author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. James John JORGENSEN, Appellant.
    No. C8-02-322.
    Supreme Court of Minnesota.
    May 1, 2003.

      John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

Appellant James John Jorgensen was found guilty of one count of first-degree premeditated murder, in violation of Minn. Stat. § 609.185(a)(1) (2002), after a jury trial in Hennepin County District Court, for the death of his fiancée, Shelby Davis. He was found not guilty of one count of second-degree intentional murder. Jor-gensen was sentenced to life imprisonment and ordered to pay restitution. In this direct appeal, Jorgensen challenges the legality of the search that resulted in the discovery of Davis’s body. He also claims that he was denied effective assistance of trial counsel when his counsel, without his consent, repeatedly told the jury during his trial that, while he intended to kill Davis, the killing was not premeditated. He further claims that the trial court abused its discretion in refusing to grant a mistrial after the state examined a police investigator regarding whether Jorgensen had a history of violence. Finally, Jorgen-sen raises a number of pro se issues. We affirm.

Jorgensen and Davis met in 1991, began dating, and started living together shortly thereafter. Jorgensen was in the trucking business and Davis was a graphic design artist. In 1996, they built a home together in Minnetrista, Minnesota. Evidently, before they met, Jorgensen was a cocaine user. At some point after meeting Davis, he stopped using cocaine, but then started again in 1997. At the time of Davis’s murder, Jorgensen was smoking crack cocaine daily. His addiction caused him to lose his business and steal money from Davis, as well as sell their personal property in order to support his cocaine habit.

On Thursday, March 22, 2001, after Davis left for work, Jorgensen went to a pawn shop and pawned a computer and stereo speakers from their home. He bought crack cocaine with the proceeds. Jorgensen smoked the crack as he drove home and, once at home, continued smoking it for the remainder of the afternoon. Expecting Davis to be upset with him for selling their possessions to buy drugs, Jor-gensen hid in the basement behind the stairs before Davis arrived home. When Davis arrived home at approximately 7:30 p.m., Jorgensen could hear her walking around the house calling his name. By the tone of her voice, he knew she was angry with him, and he continued to hide. According to Jorgensen, he grabbed an antique sewing bobbin made of wood with brass ends when he “heard her coming down the stairs and hollering my name and sounding upset.” He struck her once on the head with the bobbin and she fell to the ground. Jorgensen then straddled her with his knees and, as she apparently tried to defend herself, he hit her two more times with the bobbin, knocking her unconscious. Finally, Jorgensen placed his hand over Davis’s mouth and nose for approximately two minutes until she stopped breathing. After she stopped breathing, Jorgensen laid on Davis’s body for half an hour, cleaned himself up, then wrapped her body in blankets and carried it into the garage. He also took the diamond engagement ring that he had given her off of her finger. He spent the next several days using cocaine that he purchased with proceeds from pawning the engagement ring for $400, forging Davis’s checks for approximately $1,000, and selling his car for $200. He was arrested during a drug raid in Minneapolis on March 31.

A. Discovery of Davis’s Body

On Monday, March 26, Jorgensen called Davis’s employer and indicated that Davis would not be coming to work that day because she had gone to North Dakota to take care of a sick aunt. When Davis did not show up for work on Tuesday, March 27, her supervisor contacted Davis’s mother to find out why Davis had not reported to work. Upon learning that Jorgensen had said that Davis was in North Dakota caring for a sick aunt, Davis’s family became concerned for Davis’s welfare because she did not have an aunt in North Dakota. As a result of that concern, Davis’s family contacted the Minnetrista Police Department and reported her missing. That same day, the police began conducting welfare checks at the home shared by Davis and Jorgensen in an attempt to establish contact with someone knowing of Davis’s welfare, but never found anyone home.

On the evening of March 28, at approximately 7:00 p.m., Sharon Strickland, Davis’s sister, went to the house in search of Davis. According to Strickland’s testimony, she went to the house to obtain information about Davis’s disappearance. Before going to the house, Strickland talked with her mother, her son, her attorney, and one of her friends about breaking into the house. Her son, who had earlier replaced the lock on the house’s garage door, told her that door would be the easiest to use for the break-in. When she arrived at the house, Strickland waited to see if anyone would come home and did not break into the house immediately.

At approximately 9:30 p.m., two Minne-trista police officers arrived at the house to check on Davis’s welfare and found Strickland sitting in her car. When asked who she was and why she was at the house, Strickland explained that she was Davis’s sister, that she was concerned about Davis, and that she intended to go into the house because she thought something was wrong. The officers conducted the welfare check, found no one home, and told Strickland there was little more they could do. Strickland told the officers that she was going into the house anyway. In response, the officers informed Strickland that they could not be a part of any search, but that they would continue to investigate. Strickland told the police that she was going to break into the house at the risk of being arrested and charged with the break-in. Because Strickland indicated that she was concerned for her safety, the officers stood by as she forced open the garage service door.

Strickland was only able to get the door partially open because it was blocked by something under a blanket. Strickland asked the officers to remove the blanket, but they told her they could not help. They did agree to look under the blanket if Strickland lifted it. Looking under the blanket, the officers discovered Davis’s body.

B.Confession

Jorgensen was arrested on March 31 and gave a statement to the police detailing his involvement in Davis’s death. That statement was extremely incriminating and included the following discussion about his thoughts as he suffocated Davis.

Q: And was your intention as you described before to keep her from suffering in that you had already ah hurt her head pretty severely in your estimation?
A: Yes, I just wanted her to be peaceful and didn’t want her to have to suffer with any kind of brain damage that it might have caused her.
Q: Did you also fear that if you did not kill her, that she would contact the police about your assault on her?
A: Ah, yes, I did fear that.

At trial, Jorgensen testified in some detail about how he killed Davis. He also testified that the statement he gave to the police was truthful.

C. Counsel’s Concession of Guilt at Trial

In his opening statement, Jorgensen’s defense counsel twice stated that Jorgen-sen took Davis’s life and that the only issue before the jury was whether he acted with premeditation. He told the jury that he was not going to argue that drugs were an excuse for Jorgensen’s behavior. He encouraged the jury to find Jorgensen guilty only of second-degree intentional murder. In his closing argument, defense counsel stated at least twice that Jorgen-sen intentionally killed Davis, but argued that the killing was not premeditated.

D. References at Trial to Jorgensen’s Violent History

During the state’s direct examination of the chief officer investigating Davis’s death, the following took place:

State: In the course of your investigation of this matter, did you have occasion to check to see whether James Jorgensen had ever been accused of or arrested of a violent crime?
Defense counsel: Objection, Your Hon- or.
Court: Sustained.
State: Did you, yourself, ever know James Jorgensen to be violent?
Defense counsel: Same objection, Your Honor.
Court: Sustained.

Shortly thereafter, Jorgensen’s defense counsel approached the trial court seeking a mistrial. Defense counsel argued that a mistrial was required because the two questions relating to Jorgensen’á history of violence implied that Jorgensen had a history of domestic violence and because the state had agreed before trial began that there would be no evidence presented regarding Jorgensen’s history as it related to violence. The court chastised the prosecutor, who in response explained that the questions were asked to raise doubt as to Jorgensen’s intoxication defense by establishing that, even though Jorgensen had been using cocaine for years, he had never been violent before. The court denied the request for a mistrial, but did require that the state put the officer back on the witness stand and have him testify that Jor-gensen had “never been accused, convicted of any violent crimes in his life” in order to dispel the impression left with the jury that Jorgensen had a history of violence. When the officer returned to the witness stand, the following question and answer were recorded:

State: Detective, just one last question. Are you able to tell, based on your investigation, whether Mr. Jorgensen, the defendant in this matter, other than this ease, has ever been charged with or convicted of a violent crime?
Officer: Not that I have found.

I.

The first question we address is whether the discovery of Davis’s body was the result of a warrantless search in violation of the Fourth Amendment to the United States Constitution. The Fourth Amendment applies to searches by a private individual acting “as an instrument or agent of the [government.” Skinner v. Ry. Labor Executives Ass’n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Under the test this court adopted in State v. Buswell, we determine whether a private individual acts as an instrument or agent of the government in conducting a search by examining “(1) whether the government knew of and acquiesced in the search and (2) whether the search was conducted to assist law enforcement efforts or to further the private party’s own ends.” 460 N.W.2d 614, 618 (Minn.1990) (citing United States v. Walther, 652 F.2d 788, 792 (9th Cir.1981)). If the government does not know of and acquiesce in the search, the search cannot be attributed to the government and the inquiry ends. See id. at 620. If the government knew of and acquiesced in the search, then we consider the purpose of the search, i.e., whether it was to assist law enforcement or for personal reasons. In the end, the determination of whether the private person acted as a government instrument or agent is a fact question to be determined by the trial court. Id. at 618. Here, the trial court found that the government acquiesced in the search but that Strickland was acting out of concern for her sister’s welfare and not as an agent of the state. We will not overturn that determination unless clearly erroneous. Id.

In this case, the Minnetrista police knew of the search because they were present when it took place and the trial court found that the government acquiesced in the search. While the state makes a number of arguments contending that the officers did not acquiesce in the search, we cannot, on the facts before us, conclude that the trial court’s determination was clearly erroneous. Mere acquiescence in the search does not automatically end our inquiry. We must proceed to the second prong of the Buswell test.

