author: G. BARRY ANDERSON, Judge.

text:
    In the Matter of the WELFARE OF T.J.C., Child.
    No. C3-02-1622.
    Court of Appeals of Minnesota.
    Nov. 10, 2003.

      John Stuart, State Public Defender, Lawrence Hammerling, Assistant Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Wade A. Kish, Assistant Mille Lacs County Attorney, Milaca, MN, for respondent.
    Considered and decided by ANDERSON, Presiding Judge; SCHUMACHER, Judge; and WILLIS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Following a bench trial, appellant was adjudicated delinquent for commission of criminal sexual conduct in the second degree. Appellant challenged his adjudication in this court, and we concluded that although the police obtained appellant’s statement in violation of his Miranda right and the district court erroneously admitted the statement into evidence at trial, the admission was harmless beyond a reasonable doubt. Because overwhelming evidence of appellant’s delinquency existed apart from the statement, we affirmed. The supreme court reversed and remanded this court’s determination on the issue of harmless error, and we now consider whether the adjudication of delinquency is consistent with the harmless error standard articulated in State v. Juarez, 572 N.W.2d 286 (Minn.1997). After careful review of the record, we conclude that, under Juarez, the district court’s admission of appellant’s statement to police was harmless error. Appellant’s delinquency adjudication is, therefore, affirmed.

FACTS

This appeal, before the court of appeals on remand from the supreme court, has the same underlying facts as In the Matter of the Welfare of T.J.C., Child, 662 N.W.2d 175 (Minn.App.2003) review granted (Minn. Aug. 5, 2003). We will not, therefore, repeat the facts in full here.

On August 21, 2000, while T.J.C. and M.J. were playing on a trampoline beside MJ.’s house, M.J. reached over and touched TJ.C.’s penis. T.J.C. adjusted himself and said something to M.J.; M.J. then reached over and touched T.J.C.’s penis a second time. M.J.’s mother, watching from a window in the house, witnessed the incident.

As a result of the August 21, 2000 incident, on February 15, 2002, the district court adjudicated T.J.C. delinquent for commission of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a) (2000). The district court based the adjudication on: testimony by M.J.’s mother, testimony by M.J.’s sister, testimony by M.J., a videotaped interview of M.J. discussing the incident, and statements made by T.J.C. to police.

On appeal to this court, we held that TJ.C.’s statements were obtained in violation of his Miranda right, and therefore, the district court should not have considered those statements in its delinquency adjudication. We concluded, however, that the error was harmless, and affirmed T.J.C.’s adjudication. On remand from the supreme court, we now determine that the introduction of T.J.C.’s statement at the adjudication proceedings was harmless error as that doctrine was articulated in Juarez.

ISSUE

Was the district court’s erroneous admission of appellant’s statement harmless error?

ANALYSIS

Harmless Error Standard

State v. Juarez articulates the harmless error standard in Minnesota. 572 N.W.2d 286 (Minn.1997). The Juarez decision stands for the proposition that “[a] determination that the district court erred in admitting [an appellant’s] statement does not automatically result in a reversal of his conviction and the granting of a new trial.” Id. at 291. Therefore, a “conviction may stand so long as the admission of the statement was harmless beyond a reasonable doubt.” Id.

The supreme court crystallized the harmless error standard in Juarez by describing the analysis as a “harmless error impact analysis.” 572 N.W.2d at 291. Juarez directs the appellate court to consider the impact of the error at trial, and in conducting its analysis, “the overwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.” Id. Juarez holds that an appellate court need “not analyze whether a jury would have convicted the defendant without the error, rather [it] look[s] to whether the error reasonably could have impacted upon the jury’s decision.” Id at 292.

In Juarez, the central question became: “What effect did the jury’s hearing Juarez’ statement ... actually have on the guilty verdict rendered?” 572 N.W.2d at 292. In T.J.C., the central question becomes: “What effect did T.J.C.’s statement, as heard by the district court, actually have on the delinquency adjudication?” In either case, “[i]f the verdict rendered is ‘surely unattributable’ to the error, then the error is harmless beyond a reasonable doubt and the conviction stands.” Id.

To determine if the verdict is “surely unattributable” to error, this court must look to the whole record because “it is not sufficient to find that without the error enough evidence exists in support of the conviction, without a thorough examination of the evidence it would be impossible to discover whether the jury’s verdict was ‘surely unattributable’ to the erroneous admission.” 572 N.W.2d at 292.

An Examination of the Record Reveals that the District Court’s Admission of T.J.C.’s Statement was Harmless Error

The district court convicted T.J.C. of criminal sexual conduct in the second degree, defined as:

A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exists:
(a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced.

Minn.Stat. § 609.343-l(a) (2000).

“Sexual contact” is defined as:

... any of the following acts committed without the complainant’s consent, except in those cases where consent is not a defense, and committed with sexual or aggressive intent:
(ii) the touching by the complainant of the actor’s, the complainant’s, or another’s intimate parts effected by a person in a position of authority, or by coercion, or by inducement if the complainant is under 13 years of age ...

Minn.Stat. § 609.341 subd. ll(a)(ii) (2000).

On remand, we review only whether TJ.C.’s adjudication as delinquent was “surely unattributable” to the district court’s erroneous admission of appellant’s statement with regard to whether (1) M.J. was induced to touch appellant’s intimate parts; and, (2) appellant had sexually aggressive intent in inducing M.J.

In determining whether T.J.C. had committed an act of “sexual contact,” the district court relied on multiple items of evidence in concluding that T.J.C. engaged in sexual contact with M.J. The district court noted that “one of the most important points about this case is how it was all initiated ... by [M.J.’s mother] observing what had happened on the trampoline.” The court relied on M.J.’s mother “testifying to what she saw, and her testimony was very clear.” The court was “satisfied after evaluating [M.J.’s mother’s] testimony ... that she was able to see you [T.J.C.] and [M.J.] and that her testimony that she saw [M. J.] touch you on the penis, that you adjusted yourself, that she saw you say something to [M.J.], couldn’t hear you, but then saw [M.J.] touch your penis again, that testimony was credible.”

The district court also relied on the testimony of M.J.’s mother that, after the incident on the trampoline, M.J.’s mother spoke with M.J. about what happened and that M.J. confided that T.J.C. had told M.J. to touch his penis.

In discussing M.J.’s videotaped interview, the district court conceded that some aspects of the videotape interview were troubling — specifically the lapse of time between when M.J. reported the incident and when she was ultimately interviewed, that M.J.’s family was not cautioned about discussing the incident with her, and that M. J.’s mother was present at the interview and gave M.J. cues to speak — but the district court found that the parts of the videotape that were troubling were unrelated to the charges appellant ultimately faced. More importantly, the district court stated that its ultimate opinion on the videotape was that “it [was] not as important in this case as it is in other cases where that is all you have is the child’s word. Here we have statements from [M.J.’s mother] and other evidence.”

The district court found the testimony of A.J., M.J.’s sister, persuasive corroborating testimony that T.J.C. had indeed told M.J. to touch his penis.

Finally, the district court found M.J.’s own testimony persuasive. The district court acknowledged that M.J. “probably said more in this case than the Court has seen in other cases before.” The district court noted that M.J. was not prompted to testify, and that in her statement, made of her own volition, she indicated that she did touch T.J.C.

The district court noted that T.J.C.’s statement to the police was “also important,” but the court indicated that the overwhelming weight of evidence proved that T.J.C. engaged in sexual contact with M.J. The district court based this conclusion in large part on the credibility and import of the testimony of M.J.’s mother, satisfaction with A. J.’s corroboration of the incident, and that M.J.’s own testimony both was credible, and of her own volition.

The issue of whether appellant had sexually aggressive intent is a closer question. But we conclude that the district court’s findings of “sexual or aggressive intent” on the part of T.J.C. is “surely unattributable” to the court’s erroneous admission of TJ.C.’s statements.

Whether T.J.C. acted with sexually aggressive intent can be established through repeated attempts to accomplish sexual contact. See In re Welfare of C.S.K., 438 N.W.2d 375, 377 (Minn.App.1988). Here, the incident on the trampoline alone demonstrates T.J.C.’s repeated attempts to accomplish sexual contact, thereby demonstrating aggressive intent. See C.S.K, 438 N.W.2d at 377. “Repeated attempts,” in this context, consists of the two attempts M.J.’s mother witnessed on the trampoline when T.J.C induced M.J. to touch his penis. The record supports the conclusion that the district court believed the testimony of M.J.’s mother about this occasion of sexual contact between T.J.C. and M.J. In the district court’s ruling, it noted that:

[The troubling aspects of the Marxhau-sen video] have more to do with allegations surrounding what could have been Criminal Sexual Conduct in the First Degree with penetration, and obviously the State decided not to pursue that charge, but it is my ultimate opinion that on the videotape it is not as important in this case as it is in other cases where that is all you have is the child’s word. Here we have statements from [M.J.’s mother] and other evidence that I will get to in a moment.

(emphasis added).

In light of the fact that the purpose of the harmless error review “is to relieve the courts and the public of the needless expense of retrying cases ‘in which the result would be the same after the error had been corrected,’ ” and after review of the entire record, it is clear that the answer to the question “What effect did T.J.C.’s statement, as heard by the district court, actually have on the delinquency adjudication?” is: very little. The verdict rendered was “surely unattributable” to the error in admitting T.J.C.’s statement, that error is harmless, and T.J.C.’s delinquency adjudication stands.

DECISION

At appellant’s delinquency adjudication, the district court erred when it admitted appellant’s statements that were taken in violation of his Miranda right. That error was harmless, however, because after a review of the entire record, it is clear that appellant’s adjudication was “surely unattributable” to the erroneous admission.

Affirmed.

