author: NEUMANN, Justice.

text:
    2003 ND 111
    STATE of North Dakota, Plaintiff and Appellee, v. Charles E. DIMMITT, Defendant and Appellant.
    No. 20030018.
    Supreme Court of North Dakota.
    July 16, 2003.

      John P. Van Grinsven, III, State’s Attorney, Minot, N.D., for plaintiff and appellee.
    Faron E. Terry, Minot, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Charles Edwin Dimmitt appealed from a district court order denying his motion to withdraw his guilty plea to the offense of gross sexual imposition. We hold the district court violated N.D.R.Crim.P. 11(d)(1) by participating in plea negotiation discussions and the State failed to make the negotiated sentence recommendation, resulting in confusion and a manifest injustice in the sentencing process. We, therefore, reverse the order denying Dimmitt’s motion to withdraw his guilty plea and remand for a change of judge and further proceedings.

I

[¶ 2] Dimmitt was charged with class B felony gross sexual imposition, in violation of N.D.C.C. §§ 12.1 — 20—03(l)(d) and 12.1-20-03(2)(a), for engaging in sexual acts with his adopted daughter, age 13. Dim-mitt entered a plea of not guilty at his October 1, 2001 preliminary hearing. The State and Dimmitt’s defense attorney entered into plea negotiations and tentatively agreed the State would recommend Dim-mitt be sentenced to five years imprisonment, with all five years suspended, except for time served, and that Dimmitt would serve a probation period of five years. However, Dimmitt’s attorney was concerned that the judge would not accept the recommendation, and in March 2002 the State’s attorney and Dimmitt’s attorney met with the judge who would be sentencing Dimmitt and discussed the plea negotiations.

[¶ 3] On April 17, 2002, Dimmitt went before a different judge to change his plea to guilty. Dimmitt’s attorney told the court his client’s change of plea was based upon an open plea recommendation from the State that Dimmitt would get five years imprisonment which would be suspended for time served and that he would also be sentenced to five years of probation. The court responded:

I did inform him of the maximum penalty and I didn’t go beyond that to explain that even though the State might recommend something and you recommend something that the court is not bound by those recommendations. And that the court could impose anything up to the maximum. The reason I didn’t go into that I am not sure that I will be the sentencing judge.

[¶ 4] Three months later, at the sentencing proceedings on July 22, 2002, before the judge with whom plea negotiations had been discussed, the State recommended Dimmitt be sentenced to ten years imprisonment but that he be given credit for time served and the balance be suspended for a five-year period. This recommendation did not comport with the negotiated plea, but Dimmitt’s counsel did not object to it:

As to the plea recommendation by the State, we would concur with that. I know this is a rather unusual situation. However, if the Court does recall me and Mr. Mattson did sit down with the Court and explain to you the circumstances of this case. You were hesitant to even consider the recommendation at first. However, you said if there was a letter from the mother saying that she concurred in the sentencing that the Court would go with it. So that’s why the letter was prepared and that’s why the letter was presented to the Court.

Later in the proceedings the court imposed sentence upon Dimmitt different from the open plea recommendation:

The parties here have submitted to the court an open plea agreement which I will accept in part but not totally. I will sentence him to ten years with the Department of Corrections. He will be given credit for time served. I will direct that a nursing home assessment and medical assessment of the defendant be made early on in his period of incarceration. ... It is my observation that with his health problems that the State will do the nursing home assessment very quickly and they will move him into a situation where he can be housed safely and his health needs can be attended to and the community will be safe. There will be no suspended part of this sentence. Anything else from the State?
MR. MATTSON: No.
THE COURT: Defense?
MR. TERRY: Is it my understanding he is getting ten years with no time suspended?
THE COURT: That’s right.
MR. TERRY: What about us conferring with the Court in your office and you basically telling us if the mom agreed you would go along with it?
THE COURT: I am aware of that. The mom did agree. That changed. There is not going to be any suspended sentence. If it is going to be suspended the parole board can handle that. Thank you.

[¶ 5] Dimmitt moved to withdraw his guilty plea under N.D.R.Crim.P. 32(d). At the October 30, 2002, motion hearing Dim-mitt’s counsel discussed the plea negotiations:

I relayed to my client and he relied on me that we had had this discussion in chambers and after this discussion I believed the Court was going to accept it with a letter from [the victim’s mother].... Mr. Dimmitt relied on what I told him. I relied on what the Court had told me. I understand that the Court didn’t have to accept the plea agreement but the thing was we did discuss it with you and we did sit down and the Court did say to us that it was willing to go with the recommendations.

Later in the proceedings, the court and Dimmitt’s counsel had the following exchange:

THE COURT: I don’t recall saying I . would go with it.
MR. TERRY: I may be wrong. I thought the Court said, “I will go with it if you get something from the mother.” But for the Court then to get the recommendation and then to pop with ten years, literally nine and a half years above what the recommendation was, that I feel is manifestly unjust.

After the hearing the court denied the motion and Dimmitt filed this appeal. ■

II

A.

[¶ 6] Dimmitt asserts the district court erred in denying his motion to withdraw his plea of guilty. Under N.D.R.Crim.P. 32(d)(1) the court must grant the defendant’s timely motion for withdrawal of a guilty plea if the defendant proves withdrawal is necessary to correct a manifest injustice. The determination of a manifest injustice is ordinarily within the trial court’s discretion, and will be reversed on appeal only for an abuse of discretion. State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Id. The defendant has the burden of proving withdrawal is necessary to correct a manifest injustice. State v. Thompson, 504 N.W.2d 315, 319 (N.D.1993).

B.

[¶ 7] Dimmitt asserts a manifest injustice occurred when the district court participated in plea negotiations. A manifest injustice may result from procedural errors by the sentencing court. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524. To demonstrate a manifest injustice under these circumstances, Dimmitt must show his guilty plea resulted from the influence or confusion caused by the trial court’s involvement in the plea negotiations. The trial judge acknowledged having discussions about the plea negotiations with the State’s attorney and Dimmitt’s counsel. Dimmitt’s counsel asserts that his client was misled by the negotiation process in which the court involved itself and that his client pled guilty believing the trial judge had agreed to accept the negotiated sentence. The colloquy between the court and Dimmitt’s counsel at the sentencing supports this assertion and shows the court’s involvement created confusion and may have influenced Dimmitt to plead guilty. After the judge sentenced Dim-mitt, his counsel immediately said to the court, “[w]hat about us conferring with the Court in your office and you basically telling us if the mom agreed you would go along with it?” The court responded, “I am aware of that- The mom did agree. That changed. There is not going to be any suspended sentence.” The confusion created by the court’s involvement in the negotiations is obvious from those remarks.

[¶ 8] This case is in some ways similar to the circumstances in Farrell, 2000 ND 26, ¶ 18, 606 N.W.2d 524, wherein the defendant agreed during negotiations to plead guilty to a forgery charge in exchange for the State dropping a burglary charge and making a nonbinding sentence recommendation. When the judge imposed a more harsh sentence it was clear from the record the defendant was confused by the court’s action. We held the result was manifest injustice entitling the defendant to withdraw his guilty plea:

Immediately after the trial court pronounced sentence, Farrell was confused and told the court he thought he would be able to withdraw his guilty plea if the recommended sentence was not accepted. Only then did the trial court explain the difference between nonbinding sentence recommendations and binding plea agreements. Farrell’s confusion and his immediate objection call into question whether his plea was voluntary; on this record we cannot conclude it was.
Because the record shows the trial court did not substantially comply with the requirements of N.D.R.Crim.P. 11(c) and Farrell did not fully understand the nature of his informal agreement for a nonbinding sentence recommendation from the State, we conclude withdrawal of Farrell’s guilty plea is necessary to correct a manifest injustice.

Id. at ¶¶ 20-21. We conclude the judge’s involvement in the plea discussions in this case caused confusion and misunderstanding by Dimmitt as to the effect of his plea, and resulted in a manifest injustice entitling Dimmitt to withdraw his guilty plea.

