This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Susan Hanson, et al.,

on behalf of themselves and all

others similarly situated,





Tele-Communications, Inc., et al.,




Filed September 26, 2000

Appeal dismissed

Huspeni, Judge*


Mower County District Court

File No. CX-97-1434



Hugh V. Plunkett, III, Robert K. Shelquist, Plunkett, Schwartz, Peterson, P.A., East Bridge at Riverplace, One Second Street Northeast, Suite 114, Minneapolis, MN  55413; and


Richard Lockridge, Christopher K. Sandberg, Lockridge, Grindal, Nauen & Holstein, P.L.L.P., 100 Washington Avenue South, Suite 2200, Minneapolis, MN  55401; and


Peter Plunkett, Warren F. Plunkett & Associates, 107 West Oakland Avenue, Austin, MN  55912 (for respondents)


A.M. Keith, Kenneth R. Moen, Dunlap & Seeger, P.A., 505 Marquette Building, 206 South Broadway, PO Box 549, Rochester, MN  55903-0549; and


James M. Jones, Curt Vazquez, Jones, Day, Reavis & Pogue, One Mellon Bank Center, 31st Floor, 500 Grant Street, Pittsburgh, PN  15219; and


Richard I. Werder, Jr., Mark Herrmann, Jones, Day, Reavis & Pogue, North Point, 901 Lakeside Avenue, Cleveland, OH  44114-1190 (for appellants)



Considered and decided by Crippen, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge. 

U N P U B L I S H E D   O P I N I O N



            In denying summary judgment under Minn. R. Civ. P. 103.03(h), the trial court certified for appeal the question of whether the “voluntary payment doctrine” bars cable television subscribers from recouping administrative late fees they paid to their cable television company.  Because we conclude that the question was not a proper one for certification, we dismiss this appeal. 


            Respondents Susan Hanson, Jim and Anita Tollefson, and Mike and Jan Pray were subscribers to the cable television service offered by appellants’ cable television companies.  Appellant TCI Communications, Inc., with its main offices located in Englewood, Colorado, is a national operator of cable television franchises.  TCI operates its cable business in Minnesota through various affiliated corporations, including appellants TCI Cablevision of Minnesota, Inc., Westmarc Cable Holdings, Inc., Northern Video, Inc., and TCI Southern Minnesota, Inc.[1]

            TCI’s notices and invoices informed customers that they would be charged a $3 administrative fee if they failed to pay their bills within a stated period of time.  Also, at the time of cable installation and in annual billing enclosures, respondents were notified:

If you do not pay your bill by the due date, you agree to pay us an administrative fee for late payment.  The administrative fee is intended to be a reasonable advance estimate of our costs which result from customers’ late payments and non-payments.  Other fees and charges may also be assessed by your local cable system.


We do not anticipate that you will pay your bill late and the administrative fee is set in advance because it would be difficult to determine costs associated with any one particular payment.  We do not extend credit to customers and the administrative fee is not interest, a credit service charge or a finance charge.


            Respondent subscribers paid their TCI cable television bills late from time to time and were assessed $3 administrative late fees.  Respondents initially paid those late fees without seeking a refund or waiver.  But in December 1997, they filed a class action lawsuit on behalf of themselves and others similarly situated against TCI to recover the administrative late fees paid and other damages, and to obtain injunctive and declaratory relief.  The essence of their claims was that the late fees did not bear any reasonable relationship to TCI’s actual costs incurred in processing the late payments, and, therefore, was an unconscionable penalty.  The complaint asserted four causes of action:  (1) the administrative fee for late payment constituted unlawful liquidated damages; (2) the administrative fee was an unauthorized liquidated damages provision under Minn. Stat. § 336.2-718(1) (1998); (3) TCI committed “constructive fraud” by misrepresenting the nature of the administrative fee in notices to subscribers; and (4) TCI violated the Minnesota Prevention of Fraud Act by misrepresenting the nature of the administrative fee in notices to subscribers. 

            Respondents moved to certify a statewide class of cable television subscribers who had been assessed and had paid the administrative late fees.  TCI opposed certification and moved for summary judgment on all remaining counts, asserting that the voluntary payment doctrine barred recovery of payments made by subscribers with knowledge of the material facts.  In an order filed January 31, 2000, the trial court (1) granted respondents’ motion for class certification; and (2) denied TCI’s motion for summary judgment.  On March 28, 2000, however, the trial court filed an order certifying as “important and doubtful” the question of whether the voluntary payment doctrine “bar[s] a cable television subscribers’ claims for the recoupment of $3.00 administrative fees paid to his cable company for untimely payment.” 


            As a preliminary matter, this court must determine whether the question was proper for certification.  Minn. R. Civ. P. 103.03(h) provides that an appeal may be taken

if the trial court certifies that the question presented is important and doubtful, from an order which denies a motion to dismiss for failure to state a claim upon which relief can be granted or from an order which denies a motion for summary judgment.


Thus, review of certified questions is proper only when the trial court enters an order denying a motion to dismiss for failure to state a claim or for summary judgment.  Emme v. C.O.M.B., Inc., 418 N.W.2d 176, 179 (Minn. 1988).  The trial court must certify that the question is both important and doubtful.  Minn. R. Civ. P. 103.03(h).  This court may not issue advisory opinions in answering certified questions.  Id. at 180.

