author: WILLIS, Judge.

text:
    Richard GIBSON, et al., Respondents, v. COLDWELL BANKER BURNET, et al., Defendants, Lind, Jensen, Sullivan & Peterson, P.A., Appellant.
    No. C4-02-1385.
    Court of Appeals of Minnesota.
    April 8, 2003.

      Jeffrey E. Grell, Leonard, Street and Deinard, P.A., Minneapolis, MN, for respondents.
    Richard A. Lind, Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge.
   OPINION

WILLIS, Judge.

Appellant law firm challenges the district court’s imposition of a Minn. R. Civ. P. 11 sanction. By notice of review, respondents contend that the sanction is an insufficient deterrent against further litigation abuses by appellant. Because respondents failed to follow the 21-day safe-harbor provision of Minn. R. Civ. P. 11.03(a)(1), we conclude that the district court abused its discretion and reverse the imposition of the sanction.

FACTS

In the fall of 1997, respondents Richard and Cheryl Gibson owned a house in Minneapolis, and from that time until the spring of 1999, they were involved in a dispute over the potential sale of the house to Jo Davison. In the real-estate transaction, the Gibsons were represented by real-estate agent Fran Davis, and Davison was represented by real-estate agent Keni Johnson; both agents worked for the firm Coldwell Banker Burnet (“Coldwell”). The transaction fell through, and the Gib-sons eventually brought a lawsuit alleging, inter alia, breach of fiduciary duty against Davis and Coldwell, who were represented by appellant law firm Lind, Jensen, Sullivan & Peterson (“Lind Jensen”).

In the course of their business relationship with Davis, the Gibsons received a document from Coldwell entitled “Agency Relationships in Real Estate Transactions,” which stated that a “Seller’s broker owes to the Seller the fiduciary duties described below.” The duties described are loyalty, obedience, disclosure, confidentiality, reasonable care, and accounting.

In October 1997, Davison offered to buy the Gibsons’ house for $850,000, and a purchase agreement was drafted. The Gibsons wanted to accept what they considered to be a good offer but also wanted to be certain that before the transaction closed they had another suitable home to move into. The Gibsons thus agreed that Davis would draft an addendum to the purchase agreement that provided that the Gibsons would have three weeks “from acceptance of the purchase agreement to verify that they can find a home of their choice in the time period allowed for closing.”

The Gibsons and Davis had different understandings about the legal effect of the addendum. In discussions with Davis, the Gibsons stressed that the addendum was supposed to ensure that if they could not find a suitable home within three weeks, they would be under no obligation to sell the house to Davison. But in a deposition taken on January 24, 2001, Davis admitted that at the time she drafted the addendum, she knew that only the execution of a cancellation agreement could accomplish this result:

Q. Did you believe that the purchase agreement expired automatically after the three weeks had ended and the Gibsons hadn’t found a new house?
A. I didn’t think it expired automatically, but again I thought there was clear understanding among everybody after the three weeks, we hadn’t found a house, we would continue to look, and if in fact they found a house, then we would make appropriate modifications to the purchase agreement.
Q. So it was always your opinion that a cancellation agreement would need to be signed in order to terminate that purchase agreement with Jo Davison?
A. Well, a cancellation [agreement] would have to be signed in order to release [Davison’s] earnest money. That is our procedure at the office.
Q. Did you ever inform the Gibsons of that procedure?
A. It never came up.
Q. You never informed them of the need for a cancellation agreement?
A. Not that I recall.
⅝ ⅜ ⅜ ⅝
Q. Did you consider the Gibsons to be bound by that purchase agreement?
A. I did consider the purchase agreement to be effective because we hadn’t signed a cancellation.
Q. Did you tell the Gibsons that they needed to sign a cancellation agreement to render that purchase agreement ineffective?
A. I don’t believe we had that discussion at that time.
Q. Before that point in time?
A. I don’t remember a specific discussion.

The Gibsons and Davison signed the purchase agreement and addendum. Closing was scheduled for June 1998, and Davi-son paid $5,000 in earnest money. In October 1997, the Gibsons sent Davis a letter stating that they were unable to find another home and were not prepared to go forward with. Davison’s offer. In November, Johnson (Davison’s agent) drafted a second addendum, which Davison signed, that left the closing date open. Johnson forwarded the second addendum to Davis, but Davis failed to. discuss it with the Gibsons. From this time on, Davison was under the impression that the Gibsons still intended to complete the sale, even though no closing date was set.

. In July 1998, the Gibsons finally learned from Davis that a cancellation agreement was necessary to terminate the transaction. But when Davis drafted a cancellation agreement in May 1999, Davison refused to sign and instead threatened to sue the Gibsons to enforce the purchase agreement. Davison then offered to settle the matter for $10,000. The Gibsons asked Coldwell either to pay the $10,000 or to reimburse the Gibsons for the cost of any settlement, but Coldwell did not agree to either alternative. In April 2000, Davison withdrew her settlement offer and commenced a lawsuit against the Gibsons, alleging breach of the purchase agreement. The Gibsons ultimately settled the claim by paying Davison $5,000, but only after incurring approximately $9,000 in attorney fees.

In June 2000, the Gibsons commenced this lawsuit against Davis and Coldwell alleging, inter alia, breach of fiduciary duty and fraudulent misrepresentation; Davis and Coldwell served their answer on or about July 21, 2000, denying the claims for breach of fiduciary duty and fraudulent misrepresentation. In June 2001, after Davis’s deposition in January, the Gibsons received the district court’s permission to amend their complaint to add a claim for punitive damages against Davis and Cold-well. In their answer to the amended complaint, which was signed by a Lind Jensen attorney, Davis and Coldwell again specifically denied that they breached their fiduciary duties.

On November 6, 2001, approximately one week before the trial began, the Gib-sons’ attorney sent a letter to the district court stating that the Gibsons were entitled to recover their attorney fees “as a matter of equity.” The letter also stated that “regardless of the outcome of the trial, the Gibsons may seek” attorney fees through posttrial motions under Minn. R. Civ. P. 11 and Minn.Stat. § 549.211 (2000). The district court “rejected” the Gibsons’ request for an equitable award of attorney fees but stated on the record on November 13, the day the trial began, that rule 11 sanctions were “by no means precluded” in the case.

In verdicts rendered on November 19 and 21, 2001, a jury found that (1) Davis and Coldwell breached their fiduciary duties to the Gibsons, (2) Davis committed fraudulent misrepresentation, (3) the Gib-sons were entitled to $14,702 in compensatory damages from Davis and Coldwell, and (4) the Gibsons were entitled to $9,000 in punitive damages from Davis.

After the verdicts, the Gibsons moved the district court for sanctions under Minn. R. Civ. P. 11 and Minn.Stat. § 549.211, claiming that they had incurred more than $100,000 in attorney fees while prosecuting claims that Davis and Coldwell frivolously denied. The Gibsons’ motion was filed and served on the same day, December 20, 2001.

The district court granted the motion, concluding (1) that the denial of the claim of breach of fiduciary duty in the amended answer was presented for an improper purpose, was not warranted by the law or by a nonfrivolous argument for extension of the law, and was thus in violation of Minn. R. Civ. P. 11.02; (2) that the Gib-sons’ November 6 letter provided adequate notice of an intention to seek rule 11 sanctions; (3) that the Gibsons’ failure to follow the 21-day safe-harbor provision of Minn. R. Civ. P. 11.03(a)(1) was harmless because correction of the amended answer was no longer possible; and (4) that sanctions were warranted against both Lind Jensen and Coldwell for attorney fees incurred after November 6. The district court thus ordered Lind Jensen and Coldwell to pay $20,000 each in rule 11 sanctions to the Gibsons.

Lind Jensen appeals, arguing that the district court abused its discretion (1) by concluding that the firm’s conduct violated rule 11, (2) by imposing a sanction when the Gibsons failed to follow the 21-day safe-harbor provision, (3) by imposing a monetary sanction, and (4) by imposing an excessive sanction. By notice of review, the Gibsons ask this court to remand this matter to the district court with instructions to increase the sanction on the ground that Lind Jensen’s conduct on appeal shows that the current $20,000 sanction has had no deterrent effect.

ISSUE

Did the district court abuse its discretion by imposing a sanction under Minn. R. Civ. P. 11?

AlNALYSIS

We will revérse a district court’s decision to impose sanctions under Minn. R. Civ. P. 11 only if the district court abused its discretion. See Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn.1990). Cases interpreting Fed.R.Civ.P. 11, though not binding on this court, provide valuable guidelines for understanding the purpose and application of Minn. R. Civ. P. 11. Id. at 142.

A. Conduct

Lind Jensen argues that its conduct in this lawsuit did not violate Minn. R. Civ. P. 11 and therefore did not warrant a sanction. By signing and submitting an answer, an attorney certifies that, to the best of his or her knowledge or belief, formed after a reasonable inquiry, (1) the answer is not being presented for any improper purpose, (2) the claims or defenses asserted in the answer are either warranted by existing law or by a nonfrivolous argument for the modification of existing law, (3) the allegations or factual contentions in the answer either have evidentiary support or are likely to have evidentiary support after further investigation or discovery, and (4) the denials of factual contentions in the answer are warranted by the evidence or are reasonably based on a lack of information and belief. Minn. R. Civ.. P. 11.02. Sanctions under rule 11 should not be imposed when an attorney has an “objectively reasonable basis for pursuing a factual or legal claim or when a competent attorney could form a reasonable belief [that] a pleading is well-grounded” in fact and law. Uselman, 464 N.W.2d at 143.

A fiduciary relationship exists when one party places its trust and confidence in the other. Target Stores, Inc. v. Twin Plaza Co., 277 Minn. 481, 499, 153 N.W.2d 832, 844 (1967). Here, the Gibsons wanted to accept Davison’s offer but did not want to have to sell their house before finding another acceptable home. Accordingly, the Gibsons repeatedly sought assurance from Davis that the language added to the purchase agreement, which requested three weeks from acceptance of the purchase agreement to find a suitable home, would have the effect the Gibsons desired. The Gibsons, therefore, placed their trust and confidence in Davis to advise them as to the effect of the purchase agreement, as amended. But as she admitted in her deposition, Davis knew, but did not inform the Gibsons, that only an executed cancellation agreement could terminate the purchase agreement in the event that the Gibsons could not find another home. Thus, Davis essentially admitted in her deposition that she breached her fiduciary duty to the Gibsons.

In light of Davis’s deposition testimony, the denial in Coldwell and Davis’s answer to the amended complaint of the Gibsons’ claim of breach of fiduciary duty (1) was not warranted by existing law or by a nonfrivolous argument for the modification of existing law and (2) was not warranted on the evidence. See Minn. R. Civ. P. 11.02(b), (d). We cannot conclude that after its client admitted the elements of breach of fiduciary duty, Lind Jensen could continue to have an objectively reasonable basis for denying the claim.

Lind Jensen argues that it is an attorney’s job to be a “zealous advocate” and that to require an attorney to ensure that a denial has legal and factual support would make an attorney the “finder of fact.” But this is essentially what rule 11 does: it imposes on counsel an “affirmative duty” to investigate the factual and legal underpinnings of a pleading. Uselman, 464 N.W.2d at 142; see also Fed.R.Civ.P. 11 1993 advisory comm. cmt. (stating that rule 11 requires attorneys and pro se litigants “to ‘stop-and-think’ before initially making legal or factual contentions”). Here, Lind Jensen had nothing to investigate; at least one of its attorneys was present at Davis’s deposition and, thereafter, the firm knew that there was no legal or factual basis for denying the Gibsons’ claim for breach of fiduciary duty.

Thus, the district court did not abuse its discretion by concluding that Lind Jensen’s conduct violated Minn. R. Civ. P. 11.02.

B. Notice

Lind Jensen contends that the district court abused its discretion by imposing sanctions even though the Gibsons did not give them the required notice of their intent to seek rule 11 sanctions. Before July 2000, when Minn. R. Civ. P. 11.03 was added, the controlling authorities with respect to the notice required for rule 11 sanctions were Uselman v. Uselman, 464 N.W.2d 130 (Minn.1990), and Kellar v. Von Holtum, 605 N.W.2d 696 (Minn.2000). In these decisions, the supreme court provided two “minimum procedural guidelines” for the imposition of rule 11 sanctions. Kellar, 605 N.W.2d at 701; Uselman, 464 N.W.2d at 143.

First, the nonmoving party should be given “fair notice of both the possibility of a sanction and the reason for its proposed imposition.” Uselman, 464 N.W.2d at 143 (citation omitted). The moving party must notify both the nonmoving party and the court “with specificity” of an intention to seek sanctions, and the notice should be given “as early as possible during the proceedings to provide the attorney and party the opportunity to correct future conduct.” Id,.; see also Kellar, 605 N.W.2d at 702 (stating that rule 11 requires “timely notice”). But in Kellar, the supreme court stated that Uselman did not “impose a duty on parties to give repeated notice throughout the litigation process.” 605 N.W.2d at 702.

Second, “the attorney or party should be given an opportunity to respond to the notice of a possible Rule 11 sanction.” Uselman, 464 N.W.2d at 144 (citation omitted). This procedural guideline is satisfied by providing the nonmoving party with an opportunity for a hearing on the record. Id. The supreme court has also stated that only in “very unusual circumstances will it be permissible for the trial court to wait until the conclusion of the litigation” to decide that sanctions will be imposed. Id. at 143.

Under the rule as it existed before July 2000, the Gibsons’ November 6 letter and the district court’s November 13 statement on the record may have provided sufficient notice to Lind Jensen of an intention to seek rule 11 sanctions. Both came before or, in the case of the November 13 statement, at the start of trial, giving Lind Jensen some, albeit little, time to withdraw denial of the Gibsons’ claim for breach of fiduciary duty.

But in July 2000, rule 11 was amended to “conform completely to the federal rule.” Minn. R. Civ. P. 11 2000 advisory comm. cmt. This amendment took effect after both Uselman and Kellar were decided. The rule now provides:

A motion for sanctions under this rule * ⅜ ⅞ shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Minn. R. Civ. P. 11.03(a)(1). An identical provision was added to the federal rule in 1993. See Fed.R.Civ.P. 11(c)(1)(A). The required 21-day waiting period has been described as á “safe harbor” provision. See Fed.R.Civ.P. 11 1993 advisory comm, cmt.

We decline to decide to what extent the 2000 amendment supersedes the minimum procedural guidelines set forth in Uselman and Kellar. See Minn. R. Civ. P. 11 2000 advisory comm. cmt. (stating that courts and practitioners should continue to be guided by Uselman). But we conclude that Minn. R. Civ. P. 11.03(a)(1) independently requires that a party seeking sanctions serve its motion on the nonmoving party, wait for 21 days, and, if the challenged material has not been withdrawn or corrected by then, file the motion for sanctions in the district court. See id. (stating that the advisory committee intended that the revised rule 11 “would modify the procedure for seeking sanctions, but would not significantly change the availability of sanctions or the conduct justifying the imposition of sanctions” (emphasis added)); 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 11.6 (4th ed.2002) (stating that rule 11.03(a)(1) “imposes an additional requirement that should be enforced without regard to Uselman’s lesser requirement of mere notice”). If the moving party does not follow the procedure provided in rule 11.03(a)(1), the motion for sanctions must be rejected. See Tompkins v. Cyr, 202 F.3d 770, 788 (5th Cir.2000); Morganroth & Morganroth v. DeLorean, 123 F.3d 374, 384 (6th Cir.1997); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328-29 (2d Cir.1995); Herr & Haydock, supra, § 11.6; 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1337 (Supp.2002).

The Gibsons’ motion was filed and served on the same day, December 20, 2001, and thus did not comply with the 21-day safe-harbor provision of Minn. R. Civ. P. 11.03(a)(1). Nonetheless, the district court concluded that any failure to follow the safe-harbor provision was harmless because the trial was over and Lind Jensen could not withdraw the denial. But authorities interpreting the federal rule state that motions for sanctions brought after the conclusion of the trial must be rejected precisely because the offending party is “unable to withdraw the improper papers or otherwise rectify the situation.” Wright & Miller, supra, § 1337; see also Fed.R.Civ.P. 11 1993 advisory comm. cmt. (stating that given the safe-harbor provision, a party cannot delay serving its rule 11 motion until conclusion of the case or “judicial rejection of the offending contention”); Barber v. Miller, 146 F.3d 707, 710-11 (9th Cir.1998).

The Gibsons had no excuse for not following the 21-day safe-harbor provision of rule 11.03(a)(1). The amended answer was served on or about July 26, 2001, the jury rendered its verdicts on November 19 and 21, 2001, and the Gibsons filed and served their motion for sanctions on December 20, 2001. The Gibsons thus had four months between service of the amended answer and the dates of the jury’s verdicts in which to serve on Lind Jensen a motion for rule 11 sanctions. The Gib-sons’ attorney claims that he decided not to seek rule 11 sanctions during this four-month period because a Lind Jensen partner told him that evidence supporting the denial of the claim for breach of fiduciary duty was forthcoming. But this court “may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.” Thiele v. Stick, 425 N.W.2d 580, 582-83 (Minn.1988) (citation omitted). There is no evidence in the record supporting the Gibsons’ attorney’s claim that he relied on representations made by a Lind Jensen partner, and we will not consider this claim in making our decision here.

We therefore conclude that the district court abused its discretion by imposing sanctions when the Gibsons failed to follow the 21-day safe-harbor provision of Minn. R. Civ. P. 11.03(a)(1).

C. Sanction

Finally, Lind Jensen challenges the sanction that the district court imposed, arguing (1) that the district court should have imposed a nonmonetary sanction and (2) that the amount of the monetary sanction was excessive. The “imposition of sanctions is mandatory” if Minn. R. Civ. P. 11 has been violated. Uselman, 464 N.W.2d at 142. The “fundamental purpose” of imposing sanctions is deterrence. Id. The district court has “wide discretion” to award the type of sanctions it deems necessary “provided that fair notice has been given and the subject party has an opportunity to respond.” Kellar, 605 N.W.2d at 702.

The rule authorizes the imposition of both monetary and nonmonetary sanctions. See Minn. R. Civ. P. 11.03(b). Available nonmonetary sanctions include reprimanding the offending attorney or ordering continuing legal education. Uselman, 464 N.W.2d at 145. Although we recognize that the supreme court has stated that “the least severe sanction necessary to effectuate the purpose of deterrence” ought to be imposed, id. (citation omitted), we see no reason to conclude that an award of monetary sanctions here was not a proper exercise of the district court’s wide discretion.

Lmd Jensen also maintains that the district court abused its discretion by ordering a sanction that exceeds the amount of the Gibsons’ attorney fees caused “directly and unavoidably” by the violation of rule 11. Even assuming that Lind Jensen is correct with respect to the amount of attorney fees, this is not the standard in Minnesota for assessing the propriety of a rule 11 sanction. Instead, the district court has discretion to impose a sanction in an amount sufficient to deter future litigation abuse, and we see no reason to conclude that a monetary sanction in the amount of $20,000 was not within the district court’s wide discretion.

Although we agree with the district court that Lind Jensen’s conduct violated rule 11 and we do not take issue with the district court’s calculation of the sanction, we nonetheless reverse imposition of the sanction because the Gibsons did not satisfy the 21-day safe-harbor provision of rule 11.03(a)(1). Accordingly, we reject the Gibsons’ request, raised by notice of review, that we remand this matter to the district court with instructions to increase the amount of the sanction.

DECISION

The district court abused its discretion by imposing a sanction under Minn. R. Civ. P. 11 when the moving party failed to follow the 21-day safe-harbor requirement of Minn. R. Civ. P. 11.03(a)(1).

Reversed.

      . Johnson was named initially as a defendant in this lawsuit but was dismissed before the conclusion of the trial.

      . Although the motion was brought under both Minn. R. Civ. P. 11 and Minn.Stat. § 549.211, the district court noted that its analysis would be the same under the statute as under the rule and thus provided only a rule-based analysis of the motion.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Daniel James BERGERSON, Appellant.
    No. C2-02-932.
    Court of Appeals of Minnesota.
    April 15, 2003.

      Charles A. Ramsay, Rebecca Rhoda Fisher, Ramsay, DeVore, & Olson, P.A., Roseville, for appellant.
    Mike Hatch, Attorney General, Amy J. Woodworth, Assistant Attorney General, St. Paul, and Jeffrey R. Edblad, Isanti County Attorney, Isanti, for respondent.
    Considered and decided by RANDALL, Presiding Judge, SHUMAKER, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appealing from his conviction of fifth-degree controlled substance crime, appellant Daniel Bergerson argues that police lacked reasonable, articulable suspicion to stop his vehicle after driving away from a hardware store in which the owner had reported Bergerson’s purchase of two commonly sold items with lawful uses that also can be used along with other items to manufacture methamphetamine. Berger-son also argues that the evidence seized should be suppressed as fruit of the illegal seizure. We reverse.

FACTS

On November 14, 2000, the owner of a hardware store in Cambridge called the police to report that an individual had purchased rubber tubing and acetone, commonly sold items that can be used to manufacture methamphetamine. Cambridge Police Officers Todd Schuster and Jason Harvey and Isanti County Sheriffs Deputy Kevin Carlson were dispatched to the store. Officer Schuster arrived first and saw an individual, later identified as Bergerson, getting into a red Chevy Beretta.

Officer Schuster spoke with the store-owner, who identified Bergerson as the person who had purchased the items. By the time Officer Schuster finished talking with the owner, Bergerson was driving out of the store’s parking lot. Officer Schus-ter requested that Deputy Carlson and Officer Harvey stop the vehicle, identify the driver, and determine his intentions.

Deputy Carlson testified that, as Ber-gerson proceeded westbound on highway 95, Bergerson’s vehicle did not exceed the speed limit. With Bergerson’s vehicle directly in front of his squad car, Deputy Carlson attempted to pull it over by activating his flashing red lights. Bergerson did not stop immediately and continued driving while other cars began pulling over. Deputy Carlson then shined his spotlight into the back of Bergerson’s vehicle, “[t]o make sure the person knew I was trying to stop him.” Deputy Carlson observed Bergerson “reaching towards the front passenger floor or looking] like he was putting stuff in the back seat, and it appeared suspicious, as furtive movement.” Deputy Carlson then activated his squad car’s siren.

After Bergerson had traveled approximately one mile beyond the point where Deputy Carlson activated his flashing lights, he stopped the vehicle abruptly, exited it, and ran through a ditch. During the subsequent pursuit, Bergerson fell and Officer Harvey was able to restrain him. Bergerson was arrested and pat searched. Red phosphorus, a substance used in the manufacture of methamphetamine, was recovered from Bergerson’s jacket pocket.

Meanwhile, Officer Schuster drove to the location where Bergerson had stopped his car and observed several items inside the vehicle, including coffee filters, distilled water, paper towels, a black Nike bag, and a briefcase. Officer Schuster obtained a search warrant for Bergerson’s vehicle. Upon executing the search warrant the next morning, Officer Schuster seized a handgun and a substance, which tested positive for methamphetamine.

Bergerson was charged with felony controlled substance crime in the fifth degree, in violation of Minn.Stat. §§ 152.025, subd. 2(1)(2000), and 609.11, subd. 5 (2000), and felony fleeing a peace officer in a motor vehicle, in violation of Minn.Stat. § 609.487, subd. 3 (2000). Following a contested omnibus hearing, the district court denied Bergerson’s motion to suppress the evidence seized. The state dismissed the latter charge, and the case was submitted on stipulated facts, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Bergerson was convicted of the remaining charge. This appeal followed.

ISSUES

1. Was the stop of appellant’s vehicle supported by reasonable, articulable suspicion?

2. Should the evidence seized have been suppressed as fruit of an illegal seizure?

DECISION

When reviewing a pretrial order denying a motion to suppress evidence where the facts are undisputed and the trial court’s decision is a question of law, we independently review the facts and determine as a matter of law whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992).

I.

The Fourth Amendment of the United States Constitution and Article I, Section 10, of the Minnesota Constitution protect against unreasonable searches and seizures. To conduct a stop for limited investigatory purposes, an officer must have reasonable, articulable suspicion of criminal activity. State v. Munson, 594 N.W.2d 128, 136 (Minn.1999) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968)).

The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

State v. Pike, 551 N.W.2d 919, 921-22 (Minn.1996) (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880).

Bergerson argues that, without more, his purchase of rubber tubing and acetone at the hardware store was insufficient to provide Carlson with reasonable, articula-ble suspicion of criminal activity to lawfully stop his vehicle. The state does not dispute that a stop based solely on the purchase of legal items is invalid. But the state asserts that, when Bergerson failed to pull over in response to Carlson’s red flashing lights, spotlight, and siren, an investigative stop was justified.

Reasonable, articulable suspicion must be present at the moment a person is seized. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; see also State v. Cripps, 533 N.W.2d 388, 391 (Minn.1995) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229, (1983)).

[A] person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.

Id.; see United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); In re Welfare of E.D.J., 502 N.W.2d 779, 781-82 (Minn.1993). When, under the totality of circumstances, a reasonable person would believe that, because of the conduct of the police, he or she was not free to leave, then a “seizure” has occurred, and “the police must be able to articulate reasonable suspicion justifying the seizure.” E.D.J., 502 N.W.2d at 783. In analyzing the Article I, Section 10, of the Minnesota Constitution, the Minnesota Supreme Court has declined to follow California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690, (1991), which found seizure occurs only when police use physical force to restrain an individual or when a person submits to a show of authority by police. E.D.J., 502 N.W.2d at 781. ,Our analysis, therefore, is not limited to those occasions when the party yields to the officer’s show of authority-

Deputy Carlson activated his flashing red lights after following immediately behind Bergerson .for some time. Under certain circumstances, an officer’s flashing red lights can be a significant factor in determining whether a seizure has occurred. See State v. Sanger, 420 N.W.2d 241, 243 (Minn.App.1988) (holding that officer “boxing in [suspect’s] car, then activating his squad’s flashing red lights and honking his horn” created a seizure); cf. State v. Hanson, 504 N.W.2d 219, 219-20 (Minn.1993) (concluding there was no seizure where officer, suspecting no criminal activity, activated flashing red lights upon approaching already stopped car). A driver confronted with a trailing squad car with flashing red lights inevitably feels duty bound to submit to this show of authority by pulling over until the officer makes it clear that either the driver is not the target of interest or the driver’s encounter -with the police has come to a conclusion: After ascertaining that a squad car’s flashing lights are intended to communicate with him or her, no reasonable driver Would believe that he or she is free to disregard or terminate the encounter with'police. Here, where Bergerson’s vehicle was directly in front of Deputy Carlson’s squad car with its red lights flashing, we conclude that Bergerson was seized.

We find support for our conclusion in E.D.J., in which the Minnesota Supreme Court analyzed when a seizure occurred. 502 N.W.2d at 781-84. In that case, officers pulled up behind three individuals, including E.D.J., and ordered them to stop without the requisite reasonable, articula-ble suspicion of criminal activity. Id. at 780. Two men stopped immediately, but E.D.J. took five steps, dropped cocaine, took two more steps, and then turned around. Id. Holding that E.D.J. was seized at the’ point when police directed him to stop, the supreme court held that the cocaine must be suppressed, because E.D.J. dropped the cocaine after the illegal seizure. Id. Just as E.D.J. continued walking after the officer told him to stop, Bergerson continued to drive after Carlson directed Bergerson to stop by trailing Ber-gerson’s car and activating the squad car’s flashing red lights. The supreme court’s ruling in E.D.J. leads us to hold that Ber-gerson was seized once Carlson, while trailing Bergerson’s car, activated the squad's flashing lights.

Having established the point of seizure, we proceed with the analysis of whether, at that moment, Deputy Carlson had reasonable suspicion to stop Berger-son. Prior to the seizure, Deputy Carlson knew only that Bergerson had purchased common, everyday items from the hardware store that can also be used for an unlawful purpose. Deputy Carlson had not yet seen Bergerson’s furtive movements, so we must exclude them from the analysis. Absent any other activity or information about Bergerson, merely purchasing two generic items from a hardware store, which separately and together have numerous legitimate uses, does not create reasonable suspicion of criminal activity. Munson, 594 N.W.2d at 136.

Here, the facts are distinguishable from those presented in State v. Vereb, 643 N.W.2d 342 (Minn.App.2002), in which we rejected the claim that the police unconstitutionally stopped an individual they suspected of producing methamphetamine. Id. at 349. In Vereb, a Wal-Mart employee notified police that two individuals had made several trips to purchase a large quantity of cold tablets. Id. at 345. Aware that cold tablets are often used to produce methamphetamine, the police chief responded to the call, spoke with the employee, and began following the vehicle of the individuals who had purchased the tablets. Id. The individuals sped away from the police chief at over 75 miles per hour, but were apprehended by another officer. Id. We held that reasonable, artic-ulable suspicion supported the stop:

[W]e conclude that police had reasonable suspicion of criminal activity to support the stop of the vehicle, based on the following facts: (1) Chief Pender received a report from a Wal-Mart employee who observed two men purchasing a large number of cold tablets; (2) Chief Pender knew that cold tablets are precursor materials commonly used in the production of methamphetamine; (3) when Chief Pender arrived at the store, an employee met him and told him that the men had just left in a vehicle; (4) the employee observed the direction the vehicle had traveled and rode along with Chief Pender to search for the vehicle; and (5) Chief Pender observed the vehicle attempting to evade his pursuit by traveling at excessive speeds.
The speeding violation and evasive driving conduct alone justified the stop. These facts, coupled with appellant’s and [another individual’s] other suspicious conduct at the store, provided a reasonable articulable basis to stop the vehicle to investigate a possible traffic or controlled substance violation.

Id. at 347 (citations omitted).

Vereb is distinguishable from the instant case in two respects. First, the quantity and nature of the purchases made by the suspects in Vereb are different from those made by Bergerson. Repeated purchases of large quantities of cold tablets by the same two people are palpably more suspicious and suggestive of illegal activity than a single purchase of rubber tubing and acetone by an unknown individual. Although, as these cases demonstrate, merchants are becoming increasingly aware of the components necessary to manufacture methamphetamine, and, although the items purchased in both cases have both legal and illegal uses, an individual buying two items commonly found in a hardware store, coupled with no other suspicious behavior, distinguishes the facts here from those in Vereb.

Second, the driver in Vereb committed a traffic violation by speeding away from the police car at over 75 miles per hour. Id. at 345. Vereb’s facts do not establish explicitly or suggest that the police had activated flashing red lights to initiate a stop, or in any other way seized the individuals before their vehicle fled at a high rate of speed. In this case, it was not until after Deputy Carlson activated his flashing fights that Bergerson fled. The quality and quantity of evidence in Vereb were sufficient to support the officer’s reasonable, articulable suspicion. The same cannot be said about the evidence here.

The state argues that the stop was justified by Bergerson’s choice to' ignore Deputy Carlson’s indications that he was attempting to pull Bergerson over. But each of these indications occurred after Deputy Carlson seized Bergerson by activating the squad car’s flashing red fights. At the point of seizure, Carlson did not have reasonable, articulable suspicion to stop Bergerson. The seizure, therefore, was unconstitutional.

II.

Bergerson next argues that the evidence found as a result of the stop should have been suppressed under the exclusionary rule. Evidence obtained through an illegal seizure is inadmissible to support a conviction. State v. Harris, 590 N.W.2d 90, 97 (Minn.1999). “[E]vi-dence discovered by exploiting previous illegal conduct is inadmissible.” State v. Olson, 634 N.W.2d 224, 229 (Minn.App.2001) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963)), review denied (Minn. Dec. 11, 2001). Such evidence is “fruit of the poisonous tree,” and to be admissible, the state must prove that the evidence was obtained “by means sufficiently distinguishable to be purged of the primary taint.” Id. (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417).

We examine several factors to determine whether evidence is fruit of the poisonous tree. Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 628 (Minn.2000). These factors include: (1) the purpose and flagrancy of the officer’s misconduct, (2) the presence of intervening circumstances, (3) whether it is likely the evidence would have been obtained in the absence of the illegality, and (4) the temporal proximity of the illegality and the evidence alleged to be the fruit of the illegality. State v. Warndahl, 436 N.W.2d 770, 776 (Minn.1989). No single factor is dispositive. State v. Weekes, 268 N.W.2d 705, 709 (Minn.1978). Rather, we must balance all of these factors. Id.

A. The purpose and flagrancy of the misconduct

Athough Deputy Carlson’s conduct was not particularly flagrant, the stop he initiated was unlawful, because reasonable suspicion did not support the stop. Deputy Carlson testified that he stopped Berger-son to identify him and discover his intentions. This is precisely the type of conduct the exclusionary rule is intended to prevent. See State v. Hardy, 577 N.W.2d 212, 217 (Minn.1998) (stating that “the primary purpose of the exclusionary rule is to deter police misconduct” by eliminating temptation for police officer to proceed with less than constitutional prerequisites for search and seizure). Our application of the facts to this factor weighs in favor of suppression.

B. The presence of intervening circumstances

This factor requires us to determine whether the state has shown that Berger-son’s actions were “intervening circumstances sufficient to purge the illegality of its primary taint.” State v. Ingram, 570 N.W.2d 173, 178 (Minn.App.1997), review denied (Minn. Dec. 22, 1997). In applying this factor, we have distinguished between offering physical resistance to arrest and merely fleeing an officer to dispose of evidence. We addressed this distinction in Ingram, where, after officers received a tip that an individual was selling drugs in a bus shelter, they asked a person who walked away from the shelter if they could ask him some questions. Id. at 175. When the officer asked Ingram to put his hands on the wall for a pat search, he pushed the officer out of the way and fled. Id. We held that the pistol subsequently recovered from Ingram was properly admitted, because “Ingram was not permitted to brush Officer Gray out of the way and flee.” Id. at 178. We then explained why physically resisting arrest is an intervening circumstance:

A defendant may not resort to self-help to resolve disputes concerning unreasonable searches and seizures, because the legal safeguards under the Fourth, Fifth, Sixth, and Fourteenth . Amendments provide the victim of an unlawful search with realistic and orderly legal alternatives to physical resistance.

Id. at 178 (quotations and citations omitted).

Citing Ingram, the state argues that fleeing, without physical confrontation, is sufficient to purge the taint of illegal police conduct. We have rejected this interpretation of Ingram, however, and distinguished between two types of conduct that involve flight:

Ingram also explains that resisting arrest is different from merely fleeing and attempting to dispose of incriminating evidence; disposing of contraband is a “predictable and common response” to an illegal search that warrants suppression of the evidence.

Olson, 634 N.W.2d at 230 (quoting Ingram, 570 N.W.2d at 178), review denied (Minn. Dec. 11, 2001). Unlike the suspect in Ingram, Bergerson did not resist arrest by pushing away an officer. He merely fled.

We conclude that Bergerson’s flight was an abandonment of evidence. See. e.g. State v. Dineen, 296 N.W.2d 421, 422 (Minn.1980) (holding that contraband left in car when individual fled was properly suppressed because officer lacked probable cause to search). Bergerson’s flight, without physical resistance, did not present an intervening circumstance sufficient to purge the taint of illegality. This factor weighs in favor of suppression.

C. Likelihood of discovery without the illegality

Were it not for Deputy Carlson’s seizure of Bergerson, it is unlikely that police would have discovered the methamphetamine in Bergerson’s car. The record does not establish that police would have encountered the evidence in any other way. Thus, this factor weighs in favor of suppression.

D. Temporal proximity

“A close temporal proximity favors exclusion.” Olson, 634 N.W.2d at 229 (holding that close temporal proximity existed where officer “discovered the methamphetamine within a short time after the initial arrest”) (citation omitted). Although the officers did not execute the search warrant for Bergerson’s car until the next day, upon Bergerson’s arrest, they immediately seized another ingredient in the manufacture of methamphetamine, saw other suspicious items, and took custody of the car containing the evidence. This factor weighs in favor of suppression.

Balancing these four factors, we conclude that the discovery of the methamphetamine was the fruit of an illegal seizure. The chain of events leading to the discovery of the evidence was directly related to the stop, and Bergerson’s conduct did not create an intervening event that would have otherwise led the police to discover the evidence.

The officers obtained the methamphetamine as the result of an illegal seizure, which makes the evidence inadmissible to support a conviction. Harris, 590 N.W.2d at 97. The evidence is “fruit of the poisonous tree,” and Bergerson’s actions after the seizure are not sufficient to purge the recovery of the methamphetamine from the taint of the illegal stop.

We are mindful that most investigatory stops occur when an officer has constitutional grounds to do so — namely, reasonable, articulable suspicion of criminal activity. Our ruling does not impede the use of this investigative tool, which is essential to effective law enforcement. We also are mindful of the important function served by observant citizens who assist police in ferreting out criminal activity. Our ruling does not diminish that important function. Simply put, the constitutional guaranties that our ruling is founded on require that police initiate stops only after their investigation has transformed the limited observations and hunches of citizens and police alike into “specific and articulable facts, which taken together with rational inferences from those facts,” reasonably establish suspicion of criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

Reversed.


text:
    STATE of Minnesota, ex rel. Kenneth Gene ENGEL, Appellant, v. Robert FLETCHER, Ramsey County Sheriff, Respondent.
    No. C1-02-1778.
    Court of Appeals of Minnesota.
    April 15, 2003.

      John Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, SHUMAKER, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

On appeal from a judgment denying a petition for a writ of habeas corpus challenging his extradition to Wisconsin, appellant Kenneth Engel argues that the demand for extradition contained incorrect and contradictory information. We affirm.

FACTS

On February 16, 2001, appellant Kenneth Gene Engel pleaded guilty to a burglary offense committed in December 1999 in Douglas County, Wisconsin. Engel entered his plea in conjunction with a “deferred judgment” agreement. The agreement provided that entry of the judgment of conviction would be withheld and, in return for Engel’s payment of restitution to the burglary victim, the burglary charge would be dismissed with prejudice. If En-gel failed to pay restitution, however, the judgment of conviction would be entered and Engel would be sentenced.

Engel made only one restitution payment. When Engel failed to make additional payments, the State of Wisconsin moved for entry of judgment of conviction, and a hearing was scheduled. When En-gel failed to appear for the hearing, a bench warrant for his arrest was issued.

Engel was arrested in Minnesota on May 22, 2002. Two days later, he was charged by complaint with being a fugitive from justice, in violation of Minn.Stat. § 629.13 (2000). The Governor of Wisconsin issued a requisition warrant, requesting Engel’s return to Wisconsin. Subsequently, the Governor of Minnesota issued a rendition warrant providing for the return of Engel to Wisconsin.

Engel filed a petition for a writ of habe-as corpus, challenging his extradition on the basis that his extradition papers are not in proper form. The district court denied Engel’s petition, and this appeal followed.

ISSUE

Did the district court properly deny appellant’s petition for a writ of habeas corpus?

ANALYSIS

A writ of habeas corpus is a statutory civil remedy available “to obtain relief from [unlawful] imprisonment or restraint.” Minn.Stat. § 589.01 (2002). In reviewing an order denying a petition for a writ of habeas corpus, this court gives “great weight” to the district court’s findings of fact and “will uphold the findings if they are reasonably supported by the evidence.” Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn.App.1998) (citations omitted), review denied (Minn. Nov. 17, 1998). We review questions of law de novo. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn.App.1993), review denied (Minn. Mar. 11, 1993). The parties do not dispute the district court’s findings. Thus, the remaining issues for our review are questions of law.