[¶ 9] Rule 11(d)(1), N.D.R.Crim.P., provides, “the court shall not participate” in plea agreement discussions. On this point, the federal rule is substantively identical to our rule and prohibits the court from participating in any plea discussions. Fed. R.Crim.P. 11(c)(1). The Ninth Circuit Court of Appeals in United States v. Bruce, 976 F.2d 552, 556-58 (citations omitted), explains the purpose of the rule prohibiting a judge from participating in plea discussions:

Rule 11(e)(1) simply commands that the judge not participate in, and remove him or herself from, any discussion of a plea agreement that has not yet been agreed to by the parties in open court.
The “bright-line rule” created by Fed. R-.Crim.P. 11(e)(1) bars a judge from participating in plea bargaining for three main reasons. First, such participation is prohibited because judicial involvement in plea negotiations inevitably carries with it the high and unacceptable risk of coercing a defendant to accept the proposed agreement and plead guilty.
Second, Rule 11 protects the integrity of the judicial process. “The Rule is based on the sound principle that the interests of justice are best served if the judge remains aloof from all discussions preliminary to the determination of guilt or innocence so that his impartiality.and objectivity shall not be open to any questions or suspicion when it becomes his duty to impose sentence.”
Finally, Rule 11 bars judicial participation in plea discussions in order to preserve the judge’s impartiality after the negotiations are completed. Judicial involvement detracts from a judge’s objectivity in three ways. First, “[s]uch involvement makes it difficult for a judge to objectively assess the voluntariness of the plea” eventually entered by the defendant.... Next, judicial participation in plea discussions that ultimately fail inherently risks the loss of a judge’s impartiality during trial, not only because he becomes aware of the defendant’s possible interest in pleading guilty, but also because he may view unfavorably the defendant’s rejection of the proposed agreement.... Further, involvement in plea negotiations diminishes the judge’s objectivity in post-trial matters such as sentencing and motions for a judgment of acquittal.

[¶ 10] This case demonstrates the confusion and uncertainty of the voluntariness of a guilty plea which can arise when the trial court violates the strict prohibition under N.D.R.Crim.P. 11(d)(1) from participating in the negotiation process. Unless and until the rule is changed, our courts may not do what was done in this case.

C.

[¶ 11] Another troublesome aspect in this case is the State’s failure to make the agreed upon recommendation. If the parties agree to a non-binding recommendation of sentence, the State fulfills its obligation when it makes the specified non-binding recommendation, and the trial court may impose a harsher sentence than the one recommended without allowing the defendant to withdraw the guilty plea. Peltier v. State, 2003 ND 27, ¶ 10, 657 N.W.2d 238. The State, however, recommended imposition of a ten year sentence, rather than a five year sentence, but that the sentence be suspended except for time already served. Dimmitt’s counsel did not object to the State’s noncomplying recommendation. Consequently, we review this matter only for obvious error.

[¶ 12] We cautiously exercise our power to notice obvious error only in exceptional situations in which a defendant has suffered serious injustice. State v. Entzi, 2000 ND 148, ¶ 12, 615 N.W.2d 145. To establish obvious error one must show (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Knowels, 2002 ND 62, ¶ 7, 643 N.W.2d 20. To affect substantial rights, a plain error must have been prejudicial, or have affected the outcome of the proceeding. State v. Hirschkom, 2002 ND 36, ¶ 20, 640 N.W.2d 439. Analyzing obvious error requires examination of the entire record and the probable effect of the alleged error in light of all the evidence. Id.

[¶ 13] It is not possible, under the circumstances, to know whether the sentencing judge was influenced by the State’s recommendation of a ten year, rather than a five year, term of imprisonment. The State asserts its recommendation was made inadvertently and, several weeks after the sentencing proceedings, the State requested the court to reopen the sentencing process to allow the State to make the agreed upon recommendation. The court refused to reconsider the sentence imposed.

[¶ 14] It is constitutionally impermissible to hold a defendant to his negotiated plea when the promises upon which it was based were not performed. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Considering the trial court’s impermissible involvement in the negotiation discussions, in violation of Rule 11(d)(1), together with the State’s failure to make the agreed upon recommendation, we conclude Dimmitt has shown a manifest injustice requiring that he be afforded an opportunity to withdraw his guilty plea.

Ill

[¶ 15] A remaining question is whether the case should be remanded to the sentencing judge or to another judge. The purpose of Rule 11 is not only to protect judicial neutrality but also to eliminate the coercive effect of judicial participation on plea bargaining. The Sixth Circuit Court of Appeals in United States v. Barrett, 982 F.2d 193, 196 (6th Cir.1992) (citation omitted), explains:

“Regardless of the judge’s objectivity, it is the defendant’s perception of the judge that will determine whether the defendant will feel coerced to enter a plea.” Even if the District Judge can put aside knowledge about the defendant and provide a fair hearing, the judge cannot remove the doubt from the defendant’s mind caused by his statements in this case. To cure this improper judicial participation in the plea bargaining process, then, the case must be assigned to another judge.

Even if the sentencing judge could remain impartial and act with objectivity in this case, the larger issue is whether the defendant’s perception of the judge is such that he will feel coerced to enter a particular plea. Under these circumstances, to cure an improper judicial participation in the plea bargaining process, it is appropriate to assign the case to another judge.

[¶ 16] We, therefore, reverse the order denying Dimmitt’s motion to withdraw his guilty plea and remand the case with instructions that the presiding judge assign a judge other than the original sentencing judge to conduct further proceedings in accordance with this opinion.

[¶ 17] GERALD W. VANDE WALLE, C. J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

      . Compare Fed.R.Crim.P. 11(h), "A variance from the requirements of this rule is harmless error if it does not affect substantial rights.”

      . The federal criminal procedure rule prohibiting the court from participating in plea discussions is currently codified as Rule 11(c)(1).


source: Caselaw Access Project

license: Public Domain

text:
    2003 ND 109
    JOHN T. JONES CONSTRUCTION CO., Plaintiff, Appellant and Cross-Appellee, v. CITY OF GRAND FORKS, North Dakota, Defendant, Appellee and Cross-Appellant.
    No. 20020195.
    Supreme Court of North Dakota.
    July 16, 2003.
    Rehearing Denied Aug. 20, 2003.

      Thomas R. Olson (argued) and Brian J. Wisdorf (on brief), Olson & Price, Ltd., St. Paul, MN, and Patrick W. Fisher (on brief), Fisher & Olson, Grand Forks, N.D., Michael Francis Daley (appeared), Wheeler Wolf, Bismarck, N.D., for plaintiff, appellant and cross-appellee.
    Ronald F. Fischer (argued), Pearson Christensen, Grand Forks, N.D., and Howard D. Swanson (appeared), City Attorney, Grand Forks, N.D., for defendant, appellee and cross-appellant.
   NEUMANN, Justice.

[¶ 1] John T. Jones Construction Company (“Jones”) appealed, and the City of Grand Forks cross-appealed, from a judgment adopting an arbitrator’s findings, conclusions and order in Jones’s breach of contract action against the City. Because judicial review of the arbitrator’s decision is governed by the provisions of the Uniform Arbitration Act, N.D.C.C. ch. 32-29.2, and none of the issues presented in this appeal were raised in the district court, we affirm the judgment.

I

[¶ 2] In November 1998, the City awarded Jones a $6,792,000 construction contract for expansion of its wastewater treatment plant. Jones submitted its winning bid for the project based on the plans and specifications prepared for the City by KBM, Inc., and a visit to the construction site by company representatives. The construction contract required the work be substantially completed by November 15, 1999, and provided that substantial completion and final completion dates “are of the essence of the Contract.” The contract also contained a liquidated damages clause requiring the contractor to pay the City “$800.00 for each day that expires after the time” specified for substantial completion. Jones encountered soft soils at the construction site which eventually began heaving. Soil also sloughed from the side slopes of the excavation, and Jones claimed the sloughing resulted from unanticipated soil conditions. Jones did not substantially complete work on the project until March 20, 2000.