      . In re Welfare of R.J.E., 642 N.W.2d 708 (Minn.2002) (citing Philip J. Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 Minn. L.Rev. 519, 519 (1969)).

      . Because we find that the verdict rendered by the district court is "surely unattributable” to the harmless error of admitting T.J.C.’s statement, we need not reach the issue raised in respondent's brief of whether a new rule of law regarding the harmless error standard in bench trials should be fashioned.


source: Caselaw Access Project

license: Public Domain

text:
    2003 ND 163
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 2 WITH CHAMBERS IN BISMARCK, North Dakota, South Central Judicial District.
    No. 20030290.
    Supreme Court of North Dakota.
    Oct. 29, 2003.
   ORDER

[¶ 1] On October 7, 2003, Governor John Hoeven officially notified the Supreme Court that the Honorable Benny A. Graff, Judge of the District Court, with chambers in Bismarck, South Central Judicial District, is resigning his position effective January 31, 2004. Judge Graffs impending resignation will create a vacancy under Section 27-05-02.1, N.D.C.C.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy be filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] Under N.D. Sup.Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the South Central Judicial District was posted October 8, 2003, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were permitted through October 27, 2003. For purposes of the consultation provided for under Section 27-05-02.1, N.D.C.C., this procedure is sufficient for determining the disposition of the vacancy.

[¶ 4] A Report containing population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, was filed October 15, 2003, by the District Court Administrator for the South Central Judicial District.

[¶ 5] Under the criteria of Section of N.D. Sup.Ct. Admin. R. 7.2, the Court has considered all submissions received by the Court and its own administrative records on state-wide weighted caseload data.

[¶ 6] This Court determines that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship No. 2 at Bismarck in the South Central Judicial District be filled in the manner provided in N.D.C.C. Chapter 27-25.

[¶ 8] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.


author: VOGEL, J.

text:
    STATE of Iowa, Appellee, v. Brandon Dean ECKRICH, Appellant.
    No. 02-1508.
    Court of Appeals of Iowa.
    Aug. 27, 2003.

      Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, J. Patrick White, County Attorney, and David Tiffany, Assistant County Attorney, for appellee.
    Considered by SACKETT, C.J., and HUITINK and VOGEL, JJ.
   VOGEL, J.

Brandon Eckrich appeals his convictions and sentences for felony eluding under Iowa Code section 321.279(3) (1999) and possession of controlled substance under section 124.401, claiming a double jeopardy violation as he had previously been convicted for operating while intoxicated (OWI) under section 321J.2 for the same conduct. Without deciding whether OWI and possession are lesser-included offenses of felony eluding, we conclude the legislature intended separate punishments for the proscribed conduct; therefore, Eckrich suffered no double jeopardy violation. His separate convictions shall stand.

Background Facts. In July 2000, Eck-rich pled guilty to eluding a pursuing law enforcement vehicle while violating Iowa Code section 321J.2 or 124.401 (operating while under the influence of alcohol or drug and possession of a controlled substance, respectively) pursuant to Iowa Code section 321.279(3), OWI pursuant to section 321J.2, and possession of a controlled substance, to-wit marijuana pursuant to section 124.401. Eckrich then filed a motion to adjudicate law points asking the court to determine that the OWI and possession charges were lesser included offenses of the felony eluding charge, thereby requiring merger. The district court stated it could address the motion, and if he were successful Eckrich would be sentenced on the felony charge, with the lesser charges merged into the eluding conviction. In the alternative, Eckrich could withdraw the motion and the court would enter deferred judgments, as recommended, on the felony eluding and possession charges and enter a conviction on the OWI charge. Electing the deferred judgments to avoid a felony conviction, Eckrich withdrew the motion to adjudicate law points. The court then sentenced Eckrich on the OWI charge, but deferred judgment on both the eluding and possession charges.

Subsequently, Eckrich violated his probation which prompted the State to file an application for adjudication of guilt and sentencing for the felony eluding and possession of marijuana charges. Eckrich filed a motion to dismiss asserting both merger and double jeopardy violations. The motion was denied. His deferred judgments were revoked; and convictions and sentences were entered. On appeal, Eckrich claims the district court erred in convicting and punishing him on the felony eluding and possession charges after he had already been convicted and punished for the lesser included offense of OWI.

Scope of Review. We review constitutional claims concerning the double jeopardy clause de novo. State v. Henry, 483 N.W.2d 2, 3 (Iowa Ct.App.1992) (citing State v. Davis, 446 N.W.2d 785, 787 (Iowa 1989)). Questions of statutory interpretation are reviewed for correction of errors at law. In re E.H. III, 578 N.W.2d 243, 245 (Iowa 1998).

Double Jeopardy and Merger. Eckrich claims the OWI charge was a lesser included offense of felony eluding; as such, his OWI conviction bars any further prosecution on the felony eluding and possession of marijuana charges. The State, however, argues Eckrich chose to withdraw his motion for adjudication of law points regarding multiple prosecutions prior to sentencing in order to receive deferred judgments on the eluding and possession charges and therefore has not preserved error on this claim. We agree this issue was not preserved. See State v. Johnson, 272 N.W.2d 480, 484 (Iowa 1978) (“constitutional questions must be preserved in the same manner as any other issue”) (citations omitted). Therefore our discussion will be limited to the asserted double jeopardy violation as it relates to the imposition of multiple punishments and merger of sentences.

Under Iowa Code section 821.279(1) a person can be prosecuted for eluding as a serious misdemeanor for failing to appropriately yield to a pursuing law enforcement vehicle. Under section 821.279(2), the level of crime increases to an aggravated misdemeanor if the person, while failing to yield, is also exceeding the speed limit by twenty-five miles per hour. Finally, under section 321.279(3), the crime of eluding becomes a class “D” felony if a person, while both failing to yield and exceeding the speed limit by twenty-five miles per hour, also commits a felony or violates Iowa Code section 321J.2 or 124.401 or if bodily injury results to another. In this case, because Eckrich’s conduct fell under section 321.279(3), his act of “eluding” rose from a serious misdemeanor to a class “D” felony.

Earlier this year, in a factually similar case, we addressed the issue of whether OWI is a lesser-included offense of felony eluding. See State v. Rice, 661 N.W.2d 550 (Iowa Ct.App.2003). In Rice, we stated:

If a violation of section 321J.2 is an element of ‘felony’ eluding under section 321.279(3), then we would agree one could not commit that alternative of eluding without also necessarily violating 321 J.2 If that were the case, barring legislative intent to the contrary, the offenses should have been merged. In contrast, if a violation of 321J.2 is only one of several possible sentencing enhancements for the crime of eluding, merger was not authorized.

Id. at 551 (internal citations omitted). While the Rice court stated it was inclined to find OWI was a sentencing enhancement rather than a lesser-included offense, Rice did not decide definitively whether OWI was a lesser-included offense of felony eluding. Id. The Rice court continued its analysis and found that even if OWI were a lesser-included offense of felony eluding, the crimes could be punished separately due to the clear legislative intent to impose cumulative punishments. Id. We follow a similar analysis here.

As the district court noted, the punishment for eluding under section 321.279(3)(b) does not include several of the punishments for operating while intoxicated under section 321J.2(2)(a)(3), and (4) which include driver’s license revocation, substance abuse evaluation and treatment, attending a drinking driver’s course, and, when available and appropriate, attending a reality education substance abuse prevention program. Iowa Code section 901.5(10) also requires license revocation of any person convicted under section 124.401 where section 321J.2(2)(a)(3) does not. It does not appear the legislature set out to insulate a person from the specific sentencing mandates of section 321J.2(2)(a)(3) and section 124.401, just because that person was also “eluding” as proscribed under 321.279(3)(b). Rather it appears quite evident that each statute was designed to address a separate form of illegal conduct and the punishments designed accordingly. See generally State v. Reed, 618 N.W.2d 327, 336 (Iowa 2000) (finding legislative intent for cumulative punishment to deter illegal activity under separate code sections). Where we find legislative intent for multiple punishments involving the same conduct, we will uphold the separate convictions and punishments. State v. Hickman, 623 N.W.2d 847, 852 (Iowa 2001). Because there is clear legislative intent to authorize multiple punishments under sections 321.J2(2)(a)(3), 124.401(5) and 321.279(3)(b), Eckrich’s claim as to a double jeopardy violation would fail, even with his assertion that OWI and possession are lesser-included offenses of felony eluding. We therefore affirm Eckrich’s punishments for felony eluding and possession of marijuana.

Credit for Time Served. Eckrich was sentenced to an indeterminate term not to exceed five years on the eluding charge under Iowa Code section 321.279(3)(b) and was given credit for time served. The sentence was suspended. In addition, Eckrich was sentenced to serve ten days in the custody of the county sheriff for possession of marijuana, under Iowa Code section 124.401(5). In its sentencing order, the court specifically stated Eckrich was not to be given credit for time served on the possession sentence. Eck-rich claims the court failed to follow Iowa Code section 903A.5 by denying him credit for two days of time served following his initial arrest. The State responds that, section 903A.5 simply does not apply. We agree with the State. Iowa Code section 901.6 states, “In every case in which judgment is entered ... a statement of the days credited pursuant to section 903A.5 shall be incorporated into the sentence.” Chapter 903A, “Reduction of Sentences,” pertains solely to inmates in the custody of the director of the department of corrections, and not to those confined in county facilities. Therefore, the code section Eck-rich relies on has no bearing on his ten-day determinate sentence in the custody of the county sheriff. Absent a specific code section which would require credit for time served in a county facility, Eckrich’s claim has no basis. Iowa Code § 321J.2(2)(a)(l) (authorizing credit for time served in a jail or detention facility following arrest).

AFFIRMED.

