author: KALITOWSKI, Judge.

text:
    COUNTY OF BENTON, Respondent, v. KISMET INVESTORS, INC., Appellant.
    No. CX-02-984.
    Court of Appeals of Minnesota.
    Nov. 19, 2002.

      Robert J. Raupp, Benton County Attorney, Benton County Courts Facility, Foley, MN, for respondent.
    Randall D.B. Tigue, Randall Tigue Law Office, P.A., Minneapolis, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant Kismet Investors, Inc. challenges the district court’s grant of summary judgment to respondent Benton County. The district court determined that appellant’s nude-dancing establishment, King’s on the Lake, is an “adult use” within the meaning of the Benton County Development Code. The district court also concluded that Minn.Stat. § 394.21, subd. la, does not violate the First Amendment and that King’s on the Lake qualifies as a “similar adults-only” business under the statute.

FACTS

King’s on the Lake, also called King’s Inn (King’s), is a nude-dancing establishment located in Benton County. In 1994, the Benton County Board of Commissioners passed Ordinance 242, which regulates adult uses. Ordinance 242 allows adult uses in areas zoned B-l, B-2,1 — 1, and 1-2 so long as no adult use is located within 500 feet of any area zoned R-l, R-2, or R-3, or within 500 feet of any school, church, daycare facility, hotel, or public park. Benton County, Minn., Development Code § 7.10.2(A) (1998). The ordinance defines adult uses to include

adult enterprises, businesses or places open to some or all members of the public at or in which there is an emphasis on the presentation, display, depiction or description of ‘specified sexual activities’ or ‘specified anatomical areas.’

Id. § 7.10.1. The ordinance designates existing adult uses as nonconforming uses until July 31, 1998, and unlawful uses after that date. Id. § 7.10.3. King’s is located approximately 150 feet from the nearest residence, and that residence is located on property zoned R-2.

On July 22, 1998, Kismet Investors, Inc. (Kismet) sought a variance to continue operating King’s at its current location. The Benton County Board of Adjustment denied the variance on October 15, 1998. Kismet appealed to the district court. The district court entered summary judgment affirming the variance denial on April 2, 1999. Kismet further appealed the variance denial to this court. This court affirmed. See Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85 (Minn.App.2000), review denied (Minn. Nov. 15, 2000), cert. denied, — U.S. -, 122 S.Ct. 2356, 153 L.Ed.2d 178 (2002).

After the district court affirmed the variance denial, Benton County commenced the present action seeking a permanent injunction against appellant’s operation of King’s at its current location. The district court granted respondent’s motion for summary judgment on August 1, 2000. The district court issued a permanent injunction against appellant’s operation of King’s at its current location and initially stayed the injunction pending resolution of appeals. The district court later vacated that stay.

On August 14, 2000, appellant filed a motion for amended findings. The district court issued amended findings on November 27, 2000. The district court amended some of its initial findings and vacated its earlier judgment. But the district court again granted summary judgment for respondent, permanently enjoining the operation of King’s at its current location and further staying the order pending appeals.

ISSUES

1. Did the district court err by finding that appellant’s business is an “adult use” under the Benton County Development Code?

2. Does the exemption from Minn.Stat. § 394.21, subd. la, which allows amortization of adults-only businesses, violate the First Amendment and does King’s qualify as a “similar adults-only” business under section 394.21, subdivision la?

ANALYSIS

I.

On an appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). “The party resisting summary judgment must do more than rest on mere averments.” Russ, 566 N.W.2d at 71. A genuine issue for trial must be established by substantial evidence. Id. at 69-70.

The facts of this case are uncontrovert-ed. The nature of appellant’s business is live exotic dance entertainment. Entertainers perform with less than completely and opaquely covered genitals, pubic regions, and buttocks when no minors are present. Entertainers also perform with less than completely and opaquely covered female breasts below the point immediately above the top of the areola when no minors are present. The entertainers engage in acts of fondling or other erotic touching of human genitals, pubic region, buttocks, or female breasts during the course of said entertainment. King’s Inn is open to all members of the public. There is no evidence that King’s has ever featured either human male genitals in a discernibly turgid state, even if completely and opaquely covered, or acts of human masturbation, sexual intercourse, or sodomy. Because the material facts of this case are uncontroverted, there are no genuine issues of material fact.

We must next determine whether the district court erred in its application of the law. Benton County Development Code § 7.10.2 permits adult uses in areas zoned B-l, B-2, 1-1, and 1-2, but prohibits the operation of an adult-use facility within 500 feet of residentially zoned areas. It is uncontroverted that King’s is approximately 150 feet from the nearest residence, and that residence is located on property zoned R-2.

The Benton County Development Code defines adult uses as follows:

Adult uses include adult bookstores, adult motion picture theatres, adult mini-motion picture theatres, adult massage parlors, adult steam room/bathhouse facilities, adult enterprises, businesses or places open to some or all members of the public at or in which there is an emphasis on the presentation, display, depiction or description of ‘specified sexual activities’ or ‘specified anatomical areas’ which are capable of being seen by members of the public.

Benton County, Minn., Development Code § 7.10.1. The definition of “specified anatomical areas” contained in section 7.10.1 reads as follows:

Specified Anatomical Areas
(1) Less than completely and opaquely covered:
a. Human genitals;
b. Pubic region;
c. Buttocks; and,
d. Female breast below a point immediately above the top of the areola; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

Appellant argues that King’s does not qualify as an adult use because section 7.10.1 must be read in the conjunctive. Appellant contends that unless all of the above body parts are displayed at King’s, there is no adult use. Thus, appellant argues that section 7.10.1 must be read as follows:

Specified Anatomical Areas
(1) Less than completely and opaquely covered:
a. Human genitals; and
b. Pubic region; and
c. Buttocks; and,
d. Female breast below a point immediately above the top of the areola; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(Emphasis added.)

Although we are obligated to follow the plain meaning of the words of the statute when it is sufficient to determine the purpose of the legislation, we are equally obliged to reject construction that leads to absurd or unreasonable results that utterly depart from a statute’s purpose. Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993). And zoning ordinances must be strictly construed with any ambiguities resolved against the government and in favor of the property owner. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). But a zoning ordinance must always be considered in light of its underlying policy. Id. at 609.

Here, the Benton County Planning and Zoning Commission (commission) had several discussions and public hearings regarding the effects of adult-use establishments. The commission reviewed and studied numerous reports relating to adult-use businesses and their secondary effects. Additional municipalities and cities involved in those studies included, among others, Saint Paul and Rochester, Minnesota; Amarillo, Texas; and a Minnesota Attorney General report on the regulation of sexually oriented businesses. The commission' concluded that adult-use businesses have an impact on the neighborhoods surrounding them. Consequently, the commission decided to separate adult-use businesses from areas children and other vulnerable people may frequent. The commission also decided to separate adult-use businesses to prevent a decrease in the value and marketability of the land adjacent to adult-use businesses. Thus, the policy underlying the ordinance was to preempt any negative secondary effects caused by adult-use businesses to protect adjacent residential neighborhoods.

The Minnesota Supreme Court has held that the word “and” may be construed as a disjunctive to assure the result intended by the legislature. Maytag Co. v. Comm’r of Taxation, 218 Minn. 460, 463, 17 N.W.2d 37, 39 (1944). Here, construing “and” as a disjunctive is appropriate. The commission clearly stated the purpose behind the ordinance, protecting adjacent neighborhoods from the adverse secondary effects of adult-use businesses. A conjunctive reading of “and” would guarantee the absurd result that as long as a business is not showing female nudity and human male genitals simultaneously, there is no adult use. This interpretation of the ordinance is not reasonable and is an utter departure from the purpose of the ordinance.