[¶ 3] After various change orders were approved that both increased and decreased the contract amount, the City paid Jones $6,672,190.74. Jones requested an additional $191,570.59 from the City, claiming the sloughing resulted from changed conditions at the site and caused project delays and additional costs. The City refused to pay the additional amount, claiming the sloughing was caused by improper construction techniques employed by Jones. In May 2000, Jones sued the City for breach of contract. The City counterclaimed, alleging Jones’s work did not meet contract specifications and seeking liquidated damages for failure to meet the contractual time limits.

[¶ 4] In April 2001, the parties entered into, and the trial court signed, a “Stipulation and Order for Restricted Arbitration.” The parties agreed to submit their disputes to arbitration, and set forth the procedure that would be followed. The parties agreed that the arbitration proceedings would be governed by the North Dakota Rules of Civil Procedure and the North Dakota Rules of Evidence, and that the arbitrator “shall make a reasoned and written determination as to liability and damages that conforms to the substantive law of the State of North Dakota.” The parties further agreed that the arbitrator’s “decision [would be] entered as an appeal-able judgment in Grand Forks County District Court, subject to appeal to the North Dakota Supreme Court,” and that the arbitrator’s

decision will be subject to appeal to the North Dakota Supreme Court based on the following standards of review:
Issue of Fact: Clearly erroneous
Issue of Law: de novo review based upon the same substantive law as stated above

[¶ 5] Following an 8-day hearing, a private arbitrator issued a 33-page decision ruling Jones was not entitled to additional compénsation or an extension of the contract time under the differing site conditions clause of the contract because Jones had failed to establish the conditions at the site “were an unknown physical condition, were of an unusual nature, or that these conditions differed materially from those ordinarily encountered ...” The arbitrator further ruled the City was entitled to recover liquidated damages under the contract and damages for Jones’s deviation from plans and specifications. After deducting the City’s damages from the amount Jones claimed was due under the contract, the arbitrator ordered the City to pay Jones $66,043.22 plus interest. The arbitrator ruled each party would bear its own costs, disbursements and attorney fees.

[¶ 6] Under the Stipulation and Order for Restricted Arbitration, the trial court ordered entry of judgment in accordance with the arbitrator’s findings, conclusions and order. Jones appealed the judgment to this Court, claiming the arbitrator erred as a matter of law in ruling Jones did not provide sufficient evidence of a differing site condition. The City cross-appealed, claiming the arbitrator erred in failing to award the City its costs, disbursements, expert fees and attorney fees.

II

[¶ 7] Jones argues we should apply a de novo standard of review in this case because the issues raised involve questions of law. The City argues we should apply the clearly erroneous standard of review under N.D.R.Civ.P. 52(a) to the disputed questions of fact and the de novo standard of review to the disputed questions of law, as set forth in the parties’ agreement. Both parties contend the standard of review for vacating an arbitration award provided in the Uniform Arbitration Act, N.D.C.C. ch. 32-29.2, does not apply because the trial court approved their Stipulation and Order for Restricted Arbitration and because this case does not involve compelled arbitration.

[¶ 8] The validity of arbitration agreements is recognized by N.D.C.C. § 32-29.2-01, which provides:

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract. Sections 32-29.2-01 through 32-29.2-20 also apply to arbitration agreements between employers and employees or between their respective representatives unless otherwise provided in the agreement.

(Emphasis added.) Although the first sentence of N.D.C.C. § 32-29.2-01 does not specifically state a written agreement to arbitrate is governed by N.D.C.C. ch. 32-29.2, the second sentence of the statute states the chapter “also” applies to agreements between employers and employees. The only logical interpretation of the statute is that N.D.C.C. ch. 32-29.2 applies not only to compelled arbitration, but applies to a written agreement to submit any existing controversy to arbitration.

[¶ 9] Under N.D.C.C. § 32-29.2-11, a court must confirm an arbitration award unless there are grounds for vacating, modifying or correcting the award. The statutory grounds for vacating an arbitration award are set forth in N.D.C.C. § 32-29.2-12(1):

1. On application of a party, the court shall vacate an award if:
a. The award was procured by corruption, fraud, or other undue means;
b. There was evident partiality by an arbitrator appointed as a neutral, corruption in any of the arbitrators, or misconduct prejudicing the rights of any party;
c. The arbitrators exceeded their powers;
d. The arbitrators refused to postpone the hearing after sufficient cause was shown to postpone it or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to section 32-29.2-05, as to prejudice substantially the rights of a party; or
e. There was no arbitration agreement and the issue was not adversely determined in proceedings under section 32-29.2-02 and the party did not participate in the arbitration hearing without raising the objection.
The fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award.

We will vacate an arbitration award under N.D.C.C. § 32 — 29.2—12(l)(c) only if it is completely irrational, in that the decision is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud. Superpumper, Inc. v. Nerland Oil, Inc., 2003 ND 33, ¶ 13, 657 N.W.2d 250. An arbitrator’s mistake as to fact or law is not a sufficient ground for overturning an arbitration award. Id. The public policy underlying the limited judicial review of arbitration awards is stated in Scherbenske Excavating, Inc. v. North Dakota State Highway Dep’t, 365 N.W.2d 485, 489 (N.D.1985):

Obviously, the effect of applying the clearly irrational standard of review is to give to the arbitrators every benefit of every doubt. It affords them the widest latitude to exercise their authority and arrive at their decision without the customary restraints of traditional judicial review. It is but a reflection of the strong public policy favoring the arbitration process.

[¶ 10] We have said that “[ajrbitrators, acting under the authority granted to them by a contract or statute, unless expressly limited by the terms of the contract or statute, are the judges of both the law and the facts.” State v. Gratech Co., Ltd., 2003 ND 7, ¶ 12, 655 N.W.2d 417. We have not addressed whether parties to an arbitration agreement may contract for a heightened judicial standard of review for an arbitration award that differs from the statutory grounds for vacatur.

[¶ 11] Under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, the federal courts are split on whether parties can contractually expand the judicial standard of review of an arbitration award. Some federal courts, relying on the United States Supreme Court’s holding in Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248,103 L.Ed.2d 488 (1989) that the federal act requires courts to enforce arbitration agreements “like other contracts, in accordance with their terms,” have allowed parties to contract for higher standards of judicial review. See Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287, 293 (3rd Cir.2001) (holding “parties may opt out of the FAA’s off-the-rack vacatur standards and fashion their own”); LaPine Tech. Corp. v. Kyocera Corp., 130 F.3d 884, 889 (9th Cir.1997) (holding “[fjederal courts can expand their review of an arbitration award beyond the FAA’s grounds, when (but only to the extent that) the parties have so agreed”); Gateway Tech., Inc., v. MCI Telecomm. Corp., 64 F.3d 993, 997 (5th Cir.1995) (footnote omitted) (holding “[b]ecause these parties contractually agreed to expand judicial review, their contractual provision supplements the FAA’s default standard of review and allows for de novo review of issues of law embodied in the arbitration award”).

[¶ 12] Other federal courts have disagreed with the ability of parties to contractually expand judicial review of arbitration awards. See Bowen v. Amoco Pipeline Co., 254 F.3d 925, 937 (10th Cir.2001) (holding “parties may not contract for expanded judicial review of arbitration awards”); UHC Mgmt. Co. v. Computer Sciences Corp., 148 F.3d 992, 997 (8th Cir.1998) (stating, in dicta, although parties may choose to be governed by whatever rules they wish regarding how an arbitration itself will be conducted, “[i]t is not clear ... that parties have any say in how a federal court will review an arbitration award when Congress has ordained a specific, self-limiting procedure, for how such a review is to occur”); Chicago Typographical Union v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1505 (7th Cir.1991) (stating “[i]f the parties want, they can contract for an appellate arbitration panel to review the arbitrator’s award. But they cannot contract for judicial review of that award; federal jurisdiction cannot be created by contract”); Bargenquast v. Nakano Foods, Inc., 243 F.Supp.2d 772, 776 (N.D.Ill.2002) (holding “parties may not contractually expand the scope of judicial review of arbitration awards”).