We know from the record that, other than standing by as Strickland broke into her sister’s house and looking under the blanket when Strickland lifted it, the Min-netrista police had no role in the search. They did not know that Strickland was going to be at the house, arrange for her to be there, or plan to meet her there. Nor did they encourage Strickland to break into the house. Indeed, on at least two occasions, the officers told Strickland that they could not be part of any search. It is clear from the record that Strickland was concerned about Davis’s disappearance and was planning to break into the house long before the police arrived. Before going to the house, she talked about breaking into the house with other family members, at least one friend, and her lawyer. It was her son who suggested that the garage service door would be the easiest point of entry. Further, after the officers conducted their welfare check and told Strickland that there was nothing more they could do, Strickland told them that she was going to break into the house even if it meant being subject to arrest for the illegal entry.

Based on our review of the record and the trial court’s findings, we cannot say that the trial court’s finding that Strickland was not acting as a government instrument or agent was clearly erroneous. That the Minnetrista police acquiesced in the search does not alter our conclusion. Other than the officers’ presence at the time Strickland broke into the house, they had no involvement in the search. As discussed above, they did not have any prior knowledge of Strickland’s planned break-in, did not encourage her to break in, and took no active part in the break-in itself. We conclude that the trial court’s finding that Strickland’s search of the house was for purely personal reasons was reasonable.

II.

We next address Jorgensen’s contention that he was denied effective assistance of counsel because his attorney conceded his guilt by telling the jury throughout his trial that he intended to kill Davis. Jor-gensen’s attorney’s strategy at trial was to concede that Jorgensen intended to kill Davis while at the same time attempting to convince the jury that the killing was without premeditation. This strategy was designed to increase credibility with the jury and to obtain an acquittal on the most serious charge against Jorgensen. Jor-gensen claims that he never consented to this strategy and claims that it was unreasonable in light of his intoxication defense. He also claims that he never admitted to intending to kill Davis. Indeed, in the addendum to Jorgensen’s pro se supplemental brief, Jorgensen claims:

During opening and closing arguments I was shocked to hear my [pjublic [defender Dan O’Brien state to the jury that: I intended to kill Shelby Davis, but it was not premeditated. Mr. O’Brien stated this more throughout my trial.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court adopted a two-prong test for evaluating ineffective-assistance-of-counsel claims. Under that test, a defendant must show that his counsel’s performance fell below an objective standard of reasonableness (the deficiency prong) and that, but for his counsel’s error, there is a reasonable probability that the outcome of his trial would have been different (the prejudice prong). Id. at 687-94, 104 S.Ct. 2052. We have held that, when counsel for a defendant admits a defendant’s guilt without the defendant’s consent, the counsel’s performance is deficient and prejudice is presumed. See Dukes v. State, 621 N.W.2d 246, 254 (Minn.2001); State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984). That is so because the decision to concede a defendant’s guilt is the defendant’s decision alone to make. Dukes, 621 N.W.2d at 254. The defendant is entitled to a new trial unless he acquiesces in the concession. See Dukes, 621 N.W.2d at 254. We have held that a defendant acquiesces when defense counsel uses the strategy of conceding the defendant’s guilt throughout trial and the defendant fails to object. See State v. Provost, 490 N.W.2d 93, 97 (Minn.1992). We have also held that the defendant acquiesces when admitting guilt was an “understandable” strategy, and the defendant was present at the time the concessions were made and admits that he understood that his guilt was being conceded, but did not object. State v. Pilcher, 472 N.W.2d 327, 337 (Minn.1991).

Here, the record indicates that Jor-gensen’s defense counsel’s concessions on the issue of intent began with the opening statement and continued throughout the remainder of the trial, including closing argument. There is nothing in the record that indicates that Jorgensen consented to this trial strategy; thus, unless Jorgensen acquiesced in his counsel’s concessions, he is entitled to a new trial.

Based on our review of the record, we are satisfied that Jorgensen knew and understood that his trial counsel was using the strategy of conceding his intent to kill Davis in an effort to avoid conviction on the first-degree murder charge while at the same time maintaining credibility, that the strategy was used throughout trial, and that Jorgensen never objected. On that basis, we conclude that Jorgensen acquiesced in the concessions made by his trial counsel. Because Jorgensen acquiesced in his defense counsel’s concessions, we conclude that he is not entitled to relief on this issue.

III.

Next, we consider whether the trial court erred in refusing to grant Jorgen-sen’s request for a mistrial. Jorgensen argues that the state’s examination of the chief investigating officer regarding whether Jorgensen had a propensity for violence was prejudicial to Jorgensen because it led the jury to reject the intoxication defense and convict Jorgensen based on character. We review a trial court’s denial of a motion seeking a mistrial for an abuse of discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn.1998).

In this case, defense counsel immediately objected to each of the offending questions and in each instance the trial court sustained the objection and no answer was given. After Jorgensen sought a mistrial, the prosecutor, when questioned by the court, explained that the questions were asked in order to cast doubt on Jorgen-sen’s intoxication defense by establishing through the officer’s response that Jorgen-sen had never become violent before despite years of drug use. The trial court denied the mistrial motion. However, because of lingering concerns that the jury might infer from the unanswered questions that Jorgensen had a propensity for violence, the trial court required the state to recall the officer to clarify that Jorgensen did not have a violent history. In addition, we note that the trial court instructed the jury at both the beginning and the end of Jorgensen’s trial that the jury was to disregard questions to which the trial court sustained objections. We believe that the trial court’s remedy of recalling the officer, coupled with the standard instruction given at the beginning and again at the end of trial, was sufficient to mitigate any harm caused by the prosecutor’s improper questions. Therefore, we conclude that the trial court did not abuse its discretion in denying Jorgensen’s mistrial motion.

IV.

Finally, Jorgensen raises a number of other issues in his pro se brief. Specifically, he makes a number of additional arguments as to why he received ineffective assistance from his trial counsel and claims that his confession was not voluntary. Based on our thorough review of the record, we conclude that Jorgensen’s trial counsel’s performance was not deficient. We further conclude that Jorgensen’s confession was voluntary.

Affirmed.

      . While we conclude that the trial court did not abuse its discretion in refusing to grant a mistrial, we are concerned by the prosecutor’s questions as to whether Jorgensen had a propensity for violence without first giving notice to the defense and seeking permission from the trial court as required by our rules. See State v. Bolte, 530 N.W.2d 191, 196-97 (Minn.1995). We are especially troubled given the agreement between the state and Jor-gensen's counsel, in the trial court’s presence, that no such questioning would take place.


source: Caselaw Access Project

author: MEYER, Justice.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Brad GRUNIG, Respondent.
    No. C0-01-1101.
    Supreme Court of Minnesota.
    May 1, 2003.
    Mike Hatch, Attorney General, James B. Early, Asst. Attorney General, St. Paul, MN, James R. Olson, Brown County Attorney, New Ulm, MN, for Appellant.
    Brad W. Colbert, Asst. Public Defender, St. Paul, MN, for Respondent.
   OPINION

MEYER, Justice.

This appeal presents a discrete question of law — whether the state waived issues of a caretaker’s actual or apparent authority to consent to a search assuming the state did not argue these issues to the district court and the issues were raised for the first time on appeal. The court of appeals held that the state waived them. We reverse.

Relatively few facts are necessary to analyze the issues presented in this case. Respondent, Brad Grunig, lived with Amy Herzog and her daughter in an dpartment in New Ulm, Minnesota. They rented a garage that was not attached to the apartment. Dale Wurtzberger was the caretaker of the apartment building.

After receiving a complaint about odors emanating from Grunig’s garage, Wurtz-berger informed the police on August 3, 2000. Wurtzberger asked Corporal Losin-ski to accompany him on an inspection of the garage, in an attempt to find out what was causing the strange odor. Losinski asked Wurtzberger if Wurtzberger had permission to enter the garage. Wurtz-berger responded that he could access the garage whenever he wanted. Wurtzber-ger had the key and opened the door. At the omnibus hearing, Wurtzberger admitted he did not know whether he had authority to enter the garage, and just assumed he did. He stated that on at least one other occasion he had opened Herzog’s garage outside Herzog’s presence, because she had locked her keys in the garage. Wurtzberger also stated that he does not go in and out of tenants’ garages unless asked.

Once inside the garage, Losinski noticed a strong odor and saw evidence that the garage was being used as a methamphetamine lab. Based on what Losinski saw in the garage, the police obtained a warrant to search the garage, the apartment, and Herzog’s car. All the materials necessary to make methamphetamine were present in the garage, including decongestant tablets, matchbooks, starter fluid, coffee filters, hot plates, and muriatic acid, although the police never discovered any finished methamphetamine. Officers arrested Grunig and Herzog and charged both with manufacturing and conspiring to manufacture methamphetamine. Based on a lack of evidence, the district court dismissed the count alleging Grunig had manufactured the drug.

At a joint omnibus hearing, both Grunig and Herzog attempted to suppress all evidence seized as a result of Losinski’s initial warrantless entry into the garage. Arguing against suppression, the state relied on a theory of public safety to justify the entry and also mentioned that the officer believed the caretaker had permission to enter the garage. The state did not include an apparent or actual authority argument in its written memorandum supplementing its oral argument. The district court denied both defendants’ motions to suppress, ruling that the search fell within an emergency or community caretaking exception, and also noted that “Mr. Wurtz-berger did indicate he had permission and later he testified he assumed he could go in the garage, but there was nothing in writing.” Herzog and Grunig were convicted in separate trials of the conspiracy charges. The court then sentenced Grunig to the presumptive sentence, seven years and two months in prison.

