author: HUDSON, Judge.

text:
    David C. OLMANSON, Appellant, v. LE SUEUR COUNTY, Respondent, SHORELAND RECREATIONAL COOPERATIVE, d/b/a Shoreland Country Club, Respondent.
    No. A03-629.
    Court of Appeals of Minnesota.
    Jan. 13, 2004.

      Kay Nord Hunt, Robert J. King, Jr., Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for appellant.
    Thomas P. Carlson, Jennifer J. Duchscherer, Carlson & Soldo, P.L.L.P., St. Paul, MN, for respondent Le Sueur County.
    Noel L. Phifer, Gislason & Hunter, L.L.P., New Ulm, MN, for respondent Shoreland Recreational Cooperative.
    Considered and decided by HARTEN, Presiding Judge; HUDSON, Judge; and CRIPPEN, Judge.

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

   OPINION

HUDSON, Judge.

Appellant was snowmobiling on the east side of County Road 21, and he was injured when he crossed the road to enter the west ditch and collided with the side of a cement culvert running under the road. The accident occurred near the Shoreland golf course. Appellant sued respondent landowners Shoreland Country Club (Shoreland) and Le Sueur County (the county) for negligence.

Respondents both filed motions for summary judgment, arguing that appellant’s claim was barred by the ten-year statute of repose in Minn.Stat. § 541.051, subd. 1(a) (2002). The county also argued that appellant’s claim was barred by the doctrines of statutory discretionary immunity and official immunity. The district court granted respondents’ motion for summary judgment, finding that the statute of repose in Minn.Stat. § 541.051, subd. 1(a), barred appellant’s claim. The district court denied respondent Le Sueur County’s motion for summary judgment finding the county was not protected by discretionary or official immunity.

Appellant argues that the statute of repose did not bar his claim because it was preserved by the exception to the statute found in Minn.Stat. § 541.051, subd. 1(c) (2002). This exception applies to claims against the owner of real property for damages resulting from negligence in the maintenance, operation, or inspection of the real property. We affirm in part, reverse in part, and remand for trial.

FACTS

On the afternoon of February 18, 2000, appellant David Olmanson went snowmobiling with friends. They were snowmobiling in the ditches along various roads, and eventually began traveling in the ditch on the east side of County Road 21. As evening approached, appellant attempted to cross County Road 21 ten to thirty feet away from a culvert, or tunnel, running under County Road 21. When crossing the road, the snowmobilers did not see the culvert or the barrier placed at the east side end of the culvert. Appellant crossed the road and headed down the west inside slope of County Road 21, where he hit the cement culvert and was injured.

Shoreland operates a golf course, portions of which are located on either side of County Road 21. Shoreland acknowledges that it owns the property where the culvert is located. The county acknowledges that it has a prescriptive easement to use the property where the culvert is located. A former Le Sueur County highway engineer testified that the culvert was constructed by Shoreland sometime prior to 1989 to allow golfers to safely cross to the east and west sides of Shoreland’s golf course. The culvert opening is 76 inches from the edge of the road pavement above and is five feet wide and seven feet high-big enough to allow golfers to ride golf carts through it. There are signs prohibiting snowmobiling on the golf course, but there are no such signs around the culvert. At the time of the accident, a small barricade was in place on the east side of County Road 21 above the culvert. Both the county and Shoreland contend that they did not erect the barricade, and the county acknowledges that the barricade does not meet its requirements for a traffic control device. The current county engineer, Darrell Pettis, testified that while the MNDOT transportation manual recommends that counties mark culverts larger than 42 inches in diameter, Le Sueur County does not generally mark off-road culverts. Former and current Le Sueur County engineers explained that the county established a policy not to mark off-road culverts because of a lack of financial resources and a belief that marking these objects created unnecessary risk and disregard for other, more important signs.

The district court granted respondents’ summary judgment motion, finding that the ten-year statute of repose in Minn. Stat. § 541.051, subd. 1(a), barred appellant’s action. In the same order, the district court denied the county’s motion for summary judgment based on discretionary and official immunity. Appellant filed a notice of appeal, arguing that the district court erred when it found its claim was barred by the statute of repose. Respondent Le Sueur County filed a notice of review, arguing that the district court erred in denying summary judgment based on immunity.

ISSUES

I. Did the district court err in holding that appellant’s claim was time-barred by Minn.Stat. § 541.051, subd. 1(a)?

II. Did the district court err in holding that the county was not protected by discretionary and/or official immunity?

ANALYSIS

I

Appellant argues that the district court erred by granting respondents’ summary judgment motion, finding that his claim was time-barred by the ten-year statute of repose in Minn.Stat. § 541.051, subd. 1(a) (2002).

When reviewing a grant of summary judgment, an appellate court must determine whether there are any genuine issues of material fact and whether the district court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). An appellate court must view the evidence in the light most favorable to the nonmoving party. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn.1994).

Construction and applicability of a statute of limitations is a question of law, which appellate courts review de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998). We construe Minn.Stat. § 541.051 narrowly, but still give effect to the plain language of the statute. Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977) (superseded by statute on other grounds as stated in O’Brien v. U.O.P., Inc., 701 F.Supp. 714 (D.Minn.1988)); Kittson County v. Wells, Denbrook & Assoc., 308 Minn. 237, 240-41, 241 N.W.2d 799, 801 (1976).

Minn.Stat. § 541.051 provides in relevant part:

Subdivision 1(a). Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property ... shall be brought against any ... owner of the real property more than two years after discovery of the injury ... nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.
(c) Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.

Minn.Stat. § 541.051 (2002).

Appellant argues that his action was not time-barred by Minn.Stat. § 541.051, subd. 1(a), because it was preserved by the exception in Minn.Stat. § 541.051, subd. 1(c), which exempts from the statute actions resulting from negligence in the maintenance, operation, or inspection of the property. Specifically, Olmanson argues that Minn.Stat. § 541.051 does not relieve the owner or possessor of a property improvement of the common-law duty to warn of dangerous and unsafe conditions on the premises. We agree.

The county argues that the “maintenance” exception in subdivision 1(c) does not apply to Olmanson’s claim because “maintain” means to keep in an existing state; there is no duty to build or add. See Fisher v. County of Rock, 580 N.W.2d 510, 512 (Minn.App.1998) (holding that adding sloping guardrails to a bridge designed and constructed without them was not “maintenance,” but an “improvement” to real property), rev’d on other grounds, 596 N.W.2d 646 (Minn.1999). According to the county, there have never been warning signs next to the culvert and thus it had no duty to add them.

The district court agreed and found that the subdivision 1(c) exception was not applicable in this case because respondents did not negligently maintain their property. The district court adopted the definition of maintenance in Fisher and ruled that:

From the time of its construction to the present day, the culvert has never contained any warning signs nor did the original design require markings for the ends of the culvert. Because the culvert was not designed or built with warning signs or devices, the County had a duty to maintain the culvert without such markings. “Maintenance” does not connote the addition of new components to what was originally built; rather, “maintenance” involves the upkeep of what already exists.... Accordingly, the Plaintiffs claimed damages cannot be characterized as resulting from negligent maintenance so as to fall under the “maintenance” exception to the statute of repose.

But the district court’s reliance on Fisher is misplaced. First, in Sullivan v. Farmers & Merchants State Bank of New Ulm, 398 N.W.2d 592, 595 (Minn.App.1986), review denied (Minn. Mar. 13,1987), this court held that the exception in Minn. Stat. § 541.051, subd. 1(c), applied to claims where a landowner failed to warn or protect individuals from dangerous conditions on their land. Id. In Sullivan, a customer at a bank fell off a raised sidewalk and suffered injuries. This court stated that:

The inclusion of [subd. 1(c)] in the 1980 version of the statute evinces a legislative intent to hold owners and possessors to the standard of care required at common law. The fact the risk results from defects in the design or construction of the property improvement does not relieve the owner or possessor of the duty to ensure the safety of persons using the premises through use of appropriate warnings.

Sullivan, 398 N.W.2d at 595. This court held that Sullivan’s claim was not time-barred because it included an allegation of failure to warn of a dangerous condition on the land. Id. Moreover, a few months after the Sullivan decision, the Minnesota Supreme Court held that the intent of the exception in Minn.Stat. § 541.051, subd. 1(c), appeared to be to leave undisturbed the limitation period for ordinary landowner liability. Ocel v. City of Eagan, 402 N.W.2d 531, 534 (Minn.1987).

Next, the district court’s reliance on Fisher is also misplaced because Fisher is factually distinguishable. In Fisher, this court distinguished a situation where the county failed to place any guardrail along a dangerous road from the actual situation in Fisher, where guardrails that were allegedly inadequate were in place. Fisher, 580 N.W.2d at 512. Here, as the county admits, it made no effort to mark or safeguard this known dangerous location.

Thus, based on Sullivan and Ocel, we are persuaded that Minn.Stat. § 541.051, subd 1(c), excludes from the ten-year statute of repose claims against a landowner that allege violation of the standard of care the landowner owed at common law, including claims for failure to warn of dangerous conditions on the land. We agree with appellant’s contention that Minnesota law makes clear that a possessor of land must do more than merely preserve its improvement in its original condition; there is an ongoing common-law duty to inspect and repair the premises, including a duty to warn persons using the premises of unreasonable risks of harm. While the Sullivan court did not identify whether this duty was incorporated in the term maintenance or inspection, we believe the duty is encompassed in both terms. Thus, in this case, the district court erred by solely focusing on the Fisher definition of maintenance, disregarding respondents’ duty to warn as it relates to the landowner’s operation or inspection of its property. Accordingly, because appellant included an allegation of failure to warn of a dangerous condition on the land, appellant’s claim is not time-barred by the statute of repose.

Respondent Shoreland argues that even if Sullivan does read a duty to warn into Minn-Stat. § 541.051, subd. 1(c), Sullivan is limited to cases where an individual is injured in a commercial setting. We disagree. We believe that the Sullivan duty to warn is not limited to commercial settings. While the appellant in Sullivan was injured in a commercial setting, nothing in the court’s holding indicates that it was limited to commercial settings. Sullivan simply held that Minn.Stat. § 541.051, subd. 1(c), did not relieve landowners of the duty of care required of landowners at common law. Sullivan, 398 N.W.2d at 595.

In addition, respondent Le Sueur County argues that reading the common-law duty to warn into Minn.Stat. § 541.051, subd. 1(c), engulfs the statute of repose enunciated in Minn.Stat. § 541.051, subd 1(a), as applied to landowners. We disagree. The legislative history is instructive on this point. As originally enacted, Minn.Stat. § 541.051 protected architects, contractors, and suppliers from stale claims based on improvements to real property over which they no longer had any control. See, e.g., Kittson County, 308 Minn. at 241-42, 241 N.W.2d at 802. The statute did not protect landowners. But in 1977 the Minnesota Supreme Court ruled that excluding owners and possessors from the protection afforded by the statute had no rational basis and denied property owners of equal protection of the law. Pac. Indem. Co., 260 N.W.2d at 555. In response to that case, the legislature amended the statute in 1980 to add “owners.” 1980 Minn. Laws eh. 518 §§ 2-4. In the same session, the legislature added the “maintenance, operation or inspection” exception now found in Minn.Stat. § 541.051, subd. 1(c). Id. In 1987, the Minnesota Supreme Court had an opportunity to interpret subdivision 1(c), and it held that the intent behind the inclusion of this exception “appears to be ... to leave undisturbed the limitation period for ordinary landowner’s liability.” Ocel, 402 N.W.2d at 534.

Based on this legislative history, we are persuaded that the ten-year limitation period in Minn.Stat. § 541.051, subd. 1(a), is not “swallowed” by reading a duty to warn into the exception in subdivision 1(c) because the limitation period was never intended to relieve property owners of their common-law duty to warn of dangerous conditions on their premises. Therefore, we conclude that the trial court erred in holding that appellant’s claim was time-barred because appellant’s claim is exempted from the statute of repose by the exception in Minn.Stat. § 541.051, subd. 1(c). Accordingly, we remand this case to the district court for further proceedings.

II

Discretionary Immunity

Respondent Le Sueur County contends that the district court erred by denying its motion for summary judgment on its claim of discretionary immunity, also known as statutory immunity. Respondent argues that there was no legal mandate requiring the county to install warning signs, barricades, or delineators, and whether it should use such devices lies within the discretion of the county. The county claims that ultimately its decision to leave off-road culverts unmarked was established by balancing numerous policy considerations, and it is therefore immune from tort liability.

The district court found that respondent failed to present sufficient evidence to prove that the policy to leave off-road culverts unmarked was discretionary. Relying on Conlin v. City of St. Paul, 605 N.W.2d 396, 403 (Minn.2000), the court found that respondent only provided minimal averments in its affidavits supporting immunity and did not explain the “how” and “why” of adopting the policy. We agree.

The Minnesota Tort Claims Act holds governmental units liable for their torts and those of their officers, employees, and agents acting within the scope of their employment duties. Minn.Stat. § 466.02 (2002). But the statute enumerates an exception to the general rule for any claim based upon the “performance or the failure to exercise or perform a discretionary function or duty.” Minn.Stat. § 466.03, subd. 6 (2002). Because discretionary immunity is an exception to the general rule of governmental liability it must be narrowly construed. Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 914, 919 (Minn.App.1993), review denied (Minn. Mar. 22, 1993). Whether governmental action is protected by statutory immunity is a question of law which this court reviews de novo. Conlin, 605 N.W.2d at 400. “The party asserting an immunity defense has the burden of demonstrating facts showing that it is entitled to immunity.” Fear v. Indep. Sch. Dist. No. 911, 634 N.W.2d 204, 209 (Minn.App.2001), review denied (Minn. Dec. 11, 2001). Moreover, when we review a grant of summary judgment, we must view the evidence in the light most favorable to the non-moving party. City of Mounds View, 518 N.W.2d at 571.

Here, taking the facts in the light most favorable to appellant, we do not believe that respondent has met its burden of demonstrating facts that show it is entitled to immunity.

In Conlin, the Minnesota Supreme Court acknowledged there is a “gray area” dividing protected and unprotected decisions by governmental units. 605 N.W.2d at 400. Indeed, it is true that when reviewing a government action it can be hard to think of an act that does not use some level of discretion. Therefore, because of the difficulty in distinguishing between protected and unprotected decisions and the significant “gray area” involved in these determinations, it is essential that discretionary immunity protect the government only when it can produce evidence that its conduct was of a policy-making nature involving social, political, or economic considerations, rather than merely professional or scientific judgments. Id. (quoting Steinke v. City of Andover, 525 N.W.2d at 173, 175 (Minn.1994)).

In Conlin the court closely evaluated the process used to establish St. Paul’s policy of when to respond to citizen complaints. In support of its claim that the decision was discretionary, the city submitted two affidavits. Conlin, 605 N.W.2d at 399. But the court found that “rather than explaining how and why a decision pertaining to the street sealing project was made and detailing the underlying considerations, [the city’s] affidavits are conclusory. The affidavits merely identify generalized concerns ... without incorporating specific facts demonstrating that a decision was in fact made.” Conlin, 605 N.W.2d at 402-03.

Similarly in Fear, 634 N.W.2d at 210-11, a school district submitted two affidavits to support a claim that its decision was a planning-level decision entitled to statutory immunity. This court explained that while the affidavits discussed factors the school district might have considered, they did not provide specific evidence of when and how the decision was actually made. Id. at 212.

Accordingly, we hold for immunity purposes it is essential that the county provide detailed evidence of how and when the county made a particular policy decision, including providing evidence of specific facts that the county considered in making its determination. We agree with respondent that the county need not necessarily adopt a written policy, but there must be evidence that there was a deliberative process that led to establishment of the policy in question.

Here, the county failed to produce even one specific fact concerning a deliberative process that led to a “policy” decision to leave off-road culverts unmarked. Instead, as counsel for respondent conceded at oral argument, the engineer’s decision to leave off-road culverts unmarked more closely resembles an established practice merely passed down from one county engineer to the next. This is borne out by current engineer Pettis’s deposition testimony that he was told of this policy by the “sign man.” An engineer’s action in following a practice because the county has always followed that practice is not enough to prove that the policy was established through a deliberative process weighing social, economic, and political factors.

Furthermore, even if we review the substance of respondent’s claim, we conclude the county is not entitled to immunity. Indeed, discretionary immunity does not protect all decisions made by government agents. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 (Minn.1988). The courts distinguish between “operational decisions” and “planning decisions.” Watson v. Met. Transit Comm’n, 553 N.W.2d 406, 412 (Minn.1996) (citing Nusbaum, 422 N.W.2d at 719). Because planning decisions involve questions of public policy, these decisions are immune as discretionary decisions, while operational decisions relate to the day-to-day operation of government and are not immune. Steinke, 525 N.W.2d at 175. The implementation of procedures through operational decisions that do not involve balancing of various policy considerations is not protected by discretionary immunity. Rico v. State, 472 N.W.2d 100, 104 (Minn.1991). Immunity protects only those discretionary acts that involve the “balancing [of] policy objectives such as economic, social, and political factors.” Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn.App.1998).

Here, the county provided three affidavits — one from the current Le Sueur County engineer and two from former county engineers. In these affidavits, the engineers stated that in establishing the policy to leave small off-road culverts unmarked, they considered the following: (1) placing objects in a culvert or ditch creates a greater hazard; (2) snow may cover the object and create a dangerous obstacle; (3) off-road objects present a limited risk to pedestrians; (4) overuse of signs can result in general disregard for all traffic control devices; (5) the county’s limited financial resources; and (6) the culverts’ lack of impact on the width or layout of the road. As in Conlin, however, these factors are theoretical and conclusory and appear to merely parrot the language that Minnesota courts have used in discretionary-immunity cases.

Further, many facts in the record contradict the engineers’ affidavits. For example, Pettis’s admission that the county will mark culverts if someone requests that the county mark a culvert contradicts the county’s claim that this was a policy decided by the county after weighing various factors. In addition, the record establishes that the expense of marking this culvert could be as low as $200 for a delineator.

Therefore, because the county failed to produce evidence to prove when and how the county went through a deliberative process balancing social, political, or economic considerations and not merely professional or scientific judgments to establish its policy, the county is not protected by discretionary immunity.

Official Immunity

Respondent Le Sueur County also argues that official immunity should protect its county engineer, and vicariously the county, because the policy to leave off-road culverts unmarked was established by current county engineer Pettis and his predecessors. The district court did not separately discuss the claim of official immunity. We review a district court’s decision concerning official immunity de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn.1996).

Official immunity is distinct from statutory immunity. In contrast to statutory immunity, official immunity determines whether individuals used discretion on an operational, rather than a policy-making, level. Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn.1992); Riedel v. Goodwin, N.W.2d 753, 758 (Minn.App.1998), review denied (Minn. Apr. 30, 1998). Official immunity protects a government employee “from fear of personal liability that might deter independent action.” Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs, 552 N.W.2d 711, 715 (Minn.1996) (citations omitted). For example, official immunity has often been employed to protect police, and vicariously their municipalities, when they use discretion to make an independent decision while in the Tine of duty. See City of Mounds View, 518 N.W.2d at 567; Leonzal v. Grogan, 516 N.W.2d 210 (Minn.App.1994), review denied (Minn. Jul. 27, 1994).

But the creation of a policy is a planning-level decision and not operational conduct protected by official immunity. Riedel, 574 N.W.2d at 758 (creation of mowing policy is a planning-level decision protected by statutory immunity not official immunity). Official immunity would protect the county official who makes a discretionary operational decision while implementing the policy established at the planning level. Here, the record does not reveal, and the county does not argue, that any county employee made a discretionary decision in implementing the county’s practice to leave off-road and small culverts unmarked. Accordingly, the county’s official immunity defense also fails.

DECISION

We reverse the district court’s decision to grant summary judgment in favor of respondents based on the finding that appellant’s action was barred by the statute of repose. Because appellant’s action includes an allegation of failure to warn of unsafe conditions on respondents’ land, it avoids the statute of repose by the exception to the statute in section 541.051, subd. 1(c). Accordingly, we remand this case to the district court for further proceedings. We affirm the district court’s decision to deny respondent Le Sueur County’s summary judgment on discretionary immunity because respondent failed to provide evidence that it went through any deliberative process to establish a policy to leave off-road culverts unmarked. We also affirm the district court’s decision to deny respondent Le Sueur County’s summary judgment on its claim of official immunity because the record does not support the application of official immunity to the county.

Affirmed in part, reversed in part, and remanded.

      . Although the county does not own the land where the culvert is located, by virtue of its prescriptive easement to use the land, the placement of the culvert entirely within that easement, and the county’s general duty to maintain roads in a safe condition, the county is a “landowner” for purposes of the applicability of Minn.Stat. § 541.051. See Johnson v. County of Nicollet, 387 N.W.2d 209, 211-12 (Minn.App.1986). Moreover, the county has never disputed its status as a "landowner” in this case.

      . The parties disagree on whether Olmanson was lawfully snowmobiling on respondents' property when he was injured. At oral argument, both counsel agreed that resolution of that issue was unnecessary here on appeal. In any event, we note that the Minnesota Supreme Court has held that a landowner has a duty “to use reasonable care for the safety of all ... persons invited upon the premises.” Sutherland v. Barton, 570 N.W.2d 1, 7 (Minn.1997) (quoting Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972)). This rule imposes the duty of reasonable care on both the landowner and the entrant. Peterson, 294 Minn. at 174, 199 N.W.2d at 647. The landowner has this duty regardless of whether the entrant is a licensee or an invitee. Louis v. Louis, 636 N.W.2d 314, 319 (Minn.2001).
      The supreme court has also adopted the rule set out in Restatement (Second) of Torts § 343A (1965), that a landowner is not liable for physical harm caused by a known or obvious danger, unless the possessor should anticipate the harm despite such knowledge or obviousness. Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn.1995) (citing Peterson v. W.T. Rawleigh, 274 Minn. 495, 496-97, 144 N.W.2d 555, 557 (1966)) (quoting Restatement (Second) of Torts § 343A (1965)).
      Further, generally, a landowner does not owe a duty to a trespasser. Hanson v. Bailey, 249 Minn. 495, 500, 83 N.W.2d 252, 257 (1957); Restatement (Second) of Torts § 333 (1965). But if the landowner knows or should know that a trespasser is present, then the landowner has a narrowly defined duty to use reasonable care for the safety of the trespasser while carrying on his activities, or to use reasonable care to warn the trespasser of the danger or risk involved. Id.; Restatement (Second) of Torts § 336 (1965). However, a landowner’s duty of reasonable care does not extend to warn or protect against risks of which, the trespasser knew or should have known.

      . Whether respondents actually breached their duty to warn by not placing signs or delineators around the culvert involves fact questions that should be decided by the trier of fact.

      . The Conlin court explained that while the affidavits showed the city considered "minimal public safety concerns” associated with the project, it did not explain what those concerns might be or how they factored into the decision. Id. Further, the court found that the city claimed residents would be inconvenienced by barricades, but did not explain how it arrived at this conclusion, and that while the city claimed it evaluated "financial considerations,” it did not provide any specific documentation of this consideration. Id.

      . A delineator is a post with a reflective sign on it designed to warn traffic of the presence of a structure.


source: Caselaw Access Project

author:
KLAPHAKE, Judge.
      G. BARRY ANDERSON, Judge

license: Public Domain

text:
    EDINA COMMUNITY LUTHERAN CHURCH, et al., Appellants, v. STATE of Minnesota, Respondent.
    No. A03-723.
    Court of Appeals of Minnesota.
    Jan. 13, 2004.

      David L. Lillehaug, Marian E. Saksena, Fredrikson & Byron, P.A., Minneapolis, MN, for appellants.
    Mike Hatch, Attorney General, Hilary Lindell Caligiuri, Deputy Attorney General, St. Paul, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge.
   OPINION

KLAPHAKE, Judge.

In this declaratory judgment action, appellants Edina Community Lutheran Church, church ministers Erik Strand and Pamela Fichenscher, and church member R. Daniel Rasmus challenge the district court’s order denying in part their motion for injunctive relief. Appellants allege that the district court erred by concluding that they lacked standing because there was no justiciable controversy and that it abused its discretion by refusing to enjoin enforcement of Minn.Stat. §§ 624.714 and 609.66, subd. Id (Supp. 2003) (the act) as applying to appellants’ parking lots, employees, and leased areas.

Because the act affects appellants’ property rights and their right to free religious exercise under the Minnesota Constitution, an actual controversy exists that involves adverse interests and is capable of specific relief. We therefore conclude that appellants have standing to challenge the act, and we reverse that part of the district court’s order. Because the district court failed to make findings that permit a meaningful review of its denial of temporary injunctive relief, we reverse and remand on this issue.

FACTS

The Edina Community Lutheran Church is a small congregation with a church building, a contiguous parking lot, and a parsonage that is leased to its pastor. As part of its religious mission, appellants lease Sunday school space and a playground to a child-care center. Worship services or church functions are occasionally held in parking areas or leased areas of the building; employees park in the church parking lot. The other plaintiffs joined in the amended complaint are also owners of property, including buildings and parking lots, employers, landlords, and operators of child-care centers.

On May 28, 2003, the Minnesota Citizens’ Personal Protection Act of 2003, which is more popularly known as the “conceal and carry” law, became effective. See 2003 Minn. Laws ch. 28, art. 2, § § 1— 36 (now codified at Minn.Stat. §§ 624.714 and 609.66, subd. Id). Appellants determined that the signage requirements and restrictions of the act that limit control of their church property conflict with their religious mission and worship practices. Appellants decided that they wanted to prohibit firearms from their building, parking areas, and leased spaces.

On May 29, 2003, appellants brought a declaratory judgment action, challenging the constitutionality of the act as applied to them and requesting a declaration that they can prohibit the possession of firearms on their property, including parking lots and leased premises, by whatever means they see fit to use. On June 6, 2003, the district court issued an order granting appellants’ motion for a temporary injunction in part and denying it in part. Specifically, the district court temporarily enjoined that part of the statute that requires appellants to post a sign of specified size and typeface and to make an oral request to persons entering the building in order to ban firearms from the church building. Minn.Stat. § 624.714, subd. 17(b). Instead, the district court permitted appellants to use the less restrictive means of Minn.Stat. § 624.714, subd. 17(d) to ban firearms from the church building.

The district court denied injunctive relief as to the remainder of appellants’ motion, which challenged other provisions of the act. These particular sections of the act prohibit a private establishment, including a church, from banning firearms in its parking areas, a landlord from restricting the lawful carry or possession of firearms by a tenant, an employer from restricting possession of firearms in its parking areas, or a child-care operator from restricting possession of firearms by a person in a motor vehicle while in the child-care parking area. Minn.Stat. § 624.714, subd. 17(c), (e), subd. 18(c); Minn.Stat. § 609.66, subd. ld(d)(4)(ii), (e)(2), (e)(7), (e)(8) (Supp. 2003).

The district court’s order and memorandum included the following facts, which were either stipulated or unchallenged: (1) appellants’ religious beliefs and rights of conscience are sincerely held; (2) appellants’ real property, including its parking areas, is used at times for church functions, as worship space, and for other church activities; and (3) appellants have employees, tenants, and a licensed childcare center that may be affected by various provisions of the act. The district court based its denial of appellants’ motion on a finding that appellants had no standing because there was no justiciable controversy.

ISSUES

1. Did the district court err by concluding that appellants lack standing to challenge the act because there is no justicia-ble controversy?

2. Did the district court abuse its discretion by refusing to enjoin enforcement of certain portions of the act?

ANALYSIS

I. Justiciability and Standing

The reviewing court considers de novo the question of standing, as an aspect of justiciability. Schiff v. Griffin, 639 N.W.2d 56, 59 (Minn.App.2002). Because it is essential to establishing the court’s jurisdiction, the question of justiciability may be raised at any time. Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 273 (Minn.App.2001).

Standing is a necessary prerequisite before a party may seek relief from a court. State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 493 (Minn.1996). “Standing is acquired in two ways: either the plaintiff has suffered some ‘injury-in-faet’ or the plaintiff is the beneficiary of some legislative enactment granting standing.” Id. The presence of an injury in fact assures that the party has a sufficient stake in a justiciable controversy. Id.

“Justiciability generally requires (1) a genuine or present controversy (2) presented by persons with truly adverse interests and (3) capable of specific rather than advisory relief by a decree or judgment.” Rice Lake Contracting Corp. v. Rust Env’t. & Infrastructure, Inc., 549 N.W.2d 96, 99 (Minn.App.1996), review denied (Minn. Aug. 20, 1996). In the context of a declaratory judgment action, this may involve a declaration of rights, status, or legal relationship to decide a controversy at its inception. Franck, 621 N.W.2d at 273-74.

A declaratory action is a justiciable controversy if it (a) involves definite and concrete assertions of right that emanate from a legal source, (b) involves a genuine conflict in tangible interests between parties with adverse interests, and (c) is capable of specific resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion.

Id. at 273. In other words, there must be “a direct and imminent injury” rather than a “merely possible or hypothetical injury.” Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn.1996) (quotation omitted).

The state suggests, and the district court apparently agreed, that any injury to appellants is merely hypothetical, because the act lacks an enforcement provision. For several reasons, we disagree.

First, the act specifically states that the owner of a private establishment “may not prohibit” a permit holder from carrying a firearm in a parking area or parking facility. Minn.Stat. § 624.714, subd. 17(c). Appellants, according to the hearing transcript, have posted signs prohibiting the possession of firearms in their parking areas. This puts appellants in direct conflict with the act and provides more than a theoretical framework to challenge enforcement of the act. A law may be enforced in a variety of ways, even absent a specific penalty provision. See State ex rel. Hatch v. Am. Family Mut. Ins. Co., 609 N.W.2d 1, 3 (Minn.App.2000) (“The attorney general may institute, conduct, and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of this state, the preservation of order, and the protection of legal right.”), review denied (Minn. June 13, 2000).

Second, the restrictions of the act have affected appellants’ property rights. Appellants are not permitted to control their parking areas or leased areas by prohibiting firearms or by otherwise enforcing such prohibitions under the law of trespass. Minn.Stat. § 624.714, subd. 17(c), (e), subd. 18(c). The right to exclude others is an essential part of general property rights. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 82, 100 S.Ct. 2035, 2041, 64 L.Ed.2d 741 (1980). In Prune-Yard, the Supreme Court concluded that allowing free expression activities, such as collecting signatures on a petition, did not impair the economic value or use of the shopping center. Id. at 83, 100 S.Ct. at 2042. Here, the act threatens to impinge not on the economic viability of appellants’ property, but on the use of appellants’ property for their religious mission and worship practices. Regardless of whether or not appellants are ultimately successful, a justiciable controversy is presented by the issue of whether this act infringes on appellants’ property rights.

Third, by asking appellants to “tolerate” an action that conflicts with their religious mission and beliefs,- the state arguably is infringing on appellants’ right to free exercise of religion, guaranteed by Minn. Const, art. I, § 16. As the state argues, state regulations, such as the Minnesota Human Rights Act or the Minnesota Labor Relations Act, apply to religious organizations when dealing with employment issues that are not doctrinally related. See Hill-Murray Fed’n. of Teachers v. Hill-Murray High School, 487 N.W.2d 857, 866 (Minn.1992); State by McClure v. Sports & Health Club, Inc., 370 N.W.2d 844, 853 (Minn.1985). But Minn. Const, art. I, § 16 “precludes even an infringement on or an interference with religious freedom.” State v. Hershberger, 462 N.W.2d 393, 397 (Minn.1990) (emphasis omitted). Where a free exercise claim is involved, we move cautiously, because “[i]f courts begin to question a church’s basis for doctrinal decisions, a church may be compelled to conform its religious beliefs with the government’s or the majority culture’s beliefs.” Geraci v. Eckankar, 526 N.W.2d 391, 399 (Minn.App.1995), review denied (Minn. Mar. 14, 1995). It would be disingenuous for us to deny the existence of a justiciable controversy where appellants have raised an arguably viable challenge to free exercise.

The uncontroverted facts presented to this court are that appellants’ beliefs and rights of conscience are sincerely held, that the parking areas and other property are used as part of its religious mission or in its worship practices, and that appellants have employees, tenants, and a childcare center that will be affected by the act. Based on these facts, we conclude that the district court erred in determining that appellants lacked standing for want of a justiciable controversy.

II. Denial of Injunctive Relief

This court will not reverse the district court’s grant or denial of a temporary injunction absent an abuse of discretion. Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 451 (Minn.App.2001). Five factors are considered in determining whether a temporary injunction should be granted: (1) the nature and relationship of the parties; (2) the balance of relative harm between the parties; (3) the likelihood of success on the merits; (4) public policy considerations; and (5) any administrative burden involving judicial supervision and enforcement. Metro. Sports Facilities Comm’n v. Minn. Twins P’ship., 638 N.W.2d 214, 220-21 (Minn.App.2002) (citing Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965)), review denied (Minn. Feb. 4, 2002). In applying these factors, the district court must make findings sufficient to “permit meaningful appellate review.” Id. at 220. “Absent findings, we do not know what the trial court concluded on the issues, and thus we cannot determine whether denial of [appellant’s] motion constituted an abuse of discretion.” Crowley Co. v. Metro. Airports Comm’n, 394 N.W.2d 542, 545 (Minn.App.1986).

Here, the district court discussed the Dahlberg factors as they apply to the act’s signage requirements. But when addressing appellants’ challenge to the act’s prohibition against restricting guns in their parking areas and leased premises, the district court states only that the state’s arguments regarding justiciability and standing are “persuasive.” In light of our decision that appellants have standing, the district court’s conclusory statement does not provide us with sufficient findings to permit review. We therefore reverse the district court’s order denying temporary injunctive relief and remand this matter for further proceedings.

DECISION

Because the district court erred in concluding that appellants lack standing to challenge the act, we reverse. Appellants have presented a genuine controversy capable of specific relief. But because we are unable to make a meaningful review of the district court’s denial of injunctive relief without findings applying the Dahlberg factors, we remand for further proceedings.

Reversed and remanded.

G. BARRY ANDERSON, Judge

(concurring specially).

I concur in the result.

      . Parties to this action include a number of plaintiffs who joined in the amended complaint, but are not, as a formal matter, appellants here.

      . Because the state has not challenged the district court’s grant of injunctive relief as to the signage requirements under the act, we need not address that part of the order.

      . The state also argues that appellants lack standing because not all present and future permit holders have joined in this action. Appellants’ requested relief is limited to enjoining enforcement of the statute; it is therefore unnecessary and impractical to join all permit holders. Further, this information is not available to appellants. See Minn.Stat. § 624.714, subd. 15(a) (Supp. 2003) (establishing database of permit holders and limiting access to law enforcement agencies).


author: G. BARRY ANDERSON, Judge. KLAPHAKE, Judge,

text:
    D. Scott VANDENHEUVEL, et al., Appellants, v. Virgil A. WAGNER, Respondent.
    No. A03-324.
    Court of Appeals of Minnesota.
    Jan. 16, 2004.
    Robert J. Leighton, Jr., Nolan, MacGre-gor, Thompson & Leighton, St. Paul, MN, for appellants.
    Steven R. Sehwegman, Mary B. Mahler, Quinlivan & Hughes, P.A., St. Cloud, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; WILLIS, Judge; and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellants, D. Scott and Dawn Vanden-heuvel, challenge the district court’s award to respondent of all of respondent’s costs and disbursements, after appellant’s rejected an offer of judgment that was ultimately more favorable than the net judgment. Appellants argue that Minn. R. Civ. P. 68 gives offerors the right to only costs and disbursements incurred after the offer of judgment when the rejected offer is more favorable than the net judgment. Because we conclude that the district court did not err in granting respondent all of his costs and disbursements, we affirm.

FACTS

The facts are not in dispute in this case. On May 11, 2000, appellant Dawn Vanden-heuvel and respondent were involved in an automobile accident, injuring appellant Dawn Vandenheuvel’s back and shoulder. Appellants brought suit against respondent for personal injuries and loss of consortium.

One month before trial, respondent made an offer of judgment pursuant to rule 68 in the amount of $25,000. Appellants rejected this offer. Appellants prevailed at trial and damages were set at approximately $32,090. The no-fault automobile insurer had paid appellants $20,090, and this amount was offset. Thus, the net judgment was approximately $12,000. Because the net judgment in favor of appellants was less than the offer, the district court granted respondent all of his costs and disbursements, over appellants’ objections. This appeal followed.

ISSUE

Does Minn. R. Civ. P. 68 allow the recovery of all costs and disbursements — or only those incurred after the offer is made and rejected — when the offer of judgment is greater than the net judgment?

ANALYSIS

Appellants argue that rule 68 allows offerors to recover only those costs and disbursements incurred after the date on which the offer of judgment was made. Minn. R. Civ. P. 68 states:

At any time prior to 10 days before the trial begins, any party may serve upon an adverse party an offer to allow judgment to be entered to the effect specified in the offer or to pay or accept a specified sum of money, with costs and disbursements then accrued, either as to the claim of the offering party against the adverse party or as to the claim of the adverse party against the offering party.... An offer not accepted is not admissible, except in a proceeding to determine costs and disbursements. If the judgment finally entered is not more favorable to the offeree than the offer, the offeree must pay the offeror’s costs and disbursements.

(Emphasis added.) The purpose of this rule is “to encourage settlement by all parties.” Minn. R. Civ. P. 68 1985 advisory comm. note. Thus, “[t]he principal effect of making an offer of settlement under [rjule 68 is to shift the burden of paying costs.” Id. This is a change from the previous rule 68.01, which stated, “[T]he offeree must pay the costs and disbursements incurred after the making of the offer.” Minn. R. Civ. P. 68.01 (1984) (emphasis added). The previous rule was, in this regard, like the current federal rule, which states, “[T]he offeree must pay the costs incurred after the making of the offer.” Fed.R.Civ.P. 68.

We review legal issues concerning offers of judgment de novo. Collins v. Minn. Sch. of Bus., Inc., 655 N.W.2d 320, 324 (Minn.2003). Rules of court are to be interpreted in the same manner as statutes and are to be “construed in the sense in which they were understood and intended at the time the rule was promulgated.” Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn.1997) (quoting House v. Hanson, 245 Minn. 466, 473, 72 N.W.2d 874, 878 (1955)). A statute’s plain language is to be given its plain meaning when the statutory language is unambiguous. Green Giant Co. v. Comm’r of Revenue, 534 N.W.2d 710, 712 (Minn.1995).

In 1991, the Minnesota Supreme Court was asked to decide whether certain parties were entitled to costs and disbursements under rule 68 and whether those costs included attorney fees. Bucko v. First Minn. Sav. Bank, F.B.S., 471 N.W.2d 95, 98 (Minn.1991). The court decided that the defendant was entitled to costs and disbursements from only one of the three plaintiffs. Id. The court concluded, “[Plaintiff], however, recovered nothing and must therefore pay the [defendant’s] costs and disbursements incurred from the date of its offer of judgment until judgment was entered by the trial court.” Id. But Bucko did not involve a dispute over and did not analyze when recoverable costs and disbursements began to accrue for purposes of rule 68; the supreme court referred to the date of the offer of judgment without actually analyzing whether that was the relevant date. Bucko provides the basis for appellants’ argument.

In 1994, this court was faced with the question of whether a certain party was entitled to costs and disbursements. Imperial Developers, Inc. v. Seaboard Sur. Co., 518 N.W.2d 623, 628 (Minn.App.1994), review denied (Minn. Aug. 24, 1994). This court held that the offeror was “entitled to costs and disbursements under rule 68 for time spent on the parties’ ... claims from the date of its settlement offer to the first day of trial.” Id. at 629. As in Bucko, there was no analysis as to whether the date of the offer was the relevant date for calculating costs under rule 68.

More recently, the Minnesota Supreme Court considered the interplay between rule 68 and chapter 549 of the Minnesota Statutes. Borchert v. Maloney, 581 N.W.2d 838, 839 (Minn.1998). In determining that the prevailing party was entitled to recover costs and disbursements under the statute and that the offeror was also entitled to recover costs and disbursements because the net judgment was less favorable than the offer, the court did not indicate that the offeror’s costs and disbursements would be limited to those incurred after the date of the offer. Id. at 840-41. The court noted, “[T]he effect of having to pay the offeror’s costs and disbursements ... is still a powerful incentive for the offeree to reach a settlement even if the offeree may, in the end, recover her own costs and disbursements under the statute.” Id. at 841. In reaching this decision, the court emphasized that the Minnesota rule differs from the federal rule. Id. at 840.

This court has also applied rule 68 in other cases, without addressing the relevant date to be applied when calculating the offeror’s costs and disbursements. See, e.g., Luna v. Zeeb, 633 N.W.2d 540, 542-44 (Minn.App.2001); see also Olson v. Nuszloch, 574 N.W.2d 106, 106-07 (Minn.App.1998).

Because none of the cited cases applying rule 68 to date have analyzed this precise issue, we now confront, for the first time, the date from which the offeree’s liability for costs and disbursements begins in the context of rule 68.

Our analysis begins with the clear and direct language of the current rule. Rule 68 provides that the offeree “must pay the offeror’s costs and disbursements,” and there is no language that limits that liability to costs and disbursements incurred after the date on which the rejected offer was made. Minn. R. Civ. P. 68. To reach the result urged by appellants requires us to read into the rule a limitation that is not supported by the language in the current rule.

Changes to the rule adopted in 1985 support our conclusion that no such limitation on costs and disbursements exists. The current rule does not specifically refer to liability for “all” costs and disbursements, but it does not contain the limiting-language found in the federal rule or in the previous version of the Minnesota rule.

Interpreting the rule to impose liability for all of the offeror’s costs and disbursements, not just for some of those costs and disbursements, is consistent with the intent of the rule to create incentives for parties to settle. See Borchert, 581 N.W.2d at 841. Just as the supreme court in Borchert was persuaded that different language in the Minnesota rule compelled a different result than under the federal rules, we also conclude that the lack of limiting language in the Minnesota rule compels our conclusion that the Minnesota rule differs from the federal rule. In the absence of limiting language, we conclude that an offeror is entitled to all costs and disbursements when an offer of judgment is made and not accepted, and the final net judgment is less favorable than the offer.

DECISION

The district court did not err in awarding respondent all of his costs and disbursements, without limiting appellants’ liability to costs and disbursements incurred after the making of the offer of judgment.

Affirmed.

KLAPHAKE, Judge,

dissenting.

Because I believe that the result reached by the majority here is contrary to the Minnesota Supreme Court’s own interpretation of its rule, I respectfully dissent. I would therefore reverse the district court’s decision and allow respondent to recover only those costs and disbursements incurred after he made his offer to appellants.

In general, I agree that when the supreme court either adds or deletes language from a rule, it intends to change past practice. Here, however, I do not believe that the supreme court necessarily intended to change past Minnesota practice by deleting the words “incurred after the making of the offer” from the language of Minn. R. Civ. P. 68.

. Besides the deletion of these words, several other significant changes were made in 1985 when the current version of rule 68 was adopted. The 1985 comment discusses these other changes in detail, but fails to mention the deletion of the words “incurred after the making of the offer.” See Minn. R. Civ. P. 68 advisory comm, note. The comment merely states that the Minnesota rule is to be interpreted consistently with the federal rule, which specifically requires an offeree to “pay the costs incurred after the making of the offer.” Fed.R.Civ.P. 68. From the 1985 comment, we may reasonably conclude that the deletion of the words “incurred after the making of the offer” was not necessarily intended to change the longstanding practice in Minnesota of taxing costs and disbursements only from the date the offer was made.

The supreme court followed súch an interpretation of the current version of rule 68 in Bucko v. First Minn. Sav. Bank, F.B.S., 471 N.W.2d 95 (Minn.1991). In that case, the supreme court concluded that Crace, the one party who recovered nothing, “must therefore pay the Bank’s costs and disbursements incurred from the date of its offer of judgment until judgment was entered by the trial court.” Id. at 98. The supreme court cited the current version of rule 68, but failed to specifically mention or discuss the 1985 deletion of the words after the making of the offer.” As an intermediate appellate court, I do not believe that we are in a position to impliedly overrule Bucko by presuming that the supreme court must have made a mistake or erred when it concluded that the offeror in Bucko need only pay the costs and disbursements incurred from the date of its offer of settlement.

In a case decided after Bucko, the supreme court was asked to decide whether a prevailing party who has rejected a more favorable offer of settlement is required to bear its own expenses, in addition to those incurred by the offeror. Borchert v. Maloney, 581 N.W.2d 838, 840-41 (Minn.1998). The court discussed federal court practice, which precludes a prevailing party from taxing its own costs and disbursements. Id. at 840. The court chose to not follow federal court practice, however, and held that a prevailing party in Minnesota is entitled to tax its own costs and disbursements, against which the offeror’s costs must be offset. Id. at 841. By so holding, our supreme court chose to reject a course that would have maximized the costs to an offeree who rejects a favorable offer of settlement. Contrary to the choice made by the supreme court in Borchert, the majority decision here chooses to maximize the cost to appellants by requiring that they pay all of respondent’s costs and disbursements.

I therefore disagree with the majority’s conclusion that the plain language of rule 68 requires us to tax all of respondent’s costs and disbursement to appellants. Although the language limiting calculation of costs and disbursements to those incurred from the date of the offer has been deleted from rule 68, nothing in the current version of the rule prohibits courts from continuing to interpret the rule as allowing costs and disbursements only from the date the offer was made. Such an interpretation is sound, does not ignore the supreme court cases cited above that have continued to follow past Minnesota practice, and is not contrary to the public policy of encouraging settlements while not maximizing the costs to an offeree who rejects a favorable offer.

I would therefore reverse the district court and remand for calculation of costs and disbursements from the date respondent made his offer to appellants.


text:
    In re the Marriage of Susan Ann KILPATRICK, petitioner, Respondent, v. Michael John KILPATRICK, Appellant.
    No. A03-557.
    Court of Appeals of Minnesota.
    Jan. 20, 2004.
    As Amended Jan. 30. 2004.

      Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., Brainerd, MN, for respondent.
    Thomas C. Pearson, Erickson, Pearson & Aanes, Brainerd, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge; PETERSON, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

This is an appeal from an order modifying child support. At the request of respondent Susan Kilpatrick, Crow Wing County moved to increase the child-support obligation of appellant Michael Kilpa-trick, and the child-support magistrate granted that motion. On appeal from the district court’s order affirming the child-support magistrate’s order, appellant, Michael Kilpatrick, argues to this court that the child-support magistrate erred in increasing his support obligation. Because Crow Wing County did not have standing to move to modify child support, the child-support magistrate did not have jurisdiction to hear the motion. Accordingly, we reverse the district court’s order affirming the child-support magistrate’s ruling and vacate the child-support magistrate’s award.

FACTS

On May 30, 1981, appellant-father, Michael Kilpatrick, and respondent-mother, Susan Kilpatrick, married. The parties have two children, ages 18 and 14. The parties divorced on February 22, 2001. A marital termination agreement was incorporated into the judgment and decree, and provided that father pay a specific dollar amount — $1,012.89—each month for child support. The parties, however, recognized that father derives some of his income from bonuses based on sales performance and included a provision that father would pay mother 30% of his net quarterly bonuses as additional child support. The parties agree that father has fully complied with the stipulated judgment and has made all the requisite child-support payments.

On November 18, 2002, and at mother’s request, Crow Wing County, without attempting to intervene or otherwise being joined as a party to the dissolution, brought a motion to modify the child-support order. Crow Wing County requested the child-support obligation be modified because part of the obligation was expressed as a percentage; it contended that the percentage formula did not work well with the county’s computerized child-support payment recordation system. Crow Wing County argued the quarterly bonus payment should be averaged into the flat monthly child-support obligation.

The county’s motion was heard before a child-support magistrate (CSM). Both parties were present at the hearing, and neither was represented by counsel. An assistant county attorney appeared on behalf of the county. The CSM averaged father’s annual income, including his quarterly bonuses, for the previous four years. The CSM noted that the quarterly-bonuses portion of the original child-support order “is difficult to enforce,” and modified father’s child-support obligation and set it at $2,025 per month.

Father moved for review by the district court. The district court addressed the merits of the CSM’s ruling and affirmed that ruling. Father filed a notice of appeal on May 19, 2003. This appeal follows.

ISSUE

Did Crow Wing County have standing to move to modify child support?

ANALYSIS

Father argues the CSM erred in modifying his child-support obligation and in modifying the obligation upward. Before reaching the merits of father’s arguments, we must first address whether Crow Wing County had standing to challenge father’s child-support obligation.

Standing is a jurisdictional question to be determined by this court. In re Marriage of Sammons, 642 N.W.2d 450, 456 (Minn.App.2002). In State v. Nodes, we noted

[standing, as a jurisdictional defect, raises issues of justiciability. Izaak Walton League of Am. Endowment v. Minnesota Dept. of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977) (justiciable controversy must exist for the court to have jurisdiction over a case). Objections to a party’s standing are essentially jurisdictional because the existence of a justiciable controversy underlies the court’s jurisdiction. In re Mullins, 298 N.W.2d 56, 61 n. 7 (Minn.1980).

538 N.W.2d 158, 161 (Minn.App.1995).

A county must have standing to make a motion to modify a child-support award. A county has standing in a IV-D case, and is a “real party in interest,” where there “has been an assignment of support.” Minn.Stat. § 518.551, subd. 9(b) (2002). In a IV-D case where there has not been an assignment of support, a county has a pecuniary interest and an interest in the welfare of the children and “may intervene as a matter of right in those cases to ensure that child support orders are obtained and enforced which provide for an appropriate and accurate level of child, medical, and child care support.” Id.

Intervention by a county as a matter of right in a case heard in the expedited child support process is permitted “[t]o the extent allowed by law.” Minn. R. Gen. Pract. 360.01, subd. 1. Here, the county did not seek to intervene. Moreover, we refuse to construe the county’s motion to modify child support as satisfying the obligation to intervene; to rule otherwise would effectively eliminate the intervention requirement. Crow Wing County did not formally become a party to this case because it did not intervene. Because Crow Wing County was not a party to this case, it did not have standing to seek to modify the existing child-support award, the motion before the CSM was improper and the district court abused its discretion by affirming the CSM’s ruling. See In re Marriage of Sammons, 642 N.W.2d at 456; Nodes, 538 N.W.2d at 161. The CSM essentially granted the motion of a non-party and the district court, addressing the merits of that ruling, affirmed it. Therefore, we reverse the district court’s affirmance of the CSM and vacate the CSM’s ruling.

Because our decision on this issue is dispositive, we need not address father’s arguments as to the whether the district court abused its discretion in modifying child support.

DECISION

Crow Wing County did not have standing to seek modification of the child-support award, and, therefore, the CSM did not have jurisdiction to hear Crow Wing County’s motion. Accordingly, the district court abused its discretion in addressing the merits of, and affirming, the CSM’s ruling modifying father’s child support. Therefore, we reverse the district court’s order affirming the CSM’s ruling and vacate the CSM’s order modifying the child-support award.

Reversed in part and vacated in part.

      . The county is not participating in this appeal. By order prior to oral argument in this court, we questioned whether the county should have been served with the notice of appeal, and the county responded by agreeing with father that service on the county was unnecessary and that mother adequately represents the position of the county, which has no financial interest in the outcome of the appeal. In light of the county's acquiescence in the appeal proceeding without its involvement, we express no opinion on father's failure to serve the county.

      . Although father argues the CSM erred in modifying his child support obligation, our review is of the district court's order affirming the CSM's modification. If, as here, a party moves for review of the CSM's original decision, the reviewing authority conducts an “independent review” of that decision. Minn. R. Gen. Pract. 377.09, subd. 2(b). The “independent” nature of the review means that the reviewer owes no deference to the CSM's original decision and addresses the matter “de novo.” Blonigen v. Blonigen, 621 N.W.2d 276, 280 (Minn.App.2001), review denied (Minn. Mar. 13, 2001). While the review in this case was conducted by the district court, we note that "[a] motion for review may be decided either by the child support magistrate who issued the decision and order or, at the request of any party, a district court judge.” Minn. R. Gen. Pract. 376.03; see Minn. R. Gen. Pract. 352.01(b). On appeal from an order deciding a motion for review, this court reviews the order from which the appeal is taken (here, the district court's order) and, to the extent the reviewer of the CSM’s original decision affirms the CSM's original decision, that original decision becomes the decision of the reviewer. See Minn. R. Gen. Pract. 378.01 (noting review may be taken from final ruling of CSM "or” order deciding motion for review).

      . A IV-D case is any proceeding where a party has either assigned to the state the right to receive support because of the receipt of public assistance or has applied for child support services under Title IV-D of the Social Security Act, 42 U.S.C. § 654(4). Minn.Stat. § 518.54, subd. 14 (2002); Minn. R. Gen. Pract. 352.01(f). The expedited child support process is used in IV-D cases. Minn. R. Gen. Pract. 353.01, subd. 1. While the district court found that mother received "non-public assistance” from the state, the exact nature of this assistance and whether this assistance makes this a IV-D case, is neither identified by the district court nor clear from the record presented to this court. See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 239 (Minn.App.2003) (encouraging full explanations of how expedited child support process has jurisdiction over cases decided therein), review denied (Minn. Nov. 25, 2003). It is undisputed by the parties, however, that this is a IV-D case. But even if this case is not a IV-D case, it would not alter our decision that the district court should not have affirmed the CSM and that the CSM's ruling must be vacated.


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 5
    Ruth BINEK, Plaintiff and Appellant v. Theodore J. BINEK, Defendant and Appellee.
    No. 20030154.
    Supreme Court of North Dakota.
    Jan. 14, 2004.

      Loren C. McCray, Beulah, ND, for plaintiff and appellant.
    Timothy A. Priebe, Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Ruth Binek appealed from a divorce judgment enforcing a premarital agreement between her and Theodore Binek and denying her request for spousal support. We affirm the trial court’s decision enforcing the premarital agreement, and reverse and remand for further consideration regarding spousal support.

I

[¶ 2] Ruth and Theodore Binek were married on June 21, 1984. At the time of the marriage, Ruth Binek was fifty-two years old and Theodore Binek was sixty-one years old. It was the second marriage for both parties, and both had children from their prior marriages. Theodore Binek’s net worth was approximately $600,000 and Ruth Binek’s net worth was approximately $30,000. Theodore Binek presented a premarital agreement to Ruth Binek two days before the wedding by leaving it on a table at his home. The agreement was discovered by Ruth Binek and her sister, Lorraine Angelottie. It mutually excluded each party from any property not brought into the marriage by that party, and required Theodore Binek to “provide usual and reasonable maintenance and support” during the marriage. It defined the “interest which each shall have in the estate of the other during the marriage and after the death of either one of them,” and stated Ruth Binek would release all rights in Theodore Binek’s property or estate which she might have by reason of their marriage. Theodore Binek stated he would not marry Ruth Binek if she did not sign the agreement. Both parties signed the agreement. Theodore Binek was represented by counsel at the time of the signing, but Ruth Binek was not.

[¶ 3] Throughout the marriage, the parties abided by the terms of the agreement. The parties did not commingle their assets. Theodore Binek continued working at the Binek coal mine and Ruth Binek was a homemaker. Theodore Binek paid for most of the living expenses of the parties. In May 2002, Ruth Binek sought a divorce based on irreconcilable differences. At the time of trial, Theodore Binek was eighty-one years old and Ruth Binek was seventy-two years old. Theodore Binek’s net worth was approximately $200,000 and Ruth Binek’s $30,000 had been depleted as a result of loans made to her relatives, which she claims are not collectible. Ruth Binek is receiving $391 per month in social security and $300 per month in interim spousal support. Theodore Binek is retired and his income consists of approximately $900 per month in social security payments, $1,000 per year from rental property, and $2,000 to $3,000 per year from his photography hobby. The trial court granted Ruth Binek a divorce. It enforced the premarital agreement and awarded Ruth Binek all the household goods in her possession and the accounts receivable for the loans to her relatives. Theodore Binek was awarded all the other property listed by the parties on the Property and Debt Listing. Neither party was awarded spousal support. On appeal, Ruth Binek contends the premarital agreement should not have been enforced and she should have been awarded spousal support.

II

[¶ 4] The enforceability of the premarital agreement between Ruth Binek and Theodore Binek is governed by common law. Although North Dakota adopted the Uniform Premarital Agreement Act (“UPAA”) in 1985, it does not apply to this situation because it was enacted after the parties entered into the agreement and does not contain a provision declaring it applies retroactively. See N.D.C.C. ch. 14-03.1; N.D.C.C. § 1-02-10.

[¶ 5] This Court has previously addressed the enforceability of premarital agreements entered into prior to the UPAA in cases involving the rights of a surviving spouse. First Am. Bank W. v. Michalenko, 501 N.W.2d 330, 333-34 (N.D.1993) (addressing the widow’s claim the trial court erred by instructing the jury that she had the burden to prove the premarital agreement was invalid); Charlson v. Charlson, 50 N.D. 677, 688-89, 197 N.W. 778, 781 (1924). In a decision prior to Charlson, the Court stated:

whether or not an antenuptial contract is valid depends largely, if not altogether, on the attendant circumstances and conditions under which it is executed. If it is fair, reasonable, equitable, and just and in no way contravenes public policy, and it is fairly entered into, each having knowledge of its contents and knowledge of each other’s property, we think that it might be legally entered into, and thus be a binding obligation of the parties.

Herr v. Herr, 45 N.D. 492, 496, 178 N.W. 443, 444 (1920). Applying a similar rationale, the Charlson court concluded it was proper for the trial court to consider the following when evaluating a premarital agreement:

whether the contract had been entered into with the utmost good faith; whether it was reasonable in its provisions; whether the prospective wife possessed full knowledge of the character and value of her intended husband’s property or was chargeable with such knowledge; whether the prospective husband informed his fiancee fully with respect to all facts concerning his property; whether the antenuptial contract provided any reasonable provisions for the support of the wife in case of her survival; whether, upon all of the surrounding circumstances, the provisions made for the wife in the contract were grossly disproportionate to the means of the husband; and whether such inadequacy of provision in the contract was sufficient under all the circumstances to raise a presumption of fraudulent concealment that was not overcome by the proof in the record sufficient to show its absence.

50 N.D. 677, 689-90, 197 N.W. 778, 781; see also Michalenko, at 334 & n. 3.

A.

[¶ 6] Ruth Binek argues the agreement should not be enforced. She contends she did not enter into it voluntarily, it is unconscionable, and it does not apply to dissolution of the marriage by divorce. In effect, Ruth Binek contends the agreement is unenforceable because it is proeedurally and substantively unfair. In evaluating premarital agreements governed by N.D.C.C. ch. 14-03.1 we have applied a similar analysis. See In re Estate of Lutz, 1997 ND 82, ¶¶ 27-46, 563 N.W.2d 90 (“Lutz I”). Although this agreement is not subject to the requirements of N.D.C.C. ch. 14-03.1, case law evaluating agreements governed by that chapter is relevant to the extent it addresses the requirements imposed by the common law.

[¶ 7] Proeedurally, Ruth Binek contends she did not enter into the agreement voluntarily because it was presented to her two days before the wedding and Theodore Binek stated he would not marry her if she did not sign it; she was not represented by independent counsel; and she did not receive full financial disclosure. Although it would have been preferable to present the agreement to Ruth Binek more than two days before the wedding, this alone does not render the agreement unenforceable. Nor does the fact Theodore Binek would not have proceeded with the marriage make the agreement procedurally unfair. The purpose of the agreement was to keep the parties’ property separate. When, as is the case here, the parties have been previously married and divorced, it is reasonable for one or both of them to seek protection of their property in a subsequent marriage.