[¶ 13] State courts “have generally held that the parties may not provide in their agreement for court involvement not authorized by the particular state’s arbitration act.” 21 R. Lord, Williston on Contracts § 57:130, at p. 638 (4th ed.2001). For example, in Chicago SouthShore and S. Bend R.R. v. Northern Indiana Commuter Transp. Dist., 289 Ill.App.3d 533, 224 Ill.Dec. 595, 682 N.E.2d 156, 159 (1997), reversed on other grounds, 184 Ill.2d 151, 234 Ill.Dec. 395, 703 N.E.2d 7 (1998), the court, interpreting the Illinois version of the Uniform Arbitration Act, stated:

Subject matter jurisdiction gives the right to hear and determine causes. The subject matter jurisdiction of the trial court to review an arbitration award is limited and circumscribed by statute. The parties may not, by agreement or otherwise, expand that limited jurisdiction. Judicial review is limited because the parties have chosen the forum and must therefore be content with the informalities and possible eccentricities of their choice.

(Citations omitted.) In Brucker v. McKinlay Transp., Inc., 454 Mich. 8, 557 N.W.2d 536, 540 (1997), the court, construing the Michigan version of the Uniform Arbitration Act, said:

In'locating an alternative means of dispute resolution, the parties are generally free to craft whatever method they choose. All sorts of private conciliation, mediation, and arbitration devices are available. What parties are-not able to do, however, is reach a private agreement that dictates a role for public institutions.

See also Oakland-Alameda County Coliseum Auth. v. CC Partners, 101 Cal.App.4th 635, 124 Cal.Rptr.2d 363, 370-71 (2002) (holding “parties to an arbitration agreement cannot contractually expand the scope of judicial review beyond that provided by statute”); Crowell v. Downey Cmty. Hosp. Found., 95 Cal.App.4th 730, 115 Cal.Rptr.2d 810, 817 (2002) (holding “[b]ecause the Legislature clearly set forth the trial court’s jurisdiction to review arbitration awards when it specified grounds for vacating or correcting awards ..., we hold that the parties cannot expand that jurisdiction by contract to include a review on the merits”); Dick v. Dick, 210 Mich. App. 576, 534 N.W.2d 185, 191 (1995) (holding, by agreeing to permit appeal of substantive issues, the “parties have attempted to create a hybrid form of arbitration. However, we find no authority for it. Rather, we conclude that, having invoked binding arbitration, the parties are required to proceed according to the applicable statute and court rule”); but see Maluszewski v. Allstate Ins. Co., 34 Conn. App. 27, 640 A.2d 129, 132 (1994) (stating “[i]f the parties engaged in voluntary, but restricted, arbitration, the trial court’s standard of review would be broader depending on the specific restriction,” and if the restriction is that the arbitrator’s award must conform to the law, the court would be bound to enforce the restriction).

[¶ 14] It is interesting to note that the drafters of the Revised Uniform Arbitration Act, adopted in 2000, voted to exclude from the Act a provision allowing parties to contract for expanded judicial review:

The negative policy implications and the uncertain ease law outlined above were substantial reasons why the Committee of the Whole adopted a sense-of-the-house resolution at the July, 1999, meeting of the National Conference of Commissioners on Uniform State Laws not to include expanded judicial review through an opt-in provision. This decision not to include in the RUAA a statutory sanction of expanded judicial review of the “opt-in” device effectively leaves the issue of the legal propriety of this means for securing review of awards to the developing case law under the FAA and state arbitration statutes.

Revised Uniform Arbitration Act § 23, Comment B, 7 Uniform Laws Annotated 47 (Part I, 2003 Cumulative Annual Pocket Part).

[¶ 15] We agree with the courts that hold parties to an arbitration agreement cannot contractually expand the scope of judicial review beyond that provided by statute. The Uniform Arbitration Act, N.D.C.C. ch. 32-29.2, provides the sole means for securing judicial review of an arbitration award in the courts of this state, and its provisions must be followed. See N.D.C.C. § 32-29.2-17 (stating the “making of an agreement described in section 32-29.2-01 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under sections 32-29.2-01 through 32-29.2-20 and to enter judgment on an award under the agreement”). When parties to an arbitration agreement seek judicial review of an award, a court may vacate or modify an award only if one of the grounds set forth in N.D.C.C. §§ 32-29.2-12 or 32-29.2-13 is present, regardless of what the arbitration agreement may specify. See N.D.C.C. § 32-29.2-11. We conclude the completely irrational standard is the appropriate standard of review in this ease.

Ill

[¶ 16] Under N.D. Const. Art. VI, § 6, “[ajppeals shall be allowed from decisions of lower courts to the supreme court as may be provided by law.” Section 32-29.2-11, N.D.C.C., provides that “[o]n application of a party, the court shall confirm an award, unless, within the time limits imposed by sections 32-29.2-01 through 32-29.2-20, grounds are urged- for vacating or modifying or correcting the award, in which case the court shall proceed as provided in sections 32-29.2-12 and 32-29.2-13.”

[¶ 17] In this case, neither party applied to the district court to vacate or modify the arbitration award. Under the Stipulation and Order for Restricted Arbitration, the parties agreed the arbitrator’s decision would be “entered as an appeal-able judgment ... subject to appeal to the North Dakota Supreme Court.” In effect, both parties sought confirmation of the arbitrator’s award.

[¶ 18] On the granting of an order confirming an award, a “judgment or decree must be entered in conformity with the order and be enforced as any other judgment or decree.” N.D.C.C. § 32-29.2-14. Under N.D.C.C. § 32-29.2-19(l)(c) and (2), parties may appeal to this Court from an order confirming an award, and the “appeal must be taken in the manner and to the same extent as from orders or judgments in a civil action.” “It is axiomatic that an issue or contention not raised or considered in the lower court cannot be raised for the first time on appeal from judgment.” Bard v. Bard, 380 N.W.2d 342, 344 (N.D.1986). The Uniform Arbitration Act, N.D.C.C. ch. 32-29.2, does not give this Court authority to review an arbitration award that has not been subject to review in the district court. Because the parties neither raised nor preserved any issues in the district court, we are unable to review the issues on the merits of the arbitration award raised by the parties on appeal. Consequently, under N.D.C.C. § 32-29.2-11, we must affirm.

IV

[¶ 19] The judgment is affirmed.

[¶ 20] GERALD W. VANDE WALLE, C. J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

      . The 58th Legislative Assembly passed S.B. 2061, which substantially adopts the Revised Uniform Arbitration Act (2000) and repeals N.D.C.C. ch. 32-29.2 effective August 1, 2003. See 2003 N.D. Sess. Laws ch. 280. Section 3 of the Act provides:
      1. This Act governs an agreement to arbitrate made after July 31, 2003.
      2. This Act governs an agreement to arbitrate made before August 1, 2003, if all the parties to the agreement or to the arbitration proceeding so agree in a recor.d.
      3.After July 31, 2005, this Act governs an agreement to arbitrate whenever made. Until August 1, 2005, chapter 32-29.2, as it existed on July 31, 2003, applies to agreements made after June 30, 1987.


author: KAPSNER, Justice. SANDSTROM, Justice,

text:
    2003 ND 121
    Liliam GONZALEZ, Plaintiff and Appellee, v. Jessica TOUNJIAN, Defendant, and Dolund Partnership, L.L.P., Defendant and Appellant.
    No. 20020263.
    Supreme Court of North Dakota.
    July 18, 2003.