      . In the alternative, Eckrich claims ineffective assistance of counsel for failing to preserve the issue of multiple prosecutions. It is obvious from the record, after a lengthy dialog with the court, counsel made a tactical choice to withdraw the motion in order to proceed with favorable sentencing. We therefore reject Eckrich’s claim of ineffective assistance of counsel. See State v. Lange, 495 N.W.2d 105, 108 (Iowa 1992) (holding defendant may by his own defense tactics waive subsequent assertions of double jeopardy violations) (citing Jeffers v. United States, 432 U.S. 137, 154, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168, 182 (1977)).


author: PAGE, Justice.

text:
    James L. NOSKE, Respondent, v. Joseph FRIEDBERG, et al., Petitioners, Appellants.
    No. C7-02-1073.
    Supreme Court of Minnesota.
    Nov. 6, 2003.

      Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, St. Paul, MN, for Respondent.
    Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for Appellants.
    Deborah Ellis, St. Paul, MN, Peter W. Gorman, Minneapolis, MN, for Amicus Curiae Minnesota Ass’n of Criminal Defense Lawyers.
   OPINION

PAGE, Justice.

In 2001, respondent James Noske commenced an action against appellant Joseph Friedberg for attorney malpractice arising out of Friedberg’s representation of Noske at Noske’s 1990 criminal trial for second-degree assault. The district court dismissed the action, finding that the six-year statute of limitations for bringing an attorney malpractice claim had run. The court of appeals reversed, concluding that Noske’s cause of action did not accrue until he was granted habeas corpus relief by the federal district court in 1999. We affirm the court of appeals.

In July of 1989, Noske was arrested and charged with five counts of second-degree assault after he fired a gun in the air and then pointed it at his neighbors. Noske hired Friedberg to represent him. According to Noske, in selecting defense counsel, it was important that the person who represented him be willing to proceed on a theory of self-defense. Noske and Fried-berg discussed pursuing a self-defense theory on a number of occasions, but Friedberg never pursued such a theory. Ultimately, the jury convicted Noske of one count of second-degree assault and acquitted him of the other charges.

Noske petitioned for postconviction relief in district court alleging, among other things, that he had been denied effective assistance of counsel because of Fried-berg’s failure to pursue self-defense as a defense to the assault charges. The post-conviction court denied the petition. Noske then appealed his conviction and sentence, as well as the denial of postcon-viction relief to the court of appeals. In an unpublished decision, the court of appeals affirmed the lower court in all respects. This court subsequently denied review. See Noske v. State, No. CO-91-2486, 1992 WL 365990 (Minn.App. Dec. 15, 1992), rev. denied (Minn. Jan. 28,1993).

Noske was imprisoned on March 5,1993, and was released from custody and placed on supervised release on January 27,1995. On May 25, 1993, Noske petitioned for a writ of habeas corpus in federal district court seeking to have his conviction overturned and to be released from supervised release based on his claim of ineffective assistance of counsel at his state court trial. In January of 1999, the federal district court found that Noske had been denied effective assistance of counsel, granted Noske’s petition for a writ of ha-beas corpus, and vacated his assault conviction. Noske v. Stender, Civil No. 4-93-518, slip op. at 22-23 (D.Minn. Jan. 7, 1999) (Memorandum Opinion and Order). In its order granting Noske’s petition, the federal district court ordered that Noske could be retried on the assault charge within 90 days of the order, but the state chose not to do so. Id.

By complaint dated September 13, 2001, Noske commenced a legal malpractice action against Friedberg and his law firm in Hennepin County District Court based on Friedberg’s alleged ineffective assistance at the 1990 trial. Friedberg moved for dismissal of the malpractice action, contending that it was barred by the applicable six-year statute of limitations found in Minn.Stat. § 541.05, subd. 1(5) (2002). The district court agreed with Friedberg and dismissed Noske’s complaint. The district court reasoned that the alleged malpractice occurred during the 1990 criminal trial and that Noske suffered damages upon his conviction and subsequent incarceration, all of which occurred more than six years before his legal malpractice action commenced. On appeal, the court of appeals reversed, concluding that Noske’s legal malpractice cause of action did not accrue and the statute of limitations did not begin to run until 1999, when he obtained relief from his conviction in federal court. Noske v. Friedberg, 656 N.W.2d 409, 416 (Minn.App.2003).

The issue we must decide is whether a legal malpractice action against a criminal defense attorney based on a claim of ineffective assistance of counsel at the plaintiffs underlying criminal trial accrues at the time of the plaintiffs conviction or when postconviction relief is subsequently granted. If we conclude that his cause of action accrued at the time postconviction relief was granted, Noske asks that we also decide whether he may use the ineffective-assistance-of-counsel determination to collaterally estop Friedberg from litigating the issue of negligence in the legal malpractice action.

“The construction and applicability of statutes of limitations are questions of law that this court reviews de novo.” Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998). “The statute of limitations for a legal malpractice action is six years.” Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999) (citing Minn.Stat. § 541.05, subd. 1(5)). “A cause of action accrues and the statute of limitations begins to run when the cause of action will survive a motion to dismiss for failure to state a claim upon which relief can be granted.” Id. The showing a plaintiff must make in order to survive a motion to dismiss under Minn. R. Civ. P. 12.02(e) is minimal. The plaintiff need only allege sufficient facts to state a claim. In a legal malpractice action, the facts a plaintiff must allege in order to state a claim are: “(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiff’s damages; (4) that but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action.” Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 281 (Minn.1983). Failure to establish any one of these elements defeats the entire claim. Godbout v. Norton, 262 N.W.2d 374, 376 (Minn.1977), appeal dismissed, 437 U.S. 901, 98 S.Ct. 3086, 57 L.Ed.2d 1131 (1978). That is to say, with respect to any element, if it is not ‘“possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded,’” the claim will be dismissed. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739-40 (Minn.2000) (quoting N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963)).

Noting that Noske’s lawsuit was filed almost 11 years after his conviction, Friedberg argues that the court of appeals erred in reversing the dismissal of the lawsuit. Citing Herrmann, Friedberg contends that Noske’s cause of action accrued at the time of his conviction because it was at that point that Noske would have suffered damages as a result of the alleged ineffective assistance of counsel. See Herrmann, 590 N.W.2d at 643. Further, Friedberg argues that Noske’s lawsuit could have survived a Rule 12.02(e) motion to dismiss had the lawsuit been brought within six years of his 1990 conviction, even though Noske had not obtained post-conviction relief, because each of the elements required for a plaintiff to bring a legal malpractice claim existed upon his conviction. Friedberg, however, does not dispute that for Noske to prevail on his claim his conviction would have to be vacated. Instead, Friedberg argues that Noske’s cause of action could survive a motion to dismiss under Minn. R. Civ. P. 12.02(e) as long as there is a possibility that Noske could obtain relief from his conviction, even if the cause of action could not withstand summary judgment. Recognizing that Noske might not have been able to survive a summary judgment motion absent postconviction relief, Friedberg suggests that Noske could have commenced the malpractice action, then sought to have the proceedings stayed until his postconviction claims were resolved. Friedberg also argues that to hold that the statute of limitations does not begin to run until postconviction relief is obtained would be inconsistent with our decision in Weston v. Jones, 160 Minn. 32, 37, 199 N.W. 431, 433 (1924), a case in which we held that a plaintiffs lack of knowledge of a cause of action will not suspend the running of the statute of limitations. Finally, Friedberg argues that delaying the accrual of the malpractice claim until postconviction relief from the underlying conviction is obtained will permit stale claims to go forward, make it difficult for criminal defense attorneys to defend themselves, and result in criminal defense attorneys being treated differently from all other attorneys sued for malpractice.

In response, Noske argues that his criminal conviction precluded him from arguing that Friedberg’s ineffective assistance at his criminal trial was the proximate cause of his alleged damages, or that but for Friedberg’s conduct he would not have been convicted. Therefore, until he obtained postconviction relief and had that conviction set aside, a legal malpractice action against Friedberg would not have been able to survive a motion to dismiss. He also makes a policy argument that an individual should not be allowed to challenge the validity of a criminal conviction in a civil malpractice action.

We have held that a person convicted of a crime may not attack a valid criminal conviction in a subsequent civil proceeding. Travelers Ins. Co. v. Thompson, 281 Minn. 547, 555, 163 N.W.2d 289, 294 (1968). In Travelers, we concluded that an individual who had been convicted of murdering his wife was collaterally estopped from relitigating the issue of his guilt in a civil proceeding to obtain the proceeds of his wife’s life insurance. Id. at 558-59, 163 N.W.2d at 296. In doing so, we reasoned that the criminal conviction was “conclusive as to the result of the civil action” because “to permit a retrial of the facts and issues already determined in the criminal proceeding would be an imposition on the courts and only tend to embarrass or bring into disrepute the judicial process.” Id. at 555, 163 N.W.2d at 294. While Travelers dealt specifically with a person who was convicted of murdering his wife and who subsequently sought to collect the proceeds of his wife’s insurance policy, its reasoning applies with equal force to the facts presented in this case. It would be improper to shift the burden of responsibility for a crime away from the criminal defendant to the defense attorney. As the United States Supreme Court held in Heck v. Humphrey, civil proceedings are an inappropriate forum to relitigate an issue that was previously decided in a criminal proceeding which resulted in a conviction that has not been reversed. See 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (invoking “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding convictions”).