[¶ 8] The significance of the presentation and signing of the agreement is more relevant in determining whether Ruth Binek understood the agreement and had an opportunity to obtain independent legal advice.

An agreement to marry can create a fiduciary relationship between individuals if they do not deal at arms length. Persons contracting about marriage are sometimes mismatched in bargaining power and sophistication.
Unlike many private contracts, the state has an interest in every marriage contract. We agree with the view that lack of adequate legal advice to a prospective spouse to obtain independent counsel is a significant factual factor in weighing the voluntariness of a premarital agreement.
Indeed, adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily.

Lutz I, 1997 ND 82, ¶¶ 33-35, 563 N.W.2d 90 (citations omitted). However, “the presence of independent counsel is not a prerequisite to enforceability.” In re Estate of Lutz, 2000 ND 226, ¶ 17, 620 N.W.2d 589 (“Lutz II”). The parties’ marriage took place on Thursday, June 21, 1984. Ruth Binek testified Theodore Binek did not do anything to prevent her from consulting an attorney or asking questions prior to signing the agreement. She testified she understood the purpose of the agreement was Theodore Binek’s property would remain his and her property would remain hers and, if the parties had gotten divorced after one year, she would have abided by the agreement. Additionally, she testified it was entirely' her decision whether to sign the agreement and she voluntarily did so. We conclude Ruth Binek was not deprived of an opportunity to consult independent counsel and understood the effect of the agreement when she signed it.

[¶ 9] Ruth Binek contends the agreement should not be enforced because Theodore Binek did not fully disclose the extent of his assets to her before she signed the agreement. The agreement contains a full disclosure clause which states, “each party is possessed of real and personal properties, the nature and extent of which has been fully disclosed by each to the other.” In other jurisdictions, a full disclosure clause has been held to create a rebuttable presumption of full disclosure. See Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162, 167 (1990). In the present case, Ruth Binek testified that before she signed the agreement she knew Theodore Binek owned the Binek coal mine and the equipment thereon, guessed he owned his house, and had been told by her family that he was worth over a million dollars. Further, she testified that Theodore Binek stated he had $600,000; she knew he was worth a substantial amount of money; and she “knew he owned more than [she] did.” She later testified that she did not know how much Theodore Binek was worth at the time of the marriage, but discovered he was worth $600,000 based on the papers provided in connection with the divorce proceeding. Based on this testimony, we conclude Ruth Binek was sufficiently aware of Theodore Binek’s financial situation when she signed the agreement. Therefore, we hold the premarital agreement was entered into fairly.

[¶ 10] Substantively, Ruth Binek contends the agreement is unconscionable because she did not receive full financial disclosure and the effect of enforcing it is to place her on public assistance. Ruth Binek’s contention that the agreement is unconscionable because Theodore Binek did not provide a full financial disclosure is not convincing based on our conclusion that Ruth Binek was sufficiently aware of Theodore Binek’s financial situation. Un-conscionability of a premarital agreement is a matter of law, but it turns on factual findings related to the relative property values, the parties’ financial circumstances, and their ongoing need. Lutz I, 1997 ND 82, ¶ 44, 563 N.W.2d 90. Under the UPAA, if a premarital agreement causes a party to be eligible for public assistance by eliminating or modifying spousal support, a court may require the other party to provide support to the extent necessary to avoid eligibility of the other for public assistance. Id. (citing N.D.C.C. § 14-03.1-06(2)).'

[¶ 11] Unconscionability has been considered at various times in cases governed by the UPAA. Lutz II, 2000 ND 226, ¶ 25, 620 N.W.2d 589. North Dakota case law regarding premarital agreements entered into prior to adoption of the UPAA did not address when unconscionability should be considered. Courts applying the common law have considered unconscionability of a premarital agreement at both the time of execution of the agreement and the time of dissolution of the marriage. See McKee-Johnson v. Johnson, 444 N.W.2d 259, 267 (Minn.1989) (“[I]f the premises upon which [challenged provisions of premarital agreements] were originally based have so drastically changed that enforcement would not comport with the reasonable expectations of the parties at the inception to such an extent that to validate them at the time of enforcement would be unconscionable”).

[¶ 12] This agreement was not unconscionable at the time it was executed. It provided a means for Ruth Binek to keep her own assets and allow them to grow, and Theodore Binek was obligated to support Ruth Binek throughout the marriage. The agreement is not unconscionable at the time of enforcement because it did not govern the parties’ rights regarding spousal support. Additionally, the parties’ assets decreased throughout the marriage and there is no convincing evidence of economic fault by either party. By not addressing spousal support and allowing Ruth Binek to keep her assets separate from Theodore Binek’s, the agreement created enough leeway to avoid an unconscionable result based upon the parties’ circumstances at the time of dissolution. We hold this premarital agreement is not unconscionable.

B.

[¶ 13] Ruth Binek contends the agreement does not apply to a dissolution of the marriage by divorce. A premarital agreement is a contract and its interpretation is a question of law for the court to decide. In re Estate of Zimmerman, 1998 ND 116, ¶ 13, 579 N.W.2d 591. Contracts are to be interpreted in a manner that gives effect to the parties’ mutual intent at the time of contracting. N.D.C.C. § 9-07-03.

“When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible.... ” N.D.C.C. § 9-07-04. “Construction of a written contract is a question of law.” Garofalo v. Saint Joseph’s Hospital, 2000 ND 149, ¶ 7, 615 N.W.2d 160. “If the intent of the parties can be ascertained from the agreement alone, interpretation of the contract is a question of law.” Id. “Whether a contract is ambiguous is a question of law.” National Bank of Harvey v. International Harvester Co., 421 N.W.2d 799, 801 (N.D.1988). “A contract is ambiguous when rational arguments can be made for different positions about its meaning.” Id. “Extrinsic evidence is properly considered only if the language of the agreement is ambiguous and the parties’ intentions cannot be determined from the writing alone.” Miller v. Schwartz, 354 N.W.2d 685, 689 (N.D.1984). “On appeal, this [C]ourt will independently review the contract to determine whether it is ambiguous.” International Harvester, at 801.

Meide v. Stenehjem, 2002 ND 128, ¶ 7, 649 N.W.2d 532.

[¶ 14] The agreement provided:

Ruth Mayer hereby releases all rights in the property or estate of Theodore J. Binek which she might have by reason of their marriage, whether by way of dower, statutory allowance, widow’s allowance, intestate share, or election to take against his will, under the laws of this or any other jurisdiction that may be applicable, and with particular reference to Section 30.1-05-04, North Dakota Century Code, as amended.

Theodore Binek released the same rights in Ruth Binek’s property. This language is not ambiguous. Ruth Binek released all rights she had in Theodore Binek’s property which arose out of the marriage. Any rights in the property she would acquire as a result of a property settlement upon divorce would be rights arising out of the marriage. Therefore, the agreement applies to property rights Ruth Binek may have acquired from a divorce decree.

[¶ 15] For the reasons stated, we affirm the trial court’s decision enforcing the premarital agreement.

Ill

[¶ 16] Ruth Binek contends the trial court erred by failing to award her spousal support. Spousal support determinations are findings of fact and will not be reversed on appeal unless they are clearly erroneous. Peters-Riemers v. Riemers, 2002 ND 72, ¶ 26, 644 N.W.2d 197. The Ruff-Fischer guidelines require a trial court to evaluate the following in deciding whether spousal support should be awarded:

“the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.” Weir v. Weir, 374 N.W.2d 858, 862 (N.D.1985).

Lill v. Lill, 520 N.W.2d 855, 856 (N.D.1994). An award is based on the needs of the disadvantaged spouse and the supporting spouse’s needs and ability to pay. Kautzman v. Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561. Detailed findings of fact are not required if the trial court’s reasons for its decision regarding support can be determined. Wolf v. Wolf, 557 N.W.2d 742, 744 (N.D.1996).

[¶ 17] From this record, we cannot determine whether the trial court denied Ruth Binek spousal support because of the premarital agreement or the Ruff-Fischer guidelines. We conclude the agreement only affects distribution of the couple’s property in the form of a property distribution as a result of divorce and does not preclude an award of spousal support. Therefore, we reverse and remand this issue to the trial court for further findings regarding spousal support. On remand, the trial court must consider whether Ruth Binek is entitled to spousal support under the Ruff-Fischer guidelines and whether Theodore Binek has the ability to pay.

[¶ 18] We affirm the trial court’s decision enforcing the premarital agreement because it is fair, equitable, reasonable, and just; does not contravene public policy; and was executed fairly. However, because the agreement did not govern the parties’ rights to spousal support and the trial court did not sufficiently explain its rationale for denying Ruth Binek spousal support, we reverse and remand for further proceedings in accordance with this opinion.

[¶ 19] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.