      Daniel J. Dunn (argued), Maring Williams Law Office, Fargo, N.D. and Anthony J. Weiler (appeared), Maring Williams Law Office, Bismarck, N.D., for plaintiff and appellee.

      Paul R. Oppegard (argued) and Corey J. Quinton (appeared), Smith Bakke Oppe-gard Porsborg Wolf, Moorhead, MN, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Dolund Partnership, L.L.P. (“Do-lund”) has appealed from a judgment, an order denying a motion to vacate the judgment, and an order denying a motion for a new trial in a negligence action arising out of an apartment fire. We affirm in part, reverse in part, and remand for entry of judgment in accordance with this opinion.

I

[¶ 2] Dolund owned an apartment building in downtown Fargo. Liliam Gonzalez and her daughter, Betsy, lived in the building. At approximately 7:50 a.m. on March 14, 1997, a fire, caused by an unattended candle, started in a neighboring apartment occupied by Jessica Tounjian. Betsy heard loud footsteps in the hallway and, upon opening the apartment door, saw thick smoke. Betsy told her mother there was a fire and ran out of the apartment toward the exit.

[¶ 3] Gonzalez followed Betsy toward the exit but her path was blocked by a metal “roll down” fire door which had dropped down in the hallway. The door was described as similar to a roll-top desk, suspended in the ceiling. The door is triggered by a fusable link which activates if the temperature reaches 180 degrees. Once the temperature is reached, the link releases and the metal door drops down to block the spread of the fire to other parts of the building.

[¶4] Gonzalez claims she had never seen the fire door before, and had never been told or warned about it by Dolund. She claims she tried in vain to open the door, but did not know how to operate it. She attempted to enter a nearby apartment but could not find the door because of the thick smoke in the hallway. Gonzalez was overcome by smoke and collapsed approximately ten feet from the fire door.

[¶ 5] Gonzalez was rescued by firefighters and taken to the. hospital. She had suffered serious burns on fifteen percent of her body and had second degree burns of her airway. She was transferred to a regional burn center by air ambulance. Ultimately, Gonzalez had skin grafts on her arms, hands, and fingers, and had numerous surgeries to improve scarring on her shoulders.

[¶ 6] Gonzalez sued Tounjian and Do-lund. Gonzalez settled her claims against Tounjian, and the case against Dolund was tried to a jury. The jury found that Do-lund was 85 percent at fault and Tounjian 15 percent at fault for Gonzalez’s injuries. The jury determined Gonzalez had sustained $285,000 in past economic damages and $1,500,000 in past noneconomic damages, and that she would have $650,000 in future economic damages and $500,000 in future noneconomic damages. The jury also awarded interest on her damages at the rate of 3.5 percent annually. The trial court reduced the damages to account for Tounjiaris percentage of fault, added costs, disbursements, and interest, and entered judgment in the amount of $2,988,099.34. Dolund’s post-trial motions to vacate the judgment and for a new trial were denied, and Dolund has appealed.

II

[¶ 7] Dolund argues the trial court applied an incorrect premises liability standard, thereby denying Dolund a fair trial.

A

[¶8] Dolund, citing Restatement (Second) of Torts § 358 (1965) and Capsco Prods., Inc. v. Savageau, 493 N.W.2d 650 (N.D.1992), contends North Dakota law does not impose liability upon a landlord for dangerous conditions on leased premises unless the landlord knows or has reason to know of the dangerous condition. Section 358 of the Restatement provides, in pertinent part:

Undisclosed Dangerous Conditions Known to Lessor
(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if
(a) the lessee does not know or have reason to know of the condition or the risk involved, and
(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

This Court relied upon § 358 in Capsco, holding that summary judgment was inappropriate where there was a factual dispute about the landlord’s alleged misrepresentation and concealment that the water mains in a leased building had been shut off. See also Francis v. Pic, 226 N.W.2d 654, 656-59 (N.D.1975) (applying § 358 to find fact questions existed on whether landlord knew of defective staircase in leased single-family house). Dolund maintains that it can only be held liable if Gonzalez proves it had knowledge of dangerous conditions on the premises, and the trial court’s evidentiary rulings and instructions to the jury employed an inappropriate standard of liability.

[¶ 9] Dolund’s argument ignores the distinctions made between a landlord’s duty when the injury is caused by a hidden dangerous condition in the leased premises and the landlord’s broader duty when the injury is caused by defects in common areas of the property over which the landlord retained control. Gonzalez’s theory in this case is that her injuries were caused, not by any defective or dangerous condition in her leased apartment, but by defects and dangerous conditions in the common areas of the building over which Dolund retained control. A landlord’s liability for injuries caused by conditions in common areas is governed by Restatement (Second) of Torts § 360 (1965). McCullagh v. Fortune, 76 N.D. 669, 674, 38 N.W.2d 771, 774-75 (1949). Section 360 provides:

Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use
A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

This Court relied upon § 360 in McCullagh, 76 N.D. at 674, 38 N.W.2d at 774-75 (quoting 30 Am.Jur. Landlord and Tenant § 688 (1941)), concluding:

It is well settled that where the owner of premises leases parts thereof to different tenants and either expressly or impliedly reserves certain parts thereof, such as entrances, halls, or stairways for the common use of different tenants, “it is his duty to exercise reasonable care to keep safe such parts of which he so reserves control, and if he is negligent in this regard, and a personal injury results by reason thereof to a tenant or to a person there in the right of the tenant, he is hable, provided the injury occurs while such part of the premises is being used in the manner intended.”

[¶ 10] Under this standard, a landlord has a duty to use reasonable care to discover dangerous conditions in common areas and to keep those areas safe. This is in essence the “reasonable person” standard of ordinary negligence.

[¶ 11] Dolund does not dispute that the alleged dangerous conditions which Gonzalez contends caused her injuries were located in the common areas of the building, not in the premises leased to Gonzalez. Gonzalez alleged that the fire, smoke, and heat spread quickly into the hallway because Tounjian’s hallway door did not have a self-closing device as required by the building code and the door itself was not properly fire-rated. Gonzalez further claimed the failure to install automatic sprinkler systems in the hallway, as required by the building code, allowed the fire and smoke to spread. Finally, Gonzalez argued the roll-down fire door trapped her in the smoke-filled hallway, causing her to lose consciousness and suffer severe injuries.

[¶ 12] Under the circumstances in this case, the trial court did not apply an incorrect standard of liability. The appropriate standard is that set out in McCullagh and § 360, and the standard set out in Capsco and § 358 is inapplicable. It was not necessary for Gonzalez to prove that Dolund had actual or constructive knowledge of dangerous conditions on the leased premises. Rather, because Gonzalez alleged her injuries were caused by dangerous conditions in the common areas of the building, the appropriate standard is whether Do-lund acted reasonably to discover defective and dangerous conditions and keep the common areas safe.

B

[¶ 13] AlS part of its argument that the trial court applied an incorrect premises liability standard, Dolund argues the court erroneously sustained objections to evidence offered to show that the building had been inspected annually by the Fargo Fire Department and that it was the custom and practice in the industry for apartment owners and managers to rely upon fire department inspections to identify safety concerns in their buildings. Do-lund contends this evidence would have shown it had no actual knowledge of the defects and dangerous conditions which Gonzalez alleges caused her injuries. Although we have rejected Dolund’s argument that Gonzalez was required to prove knowledge of the dangerous conditions, we will address Dolund’s evidentiary issues because this evidence would also be potentially relevant to show that Dolund acted reasonably under McCullagh and § 360. In a negligence action, customs or practices may be evidence of whether conduct meets the general standard of reasonable care under the circumstances. Doan v. City of Bismarck, 2001 ND 152, ¶ 26, 632 N.W.2d 815.