In order to survive a motion to dismiss a legal malpractice claim under these circumstances, a criminal defendant-plaintiff would have to show that the attorney caused the damages and that but for the attorney’s negligence the criminal defendant-plaintiff would have been acquitted. Here, Noske had unsuccessfully litigated this issue in multiple state court proceedings. Having done so, allowing him to use a civil legal malpractice proceeding to challenge his valid criminal conviction would undermine the integrity of the criminal justice system. Put simply, until Noske was granted habeas corpus relief in 1999, his legal malpractice claim could not withstand a Rule 12.02(e) motion to dismiss because, absent the conviction being overturned, the conviction’s presumption of regularity prevented Noske from demonstrating that Friedberg proximately caused his damages and that but for Friedberg’s alleged negligence he would have been acquitted. See King v. State, 649 N.W.2d 149, 156 (Minn.2002) (discussing a conviction’s presumption of regularity). Thus, we conclude that Noske’s legal malpractice claim did not accrue until he received habeas corpus relief in 1999, the point at which it was “possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” Martens, 616 N.W.2d at 739-40.

Weston does not dictate a different result as Friedberg suggests it should. Weston dealt with the running of the statute of limitations in a civil case involving the distribution of the proceeds of a testamentary trust. The activities giving rise to the cause of action were unknown until well after the six-year statute of limitations for commencing the action had passed. See Weston, 160 Minn, at 33-34, 199 N.W. at 432. We held that lack of knowledge was no basis for tolling the statute of limitations and that the statute of limitations began to run on the date the trust proceeds were distributed. Id. at 33-37, 199 N.W. at 433. This case is clearly distinguishable from Weston. First, from the Weston opinion, it is not clear that an issue precisely analogous to the issue presented here was before the court in Weston. While we held that lack of knowledge did not toll the statute of limitations, there was no discussion or analysis as to why the cause of action accrued on the date of the decree permitting distribution of the trust’s proceeds. Thus, it appears that the focus was on the question of tolling and not accrual. The issue presented here is when the claim accrued. The question of tolling is not presented. Further, this case, unlike Weston, involves a criminal conviction which was not subject to collateral attack in a civil proceeding and which, until overturned, was “conclusive as to the result of the civil action.” Travelers, 281 Minn, at 555,163 N.W.2d at 294.

We note that other jurisdictions have disapproved of holding that a legal malpractice action does not accrue until a criminal conviction is overturned, describing the concept that there are no actionable damages until the criminal conviction is overturned as “a legal fiction with serious analytical flaws.” Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900, 906 (1994). We disagree. Gebhardt’s reasoning “fails to adequately account for: equitable principles; the difficulties of proving causation and damages in a criminal malpractice case where the plaintiff has not yet been exonerated; the existence of comprehensive post-conviction review * * *; [and] collateral estoppel.” Gibson v. Trant, 58 S.W.3d 103, 110 (Tenn.2001). Our holding today is a recognition that as long as a valid criminal conviction is in place a legal malpractice cause of action based on a defense counsel’s ineffective assistance cannot withstand a Rule 12.02(e) motion to dismiss.

We recognize that one of the fundamental precepts of statutes of limitations is to “eliminate stale claims [and] grant repose to liability that otherwise would linger on indefinitely.” Johnson v. Soo Line R.R. Co., 463 N.W.2d 894, 896 (Minn.1990). However, in cases like Noske’s in which the “attorney’s malpractice occurs during litigation, the dangers associated with delay are lessened because a record will have been made of the actions which form the substance of the later malpractice action.” Amfac Distrib. Corp. v. Miller, 138 Ariz. 155, 673 P.2d 795, 798 (App.1983). Additionally, by precluding claims from proceeding in which a plaintiffs criminal conviction has not been overturned and will likely never be overturned, our decision comports with another fundamental policy of the statute of limitations, which is to “permit the judicial system to husband its limited resources.” Johnson, 463 N.W.2d at 896. Therefore, in this case, the policy against allowing a defendant to collaterally attack a valid criminal conviction in a subsequent civil proceeding outweighs the policy of preventing stale claims.

Having concluded that Noske’s legal malpractice claim did not accrue and the statute of limitations did not begin to run until his conviction was set aside, we must go on to address Noske’s argument that Friedberg should be estopped from arguing that he was not negligent. Fried-berg argues that Noske did not file a petition or cross-petition for review and therefore this argument has not been properly preserved and should not be considered. See Anderly v. City of Minneapolis, 552 N.W.2d 236, 239-40 (Minn.1996). We decline to address Friedberg’s procedural argument. In the interest of judicial economy, we choose to address the issue on its merits.

We have previously held that a finding of ineffective assistance of counsel does not necessarily “entail the success of a malpractice action against the defense attorney.” White v. State, 309 Minn. 476, 481, 248 N.W.2d 281, 285 (1976). In White, we noted:

Review of the issue of ineffectiveness is not to pass judgment on the abilities of a defense lawyer. Rather, the overall concern is limited to whether our adversary system of criminal justice has functioned properly. The narrow issue is not whether defense counsel was effective in the assistance rendered but rather whether defendant received the effective assistance required to assure him a fair trial and the integrity of our adversary system of justice.

Id. Thus, we conclude that the federal court’s determination that Friedberg provided ineffective assistance of counsel is not conclusive as to Noske’s legal malpractice claim and on remand Friedberg is not estopped from litigating any of the elements of Noske’s legal malpractice claim.

Affirmed.

      . Friedberg is correct in stating that in order for the cause of action to accrue and survive a motion to dismiss, at least some damages must occur as the result of the alleged negligence and the exact amount of damages need not be known. Herrmann, 590 N.W.2d at 643; see also Bonhiver v. Graff, 311 Minn. 111, 117, 248 N.W.2d 291, 296 (1976); Dalton v. Dow Chemical Co., 280 Minn. 147, 153, 158 N.W.2d 580, 584 (1968). However, damages are not the only element that must be satisfied in order to state a legal malpractice claim. See Herrmann, 590 N.W.2d at 643 n. 12. The plaintiff must be able to establish all elements of the claim. See id.

        . We have reached a different conclusion when the individual attacking the criminal conviction in the subsequent civil proceeding is not the individual who was convicted of the crime. See Ill. Farmers Ins. Co. v. Reed, 662 N.W.2d 529, 534 (Minn.2003).

      . Additionally, allowing a criminal defendant-plaintiff to commence a legal malpractice action before obtaining postconviction relief in the criminal matter and then staying the malpractice action until the issue of postconviction relief in the criminal matter is settled would squander scarce judicial resources.

      . Other jurisdictions are divided on when a legal malpractice cause of action accrues. See generally Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 26.17 (Sth ed.2000). Many jurisdictions require that a conviction be overturned in order for a cause of action to accrue. See, e.g., Shaw v. State, 816 P.2d 1358, 1360 (Alaska 1991); Steele v. Kehoe, 747 So.2d 931, 933 (Fla.1999); Britt v. Legal Aid Soc’y, Inc., 95 N.Y.2d 443, 718 N.Y.S.2d 264, 741 N.E.2d 109, 110 (2000); Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 566 (1993). However, some jurisdictions hold that a cause of action accrues at the time of conviction or shortly thereafter. See, e.g., Settle v. Fluker, 978 F.2d 1063, 1064 (8th Cir.1992) (applying Missouri law); Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863, 868 (App.1997); Gibson v. Trant, 58 S.W.3d 103, 117 (Tenn.2001). Because we are guided by our decision in Travelers, which prohibits a defendant from collaterally attacking a criminal conviction in a subsequent civil proceeding, we do not place a great deal of weight on the analysis found in the decisions from these other jurisdictions.

      . Michigan does not follow the "normal rule in tort law * * * that a cause of action does not accrue until all elements of the tort exist.” Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900, 903 (1994). Instead, a claim accrues "on the last day of professional service without regard to when the plaintiff discovers the claim.” Id.


author: HALBROOKS, Judge.

text:
    In the Matter of MAX SCHWARTZMAN & SONS, INC., Schwartzman Company, Inc., Jon Schwartzman, an individual. Max Schwartzman & Sons, et al., Relators, v. Minnesota Pollution Control Agency, Respondent.
    Nos. C4-03-389, A03-224.
    Court of Appeals of Minnesota.
    Oct. 28, 2003.

      Thomas Pursell, Peter Tester, DeAnne Hilgers, Lindquist & Vennum, P.L.L.P., St. Paul, for relators.
    Mike Hatch, Attorney General, Ann E. Cohen, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by RANDALL, Presiding Judge, HALBROOKS, Judge, and HUDSON, Judge.
   OPINION

HALBROOKS, Judge.

In this consolidated appeal, relators Schwartzman Company, Inc., Max Schwartzman & Sons, Inc., and Jon Schwartzman challenge the Minnesota Pollution Control Agency’s (MPCA) January 28, 2003 administrative order and its denial of relators’ request for a contested-case hearing. Relators argue that (1) the MPCA’s order requiring relators within six months to remove an earthen berm constructed -with shredder fluff on their property is not supported by substantial evidence and (2) the MPCA erred in holding that the use of the shredder fluff in the berm constitutes disposal of solid or hazardous waste. Because we conclude that the MPCA’s decision to require relators to remove the berm within six months is not arbitrary and capricious, that the MPCA did not err in holding that the use of shredder fluff in the berm constitutes the disposal of solid or hazardous waste, and that the MPCA did not err in denying relators’ request for a contested-case hearing, we affirm.

FACTS

Relators Schwartzman Company, Inc., Max Schwartzman & Sons, Inc., and Jon Schwartzman own and operate a scrap metal and metal-recycling facility in Ano-ka. In May 1999, relators installed a metal shredder to shred automobiles, appli-anees, and miscellaneous industrial scrap metal. The shredding process creates a waste material called shredder fluff that is comprised primarily of non-metallic materials. Shredder fluff can sometimes be disposed of at landfills for relatively minimal cost because the landfills use the shredder fluff for daily-cover material. But shredder fluff often contains polychlo-rinated biphenyls (PCBs). Before accepting shredder fluff, landfills must analyze the material in accordance with their disposal-facility permit. Under Minnesota law, shredder fluff containing PCBs of more than 50 parts per million (ppm) is considered hazardous waste that must be disposed of in a hazardous-waste-management facility and not in a less expensive solid-waste landfill. Minn. R. 7045.0135, subp. 5 (2001).

In July and August 2000, neighborhood residents around relators’ facility began making complaints to the Anoka City Council regarding the facility’s noise and vibration. In response, the city conducted noise tests and found some violations of state noise rules. As a result, the city asked relators to construct a barrier. Re-lators hired an environmental consulting firm to perform noise and vibration testing and to recommend remedies. Upon completion of testing, the consulting firm recommended that a fence, earthen berm, or both be installed along the southwestern sides of relators’ property.

During October and November 2000, re-lators constructed a 12-20 foot fence along the south side and an earthen berm on the southwestern side of the property. The berm is composed of approximately 17,000 cubic yards of material, of which 6,800 cubic yards is shredder fluff.

Respondent Minnesota Pollution Control Agency (MPCA) staff inspected relators’ facility on May 17, 2001 to determine if relators were in compliance with the rules governing solid and hazardous waste and storm-water management and control. MPCA staff documented the construction of the berm using shredder fluff and also observed that relators’ storm-water plan did not address the construction of the berm. The MPCA met with relators and requested additional information, which re-lators provided. The MPCA also obtained results from tests performed on relators’ shredder fluff in August and September 2002 that showed PCB levels above 50 ppm.

On November 30, 2001, Anoka County and MPCA staff inspected relators’ facility pursuant to a criminal search warrant and took three samples from the berm and five samples from shredder-fluff piles at various site locations. Test results showed that two of the three berm samples exceeded 50 ppm PCBs and that one of the five samples taken from the shredder-fluff piles exceeded 50 ppm PCBs.

The MPCA issued an administrative order on January 16, 2002, requiring relators to return to compliance by submitting a sampling and testing plan for the shredder fluff in the berm. The purpose of the sampling and testing plan was to provide data about the materials used to construct the berm in order to allow for appropriate disposal of the materials upon removal. Once the sampling and testing were complete, relators were required to submit a plan for removal of the waste material to appropriate facilities.

For almost one year, the parties attempted to negotiate a settlement and agree on a clean-up plan and schedule for removal of the berm. But in a letter dated January 8, 2008, the MPCA terminated negotiations with relators and stated that the MPCA was considering issuing an administrative order.

On January 14, 2003, the MPCA provided relators and other interested persons ■with notice of its intent to issue an administrative order. The proposed administrative order required relators to complete the sampling and testing of the berm in accordance with the plan they had submitted. The plan divided the berm into 20 segments and provided that each segment of the berm would be managed as solid or hazardous waste, depending on the composite test results. The order also required that the entire berm and other shredder-fluff piles on relators’ property be removed within six months, but allowed for a time extension for good cause.

The MPCA accepted comments on the proposed order for ten days, during which time a number of interested persons, including relators, submitted comments. In their comments, relators stated that they did not believe that they could meet the six-month removal deadline. Relators requested that the deadlines be extended to 36 months for removal of the berm and 24 months for removal of the storage piles. The timing issue was the only comment made by relators concerning the proposed order.

The MPCA subsequently issued its administrative order on January 28, 2003. While some changes were made to the language of the proposed order, the MPCA did not change the six-month deadline for removal of the berm and disposal of all shredder fluff. In a letter to rela-tors, the MPCA stated:

The MPCA received your comments to the Order, dated January 23, 2003, in which you state that the [relators] can meet some of the conditions of the Order, but that the [relators] expected some problems in meeting the 6 month disposal timeline for disposal of the shredder fluff. The MPCA has considered your comments but has concluded that the 6 months time should be adequate to remove shredder fluff that is improperly stored at the Facility. The [relators] have known of their obligation to remove the shredder fluff for over a year. In addition, if the [relators] cannot remove the fluff in accordance with the time schedule in the Order due to circumstances beyond their control, the Order provides a procedure for requesting extensions.

Relators proceeded with the testing and sampling required by the MPCA’s order and submitted documents in accordance with its requirements on February 14, 2003. Five days later, on February 19, 2003, relators requested a contested-case hearing

to determine whether [relators’] construction of a sound berm from nonmetallic “shredder fluff’ constitutes the “disposal” or “storage” of “solid waste” or “hazardous waste” under Minnesota law, as found and concluded in the Order. [Relators] challenge the findings and conclusions underlying said provisions of the Order. They request findings that the shredder fluff is not “waste,” and that the construction of the berm is not “disposal” or “storage” of waste. [Relators] will ask the agency that the Order to be amended accordingly-

The MPCA denied relators’ request for a contested-case hearing on the grounds that the request was untimely and the request failed to raise a material issue of fact.

Relators appealed both the MPCA’s administrative order and its denial of rela-tors’ request for a contested-case hearing. This court granted relators’ motion to consolidate the two appeals.

ISSUES
1. Is the MPCA’s decision that requires relators to remove the berm within six months arbitrary and capricious?
2. Did the MPCA err as a matter of law in concluding that relators’ use of shredder fluff to construct the berm constituted the “disposal” or “storage” of solid or hazardous ‘Vaste?”
3. Did the MPCA err in denying rela-tors’ request for a contested-case hearing?

ANALYSIS

I.

The decision of an administrative agency will be affirmed on appeal unless there is an error of law, the determinations are arbitrary and capricious, or the findings are unsupported by the evidence. In re N. State Power Co. for Approval of its 1998 Resource Plan, 604 N.W.2d 386, 389 (Minn.App.2000), review denied (Minn. Mar. 28, 2000). The scope of this court’s review of administrative decisions is provided in Minn.Stat. § 14.69 (2002):

[T]he court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary and capricious.

When reviewing agency decisions we “adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn.2001) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977)).

Relators argue that the MPCA’s decision requiring them to remove the berm within six months is not supported by substantial evidence. The substantial-evidence standard of review is generally applied to an administrative agency’s findings of fact. See, e.g., Saif Food Market v. Comm’r, State, Dep’t of Health, 664 N.W.2d 428, 430 (Minn.App.2003) (finding that substantial evidence supported the commissioner’s decision); In re Hutchinson, 440 N.W.2d 171, 177 (Minn.App.1989), review denied (Minn. Aug. 9,1989) (finding that the racing commission’s finding of fact was supported by substantial evidence). Because the MPCA’s decision to impose a six-month timeline on the removal of the berm is not a factual finding but a legal conclusion, we review this decision under an arbitrary and capricious standard. See Reserve Mining, 256 N.W.2d at 827 (stating the standard of review as “whether or not their findings are unsupported by substantial evidence; and whether or not their conclusions are arbitrary or capricious.”).

An agency decision is arbitrary and capricious when the decision represents the agency’s will rather than its judgment. In re Quantification of Envtl. Costs, 578 N.W.2d 794, 799 (Minn.App.1998), review denied (Minn. Aug. 18, 1998).

A decision will be deemed arbitrary and capricious if the agency relied on factors which the legislature had not intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Trout Unlimited, Inc. v. Minn. Dep’t of Agric., 528 N.W.2d 903, 907 (Minn.App.1995), review denied (Minn. Apr. 27, 1995).

Relators argue that the six-month time frame for removal is unreasonable because the MPCA gave no justification for the time frame and because during earlier, unsuccessful settlement negotiations, the MPCA stated a willingness to give relators two years to remove the berm. In support of their position, rela-tors rely on a letter from the MPCA to relators dated November 27, 2002, at which time the MPCA indicated a willingness to consider a longer time frame. The MPCA’s November 27, 2002 letter was one of the documents at issue in a motion to strike brought by the MPCA. We granted the MPCA’s motion, in part, in an earlier, separate order. With respect to the letter, we concluded that it is inadmissible because it was not part of the agency record and because evidence relating to a settlement negotiation is inadmissible under Minn. R. Evid. 408. Thus, the letter is not part of the record and will not be considered on appeal.

Among other requirements, the MPCA’s January 16, 2002 order required relators to submit a sampling and testing plan of the waste material used to construct the berm in order to determine how to appropriately dispose of the material once it was removed. Within 30 days of the receipt of testing results, the relators were then required to submit a removal plan to the MPCA. Relators did not challenge the MPCA’s January 16, 2002 order. Thus, as of January 2002, relators knew they were going to have to remove the berm.

The January 28, 2003 administrative order required relators to submit a plan for the proper evaluation, removal, and disposal of the shredder fluff in the berm. The plan was to be implemented immediately and the berm was to be completely removed within six months. But the order also provided a procedure by which relators could obtain a time extension for good cause. The record shows that the MPCA considered relators’ concerns regarding the six-month time frame during the comment period before the issuance of the January 28, 2003 order. The MPCA determined that the six-month time frame was reasonable because relators had known since January 2002 that they would have to remove the berm, and the January 28, 2003 order provided a procedure whereby relators could request a time extension. The amount of time it would take to remove the berm is an issue uniquely within the expertise of the MPCA, and it is appropriate for this court to defer to the MPCA on this issue. Based on this record, we conclude that the agency’s decision requiring relators to remove the berm within six months is not arbitrary and capricious.

II.

Relators contend that the MPCA erred in concluding that their use of shredder fluff to construct the berm constitutes the disposal of solid or hazardous waste. The objective of all statutory interpretation is to ascertain and effectuate the intent of the legislature. Minn.Stat. § 645.16 (2002). Pursuant to canons of statutory construction, words and phrases should be construed according to rules of grammar and according to their common and approved usage, unless it would be inconsistent with the intent of the legislature. Minn.Stat. § 645.08(1) (2002). We extend judicial deference, rooted in the separation-of-powers doctrine, to agency decision-makers in the interpretation of statutes that the agency is charged with administering. Blue Cross & Blue Shield, 624 N.W.2d at 278.