Appellant also contends that a penal statute or ordinance must be construed strictly against the state and in favor of the individual. But statutes intended for the protection of the public are remedial in nature and are to be liberally construed to that end. Szczech v. Comm’r of Pub. Safety, 343 N.W.2d 305, 306 (Minn.App.1984). The ordinance at issue is not a penal ordinance. Rather, section 7.10.2 prohibits adult uses within 500 feet of a residential area and therefore remedies the secondary effects of adult uses on adjacent residential neighborhoods. We thus conclude that appellant’s business is an adult use under the ordinance.

II.

“Evaluating a statute’s constitutionality is a question of law.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999) (citations omitted). Accordingly, this court “is not bound by the lower court’s conclusions.” In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (quoting Sherek v. Indep. Sch. Dist. No. 699, 449 N.W.2d 434, 436 (Minn.1990)).

Appellant argues that Minn.Stat. § 394.21, subd. la, is unconstitutional under the First Amendment because the Minnesota legislature failed to make findings of adverse secondary effects when it enacted the statute. Minn.Stat. § 394.21, subd. la, states that

a county, regardless of population, * * * must not enact, amend, or enforce an ordinance providing for the elimination or termination of a use by amortization which use was lawful at the time of its inception. This subdivision does not apply to adults-only bookstores, adults-only theatres, or similar adults-only businesses, as defined by ordinance.

(Emphasis added.) Benton County Development Code § 7.10.3 contains an amortization clause making nonconforming adult uses unlawful as of July 31,1998.

The Eighth Circuit recently decided this precise issue in Jake’s Ltd., Inc. v. City of Coates, 284 F.3d 884 (8th Cir.2002), cert. denied, — U.S. -, 123 S.Ct. 413, — L.Ed.2d - (2002). In that case, the owner of a nude-dancing establishment challenged the constitutionality of Minn. Stat. § 462.357, subd. lc (2000). This statute is included in the Municipal Planning Act and contains language identical to the statute at issue here. The Eighth Circuit clearly rejected the argument that the statute was unconstitutional because the legislature failed to study secondary effects. Specifically the court in Jake’s determined that:

This argument is without merit. We have repeatedly upheld amortization provisions requiring nonconforming adult entertainment businesses to relocate as part of a municipality’s valid time, place, and manner regulation of such businesses, [citations omitted] Here, the state statute merely authorizes municipalities to amortize nonconforming sexually oriented businesses. The relevant question is whether a municipality’s use of that authority complies with the City of Renton standards. The State of Minnesota was under no constitutional obligation to study secondary effects in the abstract before granting this authority to local government bodies.

Id. at 889. The court went on to specifically hold that “the state statute permitting amortization of ‘adults-only’ businesses is valid under deferential rational-basis review.” Id. We agree.

We have already held that the county ordinance involved in this case passes constitutional muster under the City of Renton standards as a valid time, place, and manner regulation. See Kismet, 617 N.W.2d at 93-95. Because we agree with the Eighth Circuit that the Minnesota legislature did not have a constitutional obligation to study secondary effects before granting amortization authority to local government bodies, we conclude that Minn.Stat. § 394.21, subd. la, is constitutional.

Appellant contends that the decision in Jake’s has been overruled by a more recent Supreme Court opinion. See City of Los Angeles v. Alameda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality opinion). We disagree. The ordinance at issue in Alameda Books prohibited. “the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.” Id. at 1731. The Supreme Court determined that the Alameda ordinance governs the location of adult entertainment businesses and is subject to analysis under City of Renton v. Playtime Theatres Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Id. at 1734. The state statute at issue here does not dictate the location of adult-use businesses. It grants municipalities the authority to use amortization as a tool in their planning and zoning. In fact, “[i]n Minnesota, * * *, a municipality has no inherent power to enact zoning regulations.” Costley v. Caromin House, Inc., 313 N.W.2d 21, 27 (Minn.1981). “It is fundamental that a municipality’s power to regulate land use by zoning exists by virtue of authority delegated to it by the state.” Denney v. City of Duluth, 295 Minn. 22, 26, 202 N.W.2d 892, 894 (1972) (citing 8 McQuillin, Municipal Corporations (3rd ed.) § 25.35). Because Minn.Stat. § 394.21, subd. la, is not a content-neutral zoning regulation, the plurality opinion in Alameda Books is not controlling.

Additionally appellant argues that King’s is not a “similar adults-only” business under section 394.21, subdivision la, because the legislature did not consider empirical evidence indicating that adult uses cause adverse secondary effects when it enacted the statute that uses the phrase. The Eighth Circuit Court of Appeals also addressed whether a nude-dancing establishment qualifies as a “similar adults-only” business under language identical to the language of Minn.Stat. § 394.21, subd. la. See Jake’s, 284 F.3d at 889. In Jake’s, the Eighth Circuit concluded that this argument “is contrary to the plain language of the statute * ⅜ Id. Further, the court pointed out that Jake’s attempted to avoid the issue of statutory construction by arguing that there is “no ‘constitutional basis’ for classifying Jake’s as similar to an adults-only business * * * « /⅛ Likewise in this case, appellant makes no attempt to persuade this court that the statute has any alternative constructions. The statute at issue clearly allows counties to reasonably define the term “similar adults-only businesses.” Because the language of the statute is clear and appellant offers no alternative constructions, we conclude that King’s qualifies as a “similar adults-only” business under Minn.Stat. § 394.21, subd. la.

DECISION

Appellant’s business, King’s on the Lake, qualifies as an “adult use” under the Benton County Development Code. The Minnesota legislature had no constitutional obligation to study adverse secondary effects prior to enacting Minn.Stat. § 394.21, subd. la, and appellant’s business qualifies as a “similar adults-only” business under section 394.21, subdivision la.

Affirmed.


source: Caselaw Access Project

author: KLAPHAKE, Judge. ROBERT H. SCHUMACHER, Judge

license: Public Domain

text:
    Tarah Asbur FRIESON, Appellant, v. Angela Dawn PAHKALA, Respondent.
    No. C8-02-708.
    Court of Appeals of Minnesota.
    Nov. 19, 2002.

      John M. Stuart, State Public Defender, Bradford William Colbert, Assistant State Public Defender, Heidi DeFord, Certified Student Attorney, Minneapolis, MN, for appellant.
    Steven C. Pundt, Northstar West, Minneapolis, MN, for respondent.
    Considered and decided by GORDON SHUMAKER, Presiding Judge, ROBERT H. SCHUMACHER, Judge, and KLAPHAKE, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Tarah Frieson challenges an order denying his request for blood tests to determine the paternity of a child born in October 1998 to respondent Angela Dawn Pahkala. Appellant claims that he is the father of the child and seeks to compel respondent and the child to undergo blood tests under Minn.Stat. § 257.62, subd. 1 (2000). Because appellant met the requirements of the statute by filing with the court an affidavit alleging paternity and “setting forth facts that establish the reasonable possibility that there was ⅜ * * the requisite sexual contact between the parties,” we reverse and remand.

FACTS

Appellant executed a paternity petition in August 2000 that was filed with the district court on January 5, 2001. In his petition, appellant alleged that he and respondent had sexual intercourse on December 28, 1997. One week after this petition was filed, respondent and Alan Lee Watt, whom respondent apparently married some time after the child’s birth, executed a “Voluntary Recognition of Parentage” form, acknowledging that they are the biological parents of the child.

Appellant thereafter filed an amended petition for paternity. In his amended petition, he alleged that “he had sexual relations with [respondent] during the time that [she] conceived” and that he “believes that he is the father” of the child.

Respondent filed an answer in which she (1) denied that she had sexual relations with appellant during the time the child was conceived; (2) stated that Alan Watt is presumed to be the father of the child because she and Watt acknowledged paternity in a written Recognition of Paternity; and (3) claimed that appellant’s paternity petition is not brought in good faith and is not in the child’s best interests, as evidenced by appellant’s history of violence against her and his other criminal activities. Respondent also submitted copies of two orders for protection that she obtained against appellant in November 1998 and October 1999, after the birth of the child.