[¶ 14] We are perplexed by Dolund’s argument. Dolund argues that the trial court disallowed introduction of evidence on fire department inspections and custom and practice in the industry, and that the court “refused to allow Dolund to argue that theory to the jury.” The record demonstrates, and Dolund concedes, that numerous witnesses were allowed to testify about the annual fire department inspections of this building and that it was the custom and practice in the apartment management industry to rely upon those inspections. As for Dolund’s assertion that the court refused to allow Dolund to argue custom and practice to the jury, the record contains the following from Dolund’s counsel’s closing argument:

Now, for fire safety there was an annual fire inspection. You have heard this testimony and you have heard the question so much that I’m sure you could ask and answer these questions better than the lawyers. Fire departments are experts in fire safety. Fire departments are the policemen of the codes. I clearly proved to you that it is the custom in Fargo-Moorhead to utilize fire inspections as the basis for notice of compliance with the fire code. I called not one, I called not two, I called three witnesses on that and they all said that. Ann Springer said, well, she’s been in real estate thirteen, fourteen years. Scott Bombenger said he has been in real estate for thirteen years. Mary Larson has been in real estate for thirty years, maybe more than that. She manages hundreds — thousands of apartments in Fargo-Moorhead. That is the custom. That is how it was done.
That evidence that Dolund Partnership acted reasonably, well, take this to your own home, your own apartment, your own dorm. Judge the context of the reasonableness of that conduct by Dolund Partnership. If the fire department inspected your apartment, if the fire department inspected your home, if the fire department inspected your dormitory and they said it complied, they’re experts, they’re charged with the duty of enforcing the codes. If you — if you did whatever they said, isn’t that reasonable? That’s what the evidence has been in this case. It’s undisputed.

[¶ 15] The record demonstrates Dolund was allowed to present evidence through multiple witnesses about the annual inspections and the industry custom and practice. Dolund also was permitted to argue custom and practice in its closing. Dolund has not drawn our attention to any instance in the record where the trial court restricted Dolund’s counsel’s closing argument.

[¶ 16] The only instance cited by Do-lund where evidence regarding inspections or custom and usage was kept out was one occurrence during the cross-examination of Gonzalez’s expert witness. Dolund’s counsel asked the witness whether it is reasonable for a building owner to rely on what 'the building department told him. Gonzalez’s counsel objected to the form of the question and, after excusing the jury and discussing the relevance of the evidence, the court sustained the objection.

[¶ 17] In light of the other evidence presented on this issue, we conclude that any potential error in sustaining this single objection would be harmless under N.D.R.Civ.P. 61:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

C

[¶ 18] As part of its argument that the trial court applied an erroneous premises liability standard, Dolund argues the trial court erred in instructing the jury that ignorance of the law is not a defense. Dolund argues that under Capsco and Restatement § 358 it could only be liable for statutory or code violations of which it had knowledge, and therefore this instruction was an incorrect statement of North Dakota law. We have concluded, however, that Capsco and § 358 are inapplicable where the injuries were caused by dangerous conditions, including statutory or code violations, in the common areas of the building.

[¶ 19] The instruction challenged by Dolund stated:

KNOWLEDGE OF THE LAW
Every person is charged with knowledge of the provisions of statu[t]es, ordinances and regulations and must take notice thereof. Ignorance of the law is no excuse for failing to comply with the law.
Violation of a statute or ordinance or regulation may be considered as evidence of negligence.

[¶20] The instruction is a correct statement of North Dakota law. Every person generally is charged with knowledge of the provisions of statutes and regulations and must take notice thereof. See Berg v. Hogan, 322 N.W.2d 448, 452 n. 1 (N.D.1982); Lumpkin v. Streifel, 308 N.W.2d 878, 880 (N.D.1981). Ignorance of the law or a regulation is no excuse or defense. Berg, at 452; Lumpkin, at 880. Violation of a statutory or regulatory duty is evidence of negligence. Praus v. Mack, 2001 ND 80, ¶ 35, 626 N.W.2d 239; Wolf v. Estate of Seright, 1997 ND 240, ¶ 8, 573 N.W.2d 161.

[¶ 21] Dolund argues that, by instructing the jury that ignorance of the law is no excuse, the court converted this into a negligence per se case. The instructions, however, specifically direct that violation of a statute, ordinance, or regulation may be considered as evidence of negligence. The jury was not instructed a violation is negligence.

[¶ 22] We have summarized the trial court’s duty when instructing the jury:

Jury instructions must fairly and adequately inform the jury of the applicable law. A trial court is not required to instruct the jury in the exact language sought by a party if the court’s instructions adequately and correctly inform the jury of the applicable law. On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient.

Huber v. Oliver County, 1999 ND 220, ¶ 10, 602 N.W.2d 710 (citations omitted); see also Boser v. Hanson, 2003 ND 95, ¶ 5, 663 N.W.2d 182. We conclude the challenged instruction was a correct statement of the law and, viewed as a whole, the jury instructions fairly and adequately informed the jury of the applicable law.

Ill

[¶ 23] Dolund contends the trial court erred in admitting expert opinion testimony by Dr. David Griffin, the emergency room physician who treated Gonzalez immediately after the fire. Do-lund contends the trial court erred in allowing Dr. Griffin to testify that Gonzalez would have lost consciousness in the smoke-filled hallway within ten to fifteen seconds and that, based upon Gonzalez’s carbon monoxide levels, she suffered an organic brain injury.

[¶ 24] Introduction of expert testimony is governed by N.D.R.Ev. 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Under Rule 702, expert testimony is admissible whenever specialized knowledge will assist the trier of fact. Myer v. Rygg, 2001 ND 123, ¶ 10, 630 N.W.2d 62. Rule 702 envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which she is to testify. Hamilton v. Oppen, 2002 ND 185, ¶ 15, 653 N.W.2d 678; Myer, at ¶ 10. Whether a witness is qualified as an expert and whether the witness’s testimony will assist the trier of fact are decisions within the sound discretion of the trial court which will not be overturned on appeal absent an abuse of discretion. Hamilton, at ¶ 15; Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 837 (N.D.1995).

[¶ 25] Dolund challenges Dr. Griffin’s qualifications to testify about Gonzalez’s loss of consciousness and brain injury because he was not a fire safety expert and did not specialize in neurology. As we concluded in Myer, 2001 ND 123, ¶¶ 14-15, 630 N.W.2d 62 (citations omitted):

An expert need not be a specialist in a highly particularized field if his knowledge, training, education, and experience will assist the trier of fact. The rule does not require an expert to have a formal title or to be licensed in any particular field, but recognizes it is the witness’s actual qualifications that count by providing that an expert can be qualified by knowledge, skill, experience, training, or education.
We have previously held a trial court does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification.

[¶ 26] Dr. Griffin was an experienced emergency room physician who had treated forty to fifty patients with major burn injuries. In addition to his medical training and experience, Dr. Griffin had served as a firefighter in the National Guard for four years. He had specialized firefighting training, including fire spread principles and carbon monoxide poisoning. Under these circumstances, we conclude the trial court did not abuse its discretion in concluding Dr. Griffin was qualified as an expert to testify about Gonzalez’s loss of consciousness and brain injury.

[¶ 27] Dolund also challenges the basis for Dr. Griffin’s testimony, arguing he was not present at the scene of the fire, did not conduct neurological tests, and did not provide continuing treatment to Gonzalez after she was transferred from the emergency room. However, the weakness of the underlying basis for an expert’s opinion goes to the credibility of the testimony, not admissibility:

As we have concluded in previous appeals attacking the basis for an expert’s opinion, ordinarily weakness in an expert’s opinion affects credibility, not admissibility. The trial court decides the qualifications of the witness to express an opinion on a given topic, but it is the trier of fact whose job it is to decide the expert witness’s credibility and the weight to be given to the testimony.

Myer, 2001 ND 123, ¶ 20, 630 N.W.2d 62 (citations omitted); see also Kluck v. Kluck, 1997 ND 41, ¶ 12, 561 N.W.2d 263; Horstmeyer, 534 N.W.2d at 837. Credibility is a matter for the trier of fact, and the jury was entitled to give Dr. Griffin’s testimony as much or as little weight as the jury felt it deserved. See Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D.1985).

