author: LAVORATO, Chief Justice.

text:
    Howard M. RICK and Marlene A. Tri Rick, Appellees, v. Wilbur SPRAGUE, Appellant, and Auto Owners Insurance Company, Defendant.
    No. 04-0112.
    Supreme Court of Iowa.
    Dec. 9, 2005.

      Patrick L. Woodward and Amanda T. Mestan of McDonald, Woodward <& Ivers, P.C., Davenport, for appellant.
    Gary J. Shea and John H. Ehrhart, Cedar Rapids, for appellees.
   LAVORATO, Chief Justice.

In this personal injury action, the defendant, Wilbur Sprague, appeals from a district court judgment for $5000 in favor of Marlene A. Tri Rick, one of the plaintiffs in this action, on Sprague’s offer to confess judgment. Sprague contends the district court misinterpreted his offer to confess judgment, which he claims was for both Marlene’s loss of consortium claim and her husband Howard M. Rick’s claim for personal injuries. Marlene moved to dismiss the appeal on the grounds the appeal does not meet the amount-in-controversy requirement of Iowa Rule of Appellate Procedure 6.3 and Sprague failed to file a timely application to certify the appeal pursuant to Iowa Rule of Appellate Procedure 6.5.

We treat the appeal as an application to certify the appeal pursuant to Iowa Rule of Appellate Procedure 6.304, grant the application, and deny the motion to dismiss. Because we conclude there was no mutual assent to the terms of the offer to confess judgment, we reverse the district court’s judgment and remand for further proceedings.

I. Background Facts.

Howard and Marlene are husband and wife. On April 3, 2000, the automobile driven by Howard was struck in the rear by the automobile driven by Sprague. Marlene was a passenger in Howard’s automobile at the time.

II. Proceedings.

On March 27, 2002, the Ricks sued Sprague seeking damages stemming from the April 3, 2000 automobile accident. In the petition, Howard sought damages for his alleged injuries, and Marlene sought damages for her alleged loss of spousal consortium. There was no money demand in the petition. However, the petition did state that “[t]he amount in controversy exceeds the jurisdictional requirements set forth in Section 631.1, The Code and the jurisdictional amount set forth in The Iowa Rules of Appellate Procedure.” See Iowa R. Civ. P. 1.403(1) (“Except in small claims and cases involving only liquidated damages, a pleading shall not state the specific amount of money damages sought but shall state whether the amount of damages meets applicable jurisdictional requirements for the amount in controversy. The specific amount and elements of monetary damages sought may be obtained through discovery.”).

Later, Sprague filed an offer to confess judgment, which stated:

The defendant, Wilbur Sprague, after answer and before trial herein, offers to confess judgment pursuant to Iowa Code § 677.7 (1985) as follows:

1. In the amount of Five Thousand and no/100 Dollars ($5000.00) including pre-judgment interest and court costs to the date of filing this offer to confess judgment on plaintiffs’ claim.
2. The amount offered above is the total sum that is being offered to the plaintiffs. Pre-judgment interest and court costs are a part of the amount offered.

Howard rejected the offer to confess judgment and stated that such rejection “specifically relates solely to his individual claims and does not include or affect any claims brought by plaintiff Marlene A. Tri Rick.”

At the same time, Marlene accepted the offer to confess judgment and stated that such acceptance “specifically relates solely to her personal copsortium claim and does not include or affect any claims brought by plaintiff Howard M. Rick.”

A short time later, the district court entered an order directing the clerk of court to “enter judgment against defendant Wilbur Sprague and in favor of plaintiff Marlene A. Tri Rick in the amount of $5000. Plaintiff Howard M. Rick’s claims against defendants remain viable.”

Following the district court’s order, Sprague filed a motion to reconsider and vacate the portion of the court’s order that entered judgment on behalf of Marlene. Sprague contended that the offer to confess judgment was made to the plaintiffs jointly and was not divisible.

In their resistance to this motion, the Ricks maintained that they brought two separate claims and each of them was entitled to settle his or her claim as seen fit. They further maintained that Sprague could not now rescind the offer by claiming he made a unilateral error after Marlene had accepted the offer to confess judgment.

The district court entered an order denying Sprague’s motion “for the reasons stated in plaintiffs’ resistance to the motion to reconsider.”

Sprague appealed following which Marlene filed a motion to dismiss the appeal. She argued, among other things, that the appeal should be dismissed for failing to meet the minimum amount in controversy required by Iowa Rule of Appellate Procedure 6.3 (no appeal shall be taken when the amount in controversy is less than $6000). Marlene further argued that the district court had no authority to enter judgment for more than $5000 because that was the amount of the offer to confess judgment that she had accepted. Because the amount in controversy was less than the $6000 jurisdictional minimum, Marlene also argued that the appeal must be dismissed ás a matter of law. In his resistance, Sprague maintained that the motion to dismiss should be denied because the jurisdictional test looks to the pleadings, not to the judgment actually entered. He contends that the plaintiffs’ assertion in their petition that the amount in controversy exceeded the jurisdictional amounts satisfies the appellate jurisdictional amount-in-controversy requirement. On the face of the petition, Sprague maintains, the district court could have entered judgment for more than the jurisdictional minimum.

In a single-justice order, this court directed that the issue of the “amount-in-controversy requirements shall be considered by the appropriate appellate court upon submission of this appeal.”

III. Issues.

The first issue is whether we should grant or deny the motion to dismiss. If we deny the motion, we must then answer the question whether the district court correctly entered judgment pursuant to the offer to confess judgment. That issue turns on whether there was an acceptance of the offer to confess judgment.

IV. Motion to Dismiss.

Sprague argues that the appeal satisfies the amount-in-controversy requirement because the court looks to the pleadings, not to the judgment actually entered. Sprague focuses on the allegation in the petition that the amount in controversy exceeds the jurisdictional minimum. Because of that allegation, Sprague claims, the district court could have entered judgment for more than the jurisdictional minimum.

Marlene, on the other hand, argues that the district court could not have entered judgment for more than $5000 because $5000 was the amount of the offer to confess judgment. According to Marlene, the amount in controversy as required by Iowa Rule of Appellate Procedure 6.3 is therefore not satisfied. In addition, Marlene argues that Sprague failed to file.a timely application to certify the appeal pursuant to Iowa Rule of Appellate Procedure 6.5. For these reasons, Marlene contends we have no jurisdiction to hear the appeal and we should therefore dismiss it.

The appellate rule concerning the amount in controversy states in relevant part:

Except where the action involves an interest in real estate, no appeal shall be taken in any case, not originally tried as a small claim, where the amount in controversy, as shown by the pleadings, is less than $6000 unless the supreme court or a justice thereof certifies that the cause is one in which appeal should be allowed.

Iowa R.App. P. 6.3 (emphasis added). As the emphasized part of the rule states, we can certify that the appeal should be allowed.

However, the timeliness of any appeal so certified is governed by Iowa Rule of Appellate Procedure 6.5, which pertinently provides:

[W]here an application to the supreme court or any justice thereof to ... certify an appeal under rule ... 6.3 is made within 30 days from the date of the ruling, decision, or judgment sought to be reviewed, any appeal ... certified upon such application shall be deemed timely taken.

Iowa R.App. P. 6.5.

Rule 6.3 is jurisdictional; an appeal failing to satisfy the jurisdictional minimum must be dismissed. Hrbek v. State, 554 N.W.2d 895, 896 (Iowa 1996).

According to rules 6.3 and 6.5, an appeal failing to satisfy the jurisdictional amount can still be allowed. However, an application to certify the appeal must be made within thirty days from the date of the ruling, decision, or judgment sought to be reviewed. Additionally, this court or a justice of this court must certify that the cause is one in which appeal should be allowed. No such application was filed here. And of course no such certification was given. Therefore we have no jurisdiction to hear this appeal unless we treat the appeal as an application to certify the appeal under Iowa Rule of Appellate Procedure 6.304.

Rule 6.304 provides:

If any case is brought by appeal, by application to certify an appeal, certio-rari, or discretionary review, and the appellate court is of the opinion that another of these remedies was the proper one, the case shall not be dismissed, but shall proceed as though the proper form of review had been sought. Any one of the foregoing remedies may under this rule be treated by the appellate court as the one it deems appropriate. Nothing in this rule shall operate to extend the time within which an appeal may be taken.

Iowa R.App. P. 6.304 (emphasis added). Therefore notwithstanding rules 6.3 and 6.5, rule 6.304 allows us to consider this appeal as an application to certify the appeal if we are of the opinion that such application was the proper remedy. And if we consider this appeal as an application to certify the appeal, we may grant the application and proceed as though such an application had been filed.

We note that the predecessor rule did not include an application to certify an appeal. See Iowa R.App. P. 6.304 (amended Nov. 9, 2001). The present rule was effective September 16, 2004, some nine months after the notice of appeal in this case was filed. Nevertheless, the present rule applies to this case because it is a procedural rule establishing a method for implementing jurisdiction to allow appeals in which the jurisdictional minimum has not been met. In addition, at the time the rule was passed it had no savings clause. In such circumstances, the new rule applies to all appeals pending as of its effective date. See Smith v. Korf, 302 N.W.2d 137, 139 (Iowa 1981). Because this appeal was pending as of the effective date of the new rule, the new rule applies.