Minnesota law requires a permit to store or dispose of solid or hazardous waste. Minn.Stat. § 116.081, subd. 1 (2002); Minn. R. 7001.0520, 7001.3050, subp. 1 (2001). Anyone who produces waste must determine within 60 days whether the waste is hazardous. Minn. R. 7045.0214, subp. 1 (2001). Regardless of whether waste is determined to be hazardous or solid waste, it must be disposed of in an appropriate facility. Minn. R. 7035.0800, subp. 1, 7045.0208 (2001). In its January 28, 2003 administrative order, the MPCA determined that some of the shredder fluff generated at relators’ facility contained PCBs in concentrations greater than 50 ppm. The MPCA further stated that, under Minn. R. 7045.0135, subp. 5 (2001), waste containing PCBs in excess of 50 ppm must be managed as hazardous waste. The MPCA concluded, in part, that

1. [Relators] are not in compliance with the environmental laws of Minnesota regarding solid and hazardous waste storage and disposal, storm water control, or proper waste evaluation.
2. By constructing a berm using shredder fluff, [relators] have disposed of solid waste without a permit in violation of Minn.Stat. § 116.081 and Minn. R. 7001.3050.
3. By constructing a berm using shredder fluff, [relators] have disposed of hazardous waste without a permit in violation of Minn. R. 7001.0520, and failed to manage hazardous waste in accordance with Minn. R. 7045.0208.
4. By constructing a berm using shredder fluff without updating stormwa-ter management plans, [relators] have violated conditions in National Pollutant Discharge Elimination System General Permit G611000, Facility No. [ AXXXXXXXX ], November 1,1997.
5. [Relators] store shredder fluff in various locations on the Facility without compliance with the solid waste storage standard established in Minn. R. 7035.2855.

A. Solid Waste

We first examine the MPCA’s conclusion that this material is solid waste. Relators assert that the MPCA’s determination concerning the nature of shredder fluff is incorrect for several reasons. First, rela-tors argue that shredder fluff is not solid waste. Minn.Stat. § 115A.03, subd. 34 (2002), defines “waste” as “solid waste, sewage sludge, and hazardous waste.” “Solid waste” is defined as “garbage, refuse, sludge from a water supply treatment plant or air containment treatment facility, and other discarded waste materials and sludges, in solid, semisolid, liquid, or contained gaseous form, resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include hazardous waste.” MinmStat. § 116.06, subd. 22 (2002). “Discard” is defined as “[t]o throw away; reject.” The American Heritage College Dictionary 395 (3d ed.2000).

“Shredder residue” is defined in Minn. Stat. § 115A.90, subd. 6a (2002), as “the residue generated by shredding a motor vehicle, an appliance, or other source of recyclable steel after removing the reusable and recyclable materials.” But because the term “shredder residue” does not appear in Minn.Stat. § 116.06, subd. 22, relators argue that the legislature did not consider it to be classified as solid waste. The MPCA counters this argument by noting that the definition of “shredder residue” is contained within the Waste Management Act, thereby necessarily constituting waste.

Looking at the language of Minn. Stat. § 116.06, subd. 22, we consider whether shredder fluff falls under the statute’s catch-all category of “other discarded waste materials” resulting from an industrial operation. Federal regulations include shredder fluff in the definition of “PCB bulk product waste,” which provides further support for the conclusion that shredder fluff is waste. 40 C.F.R. § 761.3 (2002) (defining PCB bulk product waste).

The Waste Management Act is a statutory framework that the MPCA is charged to administer, and it is appropriate to extend judicial deference to the agency in its interpretation of the provisions of the act. Based on this record and extending deference to the MPCA’s interpretation of a statute it is charged to administer, we conclude that shredder fluff is “discarded waste material” resulting from an industrial process. Thus, we conclude that the MPCA did not err in holding that shredder fluff is solid waste.

B. Hazardous Waste

Relators also argue that the shredder fluff is not hazardous waste. “Hazardous waste” is defined as

any refuse, sludge, or other waste material or combinations of refuse, sludge or other waste materials in solid, semisolid, liquid, or contained gaseous form which because of its quantity, concentration, or chemical, physical, or infectious characteristics may (a) cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or (b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

Minn.Stat. § 116.06, subd. 11 (2002). As previously noted, waste containing PCBs in a concentration greater than 50 ppm is defined as a form of hazardous waste. Minn. R. 7045.0135, subp. 5.

Relying on PCB testing from berm samples gathered by Wenck, an independent company, in February 2003 that were not in the record at the time that the MPCA issued its administrative order, re-lators argue that the waste in the berm is not hazardous because an average of all of the samples was below 50 ppm PCBs. The MPCA included the February 2003 partial test results in its motion to strike, but the agency subsequently withdrew its opposition to the test results and moved to supplement the record with Wenck’s final report, which was prepared in July 2003, and an affidavit from Jeff Connell, a compliance coordinator with the MPCA. Con-nell’s affidavit states that the Wenck report shows that approximately one-half of the waste in relators’ berm is hazardous waste pursuant to Minn. R. 7045.0131, subps. 7 and 8 (2001), because it contains lead that leaches more than five milligrams per liter. Relators did not respond to the MPCA’s motion to supplement the record. We granted the motion to supplement the record on the ground that the Wenck report is documentary evidence of an uncontroverted nature that supports the agency’s decision. See In re Objections & Defenses to Real Property Taxes for the 1980 Assessment, 335 N.W.2d 717, 718 n. 3 (Minn.1983). Based on the record and our standard of review, we conclude that the MPCA did not err in its determination that this material constitutes hazardous waste.

C. Disposal and Storage

As an alternative argument, relators suggest that, even if shredder fluff is determined to be waste, its use to construct a berm or as daily cover in a landfill does not constitute disposal under Minn.Stat. § 115A.03, subd. 9 (2002). The statute defines “disposal” as “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any waste into or on any land or water so that the waste or any constituent thereof may enter the environment or be emitted into the air, or discharged into any waters, including ground waters.”

In support of its argument, rela-tors offer a conclusory statement that they did not discard, abandon, or throw away the shredder fluff by either use of it and, therefore, did not discard it. But the MPCA found that the shredder fluff “is not being stored on an impervious surface [at relators’ facility], nor are controls present to prevent storm water run-on or runoff.” Based on the plain language of the statute and extending deference to the MPCA as the agency charged with enforcement of the statute, we conclude that the MPCA did not err in holding that relator’s use of the shredder fluff to construct the berm constitutes “disposal.”

Relators also argue that the MPCA erred in holding that relators have stored shredder fluff in various locations on their property, other than the berm, in violation of the standards set forth in Minn. R. 7035.2855 (2001). The rule states specific requirements for waste storage, but also states that “[s]olid waste stored prior to beneficial use or reuse according to existing technology for the waste is exempt from this part.” Minn. R. 7035.2855, subp. 1. Relators assert that the piles of shredder fluff stored on their property are exempt from Minn. R. 7035.2855 because the shredder fluff is being stored prior to beneficial use or reuse. In support of their assertion, relators state generally that shredder fluff is beneficially used as daily cover at landfills. Minn. R. 7035.2815, subp. 6 (2001), requires the owner or operator of a solid waste land disposal facility to maintain a cover system to ensure that waste does not become airborne and in order to minimize odors.

Relators’ national search of case-law dealing with shredder fluff yielded very little. But they have directed this court to County of Milwaukee v. Superior of Wisc., 234 Wis.2d 218, 610 N.W.2d 484 (Wis.App.2000), for guidance. The Wisconsin intermediate appellate court stated in County of Milwaukee that shredder fluff has a beneficial use at landfills. Id. at 491. But the issue presented to the court in that instance was whether or not shredder fluff was “recyclable scrap” within the scope of the overweight permit for hauling limits. Id. at 487. The case did not arise in the context of or construe state or federal environmental rules or statutes. Therefore, we do not find it to be persuasive on this question of whether relators are exempt from Minn. R. 7035.2855.

The federal government adopted a PCB rule with provisions governing shredder fluff in 1998. 68 Fed.Reg. 85486 (June 29, 1998), amended by 64 Fed.Reg. 33759 (June 24, 1999). Shredder fluff is termed “PCB bulk product waste.” 63 Fed.Reg. 35438 (June 29, 1998); 40 C.F.R. § 761.3 (2002). Disposal in landfills is permitted only if standards involving engineered liners and leachate control systems are met. 40 C.F.R. § 258.40 (2002); 40 C.F.R. § 761.62 (2002). Shredder fluff with liquid PCBs, which is involved here, must be tested prior to disposal to ensure that it will not leach beyond a specified amount of .10 ug/L PCBs. 40 C.F.R. § 761.62(b). While shredder fluff containing non-liquid PCBs may be used as daily landfill cover, the Environmental Protection Agency considers such use to be disposal of the material. 40 C.F.R. § 761.62(d); 63 Fed.Reg. 35412 (June 29,1998).

On this record, we conclude that the MPCA did not err in holding that relators have stored shredder fluff in various locations on their property, other than the berm, in violation of the standards set forth in Minn. R. 7035.2855.

III.

Relators argue that the MPCA erred in denying relators’ request for a contested-case hearing. An agency must grant a petition for a contested-case hearing if it finds, among other things, that “there is a material issue of fact in dispute concerning the matter pending before the agency.” Minn. R. 7000.1900, subp. 1 (2001). Rela-tors waited until after the MPCA issued its January 28, 3002 administrative order to request a hearing. Relators requested a contested-case hearing to address whether shredder fluff is “waste” and whether using shredder fluff to construct the berm constituted “disposal” of the fluff. Rela-tors did not raise these issues during the comment period.

Under Minn. R. 7000.1900, subp. 1, a contested-case hearing will only be granted if there is a “matter pending before the agency” and “a material issue of fact.” Here, once the MPCA issued its January 28, 2003 administrative order, re-lators no longer had a matter pending before the agency. Thus, relators’ request for a contested-case hearing after the issuance of the order was untimely. There was no material issue of fact to be heard at a contested-case hearing. Relators assert material issues of fact. But these issues are distinctly legal issues involving statutory interpretation, and relators point to no other fact issues for resolution in a contested-case hearing. Under the circumstances, we conclude that the MPCA did not err in denying relators’ petition for a contested-case hearing.

DECISION

The MPCA’s decision to require relators to remove the earthen berm constructed with shredder fluff on their property within six months is not arbitrary and capricious, and the MPCA did not err in holding that the use of shredder fluff in the berm constitutes the disposal of solid or hazardous waste or by denying relators’ request for a contested-ease hearing.

Affirmed.

      . In June 1999, relators approached the Elk River Landfill regarding the disposal of shredder fluff. The landfill received approval from Sherburne County to accept the fluff. In accordance with the landfill's acceptance procedures, relators began testing samples of the shredder fluff on a weekly basis. Samples collected on August 25, 2000, September 8, 2000, and September 15, 2000, contained PCB levels of 57.4 ppm, 63 ppm, and 53 ppm, respectively. While the landfill inadvertently accepted 67 tons of fluff from relators, once the landfill realized that the fluff had PCB levels in excess of 50 ppm, it notified relators that they would no longer accept shredder fluff from them. Relators have stated that the high PCB levels may have been attributable to the shredding of improperly gutted appliances.


text:
    INDEPENDENT SCHOOL DISTRICT NO. 404, Lake Benton, Respondent, v. Dany CASTOR, et al., Appellants.
    No. C3-03-139.
    Court of Appeals of Minnesota.
    Nov. 4, 2003.

      Robert L. Gjorvad, Marshall, for respondent.
    Dale G. Swanson, Forest Lake, for appellants.
    Considered and decided by KLAPHAKE, Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellants argue that the trial court improperly denied them attorney fees under Minn.Stat. § 466.07 (2002), Minn.Stat. § 123B.25(b) (2002), or Minn. R. Civ. P. 37.03. Respondent asked the court to review whether it is entitled to judgment on its conversion claim. While we conclude that Minn.Stat. § 466.07 applies to employer/employee claims, because the trial court did not err in finding that appellants acted in bad faith, they are not entitled to attorney fees under Minn.Stat. § 466.07 or Minn.Stat. § 123B.25(b). Because the trial court did not abuse its discretion in finding that respondent had reasonable grounds to believe that the party might prevail, appellants are not entitled to attorney fees under Minn. R. Civ. P. 37.03. Because there can be no conversion where the property is compensation to the party who allegedly converted it, we again affirm the trial court.

FACTS

Respondent Independent School District No. 404 (school district) commenced an action against appellants Dany Castor and Judy Castor alleging conversion of $20,123.25. Dany Castor was a part-time principal from 1975 until this action and a part-time superintendent for the school district between 1990 and 2000. His wife, Judy Castor, has been a special education teacher for the school district since 1989.

This matter arises out of the interpretation and application of article XI of the school district’s contract "with the Lake Benton Education Association, which provides as follows:

Section 1. Selection: The selection of the insurance carrier and policy shall be made by the school district as provided by law. Consideration will be given to recommendations submitted by the insured group.
Section 2. Health and Hospitalization Insurance: The school district shall contribute a sum of not to exceed $250.00 per month for 1993-1994 and not to exceed $322.00 per month for 1994-1995 toward the premium for coverage for each full time teacher employed by the school district who qualifies for and is enrolled in the school district’s group health and hospitalization plan and/or group income protection plan and/or group dental plan or other group intensive care plan. Any additional cost of the premium shall be borne by the employee and paid by payroll deductions.

It is undisputed that the school district never selected a carrier or insurance policy as stated in section 1. Instead, over 20 years, the practice developed that teachers made assignments of their article XI compensation to various insurance products including accident benefits, prepaid insurance benefits, and whole life insurance. While teachers had the opportunity to obtain insurance benefits by the article XI assignments, they could not take the compensation as cash. If a teacher did not assign the money to an insurance product, the unassigned money remained in the school district’s general fund.

For the period 1989-1993, Judy Castor did not request an assignment of all her article XI benefits. The school district retained the money for any unassigned amount. From 1994-2000, Judy Castor assigned her article XI benefits to repay loan balances on life-insurance policies in Dany Castor’s name for which she was the named beneficiary. Her assignments for that time frame totaled $20,123.25. "While Judy Castor’s requests for assignments were presented to the school board in the standard manner, Dany Castor, who made the presentation, did not highlight to the board the fact that Judy Castor’s article XI benefit was being used to repay loans on his life-insurance policies.

When a new superintendent replaced Dany Castor in July 2000, he questioned the legality of Judy Castor’s current assignment request and brought it to the attention of the board. As a result, Judy Castor’s request was denied.

The school district subsequently commenced the underlying conversion action against the Castors. The Castors denied the allegations, and Judy Castor filed an answer and counterclaim seeking unpaid wages in the amount of $3,433.44, which represented the article XI benefits she had earned that year. Following a bench trial, the trial court denied the school district’s claim for conversion, ordered that Judy Castor be allowed to assign compensation from the 2000-2001 school year to an insurance plan, and ordered a separate hearing for costs, attorney fees, and disbursements. The trial court concluded that Dany Castor violated his fiduciary duty to the school board and that the assignments of the funds were misapplied, but that the funds were not converted because the $20,123.25 was compensation earned by Judy Castor.

The hearing regarding attorney fees, costs, and disbursements was held approximately three months after trial. The court determined that each party should pay its own attorney fees and ordered the school district to pay $3,433.33 as damages to Judy Castor, the amount of money she would have been able to assign in the 2000-2001 school year.

The school district also sought Dany Castor’s immediate discharge from his teaching contract under Minn.Stat. § 122A.40, subd. 13 (2002), on grounds of (1) immoral conduct, (2) conduct unbecoming a teacher, and (3) willful neglect of duty. The matter was submitted to arbitration pursuant to the contract between Dany Castor and the district. In a decision issued within a few days of the court’s ruling on fees, the arbitrator denied the school district’s proposed discharge of Dany Castor and ordered his reinstatement as a teacher.

Dany and Judy Castor appeal the trial court’s denial of their request for attorney fees. The school district appeals the trial court’s denial of its conversion claim and award of money damages to Judy Castor on her counterclaim.

ISSUES

I. Did the trial court wrongly deny the Castors attorney fees pursuant to Minn.Stat. § 466.07 (2002) or Minn. Stat. § 123B .25(b) (2002)?

II. Did the trial court wrongly deny the Castors attorney fees under Minn. R. Civ. P. 37.03 because of the school district’s failure to admit that the assignments at issue in the conversion action were compensation earned by Judy Castor?

III. Is the school district entitled to judgment on its conversion claim?

TV. Should the school district’s motion to strike the arbitration transcript be granted?

ANALYSIS

I.

A. MinmStat. § 466.07 (2002)

The Castors contend that the trial court erred in failing to award attorney fees to them pursuant to Minn.Stat. § 466.07. Minn.Stat. § 466.07 states that

a municipality or an instrumentality of a municipality shall defend and indemnify any of its officers and employees ... for damages, including punitive damages, claimed or levied against the officer or employee, provided that the officer or employee:
(1) was acting in the performance of the duties of the position; and
(2) was not guilty of malfeasance in office, willful neglect of duty, or bad faith.

The trial court concluded that Minn.Stat. § 466.07 was not applicable to the Castors’ claims for attorney fees because the statute was designed to provide for indemnification of third-party claims. But the court found that, if the statute were applicable, both Castors acted in performance of the duties of their positions but both were guilty of bad faith.

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). “A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). The Castors note that exceptions within a statute will be construed as excluding additional exceptions. Minn.Stat. § 645.19 (2002). Here, MinmStat. § 466.07(1), (2), creates exceptions. The exceptions suggest that if the legislature wished to make further limitations, such that the statute would not apply to employer-employee claims, the legislature would have so provided. Because there is no language providing that the claim must be made by a third party, we conclude that Minn.Stat. § 466.07 is applicable in the context of an employer/employee claim.

We next consider whether either of the statutory limitations precludes the Castors from receiving attorney fees. A reviewing court will not reverse a trial court’s decision on attorney fees absent an abuse of discretion. Becker v. Alloy Hard-facing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). We agree with the trial court that the record supports a finding that both Castors were “acting in the performance of the duties of the position.” The trial court also concluded that, although not guilty of conversion, the bad-faith exception applied to both Judy and Dany Castor. The Castors contend that they did not act in bad faith.

First, the Castors argue that the issue of whether Dany Castor engaged in malfeasance, willful neglect of duty or bad faith in office was determined in his favor by the arbitrator. Therefore, Dany Castor contends that the school district was collaterally estopped from raising the issue of bad faith in the context of his claim for attorney fees. Whether a party is es-topped from litigating an issue is a question of law subject to de novo review. Hennepin County v. Hanneman, 472 N.W.2d 149, 152 (Minn.App.1991), review denied (Minn. Aug. 29, 1991). “Collateral estoppel ... precludes parties from relit-igating issues which are identical to issues previously litigated and which were necessary and essential to the former resulting judgment.” Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 650 (Minn.1990). But the record from the motion hearing on the issue of attorney fees shows that the Castors’ counsel argued that none of the three disqualifying behaviors under Minn. Stat. § 466.07 — malfeasance, willful neglect of duty, or bad faith — were properly raised by the school district in the trial court.

In its order following trial on the conversion issue, the court found that “[t]he Castors concede and the record shows that the assignments [in the record] were beyond the scope of Article XI of the Master Agreement.” But the court also found that past practice involving article XI went beyond the Master Agreement’s language and permitted teachers to make assignments to many insurance products, including accident benefits, pre-paid insurance benefits and at least one whole-life-insurance product. The court noted that “[the Castors] stated that they were not aware of any other person in the school district assigning their funds to pay off an insurance loan for anyone and not aware of any situation where it was to pay off a loan of a person other than the employee herself.” The court further found that the Castors had admitted in a conversation with the new superintendent “that they knew the assignment was wrong, and ... it was because [Dany Castor] had been denied a raise.” Based on the evidence, the court concluded that Dany Castor violated his fiduciary duty and that the assignments violated past practice and were handled inappropriately. But the court also concluded that the assignments were compensation belonging to Judy Castor and were, therefore, not converted.

Following the hearing on attorney fees, the court stated in a separate order that

[w]hile this Court found that Dany Castor did not commit the tort of “conversion” it does not necessarily follow that he is not “guilty” of bad faith within the meaning of Minn.Stat. § 466.07. This Court finds that ... the evidence and testimony demonstrates that [appellant] is guilty of bad faith by breaching his fiduciary duty to the school board. Indeed, a superintendent not telling his school board that an assignment belonging to his wife, of a type that he admits the board had never before approved, that financially benefited him personally, is bad faith by definition.

The court also concluded that Judy Castor acted in bad faith, although her position as a teacher differed from that of Dany Castor as a superintendent. Specifically, the court stated, “[t]he fact that Judy Castor gave the assignment requests to the only other person aware of its true nature and the very person who would personally profit from it demonstrates that Dany Castor and Judy Castor acted jointly.”

In a footnote in its memorandum accompanying its order on attorney fees, the court responded directly to the Castors’ argument that bad faith was not properly raised. The court noted that the evidence brought forth in the trial on the school district’s conversion claim dealt specifically with and, in fact, established breach of fiduciary duty, malfeasance, willful neglect of duty, or bad faith. While the court took judicial notice of the arbitrator’s decision, although not receiving the arbitration transcript into evidence, the court noted that the standards applied in the two proceedings were not the same, and therefore, a collateral estoppel argument fails. We agree. Because there is nothing in the record to suggest that the trial court’s findings and conclusions were clearly erroneous, we affirm the court’s decision that the bad-faith exception applies to both Dany and Judy Castor. Although out-analysis differs from the trial court’s with respect to the applicability of Minn.Stat. § 466.07, we agree with the court’s result and so affirm on other grounds. See Camben v. Hubbling, 307 Minn. 168, 171, 238 N.W.2d 622, 624 (1976).

B. Minn.Stat. § 123B.25 (2002)

The Castors alternatively contend that the trial court erred in failing to award attorney fees under Minn.Stat. § 123B.25. Minn.Stat. § 123B.25(b) states in pertinent part:

Upon written request of the teacher involved, any district ... must provide legal counsel for any school teacher against whom claim is made or action is brought for recovery of damages in any tort action involving physical injury to any person or property or for wrongful death arising out of or in connection with the employment of such teacher with the district.

The trial court concluded that Minn.Stat. § 123B.25 on its face does not apply to Dany Castor because he was not a teacher at the time involved in this claim. We agree. With respect to the application of the statute to Judy Castor, we note that this court held in Queen v. Minneapolis Pub. Sch. Dist, 481 N.W.2d 66, 68 (Minn.App.1992), that

[t]he legislature’s intent in drafting section 466.07, subdivision 1 was, we believe, to ensure that public funds were not used to defend employees, including teachers, guilty of malfeasance in office. That intent is effectuated only by interpreting section 466.07 to relieve a school district of its duty to defend a teacher under section 127.03 where the teacher is guilty of malfeasance in office.

Because we held that the trial court did not abuse its discretion in finding that the Castors acted in bad faith, we conclude that Judy Castor is precluded from receiving reimbursement for attorney fees pursuant to Minn.Stat. § 123B.25.

II.

The Castors also claim that they are entitled to an award of attorney fees under Minn. R. Civ. P. 37.08, which states:

If a party fails to admit the genuineness of any documents or the truth of any matter as requested pursuant to Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of any such matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making the proof, including reasonable attorney fees. The court shall make the order unless it finds that
(3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter[.]

Choosing to apply sanctions for a failure to comply with discovery is within the trial court’s discretion. Przymus v. Comm’r of Pub. Safety, 488 N.W.2d 829, 832 (Minn.App.1992), review denied (Minn. Sept. 15, 1992). The supreme court has denied a motion for sanctions pursuant to Minn. R. Civ. P. 37.03 where it found that there had been evidence introduced at trial that would have supported a finding contrary to most of the moving party’s requests for admission. Furlev Sales & Assocs., Inc. v. N. Am. Auto. Warehouse, Inc., 325 N.W.2d 20, 28-29 (Minn.1982). Here, the trial court found Minn. R. Civ. P. 37.03 “inapplicable because ... the party failing to admit had reasonable ground to believe that the party might prevail in the matter.”

In determining whether the school district had reasonable grounds to believe that it might prevail, we consider that the Castors requested admissions on the following matters:

1. The amount claimed by Plaintiff in its Complaint of $20,123.25 was the subject of a number of assignments made by Defendant Judy Castor of compensation provided for her employment by Plaintiff as a classroom teacher pursuant to Article XI of the LBEA contracts in effect over pertinent times.
2. Defendant Judy Castor satisfied all of her employment performance obligations at times pertinent and earned 100 percent of the compensation provided for her in the LBEA contracts, including that provided in Article XI Ex.51.

The school district denied both requests for admission. The Castors argue that the requests could not rightfully be denied. But the transcript of the motion hearing shows that there was discrepancy as to the meaning of the term “compensation.” The school district also provided evidence about the master agreement and about past practice regarding the assignment, in an attempt to prove the school district’s interests in any unassigned amounts. Given our standard of review in this matter, we conclude that the trial court acted within its discretion.

III.

The school district seeks review of the trial court’s conclusion that it is not entitled to judgment in the amount of $20,123.25 on its claim for conversion. The school district also argues that the trial court erred in its award of $3,433 to Judy Castor. “Generally on appeal from a judgment where no motion for a new trial was made, the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 596 (Minn.App.1995) (quotation omitted).

Conversion occurs when a person willfully interferes with the personal property of another without lawful justification that deprives the lawful possessor of use and possession. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). In its conclusions, the trial court relied, in part, on the definition of conversion found in 4A Minnesota Practice, CIVJIG 60.65 (1999), which states that property is converted if one party exercises control over the other’s personal property so that it (1) is contrary to the owner’s right to the personal property, (2) intentionally destroys or changes the personal property, or (3) intentionally deprives the owner of possession. Here, former and current school district employees and board members consistently testified that they considered the article XI benefits to belong to the teachers. Article XI is silent with respect to any amounts that are not assigned. And, as the trial court noted, the “use or lose reference” was not incorporated in the contract, but, rather, developed through practice. Any amounts that had been retained in the past by the school district were “both small and unexpected.”

The trial court concluded that the school district was not the owner of the benefits, although it did have a property interest in them. Moreover, the court noted that the school district’s claim against the Castors was not premised on any fraudulent representations, but, instead, on “the nondisclosure of the true nature of the assignment.” The trial court found that, while the Castors had a fiduciary duty to disclose the true nature of the assignments, the claim was for conversion, not breach of fiduciary duty. Here, the assignment requests were presented to the board in a manner consistent with all other requests. As such, the court concluded that the school district was not deprived of its property interest.

The record as a whole supports these findings and the court’s ultimate conclusion that the school district’s claim for conversion must be denied. We also affirm the trial court’s award to Judy Castor in the amount of $3,433 in article XI benefits to be applied within the terms of article XI and the trial court’s conclusion that Judy Castor be allowed to assign the amount to an insurance plan consistent with article XI prior to October 1, 2002.

IV.

The school district moved this court for an order to strike the arbitration transcript from appellant’s appendix. The school district argues that the arbitration transcript should be stricken because the arbitration hearing occurred after the trial on the conversion claim and was not part of the record submitted to the trial court. The school district also contends that a transcript is not an item that must be included in the appendix of the Castors’ brief pursuant to Minn. R. Civ.App. P. 130. The Castors assert that the transcript is part of the record because it was attached to the affidavit of Dany Castor’s counsel that was filed with the October 2 motion for attorney fees.

An appellate court may not consider matters not “produced and received” in evidence by the trial court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988). While the transcript of the arbitration proceeding is included in the trial court file, the trial court stated in footnote 4 of his November 21 order that the court took judicial notice of the arbitration decision, but not the transcript, itself. We interpret that statement to mean that the trial court declined to receive the transcript as evidence. We, therefore, grant the school district’s motion to strike.

DECISION

Because the language of Minn.Stat. § 466.07 (2002) is broad enough to apply to a claim for attorney fees brought in the context of a suit by an employer school district, against an employee, we disgree with the trial court’s determination that Minn.Stat. § 466.07 is not applicable here. But because the record supports the trial court’s conclusion that the bad-faith exclusion applies to preclude the Castors’ entitlement to attorney fees, we affirm the trial court’s conclusion that the Castors may not recover for their attorney fees under Minn.Stat. §§ 466.07 or 123B.25(b) (2002). Because the trial court did not abuse its discretion by finding that the Castors are not entitled to fees under Minn. R. Civ. P. 87.03, we affirm on that basis as well. Finally, because the trial court did not err by denying the school district’s conversion claim, we affirm.

Affirmed.

      . This denial became the basis for her counterclaim.

      . Minn.Stat. § 127.03 was renumbered in 1996 as Minn.Stat. § 123B.25.

      . There is no evidence that Judy Castor intended to relinquish her right.