[¶28] We conclude the trial court did not abuse its discretion in admitting Dr. Griffin’s testimony.

IV

[¶29] Dolund contends the trial court erred in admitting into evidence an exhibit listing the prescription medications and skin care products Gonzalez was regularly using at the time of trial. The exhibit also listed the monthly and annual costs of the items. Dolund, citing Symington v. Mayo, 1999 ND 48, 590 N.W.2d 450, argues the exhibit lacked the necessary foundation because, in order to recover future medical expenses, Gonzalez would have had to present substantial evidence to establish with reasonable medical certainty that these future medical expenses were necessary.

[¶ 30] Appellate review of alleged errors in the admission of evidence is governed by N.D.R.Ev. 103, which provides in part:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....

[¶ 31] Under Rule 103, one of the requirements for an effective appeal based upon erroneous admission of evidence is that the matter has been properly raised in the trial court so the court can intelligently rule on it. In re P.A., 1997 ND 146, ¶ 13, 566 N.W.2d 422. As we explained in Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 7, 646 N.W.2d 681 (citations omitted):

A touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so the trial court could effectively rule on it. To take advantage of irregularities during trial, a party must object at the time they occur, so that the trial court may take appropriate action if possible to remedy any prejudice that may have resulted. A party’s failure to object to an irregularity at trial acts as a waiver.

We have noted that it is “fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.” Messer v. Bender, 1997 ND 103, ¶ 10, 564 N.W.2d 291 (quoting 5 Am.Jur.2d Appellate Review § 690 (1995)); see also Roise v. Kurtz, 1998 ND 228, ¶ 9, 587 N.W.2d 573. The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. Roise, at ¶ 9; Mahoney v. Mahoney, 1997 ND 149, ¶ 13, 567 N.W.2d 206.

[¶ 32] Rule 103 requires an objection on a specific ground unless the reason for the objection is apparent from the context. Scientific Application, Inc. v. Delkamp, 303 N.W.2d 71, 77 (N.D.1981). Again, the reason for requiring a specific objection is to give the trial court an opportunity to rule upon the objection:

If the administration of the exclusionary rules of evidence is to be fair and workable the judge must be informed promptly of contentions that evidence should be rejected, and the reasons therefor. The initiative is placed on the party, not on the judge. The general approach, accordingly, is that a failure to object to an offer of evidence at the time the offer is made, assigning the grounds, is a waiver upon appeal of any ground of complaint against its admission.

City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring specially) (quoting Charles McCormick, McCormick on Evidence § 52, at 200-01 (4th ed.1992)) (emphasis omitted).

[¶ 33] Dolund has not drawn our attention to any part of the record demonstrating that it objected to admission of the exhibit based upon lack of foundation because there had not been a showing that the medications and skin care products were medically necessary, or that Dolund drew the court’s attention to Symington to support its objection. Rather, the record shows a cryptic objection by Dolund when the exhibit was offered and received:

MR. DUNN: We would offer Exhibit 390.
MR. OPPEGARD: Your Honor, we have an objection and we have an understanding of how we’re going to handle that. Perhaps counsel could explain to the Court.
MR. DUNN: We’re not going to publish this yet, Your Honor, until the Court has a chance to take a look at it and consider it.
THE COURT: 390 is received.

[¶ 34] Dolund has not called our attention to any part of the record demonstrating it raised a specific objection based upon Symington or lack of foundation because there had been no showing of medical necessity. Nor was the basis of Dolund’s objection apparent from the record. On this record, we conclude Dolund waived this objection to admission of the evidence and failed to properly preserve the issue for appeal. See South v. National R.R. Passenger Corp., 290 N.W.2d 819, 838 (N.D.1980).

Y

[¶ 35] Dolund argues the trial court erred in assessing interest on damages. Dolund contends that, although the jury awarded interest on damages in its special verdict, interest on past noneconomic damages and on all future damages are not allowed as a matter of law, and the trial court should have assessed interest only on Gonzalez’s past economic damages.

[¶ 36] The special verdict in this case specifically separated past economic, past noneconomic, future economic, and future noneconomic damages, and Dolund challenged the award of interest at the trial court level. Accordingly, the question of the appropriateness of interest on each category of damages is properly before us. Cf. Kreidt v. Burlington N. R.R., 2000 ND 150, ¶ 24, 615 N.W.2d 153 (declining to address whether interest is allowable on future damages because future and past damages were not separately itemized on the special verdict form); Roise, 1998 ND 228, ¶¶ 7-11, 587 N.W.2d 573 (declining to address whether interest on future damages and past noneconomic damages was appropriate under N.D.C.C. § 32-03-05 because the parties had not raised the issue in the trial court or on appeal).

[¶ 37] Prejudgment interest in tort cases is governed by N.D.C.C. § 32-03-05. Roise, 1998 ND 228, ¶ 8, 587 N.W.2d 573. Section 32-03-05 provides:

When interest in discretion of court or jury. In an action for the breach of an obligation not arising from contract and in every case of oppression, fraud, or malice, interest may be given in the discretion of the court or jury.

Under the statute, the trier of fact, whether court or jury, has broad discretion in determining whether to award prejudgment interest. See Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, ¶ 51, 658 N.W.2d 363; Roise, at ¶ 8; Patch v. Sebelius, 349 N.W.2d 637, 643 (N.D.1984). The trier of fact abuses its discretion only if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Grinnell, at ¶ 51.

A

[¶ 38] Dolund contends that, as a matter of law, interest is not allowable on past noneconomic damages. We resolved this issue in Kreidt. Although in Kreidt we found it unnecessary to address a challenge to interest on future damages because the special verdict form did not separately itemize past and future damages, the special verdict form did separate economic and noneconomic damages. Therefore, we addressed the issue of whether interest was allowable on noneconomic damages, concluding:

While the issue of whether prejudgment interest should be awarded for non-economic damages is one for legitimate debate, our statute gives discretion to the trier-of-fact to award interest. It provides “In an action for the breach of an obligation not arising from contract and in every case of oppression, fraud, or malice, interest may be given in the discretion of the court or jury.” N.D.C.C. § 32-03-05. The plain language of the statute, see N.D.C.C. § 1-02-02, endorses no distinction between economic and non-economic damages. It leaves the question of interest up to the discretion of the judge or jury.
Some courts have decried the uncertain nature of non-economic damages. However, one thing certain about all past damages is the victim is denied recovery until judgment. The jury awarded Kreidt economic and non-economic damages, and furthermore specified six percent interest should be paid on those damages. Under the circumstances of this case, and in light of the discretion given the trier-of-fact under our statute to award interest, we decline to set aside the jury’s decision.

Kreidt, 2000 ND 150, ¶¶ 25-26, 615 N.W.2d 153 (citation omitted). Under Kreidt and N.D.C.C. § 32-03-05, interest on past non-economic damages was allowable in the discretion of the jury.

B

[¶ 39] Dolund also contends that interest should not be allowed on future damages. This Court has not previously resolved this issue. See Kreidt, 2000 ND 150, ¶ 24, 615 N.W.2d 153; Roise, 1998 ND 228, ¶ 11, 587 N.W.2d 573.