Appellant thereafter filed a motion to compel blood tests under Minn.Stat. § 257.62. In support of his motion, he submitted an affidavit in which he alleged that although he and respondent ended their relationship in November 1997, they still spoke on the telephone and saw each other occasionally. He alleged that on January 27, 1998, he spent the night at her place and they had sexual relations.

Appellant further alleged that he moved to Chicago on February 3, 1998, and learned of respondent’s pregnancy in March 1998. He claimed that respondent told him that he was the father and that they resumed their relationship when he returned to Minnesota during the summer of 1998. He further claimed that he visited the child several times in the hospital after the child’s birth in October 1998. Appellant explained that respondent obtained the OFP against him in November 1998 after the two had an argument.

Appellant also submitted an affidavit from his mother, who confirmed that appellant moved to Chicago in February 1998 and lived with her for the next seven months. During that time, appellant’s mother alleged that respondent called frequently. Appellant’s mother further claimed that she saw the child once in late 1998, that the child looks like appellant, and that respondent has implied that appellant is the child’s father.

The district court denied appellant’s motion to compel blood tests. The court determined that appellant’s affidavit failed to establish that he was entitled to blood tests, given his prior inconsistent sworn statement regarding the date of conception, his prior criminal activities, and evidence suggesting that he has abused respondent. The court further cited respondent’s denial of sexual contact with appellant during the period of conception and her prior consistent sworn statement on the November 1998 OFP petition on which she chose not to mark the box entitled “have a child in common.”

ISSUE

Is appellant entitled to compel blood or genetic testing to determine paternity because he has met the requirements of Minn.Stat. § 257.62, subd. 1 (2000)?

ANALYSIS

A party in a paternity action may request blood or genetic tests under the following statute:

The court or public authority may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood or genetic tests. A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.

Minn.Stat. § 257.62, subd. 1(a) (2000).

The issue here is one of statutory interpretation and presents this court with a question of law subject to de novo review. In re Welfare of G.L.H., 614 N.W.2d 718, 720 (Minn.2000). Minnesota courts have recognized that this statute, which is part of the Minnesota Parentage Act (MPA), “clearly evince[s] that the present public policy of this state is to encourage use of [blood or genetic tests] when paternity is in issue.” Berrisford v. Berrisford, 322 N.W.2d 742, 745 (Minn.1982).

Examination of the plain language of this statute leads us to conclude the mandatory term “shall” requires a district court to compel blood testing once an alleged father files an affidavit setting forth the requisite facts. See Minn.Stat. § 645.44, subd. 16 (2000) (“ ‘Shall’ is mandatory.”). Thus, the only question before the district court here was whether appellant’s affidavit set forth facts to establish a “reasonable possibility” that there was the requisite sexual contact between the parties.

This inquiry does not allow a district court to exercise any discretion and to make credibility determinations; rather, the court is required to assume the truth of the affidavit. Cf. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981) (construing Minn.Stat. § 518.185, which requires party seeking modification of custody to submit affidavit setting forth facts to support modification, as requiring trial court to accept allegations as true and not allow court to make findings based on affidavit). Nor does this inquiry allow a court to consider whether compelling blood tests would be in the child’s best interests. See In re Turner v. Suggs, 653 N.W.2d 458 (Minn.App.2002) (agreeing that Minnesota Parentage Act does not require analysis of child’s best interest); Spaeth v. Warren, 478 N.W.2d 319, 322 (Minn.App.1991) (MPA “does not require a * * ⅜ best interests consideration”), review denied (Minn. Jan. 30, 1992). Rather, by requiring blood tests if requested by an alleged father who states sufficient facts to establish the possibility of paternity, the statute incorporates a relatively low threshold that accords with the policy of utilizing blood tests in all paternity actions. See County of Ramsey v. S.M.F., 298 N.W.2d 40, 44 (Minn.1980) (stating that “[w]e can imagine no situation in which it would not be in the interest of [the parties to a paternity action] to have blood tests taken.”).

Our decision here is entirely consistent with the result reached in Witso v. Overby, 627 N.W.2d 63 (Minn.2001). In that case, the alleged or putative father claimed that he was the biological father of the child, but the mother claimed that her husband was the child’s biological father. The mother nevertheless acknowledged that she had sexual contact with the putative father during the possible conception period. The district court ordered the blood tests, but certified the question of whether the putative father had standing to compel those tests. On appeal, the supreme court held that the putative father had standing to bring an action to compel the mother and child to undergo blood or genetic testing under Minn.Stat. § 257.62, subd. 1. Id. at 69. The court explained:

Our conclusion does not open the door to unfettered challenges to the sanctity of marriages, family unity and parent-child relationships. By vesting in the courts the safeguard of a judicial determination that a putative father has asserted by affidavit sufficient grounds to determine that sexual contact occurred between him and the child’s mother that could reasonably have resulted in the child’s conception as provided in Minn. Stat. § 257.62, subd. 1 (2000) additional protection is provided against frivolous claims of paternity and a balance is achieved between the interests in the preservation and protection of familial relationships and the interests of the putative father to establish his paternity.

Id. (footnote omitted).

Here, appellant has asserted sufficient grounds to establish that sexual contact occurred between him and respondent that could reasonably have resulted in the child’s conception. By affidavit, he alleges that he and respondent were sexually involved prior to the period of conception, that they had one sexual contact within the possible period of conception, that he and respondent resumed their relationship after they learned that she was pregnant, and that respondent indicated to appellant that he is the child’s father. Given these allegations, appellant is entitled to blood tests to determine the child’s paternity.

DECISION

We reverse the district court’s denial of appellant’s motion to compel blood tests and remand for further proceedings consistent with this opinion.

Reversed and remanded.

ROBERT H. SCHUMACHER, Judge, dissents and files an opinion.

ROBERT H. SCHUMACHER, Judge

(dissenting)

I respectfully dissent. I believe the district court has a duty to examine affidavits submitted under Minn.Stat. § 257.62, subd. 1 (2000), and to examine other factors and circumstances in order to determine in its discretion whether there is a “reasonable possibility” that the requisite sexual contact occurred between the parties. I believe that the supreme court acknowledged this discretion in Witso and characterized it as a judicial safeguard against frivolous claims of paternity. Witso v. Overby, 627 N.W.2d 63, 69 (Minn.2001).

The district court here determined that appellant failed to set forth facts to establish a reasonable possibility of the requisite sexual contact between the parties. While the district court is required to assume the truth of an affidavit, it was faced with a type of credibility determination because of respondent’s denial of that contact. Cf. Oreck v. Harvey Homes, Inc., 602 N.W.2d 424, 429 (Minn.App.1999), review denied (Minn. Jan. 25, 2000). For a number of reasons, the district court found respondent more credible and chose to reject appellant’s claim that he and respondent had sexual contact on January 27, 1998.

In particular, the district court found that respondent denied any sexual activity with appellant during the possible conception period and that she “has never wavered in her claim that [appellant] is not the father of this child,” as evidenced by her OFP petition on which she chose not to mark the box entitled “have a child in common.” The court further found that appellant’s “competency as a witness * * * is subject to impeachment not only by his prior inconsistent sworn statement, but his history as a convicted felon.” The court finally took notice of the two OFP’s and found that appellant “has demonstrated a history of harassing and abusing” respondent and that “[t]here is a real risk of [appellant] using the legal system to continue to harass and frighten [respondent].” These findings demonstrate that the district court properly exercised its discretion when it chose to disbelieve appellant’s claim that he and respondent had sexual relations during the possible period of conception.

Because the district court properly examined the record and exercised its discretion, I would affirm its denial of appellant’s motion to compel blood tests under Minn. Stat. § 257.62, subd. 1 (2000).