Grunig and Herzog filed separate appeals. See State v. Grunig, No. C0-01-1101, 2002 WL 1365632, at *2 (Minn.App. June 25, 2002); State v. Herzog, No. C3-01-802, 2002 WL 769215, at *2 (Minn.App. Apr. 30, 2002). Both alleged that the district court had erred in refusing to suppress the evidence. Grunig argued that the warrantless search was not justified by the emergency exception. In Grunig’s case, the court of appeals concluded that the district court should have suppressed the evidence obtained with the search warrant. Because the only evidence supporting Grunig’s conviction was seized as a result of the officer’s entry into the garage, the court of appeals reversed the conviction. The court held that the district court erred in finding the initial search met the community caretaker exception or emergency exception to the warrant requirement. Despite having requested supplemental briefs on the issue of actual or apparent authority, the court of appeals declined to address the apparent authority issue in Grunig’s case, ruling that the state had waived those arguments.

We accepted review of whether the state waived consideration of the issues of actual or apparent authority in Grunig’s case. We exercise de novo review when presented with a decision by the court of appeals not to address a legal issue. See In re Olson, 648 N.W.2d 226, 227-28 (Minn.2002).

The waiver rule is an administrative rule dictating that appellate courts will not decide issues that were not raised in the trial court. See Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). One purpose of the rule is to allow the trial court to correct any alleged errors before a jury verdict. See 24 C.J.S. Criminal Law at § 1682 (1989). Rule 29.04 of the Minnesota Rules of Criminal Procedure is an exception to the waiver rule that allows a “respondent, without filing a cross-appeal, to defend a decision or judgment on any ground that the law and record permit that would not expand the relief that has been granted to the respondent.” Minn. R.Crim. P. 29.04, subd. 6. We have cited Rule 29.04 in allowing respondents appearing before this court to raise alternative arguments. See, e.g., State v. Larson, 389 N.W.2d 872, 875 n. 5 (Minn.1986).

Federal and state jurisdictions have a similar exception to the waiver rule. In federal court, the United States Supreme Court has explicitly addressed this issue and refused to apply the waiver rule to appellees in both civil and criminal cases. See Thigpen v. Roberts, 468 U.S. 27, 29-30, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984) (ruling in a habeas corpus action that the Supreme Court “may affirm on any ground that the law and the record permit and that will not expand the relief granted below”); Smith v. Phillips, 455 U.S. 209, 215 n. 6, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (clarifying that respondent in a civil case could “defend the judgment below on any ground which the law and the record permit, provided the asserted ground would not expand the relief which has been granted”). Other state courts also allow appellees to argue new theories on appeal, and appellate courts to affirm on new grounds, as long as the law and record permits. See, e.g., People v. Koontz, 27 Cal.4th 1041, 119 Cal.Rptr.2d 859, 46 P.3d 335, 358 n. 4 (2002); State v. Kaleohano, 99 Hawai'i 370, 56 P.3d 138, 146 (2002); Ratliff v. State, 770 N.E.2d 807, 809 (Ind.2002); People v. Engelman, 434 Mich. 204, 453 N.W.2d 656, 665 n. 27 (1990); State v. Horn, 139 Wis.2d 473, 407 N.W.2d 854, 861-62 (1987).

In this case, the state’s desire to argue that Wurtzberger had actual or apparent authority to consent to the search of Gru-nig’s garage fits within Rule 29.04’s exception to the waiver rule. The state built a factual record with respect to the issue of apparent authority in the joint omnibus hearing. ■ The state raised the issue orally, and asked both Wurtzberger and Losin-ski questions related to Wurtzberger’s authority to enter Grunig’s garage. At the court of appeals, both the state and Grunig submitted supplemental briefs addressing Wurtzberger’s actual and apparent authority.

Grunig relies heavily on Garza v. State, 632 N.W.2d 633 (Minn.2001), in arguing that the state should not be able to defend the district court’s decision on an alternative legal argument. In Garza, the district court denied the defendant’s motion to suppress evidence seized in a search, rejecting Garza’s claim that the unannounced entry by police was unjustified. Id. at 636. On appeal, the state raised an alternative legal argument — the defendants lacked standing to contest the unannounced entry — to support the district court’s ruling. Id. at 637. The court of appeals considered the substantive issue of standing, and decided against the state, holding that defendants had standing to contest the entry. Id. This court affirmed the court of appeals, holding that the state had waived its right to raise the issue and noting that “the state failed to take advantage of its opportunity to build a factual record with respect to standing.” Id. Because the state had not established a factual record in Garza, it did not come within Rule 29.04’s exception to the waiver rule and Garza does not control our decision.

We conclude the court of appeals erred because it failed to apply Rule 29.04 and consider the state’s argument that Lo-sinski had actual or apparent authority to enter Grunig’s garage. A respondent can raise alternative arguments on appeal in defense of the underlying decision when there are sufficient facts in the record for the appellate court to consider the alternative theories, there is legal support for the arguments, and the alternative grounds would not expand the relief previously granted. Therefore, we remand to the court of appeals for reconsideration of Wurtzberger’s actual or apparent authority to consent to the search of the garage, consistent with this court’s recent decision in State v. Licari, 659 N.W.2d 243 (Minn.2003).

Reversed in part and remanded.

      . Herzog argued that the warrantless entry was not justified by an emergency, and additionally that it was not justified by Wurtzber-ger’s consent to the search. See Herzog, 2002 WL 769215, at *1.

      . Almost two months earlier a different panel of the court of appeals affirmed Herzog’s conviction based on Wurtzberger's apparent authority to enter the garage. See Herzog, 2002 WL 769215, at *1.

      . Herzog’s court of appeals panel affirmed her conviction on this apparent authority issue based on evidence developed by the state at the joint omnibus hearing. See Herzog, 2002 WL 769215, at *2.


author: ROBERT H. SCHUMACHER, Judge.

text:
    Anne STANTON, Respondent, v. MAZDA 2001 VIN 4F2YU08121KM57063, PLATE NO. GLE 228(MN) Date of Seizure: 09/09/01, Appellant.
    No. C3-02-1586.
    Court of Appeals of Minnesota.
    April 22, 2003.

      John A. Price III, Lakeville, MN, for respondent.
    Michael A. Fahey, Carver County Attorney, Robert G. Hendricks, Martha E. Mat-theis, Assistant County Attorneys, Chaska, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

The state appeals the district court’s ruling that respondent Anne Stanton had a bona fide security interest in her granddaughter’s vehicle that was seized by the state. We affirm.

FACTS

On May 8, 2001, Stanton co-signed on an installment loan for her granddaughter to purchase a 2001 Mazda automobile. The loan was guaranteed by Stanton’s savings account. Granddaughter wrote a letter to Stanton that same day pledging the vehicle as collateral for the loan. Neither party ever registered Stanton’s interest in the vehicle with the state.

On September 9, 2001, granddaughter was stopped and arrested for driving under the influence of alcohol. She had two prior driving while impaired violations within ten years and was charged with first-degree driving while impaired. She was also served with a notice of intent to forfeit the Mazda which she was driving at the time, as mandated by Minn.Stat. § 169A.63, subd. 6 (2002). The statute provides that a “motor vehicle is subject to forfeiture * * * if it was used in * * * conduct resulting in a designated license revocation.” Id. A designated license revocation includes a third impaired driving incident within a ten year period. Minn. Stat. § 169A.63 subd. 1(c) (2002).

Stanton filed a petition for judicial determination of forfeiture claiming she had a bona fide security interest in the vehicle. The district court agreed, finding that Stanton had a bona fide security interest in the vehicle. The state filed a motion for reconsideration, which was denied. This appeal followed.

ISSUE

Did Stanton have a bona fide interest in the vehicle under Minn.Stat. § 169A.63, subd. 7 if the interest was not perfected pursuant to Minn.Stat. § 168A.17?

ANALYSIS

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). The initial inquiry when interpreting a statute involves a determination as to whether the statute’s language is clear or ambiguous. American Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). “A statute is not ambiguous unless the language used is subject to more than one reasonable interpretation.” Id.

Minn.Stat. § 169A.63, subd. 7(b) provides:

A vehicle encumbered by a bona fide security interest * * * is subject to the interest of the secured party ⅜ * * unless the party * * * had knowledge of or consented to the act upon which the forfeiture is based.

Basic rules of statutory construction instruct that words and phrases are to be construed according to their plain and ordinary meaning. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980).

This court has defined the plain meaning of the phrase “bona fide” as “made in good faith without fraud or deceit,” or “in or with good faith; honesty, openly, and sincerely * * * real, actual, genuine, and not feigned.” Rogers v. Ponti-Peterson Post No. 1720, 495 N.W.2d 897, 901 (Minn.App.1993) (citations omitted). We conclude that Stanton had a bona fide security interest in the vehicle. Granddaughter sent Stanton a letter confirming that the vehicle was collateral for the loan. Stanton presented an affidavit in which she stated that the vehicle was collateral for granddaughter’s loan thus showing that she had a bona fide security interest in the vehicle. We find that the vehicle is subject to that interest pursuant to Minn.Stat. § 169A.63.