[¶ 40] There is an inherent illogic to awarding prejudgment interest on future damages. By definition, future damages are expenses which the plaintiff has not yet incurred at the time of trial, and which will only arise at some future date. Interest is ordinarily viewed as compensation for the use of money for a period of time, due when the period has passed. See N.D.C.C. § 47-14-04. This logical inconsistency between the nature of interest and the awarding of interest on future damages is explained in Dean Richard, Note, “An Award Fit for Alice in Wonderland” Texas Allows Prejudgment Interest on Future Damages: C & H Nationwide, Inc. v. Thompson, 25 Tex. Tech. L.Rev. 955, 980 (1994) (citations omitted), quoted in Roise, 1998 ND 228, ¶ 26 n. 2, 587 N.W.2d 573 (Sandstrom, J., dissenting):

Prior to judgment, prejudgment interest on future damages is unnecessary because future damages are not yet due. Prejudgment interest is designed to compensate the plaintiff for the lost use of funds to which she is entitled prior to judgment. Since past damages represent the monetary equivalent of the harm suffered from the time of injury to the date of judgment, prejudgment interest is properly awarded on past damages as a means of fully compensating the plaintiff for the lost use of those funds prior to judgment. Future damages, however, represent the monetary equivalent of harm not yet suffered, but which is expected to be suffered “from the date of judgment forward in time.” Thus, future damages are not retained by a defendant prior to judgment since such damages do not become due until the date of judgment. Accordingly, an award of prejudgment interest on future damages appears improper, because the defendant is forced to pay interest on funds not yet owed, which results in an apparent over-compensation of the plaintiff.

[¶ 41] This rationale is especially applicable when we consider that future damages must be reduced to present value. We agree with the reasoning of Justice Sandstrom in his dissent in Roise:

Under North Dakota law, future damages are discounted to present value— an award to be paid today for future damages is less than the amount which would be paid in the future when the damages are actually incurred.
Discounting is similar to interest, but it serves to reduce the amount of the award, rather than increase it. Discounting is used to determine what should be paid today to satisfy an obligation that will arise in the future. A statute allowing interest where discounting is allowed:
overcompensates plaintiffs for future losses because it permits interest to accrue on those losses from the time of [injury], yet these future losses have been discounted to the time of judgment rather than to the time of [injury]. An investment of the present value of the future losses plus an amount representing pre-judgment interest on those losses will result in more funds in the plaintiffs account than the dollar amount of his losses.
Patrick J. McDivitt, Comment, Prejudgment Interest as an Element of Damages: Proposed Solutions for a Colorado Problem, 49 U. Colo. L.Rev. 335, 340 (1977). Thus, awarding prejudgment interest on future damages violates the requirement to reduce future damages to present value.

Roise, 1998 ND 228, ¶¶ 27-28, 587 N.W.2d 573 (Sandstrom, J., dissenting) (citations omitted).

[¶ 42] The intent of reducing future damages to present value is to provide to the plaintiff on the date of judgment a lump sum which, if invested with interest, will theoretically provide sufficient sums to cover future expenses as they occur. An award of prejudgment interest on future damages back to the date of injury ignores the underlying rationale for reducing such damages to present value and would constitute a windfall to the plaintiff. We conclude that interest on future damages should not be awarded in a tort case.

VI

[¶ 43] We have considered the remaining issues and arguments raised by the parties and find them to be without merit. We reverse and remand for entry of judgment without interest on future damages. In all other respects the judgment and orders appealed from are affirmed.

[¶ 44] GERALD W. VANDE WALLE, C.J, WILLIAM A. NEUMANN and BENNY A. GRAFF, D.J., concur.

[¶ 45] The Honorable Benny A. Graff, D.J., sitting in place of Maring, J., disqualified.

SANDSTROM, Justice,

concurring in part and dissenting in part.

[¶ 46] For the reasons set forth in Part IV of my dissent in Roise v. Kurtz, 1998 ND 228, ¶¶ 32-34, 587 N.W.2d 573, I dissent as to Part V-A of the majority opinion, which allows the award of interest for noneconomic damages. I continue to agree with the reasoning of the Supreme Court of South Dakota and Supreme Court of California, when they disallowed such interest under statutory provisions similar to those we have in North Dakota.

[¶ 47] I join in the remainder of the majority opinion.

[¶ 48] Dale V. Sandstrom

      . It is unnecessary to decide whether we should adopt the standards for admitting expert or scientific evidence under Fed.R.Evid. 702 articulated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), because the result in this case would be the same under those standards and under our traditional standards governing admission of evidence under N.D.R.Ev. 702. See Howe v. Microsoft Corp., 2003 ND 12, ¶ 27 n. 1, 656 N.W.2d 285; Hamilton, 2002 ND 185, ¶ 20 n. 2, 653 N.W.2d 678.

      . We recognize that N.D.R.Ev. 103(d) allows this Court to notice errors in the admission of evidence which affect a party’s “substantial rights” even if the errors were not brought to the attention of the trial court. Admission of the exhibit in this case did not affect substantial rights.

      . Inasmuch as the majority in Roise did not reach the issue of interest on future damages, our agreement now with the rationale of the Roise dissent is not inconsistent with the majority opinion in Roise.


author: SANDSTROM, Justice.

text:
    2003 ND 124
    John Daniel LAWRENCE, Plaintiff and Appellant, v. Cassie ROBERDEAU, Dennis Larkin, and Lutheran Social Services of North Dakota, Bismarck, Defendants and Appellees.
    Nos. 20030060, 20030061.
    Supreme Court of North Dakota.
    July 18, 2003.
    Rehearing Denied Aug. 26, 2003.

      William E. McKechnie, McKechnie Law Office, P.C., Minnetonka, MN, for plaintiff and appellant.
    Bernard E. Reynolds of Gunhus, Grin-nell, Klinger, Swenson & Guy, Moorhead, MN, for Lutheran Social Services of North Dakota, defendant and appellee.
    Douglas A. Bahr, Solicitor General, Office of the Attorney General, Bismarck, N.D., for Cassie Roberdeau and Dennis Larkin, defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] John Lawrence appeals a summary judgment dismissing his malpractice claim against Lutheran Social Services and against Dennis Larkin and Cassie Rober-deau as agents of Lutheran Social Services. We affirm, concluding there is no claim of malpractice against Lutheran Social Services, Larkin, or Roberdeau.

I

[¶ 2] John Lawrence’s claim arises out of two prior cases regarding child support and visitation for his minor son. See Lawrence v. Delkamp, 2000 ND 214, 620 N.W.2d 151; Lawrence v. Delkamp, 1998 ND 178, 584 N.W.2d 515. In the child custody case, the district court ordered Lawrence to “undergo the domestic violence screening assessment offered by Lutheran Social Services of Bismarck, North Dakota, with the assessment to be completed by Dennis Larkin.” Larkin is the lead facilitator of the domestic violence treatment program. Larkin was subpoenaed to testify in the district court action regarding his assessment of Lawrence. Larkin testified that Lawrence exhibited signs of abusive behavior and would benefit from a domestic violence treatment program to learn how to recognize such behavior. Larkin also testified that in his opinion, Lawrence’s visits with his son should be supervised until Lawrence successfully completed such treatment.

[¶ 3] Roberdeau testified in her capacity as a social worker for the West Central Human Service Center, where she treated Tina Delkamp, the mother of Lawrence’s child. Roberdeau also worked part-time at Lutheran Social.Services; however, she did not participate in the assessment of Lawrence. Lawrence had, however, participated in Delkamp’s counseling with Ro-berdeau on a few occasions. In an earlier proceeding, the district court ordered Lawrence’s visitation with his son be restricted to supervised visits. Lawrence appealed, claiming the district court erred in finding he committed domestic violence. We reversed in Lawrence v. Delkamp, 2000 ND 214, 620 N.W.2d 151, concluding that although threats were made by Lawrence to Delkamp, they did not rise to the level of “imminent physical harm” required under the statutory definition of domestic violence.

[¶ 4] Lawrence sued Lutheran Social Services, Roberdeau, and Larkin for malpractice. Lawrence offered expert testimony, in affidavit, by Diana Hall, a mental health therapist at Northwestern Mental Health Center, Inc. In her case-file report, Hall stated that because there was no past history or evidence of criminal abusive behavior, Lawrence should not have been required to complete a batterer’s treatment program. She stated his emotional reactions were those of an average person’s response to such a stressful situation. Hall stated it was not appropriate to suspend child visitations on the basis of allegations made by Delkamp. She stated Delkamp had behavior disorders, was opposed to visitations, and had not previously indicated or claimed any abuse by Lawrence. