trial court’s treatment of the Meade County property and the gold Krugerands.

[¶ 27.] Even if the trial court’s property division left Keith with a slight advantage in income producing property, a fifty/fifty distribution was not required. See Feldhaus, supra (in making equitable division of property, trial court is not bound by any mathematical formula); Pellegrin, supra (we will not bind trial court to strict mathematical formula when reviewing a property division); Endres v. Endres, 532 N.W.2d 65, 71 (S.D.1995)(trial court’s division of property not bound by any mathematical formula). This Court has repeatedly refused to “ ‘fine-tune the handiwork of those to whom the division of [marital] property has been entrusted.’ ” Christians, 2001 SD 142 at ¶ 13, 637 N.W.2d at 380 (quoting Buseman, 299 N.W.2d at 807). We refuse to do so here.

[¶ 28.] In her alimony argument Vian-nie focuses on her need for insurance and the income producing capacity of the property awarded to the parties. Virtually all of the property Viannie retained was income producing, and most of the property that Keith retained was income producing (the real property has some rental capacity). Through her own re-interpretation of the figures and estimates utilized by the trial court, Viannie argues that the $914,884 in cash and income producing assets awarded to her will leave her in a financial state “only slightly above the poverty level.” It is notable that in making this argument she relies on evidence of the taxable income of the parties in prior years which, presumably, would not reflect the tax exempt accounts that brought her income of as much as $13,822 in 1999 and $15,027 in 2000. The parties’ actual incomes for 1999 and 2000 reflect that in 1999, Viannie’s assets produced net income of $42,335 and Keith’s produced gross income (before paying the parties’ taxes) of $53,810. In 2000, Viannie’s assets produced net income of $47,882 while Keith’s produced gross income (before paying taxes) of $59,328. This evidence makes clear that, while the trial court arrived at a 64%/36% property split favoring Keith in terms of the total property award, it divided the income producing property essentially equally. Moreover, the trial court considered the income that could be produced from these assets in the future together with Viannie’s health, her desire to move to California and the cost of insurance.

[¶ 29.] Based upon all of the foregoing facts, we find no abuse of discretion in the property distribution and denial of alimony.

[¶ 30.] Affirmed.

[¶ 31.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, and ZINTER, Justices, and AMUNDSON, Retired Justice, participating.

[¶ 32.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . It appears the couple lived in Utah for a period of time before eventually returning to South Dakota.

      . Viannie asserts this figure was closer to $248,000, but the figure set forth above is the amount determined by the trial court and Viannie fails to support any argument that the finding is clearly erroneous.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard T. JELLINGER, an Attorney at Law of the State of Minnesota.
    No. C3-00-1681.
    Supreme Court of Minnesota.
    Dec. 26, 2002.
    Rehearing Denied Jan. 21, 2003.

      Edward J. Cleary, Director, Candace M. Hojan, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN.
    Edward F. Kautzer and Jack D. Nelson, St. Paul, MN, for Respondent Jellinger.
   OPINION

PER CURIAM.

In this attorney-discipline proceeding, we review the referee’s conclusion that although Respondent Richard T. Jellinger violated the Rules of Lawyers Professional Responsibility (RLPR), he proved by clear and convincing evidence that his depression provided mitigation. We hold that Jellinger’s claim of mitigation was not fully supported by the evidence. We also review the referee’s recommendation that we suspend Jellinger for one year, retroactive to August 17, 2001, and place him on conditional probation for three years. We conclude that a more severe discipline is appropriate.

Jellinger was admitted to practice law in Minnesota in 1982. He was in private practice from 1982 to about 1989 and from 1994 to 2001, ultimately operating as a sole practitioner specializing in family law, criminal defense, and estate planning and administration. He is currently suspended from the practice of law pending the outcome of this proceeding.

On May 3, 2001, we publicly reprimanded Jellinger and placed him on conditional probation for two years after an investigation by the Director of the Office of Lawyers Professional Responsibility (Director) revealed that he misused a trust account, neglected clients, and failed to cooperate with the investigation that led to the charges against him. In re Jellinger, 625 N.W.2d 143, 145 (Minn.2001). In the ensuing months, Jellinger ignored requests from the Director’s office for information concerning the conditions of his probation. As a result, the Director petitioned for further disciplinary action and we temporarily suspended Jellinger from the practice of law on August 17, 2001.

The current disciplinary proceeding arises from a supplementary petition filed by the Director against Jellinger. The supplementary petition charged Jellinger with misappropriating client funds, failing to act with reasonable diligence, failing to communicate with clients, making false statements, exceeding the scope of representation, failing to expedite litigation, continuing noncooperation with the Director’s investigation and other assorted acts of misconduct. Jellinger’s answer alleged as mitigation that he suffered from depression during his period of misconduct.

The matter was-assigned to a referee, who held a disciplinary hearing on the supplementary petition. The evidence showed that Jellinger’s operating account for his law practice had been closed by the bank in December 2000 for chronic overdrafts and that he thereafter used his client trust account to pay his operating and personal expenses. For example, the referee found that Jellinger, acting as the personal representative of an estate, misappropriated $5,200 of estate funds to his client trust account and then disbursed them for his personal benefit; told the heirs and the Director that he had paid $5,280 in federal fiduciary taxes on behalf of the estate, when he had paid nothing; misappropriated $10,000 from the estate account to his client trust account and disbursed the funds to himself or to personal and business creditors; and misappropriated $4,050 from the estate account to his client trust account and disbursed the funds for personal and business expenses.

The referee also found that Jellinger failed to communicate with his clients in an adoption matter, neglected two marital dissolution matters, made false statements to clients and failed to cooperate with the Director’s investigation.