The state claims that because Stanton’s security interest was never perfected under Minn.Stat. .§ 168A.17, she does not have a bona fide security interest. That statute provides that

a security interest in a vehicle of a type for which a certificate of title is required is not valid against creditors of the owner or subsequent transferees or secured parties of the vehicle unless perfected * * *
⅜ * * ⅜
A security interest is perfected by the delivery to the department of the existing certificate of title, if any, an application for a certificate of title containing the name and address of the secured party, the date of the secured party’s security agreement and the required fee.

Stanton’s security interest was never perfected under this statute. Failing to perfect the security interest may make the interest invalid against granddaughter’s creditors. However, the forfeiture statute provides for an interest in the vehicle even if the security interest is not perfected. Minn.Stat. § 169A.63, subd. 7 only mandates that there be a “bona fide security interest,” not a “perfected security interest,” or even a “security interest.” We conclude that by adding the phrase “bona fide” the legislature intended that something less than a perfected security interest would suffice under the statute. The legislature intends to give effect to all words of a statute. Minn.Stat. § 645.16 (2002). To have a “bona fide security interest” under Minn.Stat. § 169A.63, subd. 7 does not require that the security interest be perfected as provided in Minn.Stat. § 168A.17.

DECISION

The district court did not err in ruling that Stanton had a bona fide security interest in the Mazda.

Affirmed.


author: HALBROOKS, Judge.

text:
    In re Bengt Val THULIN.
    No. C0-02-2033.
    Court of Appeals of Minnesota.
    April 29, 2003.

      Tim Aldrich, Grand Rapids, MN, for appellant Thulin.
    John J. Muhar, Itasca County Attorney, Mary Evenhouse, Assistant County Attorney, Grand Rapids, MN, for respondent county.
    Considered and decided by HARTEN, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant contends that (1) the district court did not have jurisdiction to consider his continued commitment because his initial commitment was being appealed to this court; (2) the court did not have clear and convincing evidence that he posed the requisite likelihood of harm under Minn. Stat. § 253B.02, subd. 13 (2002); (3) less restrictive treatment alternatives were available; and (4) there was no clear and convincing evidence that appellant did not have the capacity to decide whether to take neuroleptic medication. Because jurisdiction exists and the district court properly made findings based on clear and convincing evidence, we affirm.

FACTS

On April 24, 2002, the district court issued an order finding appellant Bengt Thulin to be mentally ill under Minn.Stat. ch. 253B (2002), and committing him to the Brainerd Regional Treatment Center. The court also ordered the imposition of neuroleptic medication for a period of six months. Appellant challenged the order, and on October 22, 2002, this court affirmed the district court. The day before this court’s opinion was released, a review hearing was held to determine the need for appellant’s continued commitment pursuant to Minn.Stat. § 253B.12, subd. 4.

The district court received testimony from two expert witnesses at the review hearing. The clinical director of the Brainerd Regional Treatment Facility, Ted Matzen, M.D., a psychiatrist, testified that appellant has a delusional disorder, perse-cutory type. He testified that continued commitment is necessary for the protection of appellant and others because

[gjiven the nature of his mental illness and his lack of the response to treatment that we’ve offered here in the last six months, it is likely that he will continue to generate persecutory delusions and possibly act on those as what he would perceive as being his own defense and that action would — might be violent.

Dr. Matzen further testified that he had considered alternatives to involuntary commitment but that they would not be viable. In weighing the risks and benefits of the neuroleptic medication, he concluded that the benefits outweighed the risks, although he estimated only a 50% possibility that appellant would experience a partial response from the medication. But Dr. Mat-zen noted that “the probability is high that if anything is going to help, it’s going to be one of the antipsychotic medications,” and that appellant would be closely monitored to minimize any risk from side-effects such as sedation, light headedness, suppression of white blood cells in bone marrow, muscle rigidity, muscle contraction, and others. Dr. Matzen also opined that appellant lacked capacity to give informed consent for the administration of medications, because appellant remained unwilling to take medication, possibly did not comply with orders to take medication, and had no insight into his mental illness.

Jay Lucas, Ph.D., also testified, based on his review of appellant’s file and an interview with appellant that ended after seven minutes when appellant abruptly left. Dr. Lucas stated that appellant’s mental illness continued and that he continued to be a risk to himself and to others. He noted that appellant was not rational in his refusal to take medications and to otherwise neglect his medical needs by his refusal to allow doctors to take his vital signs. Dr. Lucas also provided his opinions that there was no appropriate alternative to commitment for appellant and that the benefits of medication outweighed the risks.

The district court ordered that appellant’s commitment continue for not more than 12 months and authorized the administration of neuroleptic medication by injection, if necessary, and the enforcement of necessary medical care such as monitoring vital signs and drawing blood. This appeal follows.

ISSUES

I. Did the district court retain jurisdiction over appellant’s continuing commitment?
II. Was the record sufficient to support the statutory requirements for continued commitment?
III. Was the district court’s finding that commitment to the Brainerd Regional Treatment Center was the least restrictive alternative clearly erroneous?
IV. Did the record provide clear and convincing evidence to support the district court’s finding that appellant lacked the capacity to make determinations regarding neuro-leptic medications?

ANALYSIS

I.

As a preliminary matter, appellant questions the district court’s jurisdiction because his appeal from the initial commitment order was pending at the time of the hearing for appellant’s continued commitment. Existence of subject-matter jurisdiction is a question of law, which we review de novo. Neighborhood Sch. Coalition v. Indep. Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn.App.1992), review denied (Minn. June 30,1992).

Appellant correctly states that the jurisdiction of a district court may be suspended during an appeal. Minn. R. CivApp. P. 108.03 provides that perfection of an appeal

shall stay all further proceedings in the trial court upon the judgment or order appealed from or the matter embraced in it; but the trial court may proceed upon any other matter included in the action and not affected by the judgment or order from which the appeal is taken.

Codifying caselaw, Minn. R. CivApp. P. 108.01, subd. 1, states that

[t]he trial court retains jurisdiction as to matters independent of, supplemental to, or collateral to the order or judgment appealed from, and to enforce its order or judgment.

See Spaeth v. City of Plymouth, 344 N.W.2d 815, 824 (Minn.1984) (quoting State v. Barnes, 249 Minn. 301, 302-03, 81 N.W.2d 864, 866 (1957)) (concluding that “the jurisdiction of a trial court is suspended only to those matters necessarily involved in the appeal”).

The question before this court is whether issuing an order for continued commitment under Minn.Stat. § 253B.12, subd. 4 (2002), is independent of the initial commitment under Minn.Stat. § 253B.09, subd. 1(a) (2002), and, therefore, a proper exercise of the district court’s jurisdiction. In Spaeth, the supreme court held that a claim of attorney fees and expert fees should be treated as an independent matter. 344 N.W.2d at 825. It reasoned that the matter was independent because the court need not reconsider the merits of the issue on appeal to reach conclusions regarding fees, and as a practical matter, if the district court had not entered the order setting the fees, the appellate court would have been required to remand for further proceedings if and when it upheld the district court on the merits. Id.; but see Hasan v. McDonald’s Corp., 377 N.W.2d 472, 473-74 (Minn.App.1985) (finding no jurisdiction for the district court’s order based on the parties’ stipulation where “the contents of this record on appeal from summary judgment are intertwined with the summary judgment being appealed”).

On the one hand, the two orders considered here are closely related because, if the appellate court were to reverse the initial commitment, it would end the case, subject to the state’s right of appeal. On the other hand, there is a different standard of proof and a new set of facts that the district court examines in making its decision under Minn.Stat. § 253B.12, subd. 4. Like the issue of fees in Spaeth, the district court here does not have to consider the merits of any issue on appeal in making its decision regarding continuing commitment. On that basis, we conclude that a determination of continued commitment is supplemental to and independent of the initial order of commitment being appealed, and jurisdiction on that issue remains in the district court.

II.

Appellant claims that the district court lacked evidence to support its eontin-ued commitment decision and failed to comply with the commitment statute by relying on evidence of appellant’s potential violence to himself or others. On appeal, our review is limited to an examination of the district court’s compliance with the statute, and the commitment must be justified by findings based on the evidence at the hearing. Minn.Stat. § 253B.09, subd. 2 (2002); In re Knops, 536 N.W.2d 616, 620 (Minn.1995). “Where the findings of fact rest almost entirely on expert testimony, the trial court’s evaluation of credibility is of particular significance.” Knops, 536 N.W.2d at 620 (citation omitted). We review de novo whether there is clear and convincing evidence in the record to support the district court’s conclusion that appellant meets the standards for commitment. In re Linehan, 518 N.W.2d 609, 613 (Minn.1994).

Contrary to appellant’s analysis, the district court may continue an involuntary commitment under a less stringent standard than an initial commitment when it finds, by clear and convincing evidence, that

(1) the person continues to be mentally ill, * * *; (2) involuntary commitment is necessary for the protection of the patient or others; and (3) there is no alternative to involuntary commitment.
In determining whether a person continues to be mentally ill * * * the court need not find that there has been a recent attempt or threat to physically harm self or others * * *. Instead, the court must find that the patient is likely to attempt to physically harm self or others * * * unless involuntary commitment is continued.