            “A question should be certified only in the most compelling situation.”  Massie v. City of Duluth, 425 N.W.2d 858, 860 (Minn. App. 1988), review denied (Minn. Sept. 16, 1988).  The standard for a certified question as detailed “in Emme must be strictly followed.”  Id.  This court must independently decide whether a certified question is important and doubtful.  National City Bank v. Lundgren, 435 N.W.2d 588, 590 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989).  Where the trial court errs in certifying a question, this court must dismiss the appeal.  See Proprietors Ins. Co. v. Cohen, 451 N.W.2d 904, 906 (Minn. App. 1990) (appellate court dismissed appeal where certified question was not important and doubtful).       

Emme provides factors to consider in determining whether a question is “important.”  A question is increasingly important if:  (1) it will have statewide impact, (2) it is likely to be reversed, (3) it will terminate lengthy proceedings, and (4) the harm inflicted on the parties by a wrong ruling by the district court is substantial.  Conversely, the question is decreasingly important if:  (1) it is likely to be affirmed, (2) it is likely that trial will moot the issue, (3) reversal of the question will not terminate the action, and (4) reversal of the question will not relieve the parties of any significant burden.


Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 884 (Minn. 2000) (citations omitted); see also Emme, 418 N.W.2d at 180 (explaining meaning of “important”).

            Considering these factors, we believe that the question certified is important.  Resolution of the case by a reversal, with an order to enter summary judgment in favor of TCI, would likely preclude a very lengthy and expensive class action trial.  Moreover, answering the certified question would likely have statewide impact, as it is not dependent on specific facts and would probably affect many typically situated service subscribers who have paid late fees and want to sue their service provider to recoup those fees.

            In addition to being “important,” however, the certified question must also be “doubtful.”  Minn. R. Civ. P. 103.03(h).  A question is “doubtful” only if there is no controlling precedent.  Jostens, 612 N.W.2d at 884; Emme, 418 N.W.2d at 179.

That the question is one of first impression is not, however, of itself sufficient to justify certification as doubtful; the question should be one on which there is substantial ground for a difference of opinion.


Jostens, 612 N.W.2d at 885 (quoting Emme, 418 N.W.2d at 180).

            We conclude that the certified question here is not doubtful.  First, there is controlling precedent.  The voluntary payment doctrine is a long-standing doctrine of law, which clearly provides that one who makes a payment voluntarily cannot recover it on the ground that he was under no legal obligation to make the payment.  See Thomas Peebles & Co. v. Sherman, 148 Minn. 282, 284, 181 N.W. 715, 716 (1921) (applying voluntary payment doctrine).  More than one hundred years ago, in Joannin v. Ogilvie, 49 Minn. 564, 566-67, 52 N.W. 217, 217 (1892), the supreme court discussed the voluntary payment rule and possible exceptions to it:

The rule is that money paid voluntarily, with full knowledge of the facts, cannot be recovered back.  If a man chooses to give away his money, or to take his chances whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice.  In Fargusson v. Winslow, 34 Minn. 384, 25 N.W. Rep. 942, this court held that “When one in order to recover possession of his personal property from another, who unjustly detains it, is compelled to pay money which is demanded as a condition of delivery, such payment, when made under protest, is deemed to have been compulsorily or under duress, and may be recovered back, at least when such detention is attended with circumstances of hardship or of serious inconvenience to the owner.”  Again, in De Graff v. Ramsey Co., 46 Minn. 319, 48 N.W. Rep. 1135, it was said: “There is a class of cases where, although there be a legal remedy, a person’s situation, or the situation of his property, is such that the legal remedy would not be adequate to protect him from irreparable prejudice; where the circumstances and the necessity to protect himself or his property otherwise than by resort to the legal remedy may operate as a stress or coercion upon him to comply with the illegal demand.  In such cases, his act will be deemed to have been done under duress, and not of his free will.


(Citation omitted.)  Because controlling precedent exists, the certified question before us is doubtful only in a narrow sense:  how does the existing law regarding the voluntary payment doctrine apply to the specific facts of this case?

            Second, even if we were to find that the certified question is one of first impression, we would still have to conclude that the question is not doubtful.  TCI contends that the voluntary payment doctrine bars respondents’ suit to recoup the late fees they paid.  Respondents do not dispute the applicability of the voluntary payment doctrine to cases where subscribers sue to recoup late fee payments.  Rather, they assert that the voluntary payment doctrine does not bar their suit because (1) they were not aware of all the material facts when they made their payments; and (2) they were forced to make involuntary payments under the duress that failure to pay the administrative fees would result in disconnection of their cable service.  Although the parties have diverse views as to whether the voluntary payment doctrine is applicable as a defense in this case, those views are based on the specific facts of the case; they do not make a question doubtful under Emme

            Because the doubtful requirement of Emme is not met in this case, we decline to answer the certified question and we dismiss this appeal.

            Appeal dismissed.


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

[1]  Since appellants are affiliated with each other, for purposes of the opinion, all appellants will be referred to as TCI.