When a person accused of committing a crime in one state is subsequently arrested in another state, the extradition clause of the United States Constitution mandates that the asylum state deliver that person to the demanding state upon proper demand. See U.S. Const. art. IV, § 2, cl. 2; see also State v. Phillips, 587 N.W.2d 29, 33 (Minn.1998).

The purpose of the extradition clause is to prevent some states from becoming havens for fugitives from other states and to “enable each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed.”

Phillips, 587 N.W.2d at 33 (quoting Michigan v. Doran, 439 U.S. 282, 287, 99 S.Ct. 530, 534, 58 L.Ed.2d 521 (1978)).

Once a governor has granted extradition, the court considering a habeas corpus petition is limited to deciding:
(1) whether the extradition documents on their face are in order;
(2) whether the petitioner has been charged with a crime in the demanding state;
(3) whether the petitioner is the person named in the demand; and
(4) whether the petitioner was present in the demanding state at the time the alleged offense was committed.

Perez v. Sheriff of Watonwan County, 529 N.W.2d 346, 349 (Minn.App.1995) (citing Doran, 439 U.S. at 289, 99 S.Ct. at 535) (other citation omitted). Although Engel’s argument explicitly challenges the first prong — whether the extradition documents are in order — in substance he also challenges the second prong. Engel asserts that the extradition documents are not in proper order because they contain incorrect and factually inconsistent statements. Engel asserts that, because he has already pleaded guilty to the burglary offense, the extradition documents are incorrect in stating that he “stands charged” with a burglary offense and should be delivered to Wisconsin for trial.

The nature of the Wisconsin proceedings guides our analysis here. The district court correctly determined that Engel’s case “is still pending and awaiting adjudication,” because the entry of judgment of conviction was deferred. Engel has not been convicted of burglary, nor has the burglary charge been resolved, because of the deferral of judgment. See, e.g., State v. Barney, 213 Wis.2d 344, 570 N.W.2d 731 (Wis.1997) (outlining breach of agreement where court agreed to defer judgment of conviction for sexual assault if defendant complied with conditions, and where breach resulted in entry of conviction and sentencing). Without the entry of judgment, Engel’s guilty plea alone does not transform the charge into a conviction.

Citing State ex rel. Walker v. Ramsey County Dist. Court, 368 N.W.2d 28 (Minn.App.1985), Engel argues that incorrect and contradictory information in the rendition warrant makes extradition improper. But the type of erroneous information in Walker is not present in this case. In Walker, we reversed the district court’s denial of the writ, because the extradition papers incorrectly stated that the appellant was in the state seeking extradition (New Mexico) at the time of the offense. Id. at 30-31. Here, the extradition papers are not factually incorrect.

For the purposes of extradition, Engel “stands charged” with burglary. Even though the procedural posture of Engel’s case will not require him to stand trial, his return for the adjudication of guilt and entry of judgment is sufficiently analogous to justify extradition. Because Engel’s guilty plea has not been accepted and judgment of conviction has not been entered, it is clear that the case is not final. Engel must appear for conviction and sentencing. We, therefore, conclude that the description in the extradition papers of the posture of Engel’s case does not constitute “incorrect and contradictory information” of the type that required granting the writ in Walker. Engel’s extradition is directly aligned with one of the purposes of extradition — to prevent Minnesota from being a haven for Engel to evade Wisconsin’s justice system. And by allowing Engel to be delivered to face the legal consequences of his offense, his extradition is likewise in concert with the second purpose of extradition.

Engel next argues that Wisconsin is seeking his extradition for an improper purpose — to collect restitution. We are unpersuaded. Engel’s extradition was sought when he failed to appear for a hearing in which his conviction was to be entered, because he failed to satisfy the conditions of the deferred-judgment agreement. Although restitution is the unsatisfied condition that invalidates the deferred-judgment agreement, Engel is not being extradited to collect restitution. He is being extradited to face the legal consequences of his offense — conviction and sentencing.

Again, Engel’s reliance on Walker is misplaced. Even if payment of restitution were the purpose of the extradition, we conclude that Engel has no legal support for his argument. The Walker court indicated that extradition is not a proper means to collect a civil debt. Walker, 368 N.W.2d at 31. Walker’s discussion of civil-debt collection is not applicable here, where restitution arising from a criminal proceeding is at issue, not a civil debt. State v. Davis, 127 Wis.2d 486, 499, 381 N.W.2d 333, 339 (Wis.1986) (distinguishing restitution from civil debt); cf. State v. Reinke, 398 N.W.2d 53, 54 (Minn.App.1986) (holding that Walker’s discussion of “extradition for collection of private debts is not dispositive and we do not consider it controlling.”). Engel’s claim that his extradition is for an improper purpose is not supported by the facts of this case or by any legal authority.

Engel also raises pro se claims, two of which warrant discussion. He first argues that the district court erred by admitting evidence of which the state had not' provided Engel notice. On this basis, En-gel asserts that admission of the transcript from his February 16, 2001, plea hearing is reversible error. Even if admission of the transcript were error, it was not prejudicial, because it established the same undisputed facts as those offered in testimony by the state’s witness, namely that Engel had been charged with burglary in Wisconsin.

Engel also argues that his guilty plea was defective, because he was not under oath when he pleaded guilty, and there was no factual basis to support the plea. This argument, however, does not defeat extradition where the issue is simply whether Engel stands charged with a crime, not the validity of his guilty plea.

DECISION

Because Engel “stands charged” with the Wisconsin burglary and Engel’s pro se claims do not warrant relief, the district court properly denied Engel’s petition for a writ of habeas corpus.

Affirmed.


author: PETERSON, Judge.

text:
    Jennifer GILDER, Claimant, Respondent, v. AUTO-OWNERS INSURANCE COMPANY, Appellant.
    No. C4-02-1466.
    Court of Appeals of Minnesota.
    April 15, 2003.

      James D. Jorgensen, Nelson Personal Injury Attorneys, St. Cloud, MN, for respondent.
    Thomas E. Emmer, Emmer & Lively, P.A., Maple Plain, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge, HARTEN, Judge, and HUSPENI, Judge.
   OPINION

PETERSON, Judge.

In this appeal from a judgment confirming a no-fault arbitrator’s award that awarded respondent insured reimbursement for the cost of a mattress and a box spring, appellant insurer argues that (1) the arbitrator did not have authority to determine whether the no-fault act requires that respondent be reimbursed for the cost of a mattress and box spring, and (2) a mattress and a box spring are not a service or a prosthetic device for which respondent shall be reimbursed under Minn.Stat. § 65B.44, subd. 2(a)(1) (2002). We reverse and vacate the arbitration award.

FACTS

In June 2000, respondent Jennifer Gilder suffered disc injuries and soft tissue damage as a result of a motor-vehicle accident. Following an examination, respondent’s chiropractor prescribed a quality firm mattress, and respondent purchased a mattress and box spring for $2,701.22. Respondent submitted a claim for this amount to her no-fault insurer, appellant Auto-Owners Insurance Company, and appellant denied the claim. Respondent then filed a petition for no-fault arbitration seeking reimbursement for the amount spent to purchase the mattress and box spring.

Appellant moved to stay the arbitration on the grounds that whether the cost of the mattress and a box spring should be reimbursed as a medical expense benefit under Minn.Stat. § 65B.44, subd. 2 (2002), is a legal issue outside the scope of arbitration. The district court denied appellant’s motion, and appellant appealed to this court, which dismissed the appeal.

The arbitration proceeded based on a stipulation by the parties that respondent would testify that the mattress and box spring benefited her recovery and gave her relief from her symptoms following the motor-vehicle accident in June 2000. The parties also stipulated that appellant had no evidence tending to contradict or refute respondent’s testimony, and the parties provided written submissions that included medical records and other documents.

The arbitrator found that respondent’s chiropractor had prescribed a quality firm mattress, and respondent spent $2,701.22 to purchase a mattress and box spring under the prescription. The arbitrator also found that the mattress and box spring benefit respondent’s recovery and provide relief from her symptoms and that the mattress and box spring are reasonably and medically necessary. Based on these findings, the arbitrator concluded that under Minn.Stat. § 65B.44, respondent was entitled to reimbursement for the mattress and box spring and awarded respondent $2,701.22.

Appellant brought a motion to vacate the arbitrator’s award in district court, arguing that because determining whether the cost of a mattress and box spring is an expense entitled to reimbursement under the no-fault act requires interpretation and construction' of a statute, and arbitrators are limited to deciding factual issues, the arbitrator exceeded his authority by deciding a legal issue. The district court denied the motion to vacate. Pursuant to a stipulation, the parties requested that the district court modify its order denying the motion to vacate to include a confirmation of the arbitrator’s award, and the district court issued an order stating that its earlier order confirms the arbitrator’s award.

ISSUES

1. Did the arbitrator have authority to determine whether respondent is entitled to reimbursement for the cost of the mattress and box spring under Minn.Stat. § 65B.44, subd. 2(a)(1)? .

2. Is the cost of the mattress and box spring an expense for which respondent shall be reimbursed under Minn.Stat. § 65B.44, subd. 2(a)(1)?

ANALYSIS

Minn.Stat. § 65B.44, subd. 2(a) (2002), provides:

Medical expense benefits shall reimburse all reasonable expenses for necessary:
(1) medical, surgical, x-ray, optical, dental, chiropractic, and rehabilitative services, including prosthetic devices.

The arbitrator determined that respondent’s expenditure for the box spring and mattress should be reimbursed under Minn.Stat. § 65B.44. Appellant argues that determining whether the expenditure should be reimbursed requires an interpretation and construction of the statute, which is a legal issue, and therefore, the arbitrator did not have authority to decide the issue because arbitrators are limited to deciding fact'issues.

In Weaver v. State Farm Ins. Co., 609 N.W.2d 878 (Minn.2000), the supreme court recently explained a no-fault arbitrator’s jurisdiction to award, suspend, or deny no-fault benefits in the context of an insured that refused to attend an independent medical examination because of nonpayment of a disputed claim. The supreme court stated:

We begin by acknowledging that no-fault arbitrators are limited to deciding questions of fact, leaving the interpretation of law to the courts. See Johnson v. American Family Mut. Ins. Co., 426 N.W.2d 419, 421 (Minn.1988). Arbitration regarding automobile reparations therefore departs from the generally accepted principle that “arbitrators are the final judges of both law and fact.” Id. (citing State, by Sundquist v. Minnesota Teamsters Pub. and Law Enforcement Employees Union Local No. 320, 316 N.W.2d 542, 544 (Minn.1982)). The limitation on the final authority of arbitrators is based on the perceived need for consistency in interpretation of the No-Fault Act. See id. at 421.
Nonetheless, we have adopted rules authorizing arbitrators in no-fault cases where the claim is for less than $10,000 to “grant any remedy or relief deemed just and equitable.” Rule 32, Rules of Procedure for No-Fault Arbitration; see also Minn.Stat. § 65B.525 (1998) (mandating binding arbitration for claims under $10,000). To grant relief, arbitrators must apply the law to the facts they have found. See, e.g., Great West Cas. Co. v. State Farm Mut. Auto. Ins. Co., 590 N.W.2d 675, 677 n. 1 (Minn.App.1999). That is, as a general proposition, the arbitrator has jurisdiction to award, suspend or deny benefits. To achieve the consistency desired in interpreting the no-fault act, this court and the district .court review de novo the arbitrator’s legal determinations necessary to granting relief. See, e.g., [Neal v. State Farm Mut. Ins. Co., 529 N.W.2d 330 (Minn.1995)] at 331.

Id. at 882.

The supreme court explained further that

severance of legal and factual issues between court and arbitrator would interfere with the goal of speeding the administration of justice. As litigants dispute the obligations under the [No-Fault] act, it makes little sense to require them to shuttle back and forth between the arbitrator making factual determinations and the court deciding legal questions. Rather, the arbitrator can determine the facts and apply the law to those facts subject to de novo review by the district court.

Id. at 884.

In other words, when called upon to grant relief, an arbitrator need not refrain from deciding a question simply because it is a legal question. But an arbitrator’s decision on a legal question is subject to de novo review by the district court. Applying this reasoning to the present case, we conclude that the arbitrator had authority to determine the facts and apply Minn.Stat. § 65B.44, subd. 2(a)(1), to those facts, but the arbitrator’s application of the statute to the facts was subject to de novo review by the district court.

Therefore, the second issue before us is whether the arbitrator and, in turn, the district court, erred in determining that under Minn.Stat. § 65B.44, subd. 2(a)(1), appellant must reimburse respondent for the mattress and box spring that respondent’s chiropractor prescribed for her. Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

Minn.Stat. § 65B.44, subd. 2(a)(1), requires reimbursement for reasonable expenses for necessary “medical, surgical, x-ray, optical, dental, chiropractic, and rehabilitative services, including prosthetic devices.” “In construing the statutes of this state, * * * words and phrases are construed * * * according to their common and approved usage.” Minn.Stat. § 645.08(1) (2002).

The common meaning of “service” is, “Work done for others as an occupation or a business.” The American Heritage Dictionary of the English Language 1246 (3rd ed.1997). The mattress and box spring do not do any work for respondent, and there is no indication in the record that respondent’s chiropractor, or anyone else, uses the mattress and box spring to perform any kind of work for respondent. Consequently, we conclude that the mattress and box spring are not a service.

Respondent argues that “prosthetic device,” as used in Minn.Stat. § 65B.44, subd. 2(a)(1), should be construed to include a mattress and box spring. But “prosthesis” means, “An artificial device used to replace a missing body part, such as a limb, a tooth, an eye, or a heart valve.” The American Heritage Dictionary of the English Language 1099 (3rd ed.1997). A prosthetic device is a device that replaces a body part. Respondent’s mattress and box spring do not replace a body part. Consequently, we conclude that the mattress and box spring are not a prosthetic device.

We understand the analogy that the arbitrator and the district court saw between a prosthetic device and the mattress and box spring; both provide relief from an injury. But Minn.Stat. § 65B.44, subd. 2(a)(1), does not require reimbursement for any reasonable and necessary expense for an item that provides relief; it requires reimbursement only for reasonable expenses for necessary specifically identified services and prosthetic devices.

DECISION

The cost of the mattress and box spring is not an expense for which respondent shall be reimbursed under Minn.Stat. § 65B.44, subd. 2(a)(1).

Reversed and arbitration award vacated.

      . Respondent argues that in determining the meaning of Minn.Stat. § 65B.44, subd. 2(a)(1), we should examine Minn.Stat. § 297A.25, subd. 3 (2000), and Minn.Stat. § 256.045, subd. 10 (2002). Minn.Stat. § 297A.25, subd. 3, has been repealed and recodified as Minn.Stat. § 297A.67, subd. 7 (2002). 2000 Minn. Laws ch. 418, art. 1, § 45 (repealing statute); 2001 Minn. Laws 1st Spec. Sess. ch. 5, art. 7, § 51 (recodifying statute).
      The doctrine of in pari materia is an interpretive tool used to determine the meaning of ambiguous statutory language. State v. McKown, 475 N.W.2d 63, 67 (Minn. 1991). "Statutes in pari materia’ are those relating to the same person or thing or having a common purpose." Apple Valley Red-E-Mix, Inc. v. State by Dept. of Pub. Safety, 352 N.W.2d 402, 404 (Minn.1984). Such statutes should be construed in light of one another. Id. Minn.Stat. § 297A.67, subd. 7, relates to sales tax exemptions for medicines and medical devices, and Minn.Stat. § 256.045, subd. 10, relates to payments of monthly assistance or aid or services pending an appeal of an order of the commissioner of human services or the district court. Although these statutes use terms that are also used in the no-fault act, they do not relate to the no-fault act, and they have purposes that are significantly different from the no-fault act. Therefore, the statutes are not in pari materia and should not be construed in light of one another.


author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Michael McCARTHY, Appellant.
    No. C9-02-958.
    Court of Appeals of Minnesota.
    April 22, 2003.

      Mike Hatch, Attorney General, St. Paul, MN, and Richard C. Ilkka, Oakdale City Prosecutor, Oakdale, MN, for respondent.
    Stephen V. Grigsby, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Michael McCarthy appeals his conviction of disorderly conduct, claiming the evidence presented at trial was insufficient to support the conviction. We affirm.

FACTS

McCarthy was attending his son’s football game at Walton Park in the City of Oakdale on September 11, 2001. During the course of the game, McCarthy disputed ■ & call by the referee. The referee approached McCarthy and told him that his comments needed to stop or he should leave. McCarthy became loud and boisterous and told the referee that he was not going to. leave and placed his hands on the referee. The referee asked McCarthy three times to take his hands off him before he did so. The referee also told him “let’s not get physical.” The referee then pulled away and told McCarthy to leave or he was going to call the police. McCarthy refused to leave, and the referee called the police from his cell phone. During the incident, McCarthy called a female spectator an “ass-” as she walked in front of him. There were others present who were able to hear the comment.

Officer Sean Coffer was one of the officers called to the scene. He testified that several spectators approached him and said that McCarthy needed to be removed. He was told that McCarthy caused a disturbance, swore at spectators, and caused the game to be stopped and that they did not feel safe with McCarthy present.

McCarthy was asked to leave by the police and refused. He was then arrested and charged with disorderly conduct. A court trial was held, and McCarthy was convicted of disorderly conduct. This appeal followed.

ISSUE

Is the evidence that McCarthy used profane language toward spectators, placed his hands on a referee, and caused spectators to be alarmed and feel unsafe sufficient to support a conviction of disorderly conduct?

ANALYSIS

When evaluating sufficiency-of-the-evidence claims, we review the record to determine whether the evidence, taken in the light most favorable to the conviction, is sufficient to support the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We apply the same standard of review in evaluating a sufficiency-of-the-evidenee claim arising out of a trial to a jury or to the court. State v. Cox, 278 N.W.2d 62, 65 (Minn.1979). We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

Minn.Stat. § 609.72, subd. 1(3) (2000), provides:

Whoever does any of the following in a public or private place, * * * knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
* * * *
3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

The district court found that McCarthy

engaged in offensive or noisy conduct and used offensive language that aroused alarm, anger or resentment in others present at the park. [McCarthy] made remarks to a referee that caused the game to be stopped. When the referee approached, [McCarthy] put his hands on the referee as he argued with the referee. When asked to leave due to being disruptive, [McCarthy] refused. [McCarthy] used offensive language when confronted by a female spectator that was audible to others present.

Testimony at trial supported these findings.

McCarthy claims he was convicted solely for using profanity toward the female spectator. The Minnesota Supreme Court has ruled that a conviction of disorderly conduct cannot be predicated only on a person’s words unless those words are “fighting words.” In re S.L.J., 263 N.W.2d 412, 419 (1978). The test to determine “fighting words” is whether the

utterance of [the] vulgar, offensive insulting words would tend to incite an immediate breach of the peace, are inherently likely to provoke violent reaction, or have an immediate tendency to provoke retaliatory violence or tumultuous conduct by those to whom such words are addressed.

Id. (citations and quotations omitted). Whether words are “fighting words” depends on the circumstances surrounding their utterance. Id.

The district court found that McCarthy’s actions and words aroused alarm, anger or resentment in others present at the park. Although McCarthy’s conviction was based partially on his use of profanity, it was not the only basis. The circumstances surrounding McCarthy’s comment included causing interruption of the football game, placing his hands on the referee, and refusing to leave when asked. In determining if McCarthy’s actions were sufficient to support a conviction of disorderly conduct, we “view [his] words, coupled with his conduct and physical movements, and measure them as a package against the controlling statute.” State v. Klimek, 398 N.W.2d 41, 43 (Minn.App.1986). We find it was reasonable for the district court to conclude that McCarthy’s actions and language caused alarm and resentment in the spectators present and therefore constituted disorderly conduct.

DECISION

There was sufficient evidence to support the district court’s finding that McCarthy’s words and conduct reasonably caused alarm and resentment in others and therefore constitutes disorderly conduct.

Affirmed.


author: HUSPENI, Judge.

text:
    CIMARRON VILLAGE, Respondent, v. Cynthia WASHINGTON, et al., Appellants.
    No. C8-02-1387.
    Court of Appeals of Minnesota.
    April 22, 2003.

      Mary G. Dobbins, Mary G. Dobbins & Associates, Edina, MN, for respondent.
    Lisa R. Hollingsworth, Southern Minnesota Regional Legal Services, Inc., Prior Lake, MN, for appellants.
    Considered and decided by TOUSSAINT, Chief Judge, LANSING, Judge, and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

Appellants Cynthia Washington and Clyde Penny challenge the district court’s grant of a writ of recovery. Respondent Cimarron Village, which is federally subsidized under 26 U.S.C. § 42 (2002), sought to evict appellants due to numerous lease violations throughout their tenancy. The district court found that the lease violations, considered in their totality, provided Cimarron Village with good cause to terminate appellants’ tenancy. In challenging the grant of the writ of recovery, appellants argue that (1) the findings are insufficient to support an eviction because there is no finding of material noncompliance with the lease, and (2) the record does not support a finding that good cause existed to terminate appellants’ tenancy. Because a finding of material noncompliance is not required when a tenancy is terminated pursuant to 26 U.S.C. § 42, and because the record supports a determination of good cause, we affirm.

FACTS

In November 1997, appellant Cynthia Washington signed a lease with respondent Cimarron Village for the rental of an apartment at the Kidder Park Townhomes (Kidder Park) in Rosemount, Minnesota. The complex is federally subsidized under 26 U.S.C. § 42 (2002) (section 42). Under the lease, Washington agreed to reside at the unit with her three children and was informed of the numerous policies that Kidder Park residents must follow, including those set out in a document entitled “Community Policies.”

The lease agreement provides, in relevant part, that (1) only persons listed as residents can live in the apartment, (2) residents will not allow other persons to occupy the apartment without approval from management, and (3) residents are responsible for the conduct of their guests or visitors on the property. The Community Policies provide, in relevant part, that (1) guests must use only the visitor parking area, (2) parking permits may be used only by leaseholders, and (3)

[i]f any household receives 3 or more lease violations, they will be asked to leave Kidder Park [regardless of] the level or seriousness of the violation.

Under the terms of the lease, the tenancy can be terminated for (1) violations of the terms of the lease or the Community Policies; (2) police calls to an apartment for noise disturbances, domestic disputes, illegal substances, and other non-medical reasons; (3) allowing unauthorized people to reside in the apartment; and (4) “failure to pay the rent or late payment history.”

Cimarron Village informed Washington in August 1998 that it did not intend to renew her lease. Washington challenged this decision, arguing that because her lease was for a federally subsidized housing unit, it could not be terminated without “good cause.” This court agreed, reversed the district court’s grant of summary judgment to Cimarron Village, and remanded for further proceedings. Cimarron Village Townhomes, Ltd. v. Washington, No. C3-99-118, 1999 WL 538110 (Minn.App. July 27, 1999). In doing so, this court noted that

26 U.S.C. § 42(h)(6)(B)®, with its reference to 26 U.S.C. § 42(h)(6)(E)(n)(I)-(II), prohibits the eviction, except for good cause, of residents of any housing unit that is governed by an extended commitment agreement.

(Emphasis added.)

Sometime after this court’s reversal of the attempted eviction of Washington, appellant Clyde Penny was added to the lease. On January 31, 2002, appellants entered into a new lease, effective February 1, 2002. Less than two months later, appellants received a letter stating that the lease would be terminated on May 31, 2002, due to failure to pay rent. The letter, dated March 13, 2002, explained to appellants that they had exhausted the two late-payment allowances given to each household in a 12-month period. The letter also referred to Cimarron Village’s concern about unauthorized people staying at appellants’ residence. Cimarron Village subsequently rescinded this notice of eviction after appellants paid their rent.

On May 1, 2002, Cimarron Village sent to appellants a notice to vacate in 60 days, citing lease violations. The notice informed appellants that they were being asked to vacate the premises because (1) one Louis McCray was residing in the unit, in violation of the lease; (2) Artravis Washington, Washington’s adult son, fraudulently obtained a parking permit; (3) appellants had exhausted their two allowable payment agreements and had continued to pay rent late; (4) appellants had received notice of many lease violations, exceeding the allowable three per household; and (5) there had been repeated police calls to appellants’ residence for more than four years. Appellants chose to remain in the residence and challenge the eviction. Cimarron Village filed an eviction action complaint on July 8, 2002.

At the July 31, 2002 hearing, Kristin Upton, site manager at Kidder Park from July 2000 to February 2002 and presently the director of property management at Gramercy Corporation, the management firm for Kidder Park, testified that the police had been at appellants’ unit several times throughout their tenancy. Upton noted that Artravis, in particular, had been involved with the police on several occasions and that in July 2001, Artravis was baby-sitting for another resident in the complex when he allowed Rodney Davis, a friend of Artravis’s family, into that other resident’s home to use the bathroom. While he was there, Davis stole some blank checks from the resident’s drawer and later cashed them at a grocery store. According to Upton, this conduct violated the complex’s policy of requiring tenants to be responsible for the actions of their guests. Upton also testified that on April 17, 2002, Artravis was involved in an altercation with the police, which resulted in the police once again being called to appellants’ home.

Upton testified that she had spoken to appellants in the past about having unauthorized people living in their unit and that while she gave appellants permission to have Louis McCray, a relative, stay with them over the Easter holiday, he was now residing with appellants, as was evidenced by his own admission to the police. Finally, Upton testified that Artravis registered McCray’s Pontiac Bonneville in order to get a parking permit and told her that he (Artravis) owned the vehicle. At the hearing, Artravis denied ever claiming to be the owner of the vehicle.

Sergeant James O’Leary of the Rose-mount Police Department, testifying regarding the April 17, 2002 incident, stated that he observed Artravis driving a Pontiac Bonneville, knew that Artravis did not have a driver’s license, activated his red lights to stop the vehicle, and pulled up beside Artravis. Artravis did not stop, but instead drove into the Kidder Park parking lot and ran into his apartment. Sgt. O’Leary testified that when he followed Artravis to the Washington residence, he spoke to a man who identified himself as Louis McCray, stated that he had just purchased the car, and said that he was staying in appellants’ residence. Washington testified at the hearing that McCray never lived with them.

Officer Julie Rauenhorst testified that she is very familiar with appellants and the other residents of the apartment, that the police had made 40 contacts with appellants’ apartment throughout the course of their tenancy, and that Artravis alone had been the subject of 22 contacts where either a citation was issued or a report was filed.

The district court granted a writ of recovery on August 2, 2002, concluding that the “lease was terminated for good cause, considering the totality of the circumstances.” This appeal follows.

ISSUES

I. Should the term “material noncompliance” be incorporated into the meaning of “good cause,” as applied in 26 U.S.C. § 42 (2002)?

II. Did Cimarron Village establish good cause for terminating appellants’ lease on a federally subsidized unit?

ANALYSIS

I.

Statutory construction of federal and state statutes is a question of law, which this court reviews de novo. In re Estate of Jobe, 590 N.W.2d 162 (Minn.App. 1999). Cimarron Village receives tax credits under 26 U.S.C. § 42 (2002) (section 42) for providing low-income units. A recipient of section 42 tax credits is prohibited from terminating a tenancy “other than for good cause.” 26 U.S.C. § 42(h)(6)(E)(ii)(I). Here, the district court found that Cimar-ron Village had established good cause for terminating appellants’ tenancy. Appellants argue, however, that because Minnesota courts have not defined the term “good cause,” the term should be interpreted to mean that a landlord must show “material noncompliance” with the lease. While we agree that Minnesota courts have not established a bright-line definition of “good cause,” we decline to equate that concept with “material noncompliance.”

Appellants mistakenly rely on caselaw to argue that “material noncompliance” must be established before eviction from section 42 housing is permissible. In both Oak Glen of Edina v. Bremngton, 642 N.W.2d 481, 485 (Minn.App.2002), and Chancellor Manor v. Thibodeaux, 628 N.W.2d 193, 196 (Minn.App.2001), this court concluded that the landlords could terminate the tenancy only upon a showing of the tenants’ material noncompliance with the lease. Significantly, however, in neither of those cases did the tenant live in federally subsidized housing under section 42. In Brew-ington, the tenant lived in section 8 housing, and in Thibodeaux, the tenant lived in HUD-subsidized housing. Brewington, 642 N.W.2d at 483-84; Thibodeaux, 628 N.W.2d at 194. The distinction between section 8 or HUD-subsidized housing and section 42 housing is important because not all federally subsidized projects require a showing of material noncompliance with a lease before the landlord can terminate the tenancy.

Section 42 prohibits the eviction of tenants except for good cause. 26 U.S.C. § 42(h) (6) (B) (ii) (I). In contrast, the “material noncompliance” requirement derives not from any language in a statute, but from 24 C.F.R. § 247.3(a)(1) (2002), which provides that a landlord may not terminate a tenancy in a subsidized project except upon a showing of material noncompliance with the lease. In turn, 24 C.F.R. § 247.2 (2002) includes a list of “subsidized project[s]” that are subject to a “material noncompliance” requirement. The list includes certain tax-based subsidized programs and project-based programs under section 8 of 42 U.S.C. § 1437f (2002). It does not, however, include subsidized housing under section 42.

While the drafters of 24 C.F.R. §§ 247.2 and 247.3 clearly intended to subject several federally subsidized projects to the material noncompliance requirement, they just as clearly, it seems to us, opted not to subject section 42 housing to that requirement. See 24 C.F.R. § 247.3 (stating that a landlord may not terminate any tenancy in a subsidized project except upon several grounds, including, but not limited to, material .noncompliance and good cause); 24 C.F.R. § 247.2 (defining “subsidized project” to include section 8 and other programs, but omitting section 42). We cannot supply that which the drafters have declined to supply. Nash v. Wollan, 656 N.W.2d 585, 589 (Minn.App. 2003).

Notwithstanding application of the good-cause standard, we are not insensitive to appellants’ argument urging this court .to establish a bright-line definition of that standard. Arguably, a bright-line definition of “good cause” could assist both landlords and tenants. We conclude, however, that such a definition would amount to second-guessing the language of section 42 and 24 C.F.R. §§ 247.2 and 247.3. Those sections demonstrate an intent not to require the same standards for eviction under all federally subsidized programs. Until Congress or the drafters of the federal regulations provide the courts with a specific meaning for “good cause,” we believe the most prudent course for this court is to continue to determine “good cause” on a case-by-case basis.

II.

Having declined appellants’ request to incorporate the term “material noncompliance” into the good-cause standard of section 42, or to establish a bright-line definition of the term “good cause,” we now examine whether the,,district court erred in concluding that Cimarron Village had good cause to terminate appellants’ tenancy.

An eviction proceeding is civil in nature, and generally the only issue for determination is whether the facts alleged in the complaint are true. Minneapolis Cmty. Dev. Agency v. Smallwood, 379 N.W.2d 554, 555 (Minn.App.1985), review denied (Minn. Feb. 19, 1986). Therefore, our standard of review is whether the district court’s findings of fact are clearly erroneous. Id.

The district court concluded that because appellants committed multiple violations of their lease agreement, the “lease was terminated for good cause, considering the totality of the circumstances.” Although we agree with the conclusion that “good cause” to evict appellants is supported by adequate findings and sufficient ewdence in the record, the district court erroneously included late rent payments as a factor supporting good cause, and we do not rely on that determination in affirming the district court decision.

Cimarron Village issued appellants an eviction notice in March 2002 for failure to make rent payments, but it later rescinded the notice after appellants paid the rent. Because Cimarron Village accepted the late rent payments, it waived its right to rely on this violation as grounds for eviction. Oak Glen of Edina v. Brewington, 642 N.W.2d 481, 486 (Minn.App.2002) (“Waiver has historically been an affirmative defense to an unlawful de-tainer action.”). By accepting the late rent payments, Cimarron Village manifested its intent not to evict appellants for those late payments. See id. at 487. In order to rely on the late payments as a reason for eviction, Cimarron Village would have had to refuse a subsequent late payment. Id. There is no evidence, however, that appellants’ made another late rent payment.

Notwithstanding the trial court’s misplaced reliance on late rent payments, the remaining factors relied upon by the court amply support the “good cause” determination. Appellants’ lease provides that a tenancy can be terminated for “police calls to an apartment for noise disturbances, domestic disputes, illegal substances and other non-medical reasons.” The district court found that throughout appellants’ tenancy, “approximately 40 police calls” had been made to their apartment, the latest occurring on April 17, 2002. This finding is supported by the testimony of Sgt. O’Leary and Officer Rauenhorst. We recognize that appellants originated some of the calls and that adverse action cannot be taken against tenants who call the police for their own health and safety. See Minn.Stat. § 504B.205, subd. 2(a)(2) (stating that a landlord cannot “impose a penalty on a residential tenant for calling for police or emergency assistance in response to domestic abuse or any other conduct”). A substantial number of the calls, however, originated from other sources.

The district court also found that even though the lease provides that a parking permit will be granted only for a vehicle owned by a tenant, Washington’s adult son, Artravis, fraudulently obtained a parking permit by claiming that he was the owner of a vehicle registered to someone else. This finding is supported by Kristin Upton’s testimony that Artravis claimed he owned the vehicle, and by Sgt. O’Leary’s testimony that Louis McCray stated that he was the owner of the vehicle. While Artravis denies claiming to be the vehicle’s owner, we defer to the district court’s determination regarding the credibility of witnesses. General v. General, 409 N.W.2d 511, 513 (Minn.App.1987).

Consistent with the testimony of Sgt. O’Leary, the district court found that in July 2001, Artravis allowed Rodney Davis to enter the home of Artravis’s neighbor while Artravis was baby-sitting her children. While there, Davis stole some blank checks and later cashed them at a grocery store. The district court found that this conduct violated the lease, which provides that residents are responsible for the conduct of their guests or visitors. Sgt. O’Leary’s testimony and the terms of the lease support these findings.

The district court also found that “it is likely that Louis McCray was staying at the apartment without prior approval, in violation of the lease.” This finding is supported by the language of the lease and by Sgt. O’Leary’s testimony that when he followed Artravis to appellants’ unit after the April 17 incident, McCray, who was in the apartment, stated that he was “staying” there. While appellants argue that McCray’s statement that he was “staying” at appellants’ apartment does not support a finding that he was living there in violation of the lease, the record supports the district court’s determination that a violation was “likely.” Even if we were to place only slight reliance on this finding because of the inclusion of the qualifying word “likely,” the district court’s remaining findings are sufficient to support its conclusion that appellants’ tenancy was terminated for “good cause.”

The district court’s findings regarding the numerous police calls, the inadequate supervision of a guest, the fraudulent application for a parking permit, and the likelihood of an unauthorized tenant, all which violated the terms of the lease, were not clearly erroneous. Appellants urge this court to treat each of these violations as a minor, isolated incident that should not be sufficient to terminate a tenancy in section 42 housing. This we cannot do. A landlord need only show “good cause” in order to terminate a tenancy in section 42 housing. Throughout their tenancy, appellants not only violated several of the lease’s provisions, but they did so repeatedly. Unlike in the earlier successful appeal of appellants’ prior eviction notice, Cimarron Village here provided extensive reasons for its termination of the lease. Those stated reasons were supported by testimony at the hearing. The district court properly concluded that the lease violations, considered as a whole, constituted good cause for termination of appellants’ lease.

DECISION

As a recipient of tax credits under 26 U.S.C. § 42 (2002), Cimarron Village need only show “good cause” before terminating appellants’ tenancy. Here, the numerous lease violations committed by appellants throughout their tenancy, considered as whole, established the “good cause” necessary for Cimarron Village to terminate their tenancy.

Affirmed.

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

      . In its order, the district court uses the term "writ of restitution.” However, in 1998, the unlawful detainer statute was repealed and replaced with Minnesota Statutes chapter 504B, the current eviction statute. As a result of these changes, instead of referring to a "writ of restitution,” the correct statutory term is "writ of recovery.”

      . Under section 42 of the code, a developer may qualify for tax credits by making an extended low-income housing commitment. A developer first commits to a compliance period of 15 years, which is followed by an extended use period of at least 15 years or another period of time as agreed upon by the developer and the state agency. 26 U.S.C. §§ 42(h)(6)(D), (i)(I) (2002).

      . The record before us is silent as to any further proceedings in district court as a result of the remand.

      . It is unclear from the record whether Clyde Penny was added to the lease before the new lease was signed on January 31, 2002, or contemporaneously with that signing.

      . The term "material noncompliance" with a lease is defined as follows:
      (1) One or more substantial violations of the rental agreement;
      (2) Repeated minor violations of the rental agreement that:
      (i) Disrupt the livability of the project,

        (ii) Adversely affect the health or safety of any person or the right of any tenant to the quiet enjoyment of the leased premises and related project facilities,
      (iii) Interfere with the management of the project, or
      (iv) Have an adverse financial effect on the project;
      (3) If the tenant:
      (i) Fails to supply on time all required information on the income and composition, or eligibility factors, of the tenant household, as provided in 24 CFR part 5; or
      (ii) Knowingly provides incomplete or inaccurate information as required under these provisions; and
      (4) Non-payment of rent or any other financial obligation due under the rental agreement (including any portion thereof) beyond any grace period permitted under State law, except that the payment of rent or any other financial obligation due under the rental agreement after the due date, but within the grace period permitted under State law, constitutes a minor violation.
      24 C.F.R. 247.3(c) (2001).

      . Under 24 C.F.R. § 247.3(a), a tenant in a “subsidized project” can also be evicted for "[mjaterial failure to carry out obligations under any state landlord and tenant act,” certain criminal activity and alcohol abuse, or "other good cause.”

      . “Subsidized project" is defined in 24 C.F.R. § 247.2 as
      a multifamily housing project (with the exception of a project owned by a cooperative housing mortgagor corporation or association) that receives the benefit of subsidy in the form of: below-market interest rates under section 221(d)(3) and (5), interest reduction payments under section 236 of the National Housing Act, or below market interest rate direct loans under section 202 of the Housing Act of 1959. For purposes of this part, subsidized project also includes those units in a housing project that receive the benefit of:
      (1) Rental subsidy in the form of rent supplement payments under section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s); or
      (2) Housing assistance payments for project-based assistance under Section 8 of the 1937 Act (42 U.S.C. 1437Í). However, this part is not applicable to Section 8 project-based assistance under parts 880, 881, 883 and 884 of this title (except as specifically provided in those parts).

      . We note that in a prior appeal to this court on the identical issue we now address, Washington argued that section 42 prohibited the eviction of a tenant without good cause. Cimarron Village Townhomes, Ltd. v. Washington, No. C3-99-118, 1999 WL 538110, *3 (Minn.App. July 27, 1999). This court agreed and reversed and remanded the matter on the ground that a tenant in section 42 housing can only be evicted for “good cause.” Id. at *6. It is appropriate that this court now apply the standard that appellant Washington previously urged this court to apply.

      . As a result of the discussion at oral argument, it appears that federal officials may have begun taking steps to provide a clear definition of “good cause” under the Code of Federal Regulations.

      . The record indicates that permission was given for McCray to visit over the Easter holiday. Easter in 2002 was on March 31; the conversation between McCray and Sgt. O’Leary occurred on April 17.