Minn.Stat. § 253B.12, subd. 4. Here, the court heard the opinions of two experts that appellant continues to be mentally ill. Dr. Lucas testified that appellant “continues to have very strong delusions that people are trying to harm him.” The delusions include a fear of police actions against him and a fear for his life. Dr. Lucas also testified that the delusions cause appellant to get into conflicts. Dr. Matzen testified that appellant’s continued commitment is necessary for his protection and the safety of others because it is likely that appellant will continue to generate persecutory delusions and may possibly act violently in response to them. Additionally, the day before the district court issued its order, this court concluded that the district court’s determination that appellant was mentally ill was supported by the evidence and was not clearly erroneous. In Re: Bengt Thulin, No. C0-02-864, 2002 WL 31371591 (Minn.App. Oct.22, 2002). This evidence in the record is sufficient to support the statutory requirements for continued commitment.

III.

Appellant argues that the Brain-erd treatment center is not the least restrictive alternative available to him. When ordering a continued commitment, Minn.Stat. § 253B.12, subd. 7 (2002), requires that the findings of fact and conclusions of law state that “less restrictive alternatives have been considered and rejected by the court” and that “[rjeasons for rejecting each alternative shall be stated.” In reviewing whether the least restrictive treatment program that can meet the patient’s needs has been chosen, an appellate court will not reverse a district court’s finding unless clearly erroneous. In re Kellor, 520 N.W.2d 9, 12 (Minn.App.1994), review denied (Minn. Sept. 28, 1994).

In its findings of fact, the district court concluded that

[alternatives to the disposition herein have been considered and rejected as follows: Voluntary out-patient and informal admissions to a treatment facility have been considered by professionals. It is the opinion of both Dr. Lucas and Dr. Matzen that these are not reasonable alternatives to commitment at this time.

In reaching this conclusion, the district court heard testimony from Dr. Matzen that he had considered alternatives to involuntary commitment, but that “[t]here is no other outpatient program that I’m aware of that could safely house him right now.” Dr. Lucas concurred. Because the trial court heard evidence from two experts who both recommended the same treatment facility and because the court considered alternatives, the district court’s finding is not clearly erroneous.

IV.

Appellant challenges the district court’s determination that he lacked the capacity to refuse to take neuroleptic medication. Court approval is required to administer neuroleptic medication to a person who refuses it. Minn.Stat. § 253B.092, subd. 8(a) (2002); Jarvis v. Levine, 418 N.W.2d 139, 144 (Minn.1988). Minnesota law presumes that a patient has the capacity to decide whether to take neuroleptic medication. Minn.Stat. § 253B.092, subd. 5(a) (2002). But if a patient refuses the medication, the court must first determine whether the patient has capacity to so decide. Minn.Stat. § 253B.092, subd. 8(a). To determine whether the patient has capacity, the court must consider the following factors:

(1) whether the person demonstrates an awareness of the nature of the person’s situation, including the reasons for hospitalization, and the possible consequences of refusing treatment with neuroleptic medications;
(2) whether the person demonstrates an understanding of treatment with neuroleptic medications and the risks, benefits, and alternatives; and
(3)whether the person communicates verbally or nonverbally a clear choice regarding treatment with neuroleptic medications that is a reasoned one not based on delusion, even though it may not be in the person’s best interests.

Minn.Stat. § 253B.092, subd. 5(b) (2002).

In examining the statutory factors, there is sufficient evidence in the record to support the district court’s finding that appellant lacked capacity to make decisions about neuroleptic medication because nothing had changed with respect to that issue since the court’s initial order dated April 24, 2002. The record evidences that appellant did not demonstrate an awareness of his situation because, according to the experts, appellant has no insight into his mental illness. The court considered evidence that Dr. Matzen had weighed the risks and benefits of the drugs and found the benefits to outweigh the risks because

the probability is high that if anything is going to help it’s going to be one of the antipsychotic medications, and appellant would be closely monitored to minimize any risk.

Nonetheless, appellant recognized no benefits to the drug therapy. Although appellant testified that he had read the Physicians Desk Reference concerning the drugs suggested for him and communicated that he found the risks associated with them unacceptable, Dr. Lucas testified that it was not rational for appellant to neglect his medical needs by refusing medication and by refusing to allow his vital signs to be taken. The record provides clear and convincing evidence to support the district court’s finding that appellant lacked the capacity to make determinations concerning neuroleptic medications.

DECISION

The district court had jurisdiction to make a determination on appellant’s continued commitment because a continued-commitment decision is independent of and supplemental to an initial order of commitment. Additionally, the district court’s findings that appellant continued to be mentally ill, that there was no less restrictive alternative to commitment, and that appellant lacked capacity to make decisions about neuroleptic medications are supported by the record and are not clearly erroneous.

Affirmed.

      . Specifically, the court held a continued-commitment hearing on October 21, 2003. This court affirmed the initial commitment on October 22, 2002. The trial court issued its order October 23, 2002.

      . Moreover, the court noted that the mandated review of the initial commitment order under Minn.Stat. § 253B.12, subd. 4, is to protect the appellant.


author: KALITOWSKI, Judge.

text:
    INDEPENDENT SCHOOL DISTRICT NO. 775, Appellant, v. HOLM BROTHERS PLUMBING AND HEATING, INC., Respondent.
    No. CX-02-1701.
    Court of Appeals of Minnesota.
    April 29, 2003.

      John J. O’Donnell, Knutson, Flynn & Deans, P.A., Mendota Heights, MN, for appellant.
    Thomas E. Peterson, Peterson & Hek-tner, Ltd., Minneapolis, MN, for respondent.

      Considered and decided by HUDSON, Presiding Judge, KALITOWSKI, Judge, and MINGE, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant Independent School District No. 775 challenges the district court’s order staying arbitration, arguing that its demand for arbitration was timely because the limitations period established in the contract it signed with respondent Holm Brothers Plumbing and Heating, Inc., was not triggered when appellant discovered the injury, but rather when appellant knew both the specific cause of the injury and the responsible party.

FACTS

In 1993, appellant retained KKE Architects to develop plans and specifications for a new school building. KKE proposed installation of a geothermal heat pump system to heat and cool the building and developed plans and specifications for such a system. The plans and specifications were available to all bidders on the building project. Section 15510 of the plans called for the installation of balance valves for the geothermal heat pump system.

Respondent was the successful bidder for the installation of the pump system. Appellant and respondent entered into a standard form contract published by the American Institute of Architects (AIA) to perform the work set out in section 15510. That contract incorporated by reference the General Conditions of the Contract for Construction, which is a standard form contract published by the AIA. Paragraph 7.9.1 of the contract required that all disputes between the parties be resolved by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. And paragraph 7.9.2 stated that no demand for arbitration could be made

after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.

In 1994, respondent certified that it had completed the installation of the heat pumps. But in September 1995, problems began to appear. And between 1996 and 1998, Chappell Central, a heating, ventilating, and air conditioning contractor, was called on 12 times to make repairs to the heat pumps and heat exchangers. On December 9, 1999, Chappell informed the superintendent of the school district that multiple compressor/coils had failed and that they should not have failed in such a short amount of time.

On December 20, 1999, the superintendent hired GHP Systems to analyze the heat pumps and determine the specific cause of the failure of the compressor/coils and the responsible party. On January 4, 2000, Kris Jeppeson of GHP visually inspected the heat pumps and took a failed eompressor/eoil for further analysis.

On February 14, 2000, Jeppeson sent a letter to the superintendent explaining the results of the investigation. Jeppeson blamed the problems on the fact that the system did not have balancing valves installed. Jeppeson concluded that the responsible party was the contractor who performed the work in section 15510 of the bid specifications.

On December 28, 2001, appellant served a demand for arbitration on respondent. Pursuant to Minn.Stat. § 572.09(b), respondent brought a motion in the district court for an order to stay and dismiss the arbitration on the ground that the demand for arbitration was untimely. The district court granted respondent’s motion and stayed the arbitration. The district court found that the school district had discovered an actionable injury by December 9, 1999, if not sooner, and that the two-year statute of limitations in Minn.Stat. § 541.051, subd. 1, began to run by that date. Because appellant did not serve a demand for arbitration until December 28, 2001, the district court determined that the demand for arbitration was untimely.

ISSUES

1. Did the district court have subject matter jurisdiction to decide the issue of whether a timely demand for arbitration was made?

2. Did the district court err when it determined that the limitations period on appellant’s claim against respondent began to run on the date that appellant discovered the injury?

3. Should respondent’s motion to strike be granted?

ANALYSIS

I.

In actions to stay arbitration, the limited issue presented to the district court is the existence and scope of the arbitration agreement. United States Fidelity & Guaranty Co. v. Fruchtman, 263 N.W.2d 66, 71 (Minn.1978). A reviewing court need not defer to the district court’s interpretation of an arbitration agreement. Millwrights Local 548, United Bhd. of Carpenters & Joiners, AFL-CIO v. Robert J. Pugleasa Co., Inc., 419 N.W.2d 105, 107 (Minn.App.1988). This court may independently determine whether the proper interpretation was given to the language in the agreement. R.M. Bennett Heirs v. Ontario Iron Co., 426 N.W.2d 921, 923 (Minn.App.1988); Pugleasa, 419 N.W.2d at 107.

Appellant argues that the district court lacked subject matter jurisdiction to decide the timeliness of appellant’s arbitration demand. Appellate courts review determinations of subject matter jurisdiction de novo. Bisbee v. City of Fairmont, 593 N.W.2d 714, 717 (Minn.App.1999).

We conclude that this court’s decision in 200 Levee Drive Associates, Ltd. v. Bor-Son Bldg. Corp., 441 N.W.2d 560, 562 (Minn.App.1989), is controlling. The contract in that case contained language nearly identical to the language contained in the contract in dispute here, including a requirement that the parties arbitrate their disputes under the terms of the AIA General Conditions, Form A-201 (1976). And paragraph 7.9.2 of the contract stated that

[t]he demand for arbitration shall be made within the time limits specified in Subparagraph 2.2.12 where applicable, and in all other cases within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.

(Emphasis added.)

In 200 Levee Drive, we stated that paragraph 7.9.2 of the parties’ agreement indicated an intention by the parties to incorporate the applicable statute of limitations for litigation claims and that the statute of limitations clause thus limited a party’s right to demand arbitration. Id. at 563. Therefore, we found that the time and expense of an action to compel arbitration and the actual arbitration hearing would be eliminated under the provisions of paragraph 7.9.2 if a determination were made that the applicable statute of limitations prevented such action. Id. We then concluded that the district court properly reserved to itself the jurisdiction to make that determination. Id.

Following our decision in 200 Levee Drive, we conclude that the district court had the jurisdiction to rule on the timeliness of the demand for arbitration pursuant to the statute of limitations clause in paragraph 7.9.2 of the parties’ contract.

II.

The construction and applicability of a statute of limitations is a question of law, reviewed de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

Here, both parties agree that the applicable limitations period is provided in Minn.Stat. § 541.051, subd. 1 (2002). That statute states that in actions for damages based on improvements to real property, a party has two years to bring a cause of action. Id.

While the parties agree that the applicable statute of limitations period is two years, the parties disagree on what triggers that limitations period. For an action brought in court, the limitations period under Minn.Stat. § 541.051, subd. 1, begins to run when an actionable injury is discovered, or with due diligence, should have been discovered, regardless of whether the precise nature of the defect causing the injury is known. The Rivers v. Richard Schwartz/Neil Weber, Inc., 459 N.W.2d 166, 168 n. 2 (Minn.App.1990), review denied (Minn. Oct. 25, 1990). “Discovery that an injury arises out of a defective condition is discovery of the defective condition.” Pamida, Inc. v. Christenson Bldg. Corp., 285 F.3d 701, 704 (8th Cir.2002).

But while acknowledging that a cause of action in the litigation context accrues upon the discovery of an injury, appellant argues that paragraph 7.9.1 of the parties’ contract established a different standard for what triggers the limitations period for purposes of arbitration. The language in paragraph 7.9.1 of the contract states that the arbitration hearing must be decided in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. And appellant points out that those rules state that a written demand for arbitration must contain a statement setting forth the nature of the dispute and the names and addresses of all other parties. Thus, appellant contends that until all of that information was known, appellant could not have made a demand for arbitration. And because appellant claims not to have known the specific cause of the injury and the responsible party until February 14, 2000, appellant argues that the two-year limitations period for appellant’s arbitration claim began to run on that date.

We agree with appellant’s proposition that in general a claim is not barred in arbitration solely because it would be barred pursuant to a statute of limitations if asserted in an action in court. Har-Mdr, Inc. v. Thorsen & Thorshov, Inc., 300 Minn. 149, 155-56, 218 N.W.2d 751, 755 (1974). And we agree that parties to a contract requiring arbitration may specify a different standard for what triggers the applicable limitations period. But we reject appellant’s argument that the fact that the parties incorporated the Construction Industry Arbitration Rules of the American Arbitration Association alters what triggers the applicable statute of limitations. Rather, those rules state that “the initiating party shall, within the time period, if any, specified in the contract ” provide written notice of its intention to arbitrate and that this demand must contain a statement setting forth the nature of the dispute and the names of all other parties. (Emphasis added.) Thus, while the Construction Industry Arbitration Rules may require more specificity in a demand for arbitration than is required for a lawsuit, those rules also require that the initiating party abide by the limitations period established in the contract. And here, paragraph 7.9.2 of the parties’ contract incorporated Minn.Stat. § 541.051, subd. 1, as the applicable statute of limitations for the contract.

Having concluded that the limitations period for litigation applies under the parties’ contract, we must next determine whether the district court erred when it found that appellant discovered the injury by at least December 9, 1999. In addressing this issue, we note that the facts here are similar to the facts in Dakota County v. BWBR Architects, Inc., 645 N.W.2d 487 (Minn.App.2002), review denied (Minn. August 20, 2002). In that case, appellant Dakota County entered into a contract with the respondent BWBR Architects, Inc., to design a new building. Id. at 490. The construction was completed in 1990, and appellant occupied the building in February 1991. Id. In 1992, Dakota County maintenance workers were notified about leaks in the building, and between 1992 and 1994, more than two dozen work orders were prepared by the Dakota County maintenance staff in order to repair leaks or water infiltration in the building. Id. On September 15, 1994, a Dakota County maintenance supervisor sent a letter to BWBR asking that they investigate and repair a chronic .leak. Id. And on October 7, 1994, the supervisor met with BWBR to discuss the water problems. Id. at 491. Finally, in October 1997, appellant hired a masonry consultant to conduct a thorough investigation of the leaks. Id. The investigation revealed substandard construction on the part of the respondent. Id. The appellant then initiated a lawsuit against BWBR on November 23,1998. Id. But the district court determined that an actionable injury existed at least as of 1994. Id. at 493. Because of that finding, this court affirmed the district court’s granting of summary judgment for the respondent based on the fact that the two-year statute of limitations period had passed by 1998. Id.

We conclude that following BWBR, the district court properly found that the statute of limitations began to run at least by December 9, 1999. On that date a Chap-pell technician informed the superintendent of schools that multiple heat pumps should not have failed in such a short period of time. And in an affidavit prepared for the trial, the superintendent stated that on December 9, 1999, he was concerned that a “major defect” was occurring. Therefore, by that date, appellant discovered an injury. As was the case in BWBR, the numerous repairs that were made to the building between 1996 and 1999 may have arguably been minor, but the record shows that by December 9, 1999, appellant discovered an actionable injury with the failure of multiple heat pumps in a short amount of time. And because the two-year statute of limitations was triggered on December 9, 1999, the district court properly found that appellant’s demand for arbitration on December 28, 2001, was untimely.

III.

Respondent brought a motion to strike those parts of appellant’s brief and appendix that argued for the first time on appeal that the district court lacked subject matter jurisdiction to rule on the timeliness of appellant’s demand for arbitration. But lack of subject matter jurisdiction may be raised at any time, including for the first time on appeal. Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.App.1995), review denied (Minn. May 31, 1995); see also Minn. R. Civ. P. 12.08(c) (“[w]henever it appears * * * that the court lacks jurisdiction of the subject matter, the court shall dismiss the action”). Therefore, we deny respondent’s motion to strike.

DECISION

The district court had jurisdiction to stay the arbitration because it determined that appellant’s demand for arbitration was untimely. The fact that the parties incorporated the Construction Industry Arbitration Rules of the American Arbitration Association, which require more specificity in a demand for arbitration than is required in a lawsuit, did not alter what triggers the applicable statute of limitations. And here, the parties’ contract specifically incorporated the statute of limitations applicable for litigation claims under Minn.Stat. § 541.051, subd. 1, which established a two-year limitations period that began when the actionable injury was discovered.

Affirmed; motion to strike denied.


author: PORITSKY, Judge.

text:
    Allen VanLANDSCHOOT, et al., Appellants, v. Brian WALSH, Respondent.
    No. C3-02-1278.
    Court of Appeals of Minnesota.
    April 29, 2003.

      Patrick M. Krueger, Virginia J. Knud-son, Borden, Steinbauer & Krueger, P.A., Brainerd, MN, for appellants.
    John H. Erickson, Erickson and Pearson Law Offices, Brainerd, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, HUDSON, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

Appellants sued respondent for property damage to appellants’ commercial building. After a bench trial to determine damages, the trial court ordered judgment. Respondent then brought a post-judgment motion to reduce the judgment by the amount of a payment that respondent’s insurer had made to appellants’ insurer. This payment was to reimburse appellants’ insurer for a payment appellants’ insurer had previously made to appellants. The district court granted the motion and reduced the amount of the judgment. On appeal, appellants argue that (1) respondents’ motion to reduce the amount of the judgment was not timely, and (2) the collateral-source rule applied, and under that rule, the payment is not to reduce respondent’s liability. Respondent, in his notice of review, challenges the district court’s determination of damages. We affirm the district court in all respects. Specifically, we conclude that, in case of property damage, a payment by a tortfeasor’s insurer directly or indirectly to the injured party serves to offset the tortfeasor’s liability.

FACTS

On June 7, 2000, a fire damaged a commercial building owned by appellants Allen and Laura VanLandschoot. The Van-Landschoots filed the present action against respondent Brian Walsh, and the parties stipulated that Walsh, a welder, negligently started the fire and is hable for damage to the building.