      . Given the child’s birth on October 28, 1998, conception probably occurred in mid to late January 1998. Thus, this date is not within the possible conception period.


author: HARTEN, Judge.

text:
    MOTORSPORTS RACING PLUS, INC., Appellant, v. ARCTIC CAT SALES, INC., Respondent, Polaris Sales, Inc., Respondent, Bombardier Motor Corporation of America, a Delaware corporation, Respondent, Yamaha Motor Corporation, a California corporation, Respondent, International Snowmobile Racing, a Wisconsin corporation, Respondent, International Snowmobile Manufacturers Association, a Michigan corporation, Respondent, XYZ Corporation, ABC Partnership, John Doe and Mary Roe, whose names are unknown to Plaintiff.
    No. C4-02-530.
    Court of Appeals of Minnesota.
    Nov. 19, 2002.
    Wood R. Foster, Jr., Jordan M. Lewis, Steven J. Weintraut, Vickie L. Loher, Sie-gel, Brill, Greupner, Duffy & Foster, P.A., Minneapolis, MN, for appellant.
    Annamarie A. Daley, Gary L. Wilson, Christopher A. Seidl, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, for respondent Arctic Cat Sales, Inc.
    George W. Soule, Bowman & Brooke, L.L.P., Minneapolis, MN, for respondent Polaris Sales, Inc.

      Robert A. Schwartzbauer, Paul J. Rob-bennolt, Dorsey & Whitney, L.L.P., Minneapolis, MN, for respondent Bombardier Motor Corporation of America.
    James L. Volling,' Jason K. Walbourn, Jessica R.F. Grassley, Faegre &' Benson, L.L.P., Minneapolis, MN, for respondent Yamaha Motor Corporation.
    Stephen C. Rathke, Kay N. Hunt, Stacy A. DeKalb, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for respondent International Snowmobile Manufacturers Association.
    Considered and decided by KALITOWSKI, Presiding Judge, KLAPHAKE, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Appellant brought both antitrust and business tort claims against respondents, who challenged appellant’s standing to assert the claims. The district court found that appellant had standing and granted respondents summary judgment on the claims. Appellant challenges the summary judgment; respondents notice review of the determination that appellant had standing. Because we conclude that appellant did not have standing to bring its claims against respondents, we reverse the district court determination that appellant had standing, vacate as moot the summary judgment for respondents on other grounds, and remand to the district court with directions to order summary judgment for respondents on the issue of standing.

FACTS

Appellant Motorsports Racing Plus, Inc. (MRP), a Minnesota corporation, was formerly in the business of organizing and promoting snowmobile races. In June 1998, after two MRP employees decided to leave and form a rival corporation, World Snowmobile Association (WSA), MRP’s owner decided to sell its assets to WSA.

In the “Agreement To Acquire Snowmobile Racing Program,” (the Agreement) these assets were defined as:

The Snowmobile Racing Program, and all right to promote, sanction and operate MRP race dates; information regarding racers, officials, sponsors and site officials, including all electronic da-tábase information; all permits, all sponsor rights and any intangibles and goodwill related to the Snowmobile Racing Program.

“Excluded Assets” were “[MRPj’s cash, the Receivables, and the specific assets listed on Exhibit B attached hereto.” The list of assets provided that MRP’s owner would keep only a Suburban, and the owner testified that, after the sale, MRP’s property “might be some file cabinets or office furniture.”

The Agreement also provided that

[tjhere are no claims, actions, suits, proceedings, or investigations (whether or not purportedly on behalf of [MRP]) pending or threatened against or affecting [MRP] or the Assets * * *. There is no reasonable basis for any claim, action, suit, proceeding, or investigation against or affecting [MRP] or the Assets.

Almost two years after the sale, in June 2000, MRP brought this action involving antitrust and common law claims against respondents, snowmobile manufacturers Arctic Cat Sales, Inc., Polaris Sales, Inc., Bombardier, Inc., and Yamaha Motor Corporation, and the International Snowmobile Manufacturers Association, a Michigan corporation they formed.

Respondents moved for summary judgment, alleging as a threshold matter that appellant lacked standing to bring the action. The district court found that appellant had standing, and respondents now seek review of that finding. Appellant challenges summary judgment for respondents on the antitrust and common law claims.

ISSUE

Did MRP have standing to bring this action against respondents?

ANALYSIS

Respondents contend that MRP lacked standing to sue them. Whether a party has standing to sue is a question of law, which this court reviews de novo. Schiff v. Griffin, 639 N.W.2d 56, 59 (Minn.App.2002).

Respondents argue that, because MRP sold its right to sue when it sold its assets, it lacked standing. In support, respondents rely on In re Milk Products Antitrust Litigation, 195 F.3d 430 (8th Cir.1999) (applying Minnesota law). Milk Products involved a named plaintiff in a class action that months before appearing as a plaintiff,

had entered into a Standard Purchase Agreement in which it agreed to sell its convenience store premises and substantially all the business assets to unrelated purchasers. The Purchase Agreement listed only tangible assets, but an addendum transferred the business name ⅜ ⅜ * and the store’s operating licenses to the buyers * ⅜ ⅜. The contract documents made no mention of the unassert-ed antitrust claim in this action.
The issue is whether [the plaintiff] sold its unasserted and presumably unknown antitrust claim along with its other business assets, a question not addressed in the contract documents. * * * Given the evidence of record [which included contradictory testimony from the seller and no testimony by the buyers as to their intent at the time of the sale] and the way this issue is presented on appeal, the district court’s finding that the parties to the sale of substantially all of [the plaintiffs] business assets intended to include an unknown claim arising out of store operations must be affirmed.

Id. at 435. Milk Products concluded that, even though intangible assets were not mentioned in the sale documents, the sale had included a legal claim. Here, the Agreement did include “intangibles” and “ ‘General intangibles’ * * ⅜ includes] things in action.” Minn.Stat. § 336.9-102(a)(42) (2000). Thus, in selling its intangibles, MRP sold its claims.

Milk Products explicitly defines this issue as one of contract law.

Plaintiffs argue that federal common law governs this issue and creates a presumption against the sale of antitrust claims. * * * [W]e see little need for federal common law to govern this issue of contract law, and no justification for a presumption overriding the contracting parties’ intent.

Milk Products, 195 F.3d at 435-36. Minnesota contract law requires an interpretation that gives effect to the intent of the parties. See Ruddy v. State Farm Mut. Auto. Ins., 596 N.W.2d 679, 684 (Minn.App.1999) (fundamental approach to construing contracts is to allow intent of parties to prevail), review denied (Minn. 28 Sept. 1999). MRP argues that it did not intend to sell its claims, but the record refutes that argument. In the Agreement, MRP represented that there were no claims pending that would affect its assets and no reasonable basis for any claims affecting its assets. MRP cannot argue both that it accurately represented to WSA that there were no claims and that MRP intended to retain its claims.

Absent any persuasive evidence either that MRP did not intend to sell its claims or that WSA did not intend to buy them, we conclude that the claims passed to WSA as intangible assets of MRP.

DECISION

Because MRP’s claims against respondents were sold as intangible assets to WSA, MRP lacked standing to bring this action. We reverse the district court’s determination on standing, vacate as moot the summary judgment, and remand with directions to order summary judgment for respondents on the issue of standing.

Vacated in part, reversed in part, and remanded.

      . But see Sullivan v. National Football League, 34 F.3d 1091, 1106 (1st Cir.1994) (holding that absent express language that seller is selling causes of action, seller retains them). We decline to follow Sullivan, first because it is a first circuit case applying Massachusetts law and therefore without precedential value and second because Sullivan considered only the intent of the seller, not that of the buyer, and a contract must be interpreted to give effect to the intent of both parties. See Ruddy v. State Farm Auto. Ins. Co., 596 N.W.2d 679, 684 (Minn.App.1999), review denied (Minn. 28 Sept. 1999).


text:
    In the Matter of the Welfare of J.R.M., Child.
    No. C9-02-474.
    Court of Appeals of Minnesota.
    Nov. 19, 2002.

      John M. Stuart, State Public Defender, Charlann E. Winking, Assistant Public Defender, Minneapolis, MN, for appellant J.R.M.
    Mike Hatch, Attorney General, St. Paul, MN; and Ken Kohler, Nobles County Attorney, Kathleen A. Kusz, Assistant County Attorney, Worthington, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant J.R.M. challenges (1) the sufficiency of the evidence to support his adjudication for the charge of possession of a small amount of marijuana, and (2) the district court’s disposition order that required appellant to undergo inpatient treatment.

FACTS

On October 8, 2001, Paul Karelis, a teacher at Worthington High School, looked out his window and saw three boys smoking across the street. The boys were 75 feet away so he could not identify what they were smoking, but because they were holding the object between their pinched fingers, Karelis did not think it was a tobacco cigarette. Moreover, Karelis saw two of the boys pass the object between them. Appellant was one of those boys. After witnessing this, Karelis called Shane Laffen, the assistant principal.

When Laffen arrived, the boys were putting things in their pockets. Laffen did not see them smoking. Laffen went outside and met the boys as they were headed into the school. He had all three boys go to his office. There they waited for Bob Fritz, the school liaison police officer. Laffen thought the boys smelled of marijuana.

After Officer Fritz arrived, Laffen asked the boys to empty their pockets. A lighter was found in one boy’s pocket. The boys were then asked to remove their shoes. No contraband was found on appellant, but a substance wrapped in a piece of paper was found in one of the other boy’s shoes. Both Laffen and Officer Fritz described the substance as a “joint.” No laboratory tests were done on the substance found in the shoe, but based on his past experience, Officer Fritz thought the smell and appearance of the substance was consistent with marijuana. Moreover, Officer Fritz noticed that the boys smelled of marijuana and had bloodshot, watery eyes. Finally, two of the boys, including appellant, admitted to smoking marijuana.

The district court held an adjudication hearing on January 15, 2002. Based on the evidence presented at the hearing, appellant was adjudicated for possession of a small amount of marijuana. Following the adjudication hearing, the district court held a dispositional hearing. The predis-positional investigation submitted to the district court summarized appellant’s record and contained two entries involving controlled substances. The disposition for the first entry was characterized as a “diversion.” Based on the information gathered from both the predispositional investigation and the hearing, the district court concluded that appellant had two prior controlled substance offenses and the court ordered appellant to complete an inpatient treatment program.

ISSUES

1. Did sufficient evidence exist to support appellant’s adjudication for possession of a small amount of marijuana?

2. Does a “pretrial diversion” count as “an admission in court or after trial” such that a “pretrial diversion” can be used by the district court as one of the three or more required controlled substance offenses needed before a court may order a child to undergo inpatient treatment?

ANALYSIS

I.

In a juvenile delinquency proceeding, the prosecution must prove the petition beyond a reasonable doubt. In re Welfare of G.L.M., 347 N.W.2d 84, 85 (Minn.App.1984). When reviewing a sufficiency of the evidence claim, this court carefully reviews whether the record and any legitimate inferences drawn from it reasonably support the fact-finder’s conclusion that the defendant committed the offense charged. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn.1981); see also In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn.App.1997) (applying same standard to juvenile cases). Where the facts and legitimate inferences drawn from the facts could reasonably lead the fact-finder to conclude that a defendant has committed the offense, the conviction should not be disturbed. State v. Ring, 554 N.W.2d 758, 760 (Minn.App.1996).

On appeal, the sufficiency of the evidence is viewed in a light most favorable to the state. G.L.M., 347 N.W.2d at 85. This court assumes the trier of fact believed the state’s witnesses and disbelieved any contradictory evidence. State v. Parker, 353 N.W.2d 122, 127 (Minn.1984). Accordingly, an appellant has the burden of showing that the trier of fact could not reasonably find the appellant committed the charged acts. In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn.App.1985).

There are no set minimum evi-dentiary requirements in substance identification cases. State v. Vail, 274 N.W.2d 127, 134 (Minn.1979). The sufficiency of the evidence is examined on a case-by-case basis. Id. Circumstantial evidence is entitled to as much weight as other evidence. State v. Bauer, 598 N.W.2d 352, 370 (Minn.1999). The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn.1994). A fact-finder is in the best position to evaluate circumstantial evidence, and its decision is entitled to due deference. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989).

Appellant argues that the state’s failure to conduct any laboratory tests on the substance in question requires us to reverse appellant’s adjudication. We disagree. Appellant cites no authority requiring that a petty misdemeanor possession of a small amount of marijuana be supported by laboratory tests. And we conclude that there is sufficient evidence to establish that appellant possessed marijuana. A witness saw appellant smoking a substance and passing the substance around between pinched fingers. Further, a substance that smelled like marijuana was found in one of the boy’s shoes. The assistant principal and liaison officer testi-Red at the adjudication hearing and described the substance as a “joint.” Moreover, the officer testified that appellant smelled of marijuana and that appellant’s eyes were bloodshot and watery. Finally, both the assistant principal and liaison officer testified that appellant admitted to smoking marijuana. Thus, the circumstantial evidence, coupled with appellant’s admission, is sufficient to establish that appellant at one point recently possessed the substance found in the shoe and that this substance was marijuana.

II.

Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ullland Bros., 549 N.W.2d 889, 892 (Minn.1996).

Initially, we note that appellant has already completed his inpatient treatment so there is no relief that may be granted to him. But given the time frame for appeals, it would be difficult for parties to complete the appeal process prior to a child completing a short-term inpatient program. And since this is an issue capable of repetition yet evading review, we address the issue despite the fact that it is moot as to appellant. See In re McCaskill, 603 N.W.2d 326, 328 (Minn.1999).

Because one of appellant’s two prior controlled substance offenses resulted in a diversion, appellant did not qualify for inpatient treatment. Minn.Stat. § 260B.235, subd. 6 (2000), requires

a third or subsequent finding by the court pursuant to an admission in court or after trial that a child has committed a * * * controlled substance offense

before a court may order a child to participate in an inpatient treatment program. But a child who has agreed to a pretrial diversion has not admitted in court or been found after trial to have committed a controlled substance offense. Rather, pretrial diversion is defined as

the decision of a prosecutor to refer an offender to a diversion program on condition that the delinquency petition against the offender will be dismissed or the petition will not be filed after a specified period of time if the offender successfully completes the program.

Minn.Stat. § 388.24, subd. 1(2) (2000). Therefore a diversion involves a deal between the prosecutor and the offender where the prosecutor either dismisses the charges or does not bring any charges on the condition that the offender successfully completes a diversion program. This type of agreement does not require an offender to admit in court or after trial to a controlled substance offense. In fact, a primary purpose of the “pretrial diversion” program is to avoid court and a trial altogether.

Thus, the district court erred in ordering appellant to participate in an inpatient program. The predispositional investigation conducted on appellant revealed only two controlled substance entries for his prior record, and one of those entries was characterized as a diversion. Because appellant’s adjudication in this case would have been only appellant’s second “admission in court or [finding] after trial” of a controlled substance offense, the district court was not authorized to order inpatient treatment.

DECISION

Sufficient evidence existed to support appellant’s adjudication for possession of a small amount of marijuana. But the district court erred in ordering appellant to participate in an inpatient treatment program because appellant’s prior diversion should not have counted as one of the three required controlled substance offenses needed before a court may order a child to undergo inpatient treatment.

Affirmed in part and reversed in part.


author: RANDALL, Judge.

text:
    In the Matter of Jesse H. EVJEN, Applicant, and Flatwater Fleet, Inc., Petitioner, Commissioner of Economic Security, Respondent.
    No. C0-02-1240.
    Court of Appeals of Minnesota.
    Nov. 19, 2002.
    Les Evjen, Saginaw, MN, pro se applicant.
    Flatwater Fleet, Inc., Saginaw, MN, petitioner.
    Linda A. Holmes, Department of Economic Security, St. Paul, MN.
    Considered at Special Term and decided by RANDALL, Presiding Judge, HALBROOKS, Judge, and HUDSON, Judge.
   SPECIAL TERM OPINION

RANDALL, Judge.

FACTS

Jesse H. Evjen established a benefit account with the Minnesota Department of Economic Security. On June 24, 2002, the representative of the Commissioner of Economic Security issued a decision stating that the wage credits earned by Jesse H. Evjen may not be used for benefit purposes until after he has collected four times his weekly benefit amount. The basis for the ruling is that Jesse H. Evjen, together with his parents, has an ownership interest of 25% or more in the employer, Flatwater Fleet, Inc.

On July 24, 2002, a. petition was filed with the clerk of the appellate courts for a writ of certiorari to review the June -24 decision. The petition is signed by Les Evjen, father of Jesse H. Evjen and president of Flatwater Fleet. Jesse H. Evjen did not sign the petition. No proposed writ of certiorari was filed with the petition, and the clerk of the appellate courts did not issue a writ.

Because Les Evjen is not a licensed attorney, this-court questioned whether he is authorized to file a certiorari appeal on behalf of either Jesse H. Evjen or Flatwa-ter Fleet. The commissioner submitted a memorandum, and Les Evjen and Jesse H. Evjen submitted a joint memorandum. On August 8, Les Evjen and Jesse H. Evjen served and filed a new petition for a writ of certiorari that is signed by both Les Evjen and Jesse H. Evjen.

DECISION

Unemployed individuals who meet the statutory requirements are entitled to receive unemployment benefits. Minn. Stat. § 268.069, subd. 1 (2000). The statute sets out an administrative procedure for appeal by an aggrieved applicant or employer of the commissioner’s original determination regarding disqualification or eligibility for benefits. If the commissioner’s original determination is timely appealed, a de novo evidentiary hearing is held before an unemployment law judge. Minn.Stat. § 268.105, subd. 1 (2000). The unemployment law judge’s decision may be appealed for de novo review by the commissioner or an authorized representative. Id., subd. 2. In the proceedings before the unemployment law judge and the appeal to the commissioner, the applicant or involved employer may be represented by any agent. Id., subd. 6.

An aggrieved applicant or employer may obtain judicial review of the commissioner’s decision by filing a petition for a writ of certiorari with the court of appeals and serving a copy of the petition upon the commissioner and any other involved party. Id., subd. 7(a) (Supp.2001). The petition for the writ must be fiied and served within 30 calendar days after the mailing of the commissioner’s decision. Id. Three days are added to the statutory period to allow for mailing of the commissioner’s decision. Kenzie v. Dalco Corp., 309 Minn. 495, 497, 245 N.W.2d 207, 208 (1976). The appeal period in this case expired on Monday, July 29, which was 33 days after the commissioner’s decision was mailed on June 24. See Minn. R. Civ.App. P. 126.01 (incorporating Minn. R. Civ. P. 6.01).

Although an applicant or employer may be represented by any agent in the administrative proceedings, certiorari review of the commissioner’s decision is a proceeding in a court of law.' It is unlawful for any person, except members of the bar of Minnesotá admitted and licensed to practice as attorneys at law, to appear as an attorney in any action or proceeding in any court in this state, in other than á representative capacity, except personally as a party. Minn.Stat. § 481.02, subd. 1 (2000). The legislature is authorized to determine who may or may not be prosecuted for the unauthorized practice of law, but the power to determine who may properly practice law before the courts of this state is vested solely in the judiciary. Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 755 (Minn.1992). For the protection of the public, our supreme court limits the practice of law to licensed attorneys. In re Conservatorship of Riebel, 625 N.W.2d 480, 481 (Minn.2001).

As a nonlawyer, Les Evjen is not entitled to file a certiorari appeal on behalf of either Jesse H. Evjen or Flatwater Fleet, Inc. See id. at 483 (holding that a power of attorney does not authorize a nonlawyer to practice law on behalf of the principal); Turnham, 486 N.W.2d at 754 (holding that a corporation may not make an appearance in district court unless it is represented by counsel). Therefore, the filing and service of the petition for the writ of certiorari that was signed only by Les Evjen did not invoke this court’s jurisdiction.

Jesse H. Evjen signed a new petition for a writ of certiorari that was filed and served on August 8. This petition does not authorize certiorari review, because it was not filed and served until after the appeal period expired. See Minn. R. Civ.App. P. 126.02 (providing that appellate court may not extend time prescribed by law for securing review of administrative agency decision); Harms v. Oak Meadows, 619 N.W.2d 201, 203 (Minn.2000) (holding that appellate review of commissioner’s decision is allowed only if petition for writ is timely served on proper parties). Because the petition signed by Les Evjen was unauthorized and the petition signed by Jesse H. Evjen was not timely served and filed, we must dismiss this appeal.

Writ of certiorari discharged and appeal dismissed.


author: KLAPHAKE, Judge.

text:
    Gerri KUECHLE, Respondent, v. LIFE’S COMPANION P.C.A., INC., et al., Appellants.
    No. C9-02-233.
    Court of Appeals of Minnesota.
    Nov. 19, 2002.

      Clair Schaff, Connor, Satre & Schaff, L.L.P., Minneapolis, MN, for respondent.

      Kurt B. Glaser, Kurt B. Glaser and Associates, Minneapolis, MN, for appellants.
    Considered and decided by SHUMAKER, Presiding Judge, SCHUMACHER, Judge, and KLAPHAKE, Judge.
   OPINION

KLAPHAKE, Judge.

Respondent Geni Keuchle brought claims related to her wrongful employment termination against appellants Donna Wilson and Marilyn Lorn, owners of appellant Life’s Companion P.C.A., Inc., based on the termination of her employment one month after she filed a disability discrimination claim. The district court found for respondent, after a bench trial, on claims of defamation, disability discrimination under the American with Disabilities Act (ADA), and reprisal under the Minnesota Human Rights Act (MHRA).

Because we conclude the district court did not abuse its discretion and the record and law support its conclusions, we affirm the district court on the defamation and reprisal issues. Further, because the district court properly and logically interpreted Sutton v. United Air Lines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), we conclude that respondent is a qualified individual under the ADA and affirm the district court on that issue.

FACTS

Appellants employed respondent as a nurse in a home health care business. In 1983, respondent was diagnosed with panic disorder with agoraphobia, causing her to fear leaving her home and to avoid traveling. Respondent was in remission until 1996, when symptoms resurfaced.

Respondent sought treatment from a number of psychologists and psychiatrists, but declined to take the medication they recommended out of fear of addiction. Instead, respondent took Fridays off during the winter months, forcing herself to go to public places during the day when fewer people were around, in an effort to become acclimated to leaving her home. Appellants initially granted respondent’s request for time off, but later took away the accommodation. Although appellants were aware of respondent’s disability when she requested Fridays off, they did not inquire into her medical condition or possible accommodations. Appellants also informed respondent that she had to work full time.

In February 1998, respondent asked to return to her flexible schedule, but appellants demanded that she work full time or be on-call. Respondent requested the accommodation a second time, including a letter of support from her doctor, and a third time, but received no response from appellants. She made two more written requests, to which appellants’ attorney replied with a letter advising her to seek a professional assessment of her condition and informing her that her new work hours would be 8:30 a.m. to 12:30 p.m.

Respondent filed a disability discrimination claim on April 15, 1998, which reached appellants on April 21,1998. At 12:15 p.m. on May 12, 1998, the main office received a phone call from a father who could not reach the care provider assigned to meet his disabled son at his noon school bus. A co-worker was sent to the bus to meet the child. Before respondent’s supervisor left at approximately 12:15 p.m., she asked respondent, who was alone in the office, if she would be around for a few minutes, and if so, could she ask the missing care provider to call the father. Respondent left at 12:35 p.m., missing the call from the care provider that came in at 12:39 p.m. That afternoon, appellants met with respondent’s supervisor and a co-worker to discuss what happened. Without talking with respondent, appellants decided to terminate her employment. Appellants sent a termination letter to respondent stating that she disobeyed a direct order to stay until the care provider called and that she abandoned a vulnerable client. Appellants told respondent they had no choice but to report the incident to the Minnesota Board of Nursing (board), although they never did.

Respondent communicated the reason for her termination to a potential employer during a job interview, repeating the statements in the termination letter. Although not asked the reason for her termination, respondent felt compelled to disclose it because she thought that appellants had reported her to the board. Respondent sued appellant for defamation, disability discrimination, and reprisal. The district court found for respondent and awarded $22,722.16 in damages and $100,229.06 in attorney fees.

ISSUES

1. Did the district court err in applying the law regarding opinion and substantial truth?

2. Did the district court err in applying the law regarding compelled selfpublication?

3. Did the district court err in applying the law regarding an employer’s qualified privilege to make potentially defamatory statements?

4. Is respondent a qualified individual under the ADA?

5. Did the district court err in finding reprisal under the MHRA?

ANALYSIS

I.

Appellants argue that their statements that respondent disobeyed a direct order and abandoned a vulnerable client are true, offering a complete defense to defamation or, in the alternative, that the statements were substantially true or were opinion. Appellants contend that respondent’s supervisor asked respondent to stay until she received the phone call and that whether it was a direct order or a request does not make appellants’ accusation false. We disagree.

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the district court to judge the credibility of the witness. Minn. R. Civ. P. 52.01. Generally, the truth or falsity of a statement is inherently within the province of a jury. Lewis v. Equitable Life Assur. Soc’y, 389 N.W.2d 876, 889 (Minn.1986).

The elements of defamation require the plaintiff to prove (1) that the statement was false; (2) that it was communicated to someone besides the plaintiff; and (3) that it tended to harm the plaintiffs reputation and lower him in the estimation of the community. Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn.1994). Imputations concerning one’s business, trade, or profession are actionable per se, without proof of actual damages. Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn.1977). A plaintiff must satisfy the remaining elements to succeed in a defamation action. Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn.App.1989), review denied (Minn. Feb. 9, 1990).

Here, appellants sent respondent a termination letter stating:

Today you were given a direct order by Tricia Rhode to stay at work to assure the needs of a 5 and a half year old child. You left work and locked the office without assuring that the client’s needs were attended to. You have abandoned a client and neglected your duties. We have no choice but to take action and report this incident to the Nurse’s Board.

[T]rue statements, however disparaging, are not actionable. Stuempges v. Parke, Davis Co., 297 N.W.2d 252, 255 (Minn.1980). The truth must go not only to the accuracy of the statement, but its underlying implications as well. Lewis, 389 N.W.2d at 889. Minor inaccuracies and details are not significant if the statement is true in substance. Jadwin v. Minneapolis Star Tribune Co., 390 N.W.2d 437, 441 (Minn.App.1986). A statement will be considered substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced. Id. (citation' omitted).

The record shows that although appellants claim respondent defied a direct order, respondents co-workers and supervisor testified that she was not given a direct order. Rather, she was asked if she would be around for a few minutes and, if so, could she tell the PCA to go to the clients house. The difference between an order and an inquiry of whether respondent would be around for a few minutes is greater than a minor inaccuracy and changes the underlying implications of whether respondent was disobedient and the urgency of the situation. The record indicates that the situation was not urgent, but was under control, and the child was met at the bus stop by a co-worker. We conclude that, based on the record, the district courts findings were not clearly erroneous.

II.

Appellants argue that the district court incorrectly found that respondent was compelled to self-publish the defamatory statements. We disagree.

Generally, where a defendant communicates a statement to a plaintiff, who then communicates it to a third party, there is no publication. Lewis, 389 N.W.2d at 886. The publication element can be met, however, if the plaintiff is compelled to publish the defamatory statement to a third person and if it was foreseeable to the defendant that the plaintiff would be so compelled. Id. at 888. In recognizing the doctrine of compelled self-publication, the supreme court stated:

We acknowledge that recognition of this doctrine provides a significant new basis for maintaining a cause of action for defamation and, as such, it should be cautiously applied. However, ■ when properly applied, it need not substantially broaden the scope of liability for defamation. The concept of compelled self-publication does no more than hold the originator of the defamatory statement liable for damages caused by the statement where the originator knows, or should know, of circumstances whereby the defamed person has no reasonable means of avoiding publication of the statement or avoiding the resulting damages; in other words, in cases where the defamed person was compelled to publish the statement.

Id.

Here, the district court reasoned that because respondent was told that appellants had reported her action to the board, she had no reasonable means to avoid voluntarily self-publishing the statement, even- though her potential employers did not directly ask her the reason for her termination. We agree. Because respondent believed that potential employers knew or would find out about the state-raent, she was compelled to self-publish so that she could defend her professional reputation. The district court did not err in finding that respondent had been compelled to self-publish the defamatory statements.

III.

Appellants argue that they have a qualified privilege to make the defamatory statements and are therefore immune from liability. We disagree.

The initial determination of whether a statement is privileged is a question of law for the district court to determine and is subject to de novo review. Lewis, 389 N.W.2d at 890. Even if an untrue defamatory statement is published, there will be no liability if the statement is conditionally privileged and the privilege is not abused. Id. at 889. For a communication to be privileged, it must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. Stuempges, 297 N.W.2d at 256-57 (citation omitted); see Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 380 (Minn.1990).

As appellants note, investigatory statements are generally privileged:

Communications between an employers agents made in the course of investigating or punishing employee misconduct are made upon a proper occasion and for a proper purpose, as the employer has an important interest in protecting itself and the public against dishonest or otherwise harmful employees.

McBride v. Sears, Roebuck Co., 306 Minn. 93, 97, 235 N.W.2d 371, 374 (1975); see Lewis, 389 N.W.2d at 890 (recognizing qualified privilege applies to statements regarding employees discharge, because of public interest that reasons be available to both discharged employee and prospective employers; without privilege, employers may not inform employees of reasons for discharge). But the statements must be made in good faith. Ferrell v. Cross, 557 N.W.2d 560, 566 (Minn.1997). The employer cannot simply rely on accusations made by other employees or on secondhand hearsay with no identified source. Wirig, 461 N.W.2d at 380-81.

Here, appellants argue that the statements were made during the investigation or in response to employee interviews. But the record shows that appellants did not conduct a thorough investigation, failed to interview respondent, and ignored the supervisor’s statement that she made a request, rather than gave a direct order. Cox v. Crown CoCo, Inc., 544 N.W.2d 490, 498 (Minn.App.1996) (concluding there were no reasonable or probable grounds for the defamatory statements because the employer did not investigate her suspicions or confront the employee with her accusations before she made the defamatory statements). Because of the cursory nature of appellants’ actions, we conclude the district court properly found they are not entitled to a privilege. Where there is no privilege, there is no need for respondent to prove malice, contrary to appellants’ assertions. See Stuempges, 297 N.W.2d at 257.

IV.

Appellants argue that respondent is not a qualified individual under the ADA and the MHRA because, if medicated, respondent would not suffer from the symptoms of agoraphobia. We disagree. Because this is a question of statutory construction, we conduct a de novo review. Lee v. Hunt, 642 N.W.2d 57, 59 (Minn.App.2002).

In 1990, Congress enacted the ADA to combat the discrimination persons with disabilities face due to myths, fears, and stereotypes, “[individuals with disabilities are a discrete and insular minority * * * subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society.” 42 U.S.C. § 12101(a)(7) (1994). Under the ADA, “disability” means:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

42 U.S.C. § 12102(2) (1994).

The United States Supreme Court has found that persons are not to be evaluated in their hypothetical, uncorrected state when determining if a person has a disability under the ADA. Sutton v. United Air Lines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The Court went on to state that the Equal Employment Opportunity Commission’s approach would require courts and employers to speculate about a person’s condition and would, in many cases, force them to make a disability determination based- on general information about how an uncorrected impairment usually affects individuals, rather than on the individual’s actual condition.

The use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting.

Id. at 488, 119 S.Ct. at 2149 (emphasis in original).

Sutton emphasizes current, actual limitations. Applying the reasoning of Sutton, courts must not speculate on a party’s condition absent mitigating devices; conversely, courts must not speculate on the ameliorative effect a mitigating device could have on a party not currently employing it. The court properly focused on respondent’s present state, rather than speculating on what that state could be with medication.

Appellants cite Spades v. City of Walnut Ridge, 186 F.3d 897 (8th Cir.1999), as support for their proposition. In Spades, the Eighth Circuit held that under Sutton, a determination of whether depression is a disability must be made with reference to any mitigating measures the employee takes. Id. at 900. “A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity.” Id. (citing Sutton, 527 U.S. at 482-83, 119 S.Ct. at 2146-47). Spades is not controlling law. Moreover, unlike Spades, respondent’s disability was not corrected by medication; thus, her disability continues to limit major life activities. We conclude, therefore, that Spades is distinguishable from the issue at hand, and the district court correctly concluded that respondent was a qualified person under the ADA.

y.

Appellants argue that the district court erred by relying on Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428 (Minn.1983), rather than on Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir.2002), in finding reprisal under the MHRA. We disagree.

The MHRA forbids reprisal against an employee who opposes a practice forbidden under the Act. Minn.Stat. § 363.03, subd. 7(1) (1998). To establish reprisal, the employee must show statutorily protected conduct, an adverse-employment action by the employer, and a causal connection between the two. Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn.1995). Protected conduct includes both opposing a discriminatory practice and filing a claim. Minn.Stat. § 363.03, subd. 7(1).

It is an unfair discriminatory practice for any * * * employer ⅜ * * to intentionally engage in any reprisal against any person because that person [pip-posed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter * * *.

Id.

Appellants argue that Hubbard is no longer good law because the Eighth Circuit stated “mere coincidences of timing” is not sufficient to show retaliatory discharge. Kipp, 280 F.3d at 897. Hubbard states that

the causal connection requirement may be demonstrated indirectly by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.

Hubbard, 330 N.W.2d at 445; see also Dietrich, 536 N.W.2d at 327. Hubbard is still valid law with regard to state law claims.

Appellants argue that respondent was terminated for failing to follow a direct order and failing to safeguard a vulnerable child and not because she filed a discrimination claim. The record does not support appellants’ claims of direct disobedience or endangerment. We conclude that the district court did not err in finding that appellants’ given reason for terminating respondent was pretextual.

DECISION

The district court’s findings and conclusions are supported by the record, and properly apply the controlling law of this jurisdiction. We therefore affirm.

Affirmed.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, City of Minnetonka, Respondents, v. Richard Howard STERN, Appellant.
    No. C9-02-264.
    Court of Appeals of Minnesota.
    Nov. 19, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Rolf A. Sponheim, City of Minnetonka Attorney, Desyl L. Peterson, Assistant City Attorney, Minnetonka, MN, for respondent.
    Jay Quam, Crystal M. Ovsak, Fredrik-son & Bryon, P.A., Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant Richard Howard Stern challenges his misdemeanor conviction of possessing a fictitious driver’s license. Stern argues that because a state statute defines a driver’s “license” as an operator’s license issued by the State of Minnesota, Stern’s possession of a purported Illinois license with an incorrect birth date did not constitute the illegal possession of a fictitious driver’s license. Because the plain language of the statute clearly includes all licenses, including those purportedly from another state, we affirm.

FACTS

On May 21, 2001, Stern was stopped by a Minnetonka police officer for speeding. After a request for his driver’s license, Stern opened his wallet and gave the officer his Minnesota driver’s license. The officer then saw, in another part of the wallet, what appeared to be another driver’s license in Stern’s name. The officer questioned Stern about the additional license, and Stern handed the officer what appeared to be a driver’s license issued by the State of Illinois. Stern told the officer that the latter card was his “fake.” The license purported to be from Illinois and bore a different birth date than that on Stern’s Minnesota license. The officer cited Stern for possession of a “fictitious driver’s license” in violation of Minn.Stat. § 171.22, subd. 1(1) (2000).

Stern moved to dismiss the complaint, arguing that the statute does not prohibit possession of a fictitious out-of-state driver’s license. The district court denied the motion, held a trial by stipulation, and found Stern guilty. This appeal follows.

ISSUE

Does the possession of a fictitious driver’s license purportedly issued by another state violate Minn.Stat. § 171.22, subd. 1(1) (2000)?

ANALYSIS

The interpretation of a statute is a legal question subject to de novo review. State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999). When there are no facts in dispute, the court of appeals “need not give any weight to the trial court’s construction of a statute.” State v. Wilson, 524 N.W.2d 271, 273 (Minn.App.1994).

Stern argues that possession of a fictitious out-of-state driver’s license does not violate the plain language of Minn.Stat. § 171.22, subd. 1(1) (2000), which states:

With regard to any driver’s license, including a commercial driver’s license, it shall be unlawful for any person: (1) to display, cause or permit to be displayed, or have in possession, any fictitious or fraudulently altered driver's license or Minnesota identification card ⅜ * *.

(Emphasis added). While the language “any driver’s license” appears to be broad, Stern contends that its scope is limited by Minn.Stat. § 171.01, subd. 14 (2000), which defines a “license” as:

any operator’s license or any other license or permit to operate a motor vehicle issued or issuable under the laws of this state by the commissioner of public safety * * *.

(Emphasis added). Because a license purportedly issued under the authority of another state (e.g., Illinois) is not issued or issuable by the State of Minnesota, Stern argues that section 171.22 does not prohibit the possession of a fictitious out-of-state driver’s license. Stern also contends that this interpretation of the statute is not absurd because it would continue to prohibit altered licenses, state-issued licenses based upon falsely-provided information, and fictitious Minnesota licenses generated by someone other than the state. We disagree.

The plain language of section 171.22,prohibiting “any fictitious or fraudulently altered driver’s license,” clearly includes the possession of a fictitious out-of-state driver’s license. A statute is ambiguous only when its language is subject to more than one reasonable interpretation. Amaral v. St. Cloud Hosp. 598 N.W.2d 379, 384 (Minn.1999). See also Minn.Stat. § 645.08(1) (2000) (requiring statutory words and phrases to be interpreted according to common usage). The definitions in section 171.01 need not be consulted if “the language or context [in the chapter] clearly indicates that a different meaning is intended * * Minn.Stat. § 171.01, subd. 1 (2000). We are not persuaded by Stern’s argument that the legislature may have intended the word “any” to refer to any of the four types of licenses issued by the Minnesota Commissioner of Public Safety. Because the statute includes the term “any” driver’s license, section 171.22 prohibits the broadest group of fictitious drivers’ licenses, including out-of-state licenses. See Minn.Stat. § 171.22, subd. 1(1).

We next consider Stern’s argument that in section 171.22, subd. 1(1), the legislature may have specified “Minnesota” identification cards because the term “identification cards” is not otherwise defined in Chapter 171, while “license” is defined by Minn. Stat. § 171.01. Again, we are not persuaded by this argument. The limitation to “Minnesota” identification cards in section 171.22,subd. 1(1) merely contrasts the broad scope of the term “any” driver’s license found earlier in the sentence.

The laws should be construed to avoid an absurd or unreasonable result. Minn. Stat. § 645.17(1) (2000). It would be unreasonable to determine that section 171.22,subd. 1(1) applies only to “fictitious” licenses issued or issuable by the commissioner of public safety, when the commissioner does not issue fictitious licenses. If, as Stern suggests, the statute includes only licenses issued or issuable by the commissioner of public safety, the result would be to eliminate all fictitious licenses from the purview of the statute. This is clearly an unreasonable result.

DECISION

Because the plain language of the term “any license” in Minn.Stat. § 171.22 encompasses all drivers’ licenses, not merely those issued or purported to be issued by the State of Minnesota, the statute extends to appellant s possession of a fictitious Illinois license.

Affirmed.