Jellinger testified on his own behalf and he called his treating psychologist, Dr. Sheldon Pinsky, as a witness. Dr. Pinsky had seen Jellinger on five occasions over a period of approximately two months, beginning in January 2002. Dr. Pinsky testified that he conducted a series of diagnostic interviews and psychological tests on Jellinger, including the Beck’s Inventory Test and the Minnesota Multiphasic Personality Inventory (“MMPI”). Dr. Pinsky opined that Jellinger had a major depressive disorder; that he had been depressed for over two years; and that his professional misconduct was in large part a result of his depressive disorder, because he did not have the skills or the awareness to appreciate what was happening around him. Dr. Pinsky further opined that if Jellinger adheres to a regimen of antidepressant medication and bi-weekly cognitive therapy, over a period of two to three years, his depression is not likely to reappear.

On cross-examination, Dr. Pinsky acknowledged that the results of the Beck’s Inventory Test indicated that Jellinger had only moderate depression. The Director did not call an opposing expert witness.

The referee concluded that Jellinger failed to comply with the terms of his probation, failed to communicate with clients, made false statements to clients, neglected clients, failed to expedite litigation, failed to cooperate with the Director’s investigations, misappropriated client funds, and made misrepresentations of fact to the Director. In regard to Jellinger’s depression, the referee found that Dr. Pin-sky’s opinions must be accepted because they were uneontested and they proved mitigation by clear and convincing evidence. He found that Jellinger’s “misconduct was largely the byproduct of inadequate treatment of his depression.” While the Director sought disbarment, the referee found that disbarment would be “unduly harsh” and, based on the finding of mitigation, recommended a one-year suspension, retroactive to August 17, 2001, and conditional probation for three years. The Director sought review.

I.

The Director ordered the hearing transcript and notified this court within the ten-day time period allotted by Rule 14(e), RLPR. The referee’s findings, therefore, are not conclusive and are subject to review. In re Jensen, 468 N.W.2d 541, 548 (Minn.1991). In attorney-discipline cases, we will uphold the referee’s findings of fact and conclusions of law if they are supported by the evidence. In re Bergstrom, 562 N.W.2d 674, 677 (Minn.1997) (quoting In re Copeland, 505 N.W.2d 606, 608 (Minn.1993)).

The Director agrees with the referee’s findings and conclusions regarding Jellinger’s misconduct but disputes the referee’s conclusion that Jellinger proved his claim of mitigation by clear and convincing evidence. When an attorney raises a psychological disability as a mitigating factor in an attorney-discipline case, he or she has the burden to prove by clear and convincing evidence that: (1) the attorney has a severe psychological problem; (2) the psychological problem caused the misconduct; (3) the attorney is undergoing treatment and is making progress to recover from the psychological problem which caused or contributed to the misconduct; (4) recovery has arrested the misconduct; and (5) the misconduct is not apt to recur. In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983).

We conclude that the evidence fell short on at least three Weyhrieh factors: causation, recovery sufficient to arrest the misconduct and the misconduct is not apt to recur. As to the latter two, we determine that Jellinger’s treatment by Dr. Pinsky, for only two months and during a period when Jellinger was suspended and not practicing, was too short to provide clear and convincing evidence that Jellinger’s recovery was sufficient to arrest his misconduct or that the misconduct is not apt to recur. Dr. Pinsky himself prescribed a course of treatment that would take from two to three years to complete.

As to causation, we addressed the evi-dentiary standard for proof of depression as mitigation in In re Pyles, 421 N.W.2d 321 (Minn.1988). The attorney in Pyles was charged with misrepresentation and misappropriation of client funds and claimed mitigation based on depression. Id. at 322-23. Two psychologists testified that the attorney suffered from a “psychological adjustment disorder” but agreed that this disorder did not prevent the attorney from knowing that his conduct was morally and ethically wrong. Id. at 326. We affirmed the referee’s rejection of the mitigating evidence,' concluding that the attorney’s mental illness was “not a severe problem on a recognized psychological diagnostic scale and did not result in impairment of respondent’s cognitive functions, his ability to direct his actions, or to know right from wrong.” Id. at 325 (internal quotations omitted). Jellinger similarly failed to meet this standard by clear and convincing evidence.

While Dr. Pinsky’s testimony may have been sufficient to prove some causal connection between Jellinger’s depression and his passive misconduct (failing to act with reasonable diligence, expedite litigation, communicate with clients and cooperate with the Director’s investigation), we are not persuaded that Dr. Pinsky’s testimony proves that a causal relationship exists between Jellinger’s depression and his affirmative acts of dishonesty (misappropriating funds from client accounts, making false statements to clients and making false statements to the Director’s office). It is obvious that Jellinger possessed enough cognitive ability to understand that he needed to restore the funds that he repeatedly withdrew from the client trust account and the estate account. Jelling-er’s active manipulation of various accounts, in an attempt to avoid detection of his misappropriations, and his misrepresentations to the heirs and the Director’s office, demonstrate that the depression had not impaired Jellinger’s ability to direct his actions and that he continued to recognize that his actions were wrong.

On this record, we conclude that Jelling-er failed to prove by clear and convincing evidence that he satisfied all of the Weyhrich factors.

II.

We now turn to the appropriate discipline in this case. We look not to punish, “but rather to guard the administration of justice and to protect the courts, the legal profession and the public.” In re Dovolis, 572 N.W.2d 734, 736 (Minn.1998) (citations and internal quotations omitted). We consider: (1) the nature of the misconduct, (2) the cumulative weight of the rule violations, (3) the harm to the public and (4) the harm to the legal profession. In re Hoedeman, 620 N.W.2d 714, 717 (Minn.2001). We give weight to the referee’s recommendation, but the ultimate responsibility for determining the appropriate sanction rests with this court. Pyles, 421 N.W.2d at 325.

The Director argues that the circumstances of this case, coupled with the fact that this is Jellinger’s second public disciplinary proceeding within two years, warrant disbarment. Indeed, ample precedent supports the sanction of disbarment in cases involving misappropriation of client funds. See In re Samborski, 644 N.W.2d 402, 407 (Minn.2002) (disbarment is the appropriate discipline for an attorney who misappropriated client funds and who made false statements to conceal misappropriation and client neglect); In re Graham, 609 N.W.2d 894, 897 (Minn.2000) (disbarment is appropriate where the attorney misappropriated client funds while on probation); In re Weems, 540 N.W.2d 305, 308 (Minn.1995) (attorney’s misappropriation of client funds, neglect of client matters, violation of the terms of his second public probation, and failure to cooperate with the disciplinary investigation warrant disbarment). At the same time, we give some weight to the referee’s recommendation that disbarment would be too harsh. We also recognize that Jellinger’s depression was shown to have some causative relationship to his passive misconduct, that he is currently receiving professional treatment for his depression and that his former clients did not ultimately suffer any pecuniary loss as a result of his misconduct.

After considering all of these factors, we order:

1. Respondent Richard T. Jellinger is hereby disbarred pursuant to Rule 15, RLPR. Respondent’s disbarment shall be stayed subject to the following conditions:

a. Respondent’s current suspension from the practice of law in the State of Minnesota shall continue indefinitely;
b. Respondent may petition the Director for reinstatement not sooner than two years from the date of this order;
c. Respondent is required to make periodic reports to the Director, in such form and with such frequency as the Director requires, regarding the progress of his treatment for depression, including regular reports from Dr. Pinsky;
d. Respondent shall pay the Director the sum of $900 in costs and disbursements pursuant to Rule 24, RLPR; and
e. Respondent’s failure to comply with the conditions of this stay shall result in immediate disbarment.

2. If and when respondent petitions for reinstatement:

a. There shall be a hearing on respondent’s petition for reinstatement pursuant to Rule 18(d), RLPR;
b. Respondent must show that he has successfully completed the Multi-state Professional Responsibility Examination pursuant to Rule 18(e)(2), RLPR (respondent is exempt from the reinstatement requirement found in Rule 18(e)(1), RLPR); and
c. Respondent must demonstrate, by clear and convincing evidence, that he has successfully completed treatment for his depression, that his mental condition will not adversely affect his ability to practice law and that his misconduct is not apt to recur.

3. Upon reinstatement, respondent shall be on supervised probation for a period of two years under the conditions set forth in this court’s order of May 3, 2001.

4. Respondent shall fully cooperate with the Director’s efforts to monitor his compliance with the provisions of this order.

So ordered.


author: PAUL H. ANDERSON Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Jesse GANT, III, an Attorney at Law of the State of Minnesota.
    No. C8-99-2060.
    Supreme Court of Minnesota.
    Jan. 8, 2003.
   ORDER

On July 18, 2000, this court indefinitely suspended respondent Jesse Gant, III, for a minimum of 90 days. Respondent petitioned for reinstatement on May 9, 2002, and a panel of the Lawyers Board of Professional Responsibility conducted a hearing on the petition for reinstatement. The panel found that respondent has complied with all conditions for reinstatement and recommended reinstatement subject to indefinite supervised probation for a minimum of two years with the following conditions:

a. Petitioner shall abide by the Minnesota Rules of Professional Conduct and shall cooperate with his supervisor and the Director of the Office of Lawyers Professional Responsibility in the monitoring of his probation including making timely responses to requests for information. Petitioner shall provide any necessary authorization to assist in the monitoring of his probation.
b. Petitioner shall submit to the Director a detailed financial plan for the operation of his practice within one month of the reinstatement of his license to practice. Petitioner shall also submit his business account books and records required by Rule 1.15(h), Minn. R. Prof. Conduct, on a monthly basis for the first year and on a quarterly basis the second year.
c. Petitioner shall submit to the Director a detailed plan of office procedures including but not limited to systems for calendaring, file organization and telephone messages, screening client intake and conflict checks.
d. Petitioner shall submit to the Director a full accounting for the existing funds in the Gant Law Firm trust account and take reasonable steps to seek restoration of the $1,000 funds charged back to the trust account by U.S. Bank in December 2001. Petitioner shall also submit trust account books and records to the Director in compliance with Rule 1.15(h), Minn. R. Prof. Conduct and LPRB Opinion 9 on a monthly basis for the first year and on a quarterly basis the second year.
e. Petitioner shall make arrangements satisfactory to the Director to repay his law-related debts including the Verdone and Miller judgments. Petitioner shall allocate at least 30 percent of his net income to the repayment of these law-related debts.
f. Petitioner shall limit his practice to no more than 20 open files unless additional openings are authorized by the Director upon the recommendation of petitioner’s supervisor.
g. Petitioner shall not begin representing clients until a supervisor has signed a consent to supervise.
h. Petitioner shall provide the supervisor with an inventory and progress report on each open file during the first week of each month. The inventory and progress report shall be complete and in a form which allows the supervisor to monitor petitioner’s practice. The supervisor shall personally review some or all of petitioner’s files each quarter and provide a written report to the Director at least once every three months.
i. At least one-third of petitioner’s CLE course work during his current CLE reporting period shall be in the areas of civil trial and appellate practice.
j. Petitioner’s probation shall not end until he has successfully completed two years of supervised practice.
k. Failure to comply with any of the conditions of his probation shall be grounds for revocation of probation and further public discipline.

The Director concurs with the panel’s recommendation.

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

IT IS HEREBY ORDERED that respondent Jesse Gant, III, is reinstated to the practice of law in the State of Minnesota and is placed on indefinite supervised probation for at least two years subject to the recommended conditions set forth above. If the Director has not yet appointed a supervisor to monitor respondent’s compliance with the terms of this probation, respondent shall provide the Director with the names of four licensed Minnesota attorneys who have agreed to be nominated as respondent’s supervisor within two weeks of the date of this order. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor.

BY THE COURT:

PAUL H. ANDERSON Associate Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for Transfer to Disability Status of Eric Karl FOSAAEN, an Attorney at Law of the State of Minnesota.
    No. C2-02-2082.
    Supreme Court of Minnesota.
    Jan. 8, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for transfer to disability inactive status under Rule 28, Rules on Lawyers Professional Responsibility (RLPR), in which the Director requests that respondent Eric Karl Fosaaen be transferred to disability inactive status due to mental health issues. The parties have entered into a stipulation in which they jointly recommend transfer to disability inactive status with the right to apply for reinstatement under Rule 18(a) — (e), RLPR.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Eric Karl Fosaaen is transferred to disability inactive status. Respondent shall comply with Rule 26, RLPR, and any request for reinstatement shall be filed under Rule 18(a)-(d), RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Jonathan C. LEWIS, an Attorney at Law of the State of Minnesota.
    No. C0-02-2081.
    Supreme Court of Minnesota.
    Jan. 8, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Jonathan C. Lewis has been publicly disciplined by the Wisconsin Supreme Court, and the Director requests that this court impose identical discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR).

The parties have entered into a stipulation in which respondent admits the misconduct found by the Wisconsin Supreme Court, and the parties jointly recommend that the appropriate discipline is a 60-day suspension. The parties further recommend (1) that respondent be reinstated following the expiration of the suspension provided that at least 15 days before the expiration of the suspension period, respondent files an affidavit with the Clerk of Appellate Courts and the Director’s Office establishing that respondent is current with Continuing Legal Education, has fully complied with Rules 24 and 26, RLPR; (2) that respondent successfully complete the professional responsibility bar examination within one year of the date of this order; and (3) that respondent pay $900 in costs under rule 24, RLPR.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Jonathan C. Lewis is suspended from the practice of law for 60 days effective immediately and subject to the agreed-upon terms set forth above. Respondent shall pay $900 in costs.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: ANDERSON, PAUL H., Justice.

text:
    Angela COLLINS, et al., Respondents, v. MINNESOTA SCHOOL OF BUSINESS, INC., Petitioner, Appellant.
    No. C7-01-690.
    Supreme Court of Minnesota.
    Jan. 16, 2003.

      John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, PLLP, St. Paul, MN, for Appellants.

      Mark V. Steffenson, Scott A. Wold, Hen-ningson & Snoxell, Ltd., Brooklyn Center, MN, for Respondent.
    Heard, considered, and decided by the court en banc.
   OPINION

ANDERSON, PAUL H., Justice.

Respondents Angela Collins and 17 other former students of the Minnesota School of Business’s (MSB) Sports Medicine Technician program brought both common law and statutory claims against MSB. They alleged that MSB made false, misleading, and confusing statements about its sports medicine program. Four days before trial, respondents accepted MSB’s Rule 68 offer of judgment for $200,000 “together with any costs and disbursements allowed by the District Court.” Respondents subsequently applied to the district court for costs and disbursements, including attorney fees, under the private attorney general statute, Minn.Stat. § 8.31. The court awarded respondents $7,088.75 in costs and disbursements, but denied any attorney fees on the ground that respondents’ claims did not benefit the public. The court of appeals reversed and awarded attorney fees concluding that (1) the offer of judgment was enforceable, (2) respondents qualified as prevailing parties under the private attorney general statute, and (3) respondents’ claims benefited the public. We affirm and remand.

The Minnesota School of Business is a private post-high school educational institution offering one and two-year programs in the fields of business, medicine, and computers. It offers its programs to the general public and as of 1998, it had a total enrollment of over 1,200 students. As required by Minn.Stat. § 141.25, .subd. 1 (2002), MSB was licensed by the Minnesota Higher Education Service Office (HESO). In 1995, MSB launched its Sports Medicine Technician program. The program was approved by HESO. MSB publicized the program by airing a television advertisement that depicted an aerobics class, a whirlpool, a person on a treadmill, and a person receiving treatment. The advertisement announced that, “[i]n today’s active society the need for qualified sports medicine technicians continues to grow rapidly.” MSB also made numerous sales and informational presentations to prospective students and provided students with a “Career Opportunities” sheet, listing jobs for which students might qualify after completing the program.

In the spring of 1996, students learned that the Career Opportunities sheet listed jobs that did not exist and that a “sports medicine technician” was not a position or title commonly recognized in the sports medicine field. Students then complained to MSB. In its response to student complaints, MSB maintained that it never intended the Career Opportunities sheet to correspond with formal job titles; rather, it was intended to represent, describe, and identify the types of activities students would be qualified to perform after completing the program.

In the spring and summer of 1997, MSB revised its curriculum. HESO approved the curriculum changes. After implementing the curriculum changes, MSB decided to change the name of its program to “Health and Exercise Sciences.” In a letter to HESO, MSB’s director of medical education requested approval for the name change and explained the change by stating that “[the new] name more closely reflects the content of the revised curriculum without the myriad difficulties associated with the current name.” HESO approved the name change.

At about the same time, in February 1997, respondents commenced this action. They brought both common law and statutory claims. The common law claims included fraud, negligent misrepresentation, and breach of contract. The statutory claims alleged violations of the deceptive trade practices statute, Minn.Stat. § 325D.44 (2002), the false statement in advertising statute, Minn.Stat. § 325F.67 (2002), and the prevention of consumer fraud act, Minn.Stat. § 325F.68-.70 (2002). In March 1998, respondents amended their complaint by adding three additional plaintiffs.

MSB answered, asserting that the action was an educational malpractice claim, which is not recognized in Minnesota. MSB also counterclaimed against two respondents alleging interference with contractual relations and prospective business relationships. Both sides made summary judgment motions. Respondents moved for summary judgment on the three statutory claims and to dismiss MSB’s counterclaims. They also moved to add a claim for punitive damages. MSB moved to dismiss all of respondents’ claims primarily on the basis that the action was for educational malpractice.

Addressing respondents’ motion for summary judgment on the statutory claims, the district court found that a genuine issue of fact existed as to whether the television advertisement and the Career Opportunities sheet were sufficiently misleading to allow for recovery, and denied the motion. The court also denied MSB’s motion for summary judgment and respondents’ motion for punitive damages. MSB voluntarily withdrew the counterclaim against one respondent, and the court granted the other respondent’s motion to dismiss the counterclaim against her.

On October 27, 2000, MSB made a $90,000 offer of judgment under the provisions of Minn. R. Civ. P. 68. Respondents’ trial counsel asserts that during a telephone conversation he told MSB’s counsel that “based on the language of the offer, I believed Plaintiffs had the right to request an award of attorney fees as part of the costs and disbursements to be added to the amount of the offer.” On October 31, MSB increased the offer to $150,000. Respondents countered with a $355,000 offer. Then, on November 1, five days before trial was to commence, MSB made its final Rule 68 offer. The offer of judgment provided in relevant part “judgment to be entered in favor of Plaintiffs and against Defendant in the sum of Two Hundred Thousand and no hundredths Dollars ($200,000.00) together with any cost and disbursements allowed by the District Court.” In an affidavit, MSB’s counsel asserted that when he made this offer, he notified respondents’ attorney that MSB “would not pay a penny over $200,000.” The next day, respondents accepted the $200,000 offer and subsequently filed the offer and notice of acceptance with the court.

On January 4, 2001, respondents filed an application for an award of costs and disbursements requesting $7,088.75 for costs and disbursements and $128,832 in attorney fees under Minn.Stat. § 8.31, subd. 3a (2002), the private attorney general statute. The district court awarded respondents $7,088.75 in costs and disbursements, but denied attorney fees on the ground that respondents’ claims did not benefit the public. When denying attorney fees, the court relied on Ly v. Nys-trom, 615 N.W.2d 302, 314 (Minn.2000), in which we held that the private attorney general statute could be invoked to award attorney fees only if the claims benefited the public. The court concluded that respondents’ statutory claims did not benefit the public because the persons allegedly harmed by MSB’s activities was a “relatively small group.”

Respondents appealed the district court’s denial of attorney fees, arguing that their statutory claims did benefit the public. In response, MSB argued that the offer of judgment was not enforceable because MSB did not intend for its offer to include attorney fees. MSB also argued that respondents were not entitled to recover attorney fees because they did not prevail on their statutory claims. The court of appeals reversed, holding that the offer of judgment did not operate to exclude attorney fees and that it was enforceable. Collins v. Minnesota Sch. of Bus., Inc., 636 N.W.2d 816, 819 (Minn.App.2001). The court also concluded that respondents were prevailing parties on all of their claims. Finally, the court held that respondents’ statutory claims did benefit the public. The court then remanded the case to the district court for a determination of reasonable attorney fees.

MSB petitioned this court for review, arguing that respondents are not entitled to attorney fees because for purposes of Minn. R. Civ. P. 68 “costs and disbursements” in an offer of judgment never include attorney fees. On review, we consider three issues: (1) whether “costs and disbursements” in a Rule 68 offer of judgment can include attorney fees; (2) whether respondents prevailed on their statutory claims; and (3) whether respondents’ statutory claims benefited the public.

I.

The determination of whether an award of attorney fees is proper involves an interpretation of Minn. R. Civ. P. 68. We review legal determinations regarding Minn. R. Civ. P. 68 offers of judgment de novo. Farmer’s State Bank of Darwin v. Swisher, 631 N.W.2d 796, 799 (Minn.2001).

Rule 68 provides that

any party may serve upon an adverse party an offer to allow judgment to be entered to the effect specified in the offer or to pay or accept a specified sum of money, with costs and disbursements then accrued, either as to the claim of the offering party against the adverse party or as to the claim of the adverse party against the offering party.

Minn. R. Civ. P. 68. If the offer is accepted, either party may file the offer with the district court and the court administrator shall enter judgment. If the offer is rejected and the final judgment entered is not more favorable to the offeree than the offer, the offeree must pay the offeror’s costs and disbursements. This cost-shifting mechanism was designed to encourage settlement and decrease litigation. Swisher, 631 N.W.2d at 799; 2A David F. Herr & Roger S. Haydock Minnesota Practice § 68.3 (3d ed.1998). While the rule speaks in terms of costs and disbursements, it does not specifically address whether attorney fees are included in costs and disbursements.

Our most recent decision addressing the issue of attorney fees in the context of Rule 68 is Bucko v. First Minnesota Sav. Bank, 471 N.W.2d 95, 98 (Minn.1991). MSB argues that respondents are not entitled to an award of attorney fees as part of costs and disbursements because under Bucko, Rule 68 costs and disbursements can never include attorney fees. In contrast, respondents argue that the issue addressed in Bucko is distinct from the issue presented here. Thus, we must first determine whether Bucko precludes an award of attorney fees as part of costs and disbursements in a Rule 68 offer of judgment.

In Bucko, three plaintiffs, Bucko, Jas-kowiak, and Crace, filed suit against First Minnesota Savings Bank under Minnesota’s polygraph statute. Id. at 97. The polygraph statute prohibits employers from soliciting or requiring polygraph tests of their employees. It also awards prevailing parties “costs and disbursements” and defines “costs and disbursements” to include attorney fees. Minn. Stat. § 181.75, subd. 4 (2002). First Minnesota made a Rule 68 offer of judgment of $5,000 to each plaintiff. Bucko, 471 N.W.2d at 97. All three plaintiffs rejected the offer, and the case was tried before a jury. The jury awarded compensatory damages as follows: Bucko $800, Jaskowiak $3,500, and Crace $0. The jury also awarded each plaintiff $33,333.33 in punitive damages. All three plaintiffs applied for and were awarded “trial costs” and attorney fees.

On appeal, First Minnesota argued that none of the plaintiffs were entitled to an award of costs and attorney fees because the offer of judgment exceeded the amount of compensatory damages recovered by each plaintiff. Id. at 98. However, we held that, when punitive damages were considered, each of the total judgments entered for Bucko and Jaskowiak exceeded First Minnesota’s offer of judgment. We then concluded that Bucko and Jaskowiak were entitled to costs and disbursements under the polygraph statute. Addressing the issue of attorney fees, we held that Bucko and Jaskowiak’s rejection of the Rule 68 offer did not alter their entitlement to recover attorney fees under the polygraph statute. First, the polygraph statute defined costs and disbursements to include attorney fees. Second, each of the total judgments entered for Bucko and Jaskowiak exceeded First Minnesota’s offer of judgment; therefore, the Rule 68 cost-shifting mechanism was not triggered.

Turning to Crace, we concluded that because Crace received $0 in eompensato-ry damages, she was not entitled to punitive damages. Thus, we concluded that the $5,000 Rule 68 offer to Crace was more favorable than the final judgment. Based on this result, we then concluded that under Rule 68’s cost-shifting mechanism, Crace was responsible for paying First Minnesota the costs and disbursements it incurred defending against her action. Id. at 98. But we also concluded that First Minnesota’s Rule 68 offer did entitle it to recover attorney fees from Crace as part of its costs and disbursements. Id. When reaching this conclusion, we stated that, “[f]or purposes of applying Minn. R. Civ. P. 68, ‘costs’ do not include attorney fees.” Id. at 98. MSB relies on this language for its assertion that Rule 68 costs and disbursements do not include attorney fees.

Our holding in Bucko is not as broad as MSB contends. The polygraph statute the plaintiffs sued under in Bucko authorized an award of attorney fees as part of costs and disbursements to parties injured by a violation of the statute. Minn. Stat. § 181.75, subd. 4. The defendant, First Minnesota, did not qualify for attorney fees under the polygraph statute. Accordingly, while First Minnesota was entitled to recover its Rule 68 costs and disbursements, it was not entitled to attorney fees because it was not a party injured by a violation of the polygraph statute. Thus, when we stated that “[f]or purposes of applying Minn. R. Civ. P. 68, ‘costs’ do not include attorney fees,” we meant that Rule 68 by itself does not authorize an award of attorney fees as part of costs and disbursements. Our holding in Bucko is that Rule 68 alone does not entitle a party who otherwise is not entitled to attorney fees to recover attorney fees as part of costs and disbursements.

Respondents contend that their case is distinguishable from Bucko. They claim that they accepted a Rule 68 offer of judgment awarding them “costs and disbursements” in addition to the $200,000 lump sum offer. Thus, they assert that the parties contemplated something more than $200,000 was payable as part of the settlement. They go on to assert that two of their statutory claims, false advertising, MinmStat. § 325F.67, and consumer fraud, Minn.Stat. § 325F.68-70, fall under the purview of the private attorney general statute, which includes attorney fees as part of costs and disbursements. Therefore, they claim that if they can prove that they were injured by violations under these two statutory claims, they are entitled to attorney fees as part of costs and disbursements. We agree with respondents’ assertion that their case is factually distinguishable from Bucko and therefore our holding in Bucko is not dispositive.

Having concluded that Bucko is not dispositive, we must now address the primary issue before the court: whether costs, and disbursements in an accepted Rule 68 offer can include attorney fees when the statute underlying the cause of action includes attorney fees in its definition of costs and disbursements. While we have not previously had the occasion to address this precise issue, we find instruction in the analysis provided by federal courts that have interpreted Fed.R.Civ.P. 68, a rule that is similar to our rule. The United States Supreme Court has held that for purposes of Fed.R.Civ.P. 68, “where the underlying statute defines ‘costs’ to include attorney’s fees, we are satisfied such fees are to be included as costs for purposes of Rule 68.” Marek v. Chesny, 473 U.S. 1, 9, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). Although Marek involved the application of the cost-shifting mechanism where the plaintiff rejected the defendant’s offer of judgment, a number of courts interpreting Fed.R.Civ.P. 68 have applied the holding in Marek to situations like the one here, where an offeree has accepted an offer of judgment. See, e.g., Erdman v. Cochise County, 926 F.2d 877, 879 (9th Cir.1991) (determining that under Marek, the plaintiff, who accepted an offer of judgment, was entitled to attorney fees as part of the costs and disbursements because the underlying statute defined costs and disbursements to include attorney fees). We find the reasoning set forth in these federal cases to be persuasive.

Further, we conclude that the language of and the policy behind Rule 68 is consistent with the federal analysis and does not support MSB’s argument that a Rule 68 offer can never include attorney fees. The language of the rule suggests that “costs and disbursements” in a Rule 68 offer of judgment are defined by the underlying statute. The 1985 advisory committee’s note indicates that the costs shifted via the cost shifting-mechanism are those “costs properly taxable under Minn. R. Civ. P. 54.04.” Rule 54.04 provides that “[cjosts and disbursements shall be allowed as provided by statute.” Minn. R. Civ. P. 54.04. This language specifically provides that the underlying statute in an action defines what is included in costs and disbursements.

Finally, there are a number of statutes that specifically allow prevailing parties attorney fees as part of “costs and disbursements.” If we were to conclude that for purposes of Rule 68 costs and disbursements can never include attorney fees, parties bringing actions under such statutes would lose their rights to attorney fees simply because they accepted a Rule 68 offer of judgment. This result is contrary to Rule 68’s purpose of encouraging settlement because it would deny attorney fees to parties who would otherwise be entitled to those fees under the statute that is the basis of their cause of action. Therefore, based on the language of Rule 68, policy considerations, and interpretation of the similarly worded federal rule, we conclude that when the statute that underlies the plaintiffs cause of action allows attorney fees as part of costs and disbursements, Rule 68 costs and disbursements can include attorney fees.

II.

Having determined that Rule 68 costs and disbursements can under certain circumstances include attorney fees, we must now determine whether under the facts of this case respondents are entitled to an award of attorney fees. The determination of whether an award of attorney fees is proper involves interpreting Minn. R. Civ. P. 68 and Minn.Stat. § 8.31, subd. 3a. Therefore, we review this issue de novo. Nystrom, 615 N.W.2d. at 307.

Respondents brought six claims, three of which were common law claims that do not authorize an award of attorney fees as part of costs and disbursements. The other three claims were statutory claims. Two of the three statutory claims, false advertising, Minn.Stat. § 325F.67, and consumer fraud, Minn.Stat. § 325F.68-70, fall under the private attorney general statute, which authorizes an award of attorney fees to injured parties. Nevertheless, MSB contends that attorney fees cannot be awarded because respondents’ case involves a mixture of claims— two that authorize an award of attorney fees and four that do not. MSB argues that because it is impossible to determine with certainty whether respondents prevailed on their statutory claims, costs and disbursements should not include attorney fees. Therefore, the first step in this stage of our analysis will be to determine on which claims respondents prevailed.

The court of appeals concluded that respondents prevailed on all of their claims. Our analysis of whether the court of appeals reached the right conclusion is helped by an understanding of the reasoning in our most recent decision involving Rule 68 — Farmer’s State Bank of Darwin v. Swisher, 631 N.W.2d 796 (Minn.2001). In Swisher, Farmer’s State Bank brought claims against Swisher, its former employee, to recover loans. Swisher brought multiple counterclaims against the bank and joined two third-party defendants. Id. at 797. The bank and one third-party defendant made a Rule 68 offer of judgment proposing to settle all claims Swisher made against them. Swisher accepted the offer. Id. at 798. The Rule 68 offer did not provide for any offsets for judgments against the other third-party defendant. A jury trial was held on Swisher’s claims against the other third-party defendant and the bank’s claims against Swisher. The jury found in favor of Swisher and awarded her damages. The other third-party defendant moved for a reduction in the jury award equal to the Rule 68 offer of judgment.

In Swisher, we determined that once accepted, a Rule 68 offer of judgment becomes a contractual agreement between the parties. Id. at 801. We stated, “[i]t is not for the courts to speculate or to create uncertainty about the effect of Rule 68 offers of judgment when they are free from ambiguity.” Id. Thus, we refused to read into the Rule 68 offer language that offset the offer against the subsequent jury award. In Swisher, because the language of the Rule 68 offer was unambiguous, we declined to interpret the offer to include language that was not clearly part of the offer.

We believe the approach adopted in Swisher is sound. Thus, we first look to the language of MSB’s Rule 68 offer to ascertain whether it determines upon which claims respondents prevailed. This approach fosters the purposes behind Rule 68 by encouraging parties to make Rule 68 offers of judgment. It gives drafters of Rule 68 offers control over which claims they include in the offer, and encourages them to draft offers with precision. A Rule 68 offeree is potentially bound by the cost-shifting mechanism when she rejects the offer. In addition, the offeree has only 10 days to accept the offer. Thus, it is important that the terms of an offer be precise and clear so that the offeree can make an informed decision. See Chambers v. Manning, 169 F.R.D. 5, 8 (D.Conn.1996). For this reason, federal courts have construed ambiguous language in the offer against the drafter. See, e.g., Erdman v. Cochise County, 926 F.2d 877, 880 (9th Cir.1991). Further, such an approach eliminates the need for district courts to engage in extensive fact finding to determine on which claims the claimant prevailed in the Rule 68 offer. Requiring courts to engage in such extensive, time-consuming fact finding would increase litigation and deter parties from making Rule 68 offers of judgment.

MSB’s offer of judgment provided “judgment to be entered in favor of Plaintiffs and against Defendant.” This language is free from ambiguity. The offer clearly entered judgment in favor of respondents and did not limit the offer so that judgment could be entered only on some claims. MSB could have drafted the offer to exclude some of the claims, i.e., the statutory claims, or to make the Rule 68 offer inclusive of attorney fees. It did not do so and we will not interpret the offer to include language that is not there. Respondent should not be penalized by MSB’s failure to draft the offer of judgment differently.

We also agree with the court of appeals’ conclusion that the district court record supports respondents’ claim that they prevailed on all of their claims. Collins, 636 N.W.2d at 820. First, all of respondents’ claims survived summary judgment. Second, the court entered judgment in favor of respondents, awarding them costs and disbursements totaling $7,088.75, without finding that respondents prevailed on only some of their claims. Finally, the court denied attorney fees on the basis that respondents’ action did not benefit the public, not because they failed to prevail on their statutory claims. Therefore, we con-elude that under the clear language of MSB’s Rule 68 offer and the district court record, respondents prevailed on all of their claims.

We next consider whether respondents are entitled to attorney fees when only two of the six claims on which they prevailed allow attorney fees as part of costs and disbursements. The court of appeals determined that even though respondents prevailed on multiple claims and only some of those claims authorized an award of attorney fees, as prevailing parties they were entitled to an award of attorney fees under the private attorney general statute. Id. at 819. In concluding that respondents are entitled to attorney fees, the court of appeals relied on Foster v. Kings Park Cent. Sch. Dist., 174 F.R.D. 19 (E.D.N.Y.1997). In Foster, the plaintiff brought multiple claims under the Americans with Disabilities Act (ADA), Rehabilitation Act of 1973, Age Discrimination in Employment Act, and related state law. Id. at 22. The plaintiff accepted an offer of judgment under Fed.R.Civ.P. 68 for $14,000, “together with costs accrued to date.” Id. The plaintiff subsequently made a motion for attorney fees. Id. The district court found that although the ADA does not authorize an award of attorney fees as part of costs, under the Rehabilitation Act a prevailing party may be awarded attorney fees as part of costs. Id. at 24. Because one of multiple claims provided for an award of attorney fees, the court stated, “if the plaintiff is a prevailing party, and, the language of the accepted offer of judgment by its terms does not provide to the contrary, then he is entitled to a reasonable award of attorney’s fees.” Id.

The court went on to say:

[wjhere there are multiple claims, only some of which give rise to a claim for attorney’s fees, parsing out an appropriate fee award may prove difficult. Id. at 25. The court then concluded that the plaintiff was entitled to an award of attorney fees. Id. at 26.

We agree with the court of appeals that Foster is instructive. First, it is factually similar to the instant case. Here, as in Foster, the respondents prevailed on a mixed-claim suit and accepted an offer of judgment that did not specify which claims the offer included and did not address the award of attorney fees. Second, as we noted above, the way courts interpret Fed. R.Civ.P. 68 is helpful because the rule is similar to Minnesota’s Rule 68. We also agree that where there are multiple claims and only some allow for an award of attorney fees, parsing out an appropriate fee award may prove difficult. Therefore, we hold that respondents are entitled to seek reimbursement for reasonable attorney fees.

III.

Our conclusion that respondents prevailed on all of their claims and that they can recover attorney fees even though they brought mixed claims does not end our discussion. We must also determine whether respondents’ claims benefited the public as required by Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000). Here, we are interpreting the public benefit standard articulated in Nys-trom to determine whether respondents’ lawsuit benefited the public. The appropriate standard of review for this issue involving the application of existing case law is de novo. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

In Nystrom, we held that the private attorney general statute applies only to claimants who demonstrate that their claims benefit the public. Nystrom, 615 N.W.2d at 314. In Nystrom, the plaintiff brought an action under the Consumer Fraud Act and sought attorney fees under the private attorney general statute. Id. at 307. The defendant made numerous fraudulent representations concerning its restaurant business, but only made the representations directly to the plaintiff. Id. at 305-06. Emphasizing that the misrepresentations were made to only one person and that the fraudulent transaction was completed on a one-on-one basis, we concluded that the plaintiff did not demonstrate that his claim was in the public interest. Id. at 314.

Applying Nystrom, the district court found that only a relatively small group of persons were injured by MSB’s fraudulent activities; thus, respondents failed to demonstrate a public benefit. In determining whether respondents’ claims benefited the public, the court focused on the number of “persons who were injured.” In doing so, the court misapplied the holding in Nys-trom by ignoring the fact that MSB misrepresented the nature of its program to the public at large.

MSB offered its programs to the general public and as of 1998, MSB had a total enrollment of over 1,200 students in all of its programs. Moreover, as required by statute, MSB was licensed by HE SO and it sought approval from HESO before changing the curriculum and name of its sports medicine program. When it launched its program, it made misrepresentations to the public at large by airing a television advertisement. MSB also made numerous sales and information presentations and provided students with a “Career Opportunities” sheet, which students interpreted as a list of jobs for which they might qualify after completing the program. All of these factors indicate that MSB presented its program to the public at large. We hold that respondents’ successful prosecution of their claims benefited the public and therefore respondents are entitled to reasonable attorney fees.

IV.

MSB makes an alternative, equitable argument in support of its position that its offer should not include attorney fees. It asserts that it did not contemplate that its offer included attorney fees as part of costs and disbursements and, therefore, it should not now be required to pay attorney fees. Drafters of Rule 68 offers can avoid ambiguity by drafting the offer to either explicitly include or exclude attorney fees. As stated earlier, as a matter of policy, we encourage drafters of Rule 68 offers to draft these offers with precision. Federal courts have required drafters to clearly express that attorney fees are included in the lump sum of the offer; otherwise, the offeree, if the underlying statute allows it, is entitled to recover attorney fees. See, e.g., Foster v. Kings Park Cen. Sch. Dist., 174 F.R.D. 19, 24-25 (E.D.N.Y.1997). The reasoning of the federal courts is persuasive and we conclude that if MSB did not intend to be liable for attorney fees, it should have drafted the offer with greater precision. Therefore, we conclude that MSB’s equitable argument lacks merit.

We remand to the district court for a determination of the amount of reasonable attorney fees to be awarded respondents.

Affirmed and remanded.

      . We note that this conclusion is also consistent with an earlier court of appeals case. See Koop v. Indep. Sch. Dist. No. 624, 505 N.W.2d 93, 96 (Minn.App.1993) (holding that
        Bucko did not bar an award of attorney fees as part of Rule 68 costs to a plaintiff who accepted a Rule 68 offer when the statute underlying the claim defined costs to include attorney fees).

      . Fed.R.Civ.P. 68 provides, “a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued.”

      . See also Webb v. James, 147 F.3d 617, 622 (7th Cir.1998); Arencibia v. Miami Shoes, Inc., 113 F.3d 1212, 1214 (11th Cir.1997); Sas v. Trintex, 709 F.Supp. 455, 458 (S.D.N.Y.1989); Rohrer v. Slatile Roofing and Sheet Metal Co., 655 F.Supp. 736, 738-39 (N.D.Ind.1987).

      . See, e.g., Minn.Stat. § 8.31, subd. 3a (2002) (providing a civil remedy, including attorney fees as part of costs, for any person injured by a violation of laws the attorney general has the duty to investigate and enforce, as listed in subdivision 1); Minn.Stat. § 181.75, subd. 4 (2002) (providing an individual remedy, in-eluding attorney fees as part of costs, for individuals injured by a violation of the polygraph statute); Minn.Stat. § 363.14, subd. 3 (2002) (providing costs, including attorney fees, to parties injured by a violation of the Minnesota Human Rights Act).