The only issue before the district court in the bench trial was the amount of damages. After closing the record, the trial court issued its findings and order for judgment, concluding that the VanLand-schoots sustained $68,000 in damages and could recover prejudgment interest, costs, and disbursements.

Both parties brought post-trial motions. The VanLandschoots moved to amend the findings. Walsh made several motions, including a motion to deduct from the judgment the amount that his insurer paid to . VanLandschoots’ insurer. In support of his motion, Walsh, for the first time in the proceeding, made the claim that his insurer paid $46,439.42 to the VanLandschoots’ insurer and that this payment was reimbursement for a payment the VanLand-schoots had received from their insurer.

■ The district court granted Walsh’s motion to reduce the judgment by the amount of the payment made by his insurer but denied all other motions. In its memorandum, the court stated that Walsh’s failure to present the evidence of payment at trial did not preclude him from asserting his claim after trial.

The VanLandschoots appeal from the order and amended judgment. Walsh filed a notice of review of the court’s damages decision.

ISSUES

I. Did the district court properly grant a post-trial motion to reduce the damage award by the amount that the tortfeasor’s insurer paid to the injured parties’ insurer?

II. Was the district court’s determination of damages manifestly and palpably contrary to the evidence?

ANALYSIS

I.

The VanLandschoots contend that the post-trial court abused its discretion by reducing the judgment by the amount that Walsh’s insurer paid to their insurer. When the underlying facts of a case are undisputed, an appellate court will review de novo the district court’s application of the law. Dean v. Am. Family Mut. Ins. Co., 535 N.W.2d 342, 343 (Minn.1995).

At the outset, we note that the common-law collateral-source doctrine, which is under discussion in this case, is distinct from the collateral-source statute found at Minn. Stat. § 548.36 (2002). Duluth Steam Coop. Ass’n v. Ringsred, 519 N.W.2d 215, 217 (Minn.App.1994). The statute only controls personal injury cases, while the common-law rule controls those cases involving property damage. Id.

A. Timeliness of Walsh’s Motion to Reduce the Award.

The VanLandschoots first argue that because Walsh did not present evidence of payment as an affirmative defense during trial, the post-trial court improperly admitted evidence of such payment after the verdict. See Minn. R. Civ. P. 8.03 (listing payment as an affirmative defense). We disagree.

Although the collateral-source statute does not control in cases involving property damage, in that statute the legislature recognized the propriety of bringing motions for collateral-source reduction after the verdict. Minn.Stat. § 548.36, subd. 2 (2002); see Schmuckler v. Creurer, 585 N.W.2d 425, 428 (Minn.App.1998) (post-trial collateral-source motion), review denied (Minn. Dec. 22,1998).

Moreover, even before the 1986 enactment of the collateral-source statute, the supreme court showed no apparent difficulty dealing with a collateral-source issue in a post-trial motion. Hueper v. Goodrich, 314 N.W.2d 828, 830 (Minn.1982). Other jurisdictions have explicitly held that such motions may properly be brought after the verdict. E.g., Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So.2d 988, 992 (Fla.Dist.Ct.App.2002) (stating that a party may properly file a post-verdict motion to account for collateral sources); Poteet v. Sauter, 136 Md.App. 383, 766 A.2d 150, 166 (2001) (stating that a court may only consider collateral-source evidence in post-verdict proceedings); Hoffmann v. S.J. Hawk, Inc., 177 Misc.2d 305, 676 N.Y.S.2d 448, 450 (N.Y.Sup.Ct.1998) (holding that “[t]here is no question that the defendants are entitled to a post verdict hearing” for collateral-source issues).

Consequently, we conclude that the district court acted properly when it considered Walsh’s request to reduce the judgment in a post-trial motion.

B. Application of the Collateral-Source Rule

Initially, we note that although Walsh’s insurer did not make a payment directly to the VanLandsehoots, the payment was made to the VanLandsehoots’ insurer as a reimbursement for a payment that had previously been made to the Van-Landschoots by their insurer. In effect, the VanLandsehoots received payment from Walsh’s insurer, and this case stands in the same posture as if the payment had gone directly to the VanLandsehoots.

The VanLandsehoots argue that the collateral-source rule should apply and the judgment should not be reduced by the amount that Walsh’s insurer paid to their insurer. Under the collateral-source rule, “in general, * * * compensation received from a third party will not diminish recovery against a wrongdoer.” Hubbard Broad., Inc. v. Loescher, 291 N.W.2d 216, 222 (Minn.1980). The rule is embodied in the Restatement (Second) of Torts, § 920A(2) (1979), which the Minnesota courts have expressly adopted. Hueper, 314 N.W.2d at 830 (Minn.1982); Ringsred, 519 N.W.2d at 217.

The collateral-source rule, however, applies only to a payment that comes from a source other than the tortfeasor or someone acting for the tortfeasor. Restatement (Second) of Torts § 920A(2) (1979). If the payment comes from the tortfeasor, or someone acting for the tortfeasor, the rule does not apply, and such payments will reduce the tortfeasor’s liability.

A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.

Id. at § 920A(1) (emphasis added). In the present case, the payment to the Van-Landschoots came, in effect, from Walsh’s insurer, and the comment to the Restatement notes that such payments serve to reduce the tortfeasor’s liability:

If a tort defendant makes a payment toward his tort liability, it of course has the effect of reducing that liability. This is also true of payments made under an insurance policy that is maintained by the defendant, whether made under a liability provision or without regard to liability * * *.

Id. at cmt. a (emphasis added).

As we have noted, the Minnesota courts have adopted the collateral-source rule, which is set out in subsection (2) of the Restatement § 920A. Ringsred, 519 N.W.2d at 217. We believe that it is equally appropriate to adopt the rule set out in subsection (1) of § 920A, which credits the tortfeasor for payments made by the tortfeasor’s insurer. Sound reasons support the adoption of such a rule. First, the rule encourages potential tortfeasors to obtain liability insurance, which is actually to the benefit of injured parties, because it guarantees that judgments will be collectible, at least to the extent of the policy’s limits. Second, not to adopt the rule would be to punish the prudent person who obtains liability insurance and pays for it, but is left exposed to the same liability as someone who does not have insurance. And finally, to leave the insured exposed to full liability would defeat the entire purpose of obtaining liability insurance. In this connection, although we assume that the tortfeasor’s insurer would protect the tortfeasor by obtaining a full release upon payment, the present case illustrates that this does not always happen.

By the same token, most of the justifications for application of the collateral-source rule do not apply to cases such as the present case. The rationale for the collateral-source rule was succinctly set out by Justice Simonett in his dissent in Hueper:

(1) the injured party has paid for the collateral source benefit and deserves what he paid for; (2) a collateral source benefit is sometimes a gift intended by the donor to benefit the injured donee and not the tortfeasor; (3) only cumulation of collateral source benefits with amounts assessed the tortfeasor will fully compensate the injured person; (4) a tortfeasor deserves to be punished, a purpose which would be foiled if he were relieved from “total responsibility” for his wrong; and (5) since a windfall payment is inevitable, better it go to the injured person than the tortfeasor.

Hueper, 314 N.W.2d at 832 (Simonett, J. dissenting).

But none of these reasons are persuasive when applied to cases, such as the present case, where the tortfeasors’ insurer makes the payment to the injured party. (1) The injured party does not pay for the benefit; the insurance is obtained and paid for by the tortfeasor. (2) The payment is not intended as a gift to the injured party; the insurance policy and payments made under it are specifically intended to protect, and thus benefit, the tortfeasor. (3) As to the argument that the injured party will only be fully compensated by reaping the additional collateral-source benefits, such an argument assumes that the entire tort system fails, since the party should be fully compensated by the jury’s verdict. (4) As to punishing the tortfeasor, we question whether a person prudent enough to obtain insurance is in need of punishment; but in any event, the tortfeasor may be met with higher rates or even by the cancellation of the policy. (5) Finally, as to the issue of which party is to receive the “windfall,” we question whether, under modern insurance practices, the persons involved consider that anyone has obtained a windfall: The injured party is made whole, and the tortfeasor obtains the protection he or she purchased. In any event, to the extent that this argument is valid, it is outweighed by the reasons in support of the rule we adopt.

We therefore adopt the rule set out in § 920A (1) of the Restatement and hold that, in property-damage cases, where the tortfeasor’s insurer makes a payment directly or indirectly to the injured party, such payment shall offset the tortfeasor’s liability to the injured party.

II.

Walsh seeks review of the trial court’s determination of damages. In reviewing a damage award, an appellate court considers the evidence in the light most favorable to the verdict. Rayford v. Metro. Transit Comm’n, 379 N.W.2d 161, 165 (Minn.App.1985), review denied (Minn. Feb. 14, 1986). This court will set aside a damage award only if it is “manifestly and palpably contrary to the evidence.” Levienn v. Metro. Transit Comm’n, 297 N.W.2d 272, 273 (Minn.1980) (citation omitted). Said another way, a reviewing court will not disturb a damage award “unless its failure to do so would be shocking or would result in plain injustice.” Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn.1986) (citations omitted). An appellate court shall review a district court’s determination of damages under an abuse-of-discretion standard. Peters v. Mut. Benefit Life Ins. Co., 420 N.W.2d 908, 916 (Minn.App.1988).