Assuming without deciding that the jurisdictional minimum was not met in this case, we are of the opinion that an application to certify the appeal was the proper remedy. We certify that the cause is one in which appeal should be allowed. We therefore grant the application to certify the appeal, deny the motion to dismiss, and proceed to resolve the issues raised.

That brings us to the issue whether there was an acceptance of the offer to confess judgment.

Y. Offer to Confess Judgment.

Iowa Code chapter 677 governs offers to confess judgment. Iowa Code sections 677.7 and 677.8 are the pertinent sections. Section 677.7 specifies how and when the defendant makes the offer after an action has been brought:

The defendant in an action for the recovery of money only may, at any time after service of notice and before the trial, serve upon the plaintiff or the plaintiffs attorney an offer in writing to allow judgment to be taken against the defendant for a specified sum with costs.

Iowa Code § 677.7 (2003).

Section 677.8 specifies how and when the plaintiff may accept the offer:

If the plaintiff accepts the offer, and gives notice thereof to the defendant or the defendant’s attorney within five days after the offer is made, the offer, and an affidavit that the notice of acceptance was delivered in the time limited, may be filed by the plaintiff, or the defendant may file the acceptance with a copy of the offer, verified by affidavit; and in either case a minute of the offer and acceptance shall be entered upon the judge’s calendar, and judgment shall be rendered by the court accordingly.

Id. § 677.8.

No one disputes that the procedures in both sections were followed. The dispute centers on the meaning of the offer to confess judgment, which determines whether there was an acceptance of the offer, matters we next address.

Sprague contends that his offer to confess judgment is clear and unambiguous. The $5000 was the total sum offered to both plaintiffs and was not divisible.

Offers to confess judgments are like offers of settlement, Hughes v. Burlington N. R.R., 545 N.W.2d 318, 320 (Iowa 1996), and “[sjettlement agreements are essentially contracts,” Shirley v. Po-thast, 508 N.W.2d 712, 715 (Iowa 1993). Because we look to contract principles when interpreting settlement agreements, Waechter v. Aluminum Co. of Am., 454 N.W.2d 565, 568 (Iowa 1990), we also look to contract principles when we interpret offers to confess judgment. We review the district court’s interpretation of the offer at law. Ellefson v. Centech Corp., 606 N.W.2d 324, 330 (Iowa 2000) (stating contract interpretation is a legal issue unless the interpretation depends on extrinsic evidence).

Contract interpretation determines the meaning of contract words. Fausel v. JRJ Enters., Inc., 603 N.W.2d 612, 618 (Iowa 1999). The primary focus of settlement agreement interpretation is ascertaining the parties’ intention at the time they executed the agreement. Wae-chter, 454 N.W.2d at 568.

Interpretation involves a two-step process. First, from the words chosen, a court must determine “what meanings are reasonably possible.” In so doing, the court determines whether a disputed term is ambiguous. A term is not ambiguous merely because the parties disagree about its meaning. A term is ambiguous if, “after all pertinent rules of interpretation have been considered,” “a genuine uncertainty exists concerning which of two reasonable interpretations is proper.”

Walsh v. Nelson, 622 N.W.2d 499, 503 (Iowa 2001) (citations omitted).

Once the court identifies an ambiguity, it then must “ ‘choos[e] among possible meanings.’ Id. (alteration in original) (citation omitted). If extrinsic evidence is necessary to resolve the meaning of ambiguous language, “a question of interpretation arises which is reserved for the trier of fact.” Id. However,

[a]ny determination of meaning or ambiguity should only be made in the light of the relevant evidence of the situation and relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties. But after the transaction has been shown in all its length and breadth, the words of an integrated agreement remain the most important evidence of intention.
In short, although other evidence may aid the process of interpretation, the words of the contract remain the key to determining whether the ... terms [of the offer to confess judgment] are ambiguous.

Id. (citation omitted).

With these principles of interpretation in mind, we are convinced the words of the confession of judgment are not, as a matter of law, ambiguous.

In paragraph one of the offer to confess judgment, Sprague offers to confess judgment on “plaintiffs’ claim.” Marlene contends the words “plaintiffs’ claim” mean the offer of $5000 is being made to each plaintiff because Sprague used the singular of the word claim rather than the plural. We disagree. A reasonable interpretation of the phrase “plaintiffs’ claim” is that Marlene’s loss of consortium claim and Howard’s personal injury claim were in Sprague’s mind one claim for purposes of the offer. This becomes clear in the next paragraph when Sprague stated “[t]he amount offered above is the total sum that is being offered to the plaintiffs.” (Emphasis added.) The offer did not invite a separate response on Marlene’s claim and Howard’s claim; Sprague lumped the two claims into one claim in his offer to confess judgment. See Dickson v. Hubbell Realty Co., 567 N.W.2d 427, 430 (Iowa 1997) (“In interpreting a contract, we give effect to language of the entire contract in accordance with its commonly accepted and ordinary meaning.”).

To be bound, the contracting parties must manifest a mutual assent to the terms of the contract. Kristerin Dev. Co. v. Granson Inv., 394 N.W.2d 325, 331 (Iowa 1986). “[T]his assent usually is given through the offer and acceptance.” Id. In a contract by offer and acceptance, “the acceptance must conform strictly to the offer in all its conditions, without any deviation or condition whatever.” Shell Oil Co. v. Kelinson, 158 N.W.2d 724, 728 (Iowa 1968). Otherwise there is no mutual assent and therefore no contract. Id.

Here Marlene attempted to accept the offer to confess judgment in a way that did not conform to the offer in all of its conditions. Instead, Marlene rejected the offer. O’Brien v. Fitzhugh, 204 Iowa 787, 790, 215 N.W. 944, 946 (1927) (“Unless it may be said that the alleged acceptance by the appellee of the offer of appellant embodied the same terms as contained in his offer, there is no acceptance, but a rejection of the offer.”). Consequently, there was no valid acceptance of the offer to confess judgment and therefore no mutual assent to the terms of the offer. Absent such mutual assent, there was no contract.

VI. Disposition.

Because we conclude there was no contract, the district court erred in concluding otherwise. We therefore reverse and remand for further proceedings.

REVERSED AND CASE REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Robert J. HEALY, a Minnesota Attorney, Registration No. 42973.
    No. A05-2207.
    Supreme Court of Minnesota.
    Nov. 29, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Robert J. Healy has committed professional misconduct warranting public discipline, namely, forging a client’s signature to two insurance releases and a medical authorization, falsely notarizing the forged signatures on the releases, falsely stating to the insurance company that the client’s signatures on the releases were authentic, making false statements to the Director, loaning funds to the client without advising client to obtain independent legal advice, without disclosing terms of loan in writing and without obtaining client’s written consent, and destroying the client’s file less than four years after his representation ended, in violation of Minn. R. Prof. Conduct 1.8(a) and (e), 1.15(c)(4), 1.16(d), 4.1, 8.1(a)(1) and 8.4(c) and (d).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a four-month suspension and payment of $900 in costs and $560 in disbursements under Rule 24, RLPR. The parties further recommend that the reinstatement hearing not be waived, and that reinstatement be conditioned on payment of costs and disbursements, compliance with Rule 26, RLPR, and satisfaction of continuing legal education requirements under Rule 18, RLPR.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Robert J. Healy is suspended from the practice of law for a period of four months, effective 14 days from the filing of this order. Respondent shall pay $900 in costs and $560 in disbursements under Rule 24, RLPR.

BY THE COURT:

/a/ Russell A. Anderson Associate Justice


author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Brian Todd PIERCE, a Minnesota Attorney, Registration No. 290038.
    No. A05-847.
    Supreme Court of Minnesota.
    Dec. 1, 2005.

      Kenneth L. Jorgensen, Director, Timothy Michael Burke, Senior Assistant Director, St. Paul, MN, for LPRB.
    Brian Todd Pierce, Lakefield MN, for Respondent.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action against respondent Brian Todd Pierce in May 2005 setting forth four counts of professional misconduct. The petition alleges that Pierce misappropriated client funds, made a misleading statement regarding the misappropriation, issued numerous insufficient funds checks, repeatedly failed to appear in court on client matters, and failed to cooperate with the disciplinary investigation. On May 23, 2005, the Director filed a supplementary petition for disciplinary action against Pierce, alleging neglect, an improper business transaction with a client, failure to obey a court order and court rules, failure to pay a court reporter, failure to appear in court, and failure to cooperate with opposing counsel.

In May 2005, in response to a motion by the Director, we temporarily suspended Pierce from the practice of law pending final disposition of this disciplinary proceeding. After Pierce failed to answer the petition for disciplinary action, we granted the Director’s motion for summary relief and deemed the allegations of the petition admitted pursuant to Rule 13(b) of the Rules on Lawyers Professional Responsibility (RLPR). In light of the admitted allegations of misappropriation, misrepresentation, neglect, noncooperation with disciplinary authorities, and other violations, Pierce is hereby disbarred.

The violations recounted in the petition occurred during the period from December 2003 through March 2005. First, in or about June 2003, L.F. retained Pierce to represent her in a marital dissolution. On or about December 15, 2003, L.F. signed a retainer agreement at Pierce’s request. In January 2004, L.F. and her husband signed a marital termination agreement, which provided that L.F. would receive $30,000 from her husband in two separate installments of $15,000 each. The settlement was contingent on L.F.’s withdrawal of her restitution and personal injury claims against -her husband.

In mid-January 2004, Pierce received the first check for $15,000 from L.F.’s husband’s counsel. Pierce deposited the check in his client trust account and disbursed $10,000, one-third of the entire settlement amount, to himself pursuant to the retainer agreement. Pierce disbursed the remaining $5,000 to L.F. At the end of January 2004, Pierce received the second payment of $15,000, again made payable to his client trust account, and deposited the check. Pierce did not disburse any of the second installment to L.F., despite the fact that she was entitled to the full amount. Instead, he disbursed the $15,000 to himself for his personal use. In May and June 2004, Pierce’s law partner made payments totaling $15,000 to L.F. to compensate her for the funds misappropriated by Pierce. Neither Pierce nor his partner informed L.F. of the misappropriation. Pierce’s misappropriation of L.F.’s settlement funds violated Minn. R. Prof. Conduct 1.15(d)(1), 1.15(c)(4), and 8.4(c).

The second count of misconduct relates to Pierce’s response to the Director’s disciplinary investigation of Pierce’s handling of the L.F. matter. In January 2005, the Director mailed a notice of investigation to Pierce regarding the L.F. matter. The notice requested a written response and copies of all documents relating to Pierce’s handling of L.F.’s funds. Pierce did not respond to the notice. On January 27 and February 4, the Director mailed two additional requests for information to Pierce. On February 7, the Director’s Office called Pierce and left a telephone message, which Pierce did not return. Pierce did not respond to the Director’s inquiries until February 9. In his response, Pierce failed to address his handling of L.F.’s funds. Instead of providing trust account statements for 2004, when L.F.’s funds were received and disbursed, Pierce provided statements for 2003 and falsely stated: “As you can see, L.F. had no funds in the trust account.”

The Director requested Pierce to attend a meeting at the Director’s Office on February 17, 2005. Instead of appearing, Pierce faxed a letter to the Director on February 17 stating that the lawyer he was retaining was out of town and that his counsel would contact the Director. The Director rescheduled the meeting for March 3. Pierce failed to appear for the March 3 meeting. On March 9, Pierce’s secretary contacted the Director’s Office and arranged a meeting between the Director, Pierce, and Pierce’s counsel at the Director’s Office on March 15. At the March 15 meeting, Pierce admitted to misappropriating $15,000 from L.F. Subsequently, Pierce failed to respond to the petition for disciplinary action filed by the Director, and did not file a brief in this matter. Pierce’s misrepresentation to the Director’s Office and his pattern of noncooperation with the disciplinary investigation violated Minn. R. Prof. Conduct 8.1(a)(3) and 8.4(c), and Rule 25, RLPR.

The third count of misconduct arose out of Pierce’s issuance of numerous insufficient funds checks in 2004. In December 2004, Pierce pled guilty to violating Minn.Stat. § 609.535 (2004), which prohibits the issuance of a check that “at the time of issuance, the issuer intends shall not be paid.” Pierce’s conviction stemmed from the issuance of a check drawn on his law office business account in June 2004. In May and June 2004, Pierce issued twenty-two additional insufficient funds checks. Pierce’s issuance of numerous insufficient funds checks violated Minn. R. Prof. Conduct 8.4(b) and 8.4(c).

The fourth count of misconduct arose out of Pierce’s repeated failure to appear in court on behalf of several clients throughout 2004. Pierce failed to attend an April 26 hearing or request a continuance on behalf of a client facing criminal charges. On September 27, Pierce failed to appear at a hearing for a different client also facing criminal charges and instead telephoned to request a continuance. The hearing was rescheduled for October 4, but Pierce failed to appear for the rescheduled hearing. Instead, Pierce’s law partner appeared and requested a continuance, and the matter was rescheduled. Pierce again failed to appear for the rescheduled hearing. Pierce’s secretary telephoned the court on the day of the hearing and falsely informed the court that Pierce was out of the state. Finally, Pierce failed to appear at an October 19 hearing for a third client facing criminal charges. Pierce’s failure to appear at numerous court hearings violated Minn. R. Prof. Conduct 1.3, 3.2, 3.4(c), and 8.4(d).

The Director’s supplementary petition presents additional facts, which are also deemed admitted pursuant to Rule 13(b), RLPR, because Pierce did not answer the supplementary petition within the time allotted for response. The following facts are recounted in the supplementary petition. S.A. retained Pierce to represent him in a criminal conviction appeal in July 2004. Pierce requested a $5,000 flat fee. S.A. paid Pierce $1,700 in cash and gave Pierce title to S.A.’s Chevrolet automobile in satisfaction of the remaining $3,300. Pierce did not provide S.A. with a written explanation of the terms of the title transfer, did not seek S.A.’s written consent to the transaction, and did not advise S.A. in writing to consider consulting with independent counsel.

Pierce filed a notice of appeal and statement of the case in the S.A. matter, but failed to order a transcript within the prescribed 30 days and failed to file the required certificate as to transcript. Consequently, the court ordered Pierce to file a certificate as to transcript and warned that sanctions would be imposed if he failed to do so. Pierce then filed the certificate and agreed with the court reporter on compensation for the transcription. Pierce, however, never paid for the transcript.

Pierce failed to file or serve a brief in the S.A. matter by the March 10, 2005, deadline. Subsequently, the court of appeals ordered Pierce to file a brief by March 28, 2005, and advised Pierce that failure to do so could result in sanctions, including dismissal of the appeal. Pierce did not serve or file a brief by March 28. Moreover, Pierce never informed S.A. of the order. Because of Pierce’s failure to file a brief, the court dismissed the appeal but granted Pierce 10 days to file a motion to reinstate it. Pierce did not file a motion for reinstatement and failed to inform S.A. of the dismissal.

Pursuant to his sentencing order, S.A. was required to report to prison when his appeal was dismissed. He failed to do so, however, because Pierce never told him of the dismissal. As a result, the prosecutor served Pierce with a motion for an order for S.A. to report to prison. Pierce never informed his client of the motion, nor did Pierce respond to it. On April 26, the court ordered S.A. to report to the sheriff by April 29. Pierce did not tell S.A. of the order. S.A. did not report to the sheriff and consequently was arrested. Pierce’s conduct in the S.A. matter violated Minn. R. Prof. Conduct 1.3, 1.4, 1.8(a), 3.2, 3.4(c), and 8.4(d).

In addition to the S.A. matter, Pierce also failed to attend a May 3, 2005, hearing in a CHIPS matter for a different client, T.B. Pierce failed to respond to several letters from opposing counsel in T.B.’s related child custody matter. Pierce’s conduct in the T.B. matter violated Minn. R. Prof. Conduct 1.3, 3.4(c), and 8.4(d).

Because the Director’s allegations are deemed admitted, the only issue before us is the appropriate discipline to be imposed. In considering a petition for attorney discipline, this court has the ultimate responsibility for determining the appropriate sanction. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). “The purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” Id. (citing In re Daffer, 344 N.W.2d 382, 385 (Minn.1984)).

We consider four factors in determining the appropriate sanction: “(1) the nature of the misconduct; (2) the cumulative weight of the violations of the rules of professional conduct; (3) the harm to the public; and (4) the harm to the legal profession.” Id. Appropriate sanctions are determined on a case-by-ease basis after considering both aggravating and mitigating circumstances. In re Wentzell, 656 N.W.2d 402, 408 (Minn.2003). We look to similar cases for guidance in setting the proper discipline. In re Thedens, 557 N.W.2d 344, 347 (Minn.1997).

The Director recommends disbarment in this case because of the serious nature of the violations. The Director argues that disbarment is necessary to protect the public from an attorney who has committed several intentional acts of dishonesty, including misappropriating $15,000 of client funds and lying to conceal the theft. The Director contends that failure to disbar an attorney who intentionally misappropriated client funds, neglected numerous client matters, and willfully failed to cooperate with a disciplinary investigation would undermine the deterrence value of attorney discipline.

We have generally disbarred attorneys who have misappropriated client funds. See, e.g., In re Vaught, 693 N.W.2d 886 (Minn.2005) (disbarring attorney who misappropriated client funds and who had a prior record of discipline for similar misconduct); In re Keller, 656 N.W.2d 398 (Minn.2003) (disbarring attorney who misappropriated $15,000 in client funds); In re Swerine, 513 N.W.2d 463 (Minn.1994) (disbarring attorney who misappropriated funds from four clients and made misrepresentations to the clients and the Director to conceal the theft); In re LaChapelle, 491 N.W.2d 17 (Minn.1992) (disbarring attorney who misappropriated more than $16,000 of client funds, failed to maintain proper trust account records, and falsely certified that his trust account books were in order). The only exception is “instances when the attorney presents clear and convincing evidence of substantial mitigating circumstances which show that the attorney did not intentionally convert the funds.” In re LaChapelle, 491 N.W.2d at 21. In this case, Pierce has failed to provide any evidence that his misappropriation was unintentional.

Furthermore, Pierce’s affirmative attempt to conceal his misappropriation from the Director and his lack of cooperation with the disciplinary investigation is professional misconduct separate from his underlying violations. An attorney is under an ethical obligation to cooperate in the investigation and resolution of complaints of unprofessional conduct. Minn. R. Prof. Conduct 8.1; Rule 25, RLPR; In re Cartwright, 282 N.W.2d 548, 551-52 (Minn.1979). “Refusal to cooperate with disciplinary authorities is itself serious misconduct and warrants disciplinary action.” In re Flanery, 431 N.W.2d 115, 119 (Minn.1988). In cases where attorneys have not been forthright with disciplinary authorities, our court has stated: “We should not hesitate to impose severe discipline when a lawyer demonstrates a lack of truthfulness and candor to the officers of the judicial system.” In re LaChapelle, 491 N.W.2d at 21. On numerous occasions, we have disbarred attorneys who have made intentional misrepresentations during a disciplinary investigation to conceal their prior misconduct. See, e.g., In re Swerine, 513 N.W.2d at 466-67; In re LaChapelle, 491 N.W.2d at 19.

In addition, Pierce’s failure to appear in court on behalf of clients on several occasions is serious misconduct that warrants sanctions. In past cases, we have concluded that failure to appear on behalf of a client constitutes neglect in violation of Minn. R. Prof. Conduct 1.3. In re Westby, 639 N.W.2d 358, 367 (Minn. 2002). Disbarment or indefinite suspension is the typical sanction for repeated instances of client neglect. Id. at 371; In re Flanery, 431 N.W.2d at 118. In deciding the appropriate discipline for neglect, we consider the number of clients affected and the degree of harm caused to the clients by the neglect. In re Flanery, 431 N.W.2d at 118. “In cases where this court has ordered indefinite suspension for neglect of client matters, the attorneys either presented mitigating circumstances for the court to consider or entered into stipulations or both.” Id. Pierce has presented no mitigating factors, nor has he entered into a stipulation with the Director’s Office. Further, in the S.A. matter, Pierce’s conduct not only constituted serious neglect but also violated Minn. R. Prof. Conduct 1.4, requiring that an attorney keep clients “reasonably informed” about the status of their cases.

Pierce’s issuance of numerous insufficient funds checks violated Minn. R. Prof. Conduct 8.4(c), prohibiting conduct involving fraud or deceit. See In re Pokomy, 453 N.W.2d 345, 347 (Minn.1990). We have suspended or disbarred attorneys who have issued insufficient funds checks in conjunction with other misconduct. See, e.g., id. at 349 (suspending attorney indefinitely for client neglect, issuance of one insufficient funds check, and failure to pay two judgments for law-related debts); In re Gubbins, 380 N.W.2d 810, 811-12 (Minn. 1986) (suspending attorney for four months for issuing 217 insufficient funds checks, commingling funds, and failing to keep proper trust account records); In re Larson, 324 N.W.2d 656, 658-59 (Minn. 1982) (disbarring attorney who issued numerous insufficient funds checks, misappropriated client funds, and failed to cooperate with the disciplinary investigation).

We consider the presence of aggravating or • mitigating circumstances in determining the proper discipline. In re Wentzell, 656 N.W.2d at 408. There are several aggravating circumstances in this case. First, Pierce’s failure to make restitution to L.F. is an aggravating factor. See In re Swerine, 513 N.W.2d at 467. Second, Pierce’s failure to cooperate with the disciplinary investigation is an aggravating factor because it demonstrates a disregard for the seriousness of the disciplinary process and for his ethical obligations as an attorney. See In re Westby, 639 N.W.2d at 370-71; In re Engel, 538 N.W.2d 906, 907 (Minn.1995).

Pierce has provided no evidence of mitigating circumstances. The fact that an attorney is relatively new to the profession is not a mitigating factor where serious misconduct, such as the misappropriation of client funds, is present. See In re Leon, 524 N.W.2d 723, 725 (Minn.1994). Further, the absence of pri- or disciplinary history does not mitigate when the violation is severe. See In re Wentzell, 656 N.W.2d at 409. Given the serious nature of the misconduct and the absence of any mitigating circumstances, we hold that disbarment is the appropriate discipline is this case.

So ordered.

BLATZ, C.J., took no part in the consideration or decision of this matter.

      . Pierce was admitted to practice law in Minnesota in 1999.

      . Rule 13(b), RLPR, provides: “If the respondent fails to file an answer within the time provided or any extension of time this Court may grant, the petition’s allegations shall be deemed admitted and this Court may proceed under Rule 15.”

      . The retainer agreement appears to have provided for Pierce to receive a specified fraction, one-third, of any settlement recovered.

      . Minn. R. Prof. Conduct 1.15(d)(1) states that a lawyer shall not enter into an arrangement in a domestic relations matter for a fee that is "contingent upon securing the divorce or upon the amount of alimony or support, or property settlement in lieu there of.” Minn. R. Prof. Conduct 1.15(c)(4) states: "A lawyer shall * * * promptly pay or deliver to the client * * * the funds, securities, or other properties in the possession of the lawyer which the client * * ⅜ is entitled to receive.” Minn. R. Prof. Conduct 8.4(c) states: "It is professional misconduct for a lawyer to * * * engage in conduct involving dishonesty, fraud, deceit or misrepresentation * *

      . Minn. R. Prof. Conduct 8.1(a)(3) provides that an attorney undergoing a disciplinary investigation shall not "knowingly fail to respond to ⅜ * * [a lawful] demand for information." Rule 25, RLPR, provides that a lawyer who is the subject of a disciplinary investigation has a duty to cooperate with the Director’s Office by complying with "reasonable requests” for documents and written explanations and by appearing at hearings or conferences scheduled by the Director’s Office. Rule 25, RLPR further provides that a violation of the rule is unprofessional conduct and constitutes grounds for discipline.

      . Minn. R. Prof. Conduct 8.4(b) states "[i]t is professional misconduct for a lawyer to * * * commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

      .Minn. R. Prof. Conduct 1.3 states: "A lawyer shall act with reasonable diligence and promptness in representing a client.” Minn. R. Prof. Conduct 3.2 provides: "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Minn. R. Prof. Conduct 3.4(c) states: "A lawyer shall not * * * knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists * * Minn. R. Prof. Conduct 8.4(d) states: "It is professional misconduct for a lawyer to * ⅜ * engage in conduct that is prejudicial to the administration of justice * *

      . Minn. R. Prof. Conduct 1.4 provides that a lawyer shall "keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” Rule 1.4 further states: "A lawyer shall explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.” Minn. R. Prof. Conduct 1.8(a) provides that a lawyer shall not enter into a business transaction with a client unless 1) the client is notified in writing that independent counsel should be considered and is given the opportunity to seek such advice; 2) the terms are fair and reasonable and are disclosed to the client in writing; and 3) the client consents in a writing separate from the transaction documents.


author: MEYER, Justice.

text:
    STATE of Minnesota, Respondent, v. John C. HENDERSON, Appellant.
    No. A03-1898.
    Supreme Court of Minnesota.
    Dec. 1, 2005.

      Cathryn Middlebrook, Asst. State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Asst. County Attorney, Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

Appellant John C. Henderson seeks review of an unpublished court of appeals decision affirming his 144-month sentence for first-degree burglary as a career offender under MinmStat. § 609.1095 (2004). Henderson argues that his Sixth Amendment right to a jury trial was violated when the district court imposed a sentence that was an upward durational departure under the career offender statute, because the sentencing judge found that Henderson’s offense was part of a pattern of criminal conduct. We reverse and remand for resentencing.

On December 6, 2002, Henderson was arrested and charged three days later with first-degree burglary. He entered a guilty plea at the beginning of his trial on May 28, 2003. The presumptive sentence for a conviction of first-degree burglary for Henderson under the Minnesota Sentencing Guidelines was 108 months. The district court departed and imposed a sentence of 144 months under the career offender statute, Minn.Stat. § 609.1095, after finding that Henderson had five or more prior felony convictions and that the present offense was committed as part of a pattern of criminal conduct.

Henderson appealed the durational departure to the court of appeals, arguing that his prior convictions did not establish a pattern of criminal conduct sufficient to sentence him as a career criminal. After this case was submitted to the court of appeals, the United States Supreme Court decided Blakely v. Washington, which held that a defendant’s Sixth Amendment right to a jury trial is violated when an upward durational departure is added to a presumptive sentence based on findings of fact not made by a jury. Blakely v. Washington, 542 U.S. 296, 303-05, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The court of appeals affirmed Henderson’s sentence, holding that the Blakely rule does not apply to upward departures under the career offender statute because the determination of a “pattern of criminal conduct” is a legal conclusion, not a finding of fact. State v. Henderson, No. A03-1898, 2004 WL 1925395 at *2 (MinmApp. Aug.31, 2004).

I.

The state argues that Henderson forfeited consideration of his Blakely claim on appeal by failing to raise it in the district court. We ordinarily do not decide issues raised for the first time on appeal, even constitutional questions of criminal procedure. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). We may address such issues, though, when the interests of justice require their consideration and doing so would not work an unfair surprise on a party. Id.; see Minn. R.Crim. P. 28.02, subd. 11; 29.04, subd. 11.

There are recognized circumstances in which the defendant’s failure to raise a sentencing issue at the time sentence is imposed does not waive consideration of the issue on later review. See State v. Fields, 416 N.W.2d 734, 735 (Minn.1987) (allowing challenge to durational sentencing departure following revocation of stayed sentence); State v. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974) (holding that statutory prohibition against double punishment for offenses committed in single behavioral incident cannot be waived); Minn. R.Crim. P. 27.03, subd. 9 (correction of unlawful sentence at any time); Minn.Stat. § 590.01, subd. 1 (2004) (postconviction remedy). In other circumstances we have held that by failing to object at sentencing the defendant forfeited the right to consideration of a sentencing issue on appeal. State v. Lopez-Solis, 589 N.W.2d 290, 293 n. 3 (Minn.1999) (reasonableness of prosecution costs); Blondheim v. State, 573 N.W.2d 368, 368-69 (Minn.1998) (mandatory minimum fine); see also State v. Leja, 684 N.W.2d 442, 447 n. 2 (plurality opinion), 457 n. 3 (Blatz, C.J., dissenting) (Minn.2004) (together holding that failure to raise Appren-di/Blakely challenge to sentence on appeal waived issue).

In the interests of justice, we exercise our discretion to address Henderson’s claim that his career offender sentence violates the holding in the Blakely decision. We do so because of the importance of determining Blakely’s applicability to upward durational departures under the career offender statute, an issue that affects numerous cases statewide.

II.

We turn to the question of whether the district court could constitutionally impose an upward durational departure based on its determination that Henderson is a career offender under Minn.Stat. § 609.1095, subd. 4 (2004). To be sentenced as a career offender, the offender must have “five or more prior felony convictions” and must have committed the present offense as part of a “pattern of criminal conduct.” Id. In this case, Henderson had previously been convicted of third-degree criminal sexual conduct (Minn.Stat. § 609.344 (2004)); felony theft from person (Minn.Stat. § 609.52, subd. 2 (2004)); second-degree burglary (Minn. Stat. § 609.582, subd. 2(a) (2004)); theft of a motor vehicle (MinmStat. § 609.52 subd. 1(10) (2004)); receiving stolen goods (Minn.Stat. § 609.53, subd. 1 (2004)); and first-degree burglary (Minn.Stat. § 609.582, subd. 1(a) (2004)).

Henderson does not dispute that the record establishes that he had five or more prior felony convictions. He argues that whether his present offense was committed as part of a pattern of criminal conduct is a finding of fact that must be made by a jury. The court of appeals characterized the pattern of criminal conduct conclusion as a legal one and determined that the district court had not abused its discretion in concluding that Henderson fit the pattern of a career criminal because, in the words of the court of appeals, “Henderson has a long history of larcenous conduct.” Henderson, 2004 WL 1925395 at *2.

Henderson argues that, under Blakely and Apprendi, a conclusion that he met the definition of a pattern of criminal conduct is a finding of fact that must be made by a jury. In Apprendi v. New Jersey, the United States Supreme Court held that aside from the fact of a prior conviction the jury, not the judge alone, must find any fact that exposes a defendant to punishment beyond the maximum statutory punishment for a particular crime. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Blakely, the Court examined Washington state’s sentencing scheme, holding that the statutory maximum sentence to which upward departures may be added based on facts found by the jury is the presumptive sentence established by the state sentencing guidelines, rather than the absolute maximum sentence permitted by statute. 542 U.S. at 303-04,124 S.Ct. 2531. Thus, even though the sentence imposed by the trial court in Blakely was within the range provided by statute, because that sentence was a substantial upward departure from the presumptive sentence established by Washington state’s sentencing guidelines, the fact that the departure was based solely on the judge’s own findings of aggravating facts and not solely on the jury’s verdict rendered that sentence constitutionally infirm. Id. Under Apprendi and Blakely, any assigned punishment based on facts beyond those found by the jury’s verdict or admitted by the defendant constitutes an infringement of the defendant’s Sixth and Fourteenth Amendment rights.

The issue before us, then, is whether the determination of a pattern of criminal conduct presents a question of law within the district court’s discretion or whether it necessarily requires fact-finding that only may be made by a jury. We previously examined the meaning of “pattern of criminal conduct” in State v. Gorman, 546 N.W.2d 5 (Minn.1996). In that ease, the defendant was convicted of second-degree felony murder and first-degree manslaughter and was sentenced to 450 months, a double durational departure from the presumptive 225-month sentence. Id. at 7. The court based the departure on the career offender statute, finding that the defendant had five prior felony convictions (two for third-degree burglary, and one each for receiving stolen goods, possession of a stolen gun, and third-degree assault), and that the convictions were evidence of a pattern of criminal conduct. Id.

The defendant in Gorman appealed, arguing that his conduct did not fall within the meaning of “a pattern of criminal conduct.” Id. at 8. The defendant claimed that the offense for which he was convicted, felony murder, was unrelated to his prior felony convictions, such that no pattern was established. Id. In responding to the defendant’s argument, we first noted that “pattern” had been defined in previous case law and in other statutes. Id. at 8-9 (citing United States v. Oliver, 908 F.2d 260, 265-66 (8th Cir.1990); State v. Robinson, 539 N.W.2d 231, 237 (Minn. 1995); Minn.Stat. § 609.902, subd. 6(3)(i) (1994)). We concluded that this precedent revealed a common understanding of “pattern” as “the organizing principle or relationship binding certain things, in this case incidents of criminal conduct, together. Such a ‘pattern of criminal conduct’ may be demonstrated by proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics.” Gorman, 546 N.W.2d at 9. In addition, we held that a pattern of criminal conduct “may be demonstrated by reference to past felony or gross misdemeanor convictions or by proof, through clear and convincing evidence, of prior, uncharged acts of criminal conduct, where such acts are similar to the present offense in motive, purpose, results, participants, victims or other characteristics.” Id.

The state claims that this type of determination comes under the recidivism exception to Apprendi and Blakely first recognized in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140. L.Ed.2d 350 (1998), and that therefore it is a question of law. In Almendarez-Torres, the United States Supreme Court considered a federal statute authorizing a two-year prison term for deportees who return to the United States without permission, but authorizing a prison term of up to 20 years for aliens whose deportation was subsequent to a felony conviction. Id. at 226, 118 S.Ct. 1219. The question before the Court was whether the statute defined two separate crimes, in which ease the prior conviction must be mentioned in the indictment, or simply authorized an enhanced penalty, in which case the prior conviction is not an element that must be charged. Id. The Court determined that the prior felony conviction was merely a penalty provision that authorized courts to increase the sentence for a recidivist. Id. at 229-35, 118 S.Ct. 1219. The Court noted that recidivism “is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Id. at 243, 118 S.Ct. 1219. Therefore, the Court held, the fact of a prior felony conviction may be considered by the judge in enhancing a sentence, without being made an element of the offense for which the defendant is being sentenced. Id. at 235, 247,118 S.Ct. 1219.

The state argues that the career offender determination in this case is akin to the determination of prior convictions in the Almendarez-Torres case. We do not agree.

The statute at issue in Almendarez-Tor-res allowed enhancement based purely on the existence of a previous felony conviction, without consideration of any relationship of the previous felony to the deportation violation. The career offender statute is significantly different. Under the career offender statute, not only must a judge find that the defendant has prior felony convictions, but the judge must also look to a variety of prior conduct, including felony and gross misdemeanor offenses and prior uncharged acts of criminal conduct, and decide what their relationship is to each other and to the conviction for which a sentence is being imposed. As the Minnesota Court of Appeals recently concluded in State v. Mitchell, determination of a pattern of criminal conduct “involves a comparison of different criminal acts, weighing the degree to which those acts are sufficiently similar * * *. This determination goes beyond a mere determination as to the fact, or number, of the offender’s prior convictions * * 687 N.W.2d 393, 399-100 (Minn.App.), rev. granted and stayed (Minn. Dec. 22, 2004).

The relevant rule from Apprendi dictates that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt.” Apprendi 530 U.S. at 490, 120 S.Ct. 2348. The Apprendi Court made it clear that recidivism is a narrow exception to the general rule that all facts going to punishment must be found by a jury. Therefore, the additional findings involved in the comparison and weighing of bad conduct go beyond the acceptable parameters of the recidivism exception, because they involve more than the fact of prior convictions. We hold that the determination of a pattern of criminal conduct under Minn.Stat. § 609.1095 goes beyond solely the fact of a prior conviction and, therefore, the imposition of an enhanced sentence based on the district court’s finding of a pattern of criminal conduct violated Henderson’s Sixth Amendment right to trial by jury.

III.

We turn to consideration of the proper remedy. When this case was briefed and argued, we had pending before us the case of State v. Shattuck, 704 N.W.2d 131 (2005) (Shattuck II), in which we determined the proper remedy where an upward departure under our state sentencing guidelines was unconstitutionally imposed. We severed the unconstitutional portion of the guidelines and left the remainder of the sentencing guidelines intact. Id. at 146. Further, we declined to engraft onto the sentencing guidelines and sentencing statutes a requirement for sentencing juries or bifurcated trials, for to do so would require us to rewrite those guidelines and statutes. Id. at 148. Our decision in Shattuck II controls the remedy in this case and, therefore, we reverse the decision of the court of appeals and remand to the district court for resentencing consistent with Shattuck II.

Reversed and remanded for resentenc-ing.

ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.

      . We recently ruled that Blakely does not apply retroactively to cases on collateral review. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).

      . In a number of other recent cases, the court of appeals has retreated from its decision in the case before us, and has acknowledged that upward durational departures under the career offender statute violate a defendant's Sixth Amendment rights. See, e.g., State v. Berry, No. A04-1435, 2005 WL 1021374 at ⅜3 (Minn.App. May 3, 2005), rev. denied (Minn. July 19, 2005); State v. Midderigh, No. A04-332, 2005 WL 1018424 at ⅜5 (Minn.App. May 3, 2005), rev. granted and stayed (Minn. July 19, 2005); State v. Rettke, No. A04-1358, 2005 WL 1020936 at *2 (Minn.App. May 3, 2005).


text:
    In re Petition for Transfer to Disability Inactive Status of Nicholas James GEGEN, a Minnesota Attorney, Registration No. 21503X.
    No. A05-2331.
    Supreme Court of Minnesota.
    Dec. 1, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility (Director), and respondent Nicholas J. Gegen have entered into a stipulation for transfer of respondent to disability inactive status under Rule 28(a), Rules on Lawyers Professional Responsibility (RLPR), without further proceedings, coupled with a stay of a pending disciplinary investigation concerning respondent. The stipulation and a petition for transfer to disability inactive status have been filed in the above-entitled matter. Respondent is not currently practicing law.

The court has reviewed the petition and stipulation and concludes that transfer to disability inactive status and a stay of the pending disciplinary proceedings are appropriate.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that effective immediately respondent Nicholas J. Gegen is transferred to disability inactive status under Rule 28, RLPR. Respondent shall arrange to comply with the notice requirements of Rules 26(a)-(c), RLPR. During the period respondent is on disability inactive status, respondent may not render legal advice, discuss legal matters with clients, or otherwise engage in the practice of law.

IT IS FURTHER ORDERED that the pending disciplinary proceedings concerning respondent are stayed until such time as respondent petitions for reinstatement to the practice of law under Rule 28(d) and Rule 18, RLPR. Upon filing of a petition for reinstatement, the stay of the disciplinary proceedings will automatically be lifted, and in addition to the requirements of Rules 28(d) and 18 the reinstatement proceedings will involve a determination whether discipline is warranted. In addition, reinstatement is further subject to the conditions relating to testing for substance abuse and expert evidence concerning respondent’s psychological fitness to resume the practice of law contained in the stipulation filed with this court.

BY THE COURT:

/s/ Russell A. Anderson Associate Justice


author: BLATZ, Chief Justice. ANDERSON, G. BARRY, Justice

text:
    Geralyn S. ENGLER, Appellant, v. ILLINOIS FARMERS INSURANCE COMPANY, an Illinois corporation, Respondent.
    No. A04-1445.
    Supreme Court of Minnesota.
    Dec. 15, 2005.

      Mark David Streed, Meshbesher, Singer & Spence, Woodbury, for appellant.
    Kathleen Margaret Loucks, Gislason & Hunter, LLP, Minnetonka, MN, for respondent.
    Michael R. Fargione, Hauer, Fargione, Love, Landy & McELlistrem, P.A., Minneapolis, for Minnesota Trial Lawyers Assn.
    Stephen Paul Laitinen, Larson King, St. Paul, for Minnesota Defense Lawyers Assn.
   OPINION

BLATZ, Chief Justice.

This case presents the narrow issue of whether a plaintiff who satisfies all of the elements of a claim for negligent infliction of emotional distress under Minnesota law may, as part of the claim, recover damages for distress caused by fearing for her son’s safety or witnessing the defendant’s negligent injury of her son. The district court concluded that damages for distress caused by witnessing negligent injury to another or fearing for the safety of another are not recoverable and thus limited recovery to those damages for distress arising out of the plaintiffs fear for her own safety. The court of appeals affirmed. We reverse and remand, holding that a plaintiff asserting a claim for negligent infliction of emotional distress may recover damages for distress caused by fearing for the safety of or by witnessing serious bodily injury to one with whom the plaintiff has a close relationship when such serious bodily injury was caused by the defendant’s negligent conduct. To recover such damages, however, the plaintiff must still satisfy the three elements of a claim for negligent infliction of emotional distress: (1) the plaintiff was in the zone of danger of physical impact; (2) reasonably feared for her own safety; and (3) has severe emotional distress with physical manifestations.

The facts in this case are undisputed. On April 17, 1997, Geralyn Engler and her two sons were riding in a vehicle driven by Engler’s boyfriend, B.R. They were going eastbound on 221st Avenue in Oak Grove, Minnesota. When Engler’s son, four-and-a-half-year-old J.E., stated that he needed to go to the bathroom, B.R. pulled the car to the side of the rural road, and Engler and J.E. got out of the car. J.E. walked about 30 feet to the tree line alongside the road, while Engler stood next to the car.

Beverly Wehmas, driving westbound on 221st Avenue, approached the location where B.R.’s car was stopped. As she neared B.R.’s car, Wehmas lost control of her vehicle, causing it to veer toward B.R.’s car and the tree line where J.E. was emerging from the woods. Engler saw Wehmas’s vehicle careening toward B.R.’s car and believed that Wehmas’s vehicle was going to hit her. Engler, however, soon realized that the vehicle was going to strike J.E. instead. Engler screamed and turned away just before Wehmas’s vehicle struck J.E. A moment after the impact, Engler turned back and ran to J.E., who had been thrown into the woods, and carried him to B.R.’s car. A passing motorist stopped and telephoned 911, and an ambulance responding to the phone call transported J.E. to the hospital. J.E. sustained serious injuries from the accident, necessitating four days in intensive care and resulting in scarring.

At her deposition, Engler testified that she sought medical treatment a few months after the accident because she “did not feel like [herjself.” She was irritable, did not want to get out of bed, cried frequently, and had lost all ambition. A doctor diagnosed Engler with post-traumatic stress syndrome and depression and prescribed antidepressants.

In July 1999, Engler filed suit against Wehmas asserting a claim for negligent infliction of emotional distress (“NIED”). The district court certified to the court of appeals the question of whether Engler could recover damages for distress caused by fearing for her son’s safety and witnessing his injury, if she were able to prove the elements of a NIED claim. In answering the certified question, the court of appeals noted the apparent reluctance of Minnesota courts to extend liability in NIED claims and concluded that our court had not recognized a duty of care to protect persons from distress caused by witnessing harm to another. Engler v. Wehmas, 633 N.W.2d 868, 873 (Minn.App.2001) (“Engler I ”). Declining to create new law, the court of appeals answered the certified question in the negative. Id. We granted Engler’s petition for review, but, before oral argument, the parties settled the suit against Wehmas for $50,000, Wehmas’s automobile insurance policy limit.

Claiming that her emotional distress damages exceeded the settlement amount, Engler subsequently brought this suit against Illinois Farmers Insurance Company (“Illinois Farmers”), her automobile insurance company, seeking underinsured motorist coverage. At the district court, Engler brought a motion seeking clarification of the scope of her recoverable damages. Relying on the court of appeals' decision in Engler /, the district court concluded that Engler “is not entitled to damages for emotional distress she may have suffered from as a result of either fearing for her son’s safety or witnessing her son’s injury.” The court ruled that Engler’s recoverable damages are “limited to the emotional distress she sustained as a result of her fear for her own safety.” The parties stipulated that the court’s decision on damages terminated Engler’s suit because her damages arising out of fear for her own safety did not exceed $50,000 and thus did not entitle her to underin-sured motorist coverage. Based on that stipulation, the district court entered judgment against Engler. The court of appeals affirmed in an unpublished opinion, concluding that its decision in Engler I effectively decides this case. Engler v. Illinois Farmers Ins. Co., A04-1445, 2005 WL 704100, at *1 (Minn.App. Mar.29, 2005) (Engler II). We granted Engler’s petition for review.

Whether Engler can recover damages for her distress caused by fearing for her son’s safety or witnessing her son’s injury is a question of law. We review questions of law de novo. Alcozer v. N. Country Food Bank, 635 N.W.2d 695, 707 (Minn.2001). Minnesota courts have long recognized a cause of action for NIED. In 1892, we first recognized a claim for NIED in Purcell v. Saint Paul City Ry. Co., 48 Minn. 134, 50 N.W. 1034 (1892). The plaintiff in Purcell, a pregnant woman riding a cable car, suffered a “fright” when her car narrowly avoided colliding with another car. Id. at 137, 50 N.W. at 1034. As a result of her fright, the plaintiff experienced convulsions and miscarried, leading to a later illness. Id., 50 N.W. at 1034. Our court permitted recovery for the miscarriage and illness, reasoning that the cable car company had breached its duty to “carry the plaintiff safely” and that there was an unbroken causal chain between that breach, the resulting fright, and the illness. Id. at 137-39, 50 N.W. at 1034-35. Purcell has set the standard for NIED claims in Minnesota for over 100 years.

To state a claim for NIED, a plaintiff must prove the four elements of a negligence claim, as well as three additional elements specific to NIED claims. See K.A.C. v. Benson, 527 N.W.2d 553, 559 (Minn.1995); Purcell, 48 Minn, at 137-38, 50 N.W. at 1034. The four elements of negligence are: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) the breach of the duty being the proximate cause of the injury. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn.2001). In addition to the elements of negligence, a plaintiff claiming NIED must prove that “she: (1) was within the zone of danger of physical impact [created by the defendant’s negligence]; (2) reasonably feared for her own safety; and (3) [consequently] suffered severe emotional distress with attendant physical manifestations.” K.A.C., 527 N.W.2d at 557.

For purposes of this appeal, the parties agree that the three elements specific to a NIED claim are met. They disagree, however, as to what damages Engler may recover. Engler seeks to recover damages not only for distress arising from her fear for her own safety when she believed Weh-mas’s car was going to hit her, but also for distress arising from her fear for J.E.’s safety and from witnessing his injury. Engler urges us to expand liability under Minnesota’s current NIED test to permit the recovery of these damages. Under Engler’s approach, the elements of a NIED claim would remain the same, but, once those elements were met, distress caused by fearing for the safety of another or witnessing injury to another could be recovered. Engler’s argument is premised on the belief that a NIED plaintiff is entitled to recover all damages proximately caused by a defendant’s negligent conduct.

In opposition, Illinois Farmers argues that damages for distress arising from fearing for another’s safety or witnessing injury to another are not recoverable because no duty exists to protect an individual from such distress. Illinois Farmers asserts that a NIED plaintiff may only recover damages for fearing for her own safety.

While our previous NIED cases have primarily involved plaintiffs seeking to recover for distress caused by fearing for their own safety, a few cases have touched on the issue of NIED claims for distress arising from witnessing injury to another. See, e.g., Stadler v. Cross, 295 N.W.2d 552, 554 (Minn.1980); Okrina v. Midwestern Corp., 282 Minn. 400, 404, 165 N.W.2d 259, 262 (1969); Sanderson v. N. Pac. Ry. Co., 88 Minn. 162, 166, 92 N.W. 542, 544 (1902). Unlike the present case, however, these eases did not involve a situation where the plaintiff was in the zone of physical danger and reasonably feared both for her own safety and for the safety of another.

We have never confronted the precise issue before us in this case — -whether a person who is in the zone of danger and who fears both for his or her own safety and for the safety of another may recover for distress caused by fearing for the other’s safety or witnessing the other’s injury. While we believe our precedent provides a framework for resolving this issue, we also look to other states for guidance. By our count, approximately 45 states have considered the issue of bystander recovery, and most have adopted tests that permit recovery in certain circumstances for distress caused by witnessing another’s peril or injury. See Dale Joseph Gilsinger, Annotation, Recovery Under State Law for Negligent Infliction of Emotional Distress Due to Witnessing Injury to Another Where Bystander Plaintiff Must Suffer Physical Impact or Be in Zone of Danger, 89 A.L.R. 5th 255, 279-83 (2001) [hereinafter Recovery Under Physical Impact or Zone of Danger]; Dale Joseph Gilsinger, Annotation, Recovery Under State Law for Negligent Infliction of Emotional Distress Under Rule of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), or Refinements Thereof, 96 A.L.R. 5th 107, 113-33 (2001) [hereinafter Recovery Under Dillon]. The bystander recovery tests adopted by these states break down into three general categories: the “impact test,” the “zone of danger test,” and the “foreseeable bystander test.” See Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 546-48, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (cataloging states’ bystander recovery tests).

The “impact test” permits recovery for distress from witnessing negligent injury to another only if the plaintiff experienced the same physical impact that injured the third-party victim. See Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 533 S.E.2d 82, 86-87 (2000). The impact test originated in courts’ efforts to avoid fraudulent emotional distress claims by requiring that the distress be tied to an objectively verifiable physical impact. See Groves v. Taylor, 729 N.E.2d 569, 572 (Ind.2000) (overturning Indiana’s impact test). In recent decades, states have steadily abandoned the impact test in favor of more expansive bystander recovery tests. See Gottshall, 512 U.S. at 547, 114 S.Ct. 2396. Today, it appears that only three states — Georgia, Kentucky, and Oregon — retain the impact test for bystander recovery. See Lee, 533 S.E.2d at 86-87; Michals v. William T. Watkins Mem’l United Methodist Church, 873 S.W.2d 216, 218-19 (Ky.Ct.App.1994); Sherwood v. Or. Dep’t of Transp., 170 Or. App. 66,11 P.3d 664, 671 (2000).

In contrast to the limited number of states that adhere to the impact test, approximately ten states have adopted the “zone of danger test” for bystander recovery. See Recovery Under Physical Impact or Zone of Danger, supra, at 279-83. The zone of danger test permits recovery for emotional distress caused by witnessing negligent injury to another only if the plaintiff was in the zone of danger of physical impact created by the defendant’s conduct. See, e.g., Nielson v. AT & T Corp., 597 N.W.2d 434, 442 (S.D.1999). The plaintiff, however, need not suffer an actual physical impact. See id. Some states employing the zone of danger test also require that the plaintiff fear for his or her own safety. See Williams v. Baker, 572 A.2d 1062, 1064 (D.C.1990); Asaro v. Cardinal Glennon Mem’l Hosp., 799 S.W.2d 595, 599-600 (Mo.1990). In addition, several states require a physical manifestation of the distress, not just emotional injury. See, e.g., Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668, 669 (1979); Nielson, 597 N.W.2d at 442. Finally, a few states require the plaintiff to prove a close personal or familial relationship with the third-party victim, rather than a more attenuated relationship. See, e.g., Keck, 593 P.2d at 670; Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843, 848 (1984).

The third test for bystander recovery— the test with the largest following among states — is the “foreseeable bystander test.” See Gottshall, 512 U.S. at 548, 114 S.Ct. 2396. Approximately 29 states employ some version of this test. See Recovery Under Dillon, supra, at 138-39 nn. 8 & 11-13. It was first formulated by the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). In Dillon, the California court permitted NIED recovery by a mother who was outside of the zone of physical danger when she witnessed her daughter being struck and killed by a car. Id. at 914. The court ruled in favor of the mother, holding that a bystander may recover under NIED for witnessing negligent injury to another if the “defendant should foresee fright or shock [to the plaintiff] severe enough to cause substantial injury in a person normally constituted” — essentially a foreseeability test to be decided on a case-by-case basis. Id. at 920. The court listed three factors to serve as guidelines for determining whether the plaintiffs distress was foreseeable;

(1) Whether plaintiff was located near the scene of the accident * * *.
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related * * *.

Id.

In 1989, the California Supreme Court narrowed the Dillon test by essentially converting the “guidelines” into required elements of a bystander NIED claim. Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, 815 (1989). The court sought to rein in the ever-widening liability that lower courts’ expansive interpretations of Dillon’s foreseeability test had produced, noting that foreseeability alone does not provide a “meaningful restriction on the scope of the NIED action.” Thing, 257 Cal.Rptr. 865, 771 P.2d at 826, 829-30. The court observed that “there are clear judicial days on which a court can foresee forever * * * but none on which that foresight alone provides a socially and judicially acceptable limit on recovery.” Id. at 830.

In our most recent NIED case involving distress at witnessing injury to another, we were invited to adopt the foreseeable bystander test. Stadler, 295 N.W.2d at 554. In Stadler, the parents of a child struck and injured by a car sued the driver for the distress they suffered due to witnessing their son’s injury. Id. at 553. The mother witnessed the accident but, at the time the car struck her son, was several yards away from the zone of danger. See id. at 553. The father was playing rugby about 100 yards from the accident scene and was unaware that his son was the victim until after the accident. Id. Because neither parent was in the zone of danger, we denied recovery. Id. at 553-55. We held that a plaintiff who was not in the zone of danger may not recover for distress due to witnessing injury of another. See id. at 554.

In so holding, we expressly rejected the foreseeable bystander test adopted by California in Dillon v. Legg, which permits a NIED cause of action for a plaintiff outside the zone of danger. Stadler, 295 N.W.2d at 554-55. We expressed concern that the factors of the foreseeable bystander test are not conducive to precise definition and may lead to expansive and possibly arbitrary liability. Id. We further noted that workable, reasonable, and logical limits must be placed on a negligent tortfeasor’s liability and observed that the zone of danger test provides just such clear limits because “juries can objectively determine whether plaintiffs were within the zone of danger.” Id. at 554. In contrast with the zone of danger test, “[njone of the other proposed limitations can be as readily and consistently applied.” Id. In Stadler, we stated that “[n]o arguments have been presented that persuade us that the problems we see in limiting liability once it is extended beyond the zone of danger of physical impact can be justly overcome.” Id. at 555.

Nonetheless, while we soundly rejected the foreseeable bystander test in Stadler, we did not foreclose the expansion of Minnesota’s current NIED zone of danger test to permit recovery of damages for distress caused by fearing for another’s safety or witnessing negligent injury to another. Therefore, with the issue squarely before us, we now hold that a plaintiff may recover damages for distress caused by fearing for another’s safety or witnessing serious injury to another if the plaintiff can prove that she: (1) was in the zone of danger of physical impact; (2) had an objectively reasonable fear for her own safety; (3) had severe emotional distress with attendant physical manifestations; and (4) stands in a close relationship to the third-party victim. In addition, to succeed with such a claim, the plaintiff also must establish that the defendant’s negligent conduct — the conduct that created an unreasonable risk of physical injury to the plaintiff — caused serious bodily injury to the third-party victim.

In so holding, we find the reasoning of the Restatement (Second) of Torts, explaining the zone of danger approach, persuasive. The Restatement provides that a plaintiff may recover for injury resulting from distress due to witnessing harm or peril to a third party if the defendant’s conduct created an unreasonable risk of bodily harm to the plaintiff. Restatement (Second) of Torts §§ 313, 436 (1965). The rationale for this zone of danger test is that when a defendant has threatened a plaintiff with bodily harm, the defendant has breached “an original duty to the plaintiff to exercise care for his protection” and is thus liable for any harm suffered by the plaintiff due to the negligent conduct, even if the harm results in an unusual manner — i.e., from witnessing injury to others put in peril by that negligent conduct. Id. § 436 cmt. f. Other states employing the zone of danger test have also adopted this reasoning. See, e.g., Bovsun, 473 N.Y.S.2d 357, 461 N.E.2d at 847 (noting that “by unreasonably endangering the plaintiffs physical safety, the defendant has breached a duty owed to [the plaintiff] for which he or she should recover all damages sustained including those occasioned by witnessing the suffering of [another] who is also injured by the defendant’s conduct”); Nielson, 597 N.W.2d at 441 (“The rationale for the test is that the defendant breached a duty to the bystander by endangering her safety and placing her in the zone of danger.”).

The primary advantage of the zone of danger test is that it provides a bright line to limit recovery. Continued adherence to the zone of danger test thus avoids the pitfalls associated with the foreseeable bystander test that we voiced concern about in Stadler — the potential for unlimited liability and the absence of clear standards to logically curtail liability. See Stadler, 295 N.W.2d at 554. While a credible argument can be made that a parent’s distress upon seeing his or her child injured is not necessarily abated by distance, it cannot be denied that a person who is in the zone of danger and fears for his or her own safety experiences a palpable and immediate distress that is not always shared by those more geographically removed and protected.

Moreover, by permitting bystander recovery in cases where the plaintiff was in the zone of danger and reasonably feared for his or her own safety, we do not create a new cause of action. Instead, we merely expand the scope of damages recoverable in a NIED claim. See Bovsun, 473 N.Y.S.2d 357, 461 N.E.2d at 847, 850 (observing that the expansion of New York’s zone of danger test to permit bystander recovery when a plaintiff is in the zone of danger does not create a new cause of action but merely enlarges the scope of recoverable damages). Our holding in this case simply recognizes the right of a plaintiff to whom the defendant owed and breached a duty of reasonable care to recover, as an element of damages, those damages attributable to his or her distress caused by fearing for the safety of another or witnessing the defendant’s negligent injury of another.

In expanding the scope of recoverable damages, we agree with the limits adopted by the New York Court of Appeals. See Bovsun, 473 N.Y.S.2d 357, 461 N.E.2d at 848. Thus, we hold that in order for the plaintiff to recover for fear for another’s safety or for witnessing negligent injury to another, the third-party victim must suffer either death or serious bodily injury. This requirement, like the other requirements of a NIED claim, authenticates the plaintiffs distress and ensures that liability is imposed only in cases where the distress is truly severe because of the gravity of the injury witnessed.

Further, we agree with other jurisdictions that have included in their zone of danger tests a requirement that the plaintiff be closely related to the third-party victim. See, e.g., Keck, 593 P.2d at 670; Bovsun, 473 N.Y.S.2d 357, 461 N.E.2d at 848. As with the serious injury requirement, this requirement further serves to authenticate the plaintiffs distress and to place limits on a negligent tortfeasor’s liability. In keeping with our historic cautiousness in expanding the NIED tort, we decline in this case to define the precise contours of the “close relationship” requirement because the facts of this case do not require us to do so. The mother-child relationship — even under the most restrictive of definitions- — would satisfy the requirement of a close relationship. By limiting our opinion to the facts before us, we allow the common law NIED tort to develop gradually. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 234 (Minn. 1998) (citing Tuttle v. Buck, 107 Minn. 145, 148-49,119 N.W. 946, 947 (1909)).

We reverse the judgment against En-gler and remand to the district court for further proceedings in accordance with this opinion.

Reversed and remanded.

ANDERSON, G. BARRY, Justice

(concurring).

I concur in the narrowly drawn majority opinion permitting a claim to be made for the negligent infliction of emotional distress under the specific facts presented here.

I agree with the majority opinion that it makes sense to limit the class of NIED claimants, and I also agree that, under any definition of “close relationship” the mother/child bond at issue here would qualify for eligibility to bring an NIED claim, but I write separately because I would go further and specifically define the qualifying relationship necessary for such a claim in Minnesota.

In my view, the use of a “close relationship” test as set out in the majority opinion is a minimal, at best, limitation on NIED claims. Not only does the majority formulation present the specter of the sudden discovery of a “close relationship” between previously distant parties, it also invites inquiry into, and controversy about, relationships thought to be “close,” e.g., a married couple experiencing conflict or sibling disputes of long-running duration. Surely there will be requests by defense counsel for a special interrogatory on the jury verdict form to address the question of whether the plaintiff had the requisite “close relationship” to qualify for recovery.

Instead, I would require that NIED claims be further limited to circumstances where the third-party victim is a spouse, parent, child, grandparent, grandchild, or sibling of the plaintiff.

While I acknowledge that there is some arbitrariness to specifically limiting the class of claimants as described here, these are universally recognized relationships, and, if we discover, over time, that expansion of the class is appropriate, some future court can address a new boundary line to be drawn around the class. Although the “close relationship” test proposed in the majority opinion is in line with many other jurisdictions permitting NIED claims, some jurisdictions have recognized the risk of broadly defined eligibility and have limited the class of NIED victims. See Barnhill v. Davis, 300 N.W.2d 104, 108 (Iowa 1981); Gates v. Richardson, 719 P.2d 193, 198-99 (Wyo. 1986).

Given the cautious approach that Minnesota has used in the development of the negligent infliction of emotional distress tort, I think it far better.to define the class of potential claimants plainly and clearly because, as set out in Stadler, limits on liability must be imposed that are “workable, reasonable, logical and just.” Stadler v. Cross, 295 N.W.2d 552, 554 (Minn.1980).

      . The term “bystander recovery,” as used in this opinion, refers to a NIED cause of action for distress caused by fearing for another's safety or witnessing negligent injury to another.

      . The court in Thing formulated the three elements slightly differently than it had in Dillon. The test for bystander recovery articulated in Thing permits recovery for distress arising from witnessing injury to another "only if the plaintiff: (1) is closely related to the [third-party] victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim"; and "(3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” Thing, 257 Cal.Rptr. 865, 771 P.2d at 815.

      . Finally, a few states have adopted an alternative version of the foreseeable bystander test — a "pure foreseeability test.” See, e.g., Campbell v. Animal Quarantine Station, 63 Haw. 557, 632 P.2d 1066, 1069-70 (1981); Sacco v. High Country Indep. Press, Inc., 271 Mont. 209, 896 P.2d 411, 425 (1995); Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 395 S.E.2d 85, 97 (1990). ■ The pure foreseeability test permits bystander recovery whenever a plaintiff can prove that it was reasonably foreseeable that the defendant's negligent injury of the third-party victim would cause the plaintiff serious emotional distress, and the conduct did in fact cause such distress. Sacco, 896 P.2d at 425; Johnson, 395 S.E.2d at 97. This test arguably provides more expansive bystander recovery than any of the other tests because, unlike under the foreseeable bystander test, the foreseeability determination is not cabined by the imposition of mandatory elements, such as a close relationship or contemporaneous observation. E.g., Campbell, 632 P.2d at 1069-70; see Thing, 257 Cal.Rptr. 865, 771 P.2d at 826-30.

      . We decline to adopt the impact test for bystander recovery because such a test would be at odds with our current NIED test. It would be illogical to permit recovery for distress caused by fearing for one’s own safety so long as the plaintiff was in the zone of physical danger, even without a physical impact, yet permit recovery for distress caused by witnessing injury to another only if the plaintiff suffered a physical impact.

      . On appeal, the parties in this case did not address the question of how a close relationship requirement should be defined. At a minimum, we would benefit from briefing on this important question before adopting a particular definition.