Walsh contends that the trial court failed to properly ascertain the damage to the property. If property is damaged but not completely destroyed, damages are calculated to be either (1) the difference in value before and after the loss or (2) the reasonable cost of repair, whichever is less. In re Commodore Hotel Fire & Explosion Cases, 324 N.W.2d 245, 248 (Minn. 1982). Here, the trial court opted to calculate damages using the difference in the property’s value before and after the fire.

Walsh argues that the trial court erred in its valuation by placing too much reb-anee on the VanLandschoots’ expert and by not fully considering the evidence provided by Walsh’s appraisal expert. Walsh also points to evidence contained in the tax forms filed by Laura VanLandschoot and the VanLandschoots’ former business partner.

As the supreme court has recognized, “real estate appraisal is at best an imprecise art.” Montgomery Ward & Co. v. County of Hennepin, 482 N.W.2d 785, 791 (Minn.1992). A trial court is in the best position to determine the credibility of witnesses, and an appellate court will not substitute its judgment. Minn. R. Civ. P. 52.01; Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn.1986). Further, if an expert’s decision is reasonably based in fact, then an appellate court shall not reverse the factfinder’s decision between conflicting opinions. Leonard v. Parrish, 420 N.W.2d 629, 633 (Minn.App.1988).

Because the record demonstrates that the trial court relied upon substantial evidence in making its determination, we conclude that the trial court did not abuse its discretion in its finding of damages. The trial court sufficiently explained what evidence it found to be persuasive and outlined its rationale in assessing the damages. Thus, the trial court’s determination of the property damage amount is not manifestly and palpably contrary to the evidence, and we affirm its ruling on the amount of damages.

DECISION

The district court properly considered the post-trial motion to reduce the judgment. The court properly offset the judgment by the amount paid by the tortfea-sor’s insurer. The court’s determination of damages was not manifestly and palpably contrary to the evidence.

Affirmed.

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


author: GORDON W. SHUMAKER, Judge.

text:
    Carla THOMPSON, Relator, v. COUNTY OF HENNEPIN, Respondent, Commissioner of Economic Security, Respondent.
    No. C9-02-1544.
    Court of Appeals of Minnesota.
    May 6, 2003.

      Carla R. Thompson, St. Paul, MN, pro se relator.
    Amy Klobuchar, Hennepin County Attorney, Martin D. Munic, Assistant Henne-pin County Attorney, Minneapolis, MN, for respondent County of Hennepin.
    M. Kate Chaffee, Lee B. Nelson, Minnesota Department of Economic Security, St. Paul, MN, for respondent commissioner.
    Considered and decided by SHUMAKER, Presiding Judge, RANDALL, Judge, and WRIGHT, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Hennepin County Adult Services (HCAS) fired relator Carla Thompson for employment misconduct, alleging that she falsified rule 25 chemical-assessment forms.

The Department of Economic Security (DES) denied Thompson’s application for unemployment compensation. At two hearings before an unemployment law judge (ULJ), Thompson presented evidence that she had requested that material witnesses allegedly favorable to her be subpoenaed. Even though the witnesses did not attend the hearing, the ULJ found Thompson disqualified from unemployment benefits because of employment misconduct.

On that record, the commissioner’s representative upheld the ULJ’s decision. Because it appears that Thompson was not accorded an opportunity to present evidence in her favor, we reverse and remand.

FACTS

Beginning in 1994, relator Carla Thompson was employed Ml time as a senior chemical-dependency counselor by HCAS and part time by the Salvation Army. For both employers she performed chemical-health assessments, known as rule 25s, for people who could not pay for chemical-treatment services. All rule 25 assessments are required to be submitted to HCAS for approval.

After finding a discrepancy in one of Thompson’s rule 25 assessment reports, HCAS conducted a random sample of 40 of Thompson’s assessments. In 32 reports, HCAS concluded that Thompson had stated that the clients were admitted into a detoxification program when there were no such admissions.

HCAS discharged Thompson on January 8, 2002, for violating the employer’s policies as to conflicts of interest and accuracy of recording client information. The DES disqualified Thompson from eligibility for unemployment compensation because HCAS had discharged her for employment misconduct. She requested a hearing before a ULJ and asked the DES to subpoena her Salvation Army supervisor, June Sinnett.

Sinnett did not appear for the hearing, and the ULJ continued the matter so that Thompson could subpoena both Sinnett and Lucy Quaintanee, her HCAS supervisor. Thompson represented that these witnesses would give evidence that Thompson had not violated HCAS policies.

On the day of the second hearing, neither Sinnett nor Quaintanee appeared. Thompson told the ULJ that she had requested the DES to subpoena both. The ULJ then allowed Thompson to state what she believed Quaintance’s testimony would be, but proceeded with the hearing without further inquiry into the witnesses’ failure to attend. The ULJ found that Thompson had falsified records and thereby committed disqualifying employment misconduct.

Thompson appealed to the DES commissioner. A commissioner’s representative concluded that Thompson intentionally “disregarded the standards the employer had a right to expect” and therefore is disqualified from benefits because of employment misconduct. Thompson petitioned in this court for certiorari review.

ISSUE

Did the commissioner’s representative err when he failed to remand the case for the ULJ to determine the circumstances surrounding the issuance and service of the subpoenas for Thompson’s material witnesses, who failed to appear and who allegedly would have provided favorable testimony?

ANALYSIS

We review the commissioner’s representative’s findings, not the unemployment law judge’s findings. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn.1995). The current law places no burden of proof on either party. Minn.Stat. § 268.105, subd. 1(b) (2002). The ULJ is required to fully develop the record. Minn. R. 3310.2921 (2001). The commissioner’s representative on further appeal is required to evaluate the record based on evidence submitted at the hearing before the unemployment law judge. Minn. Minn.Stat. § 268.105, subd. 2(c) (2002).

The commissioner’s representative’s findings are a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn.1984). We must view the findings “in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn.1983). The commissioner’s representative determines “whether an employee committed the specific act or acts alleged to be misconduct,” which is a fact question. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn.App.1997). Although we exercise de novo review to determine whether an employee has engaged in employment misconduct, we do not reach the merits of this case. See Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989).

The DES has the power to issue subpoenas to compel witnesses to attend an unemployment-compensation hearing:

[T]he commissioner shall have power to * * * issue subpoenas to compel the attendance of individuals and the production of documents and other personal property necessary in connection with the administration of the Minnesota unemployment insurance program and the job service.

Minn.Stat. § 268.188(a) (2002). The legislature also provided the district court with the power to enforce the commissioner’s subpoena. Minn.Stat. § 268.188(c) (2002).

The DES has also adopted its own rule regarding the subpoena process:

Subpoenas are available to a party to compel the attendance of witnesses, the production of documents or other exhibits upon a showing of necessity by the party applying for subpoenas. Subpoenas may be obtained by calling or writing the appellate office sufficiently in advance of the scheduled hearing to allow for the service of the subpoenas. The requesting party must identify the person or documents to be subpoenaed, the subject matter of the evidence requested, and their necessity. A request for a subpoena may be denied if the testimony or documents sought would be irrelevant, immaterial, or unduly cumulative or repetitious. A request for a subpoena may be renewed when a party finds an additional basis or need for evidence.
A party whose request for a subpoena has been denied may request at the time of the hearing that the referee who conducts the hearing issue the subpoena. If the referee grants the request for a subpoena, the referee may adjourn the hearing to allow a sufficient time for service of and compliance with the subpoena.

Minn. R. 3310.2914 (2001).

Thompson argues that she was unable to present the testimony of witnesses who would have supported her contention that she did not commit employment misconduct because, although she requested subpoenas to compel the witnesses’ attendance, they did not appear at the hearing.

The record is scanty on the matter of the issuance and service of the subpoenas. It appears that Thompson did request one or more subpoenas and that the ULJ continued the first hearing to allow for the issuance, or perhaps the reissuance, of subpoenas. But we cannot ascertain from this limited record why the witnesses did not appear. We do not know whether Thompson’s request for subpoenas was sufficiently specific or timely; whether the DES issued or declined to issue the subpoenas; how and by whom the subpoenas were to be served; what procedure the DES follows when a subpoenaed witness fails to appear; and what effect the witnesses’ failure to testify had on the outcome of the case. The only conclusion we can reasonably draw from this incomplete record is that Thompson was not given a full opportunity to present her defense to the allegation of employment misconduct.

The commissioner has the authority to remand cases to ULJs for additional evidence:

The commissioner shall, on the basis of that evidence submitted at the hearing under subdivision 1, make findings of fact and decision, or remand the matter back to an unemployment law judge for the taking of additional evidence and the making of new findings and decision based on all the evidence.

Minn.Stat. § 268.105, subd. 2(c) (2002) (emphasis added).

ULJs have a duty to reasonably assist pro se parties with the presentation of the evidence and the proper development of the record. Minn. R. 8310.2921. Because this record should have alerted the commissioner’s representative to a significant procedural defect regarding allegedly subpoenaed witnesses, a remand was appropriate and necessary to provide a full and fair hearing and to develop a complete record. It was error for the commissioner’s representative not to have ordered a remand.

DECISION

This matter is reversed and remanded to the commissioner for further proceedings not inconsistent with this opinion.

Reversed and remanded.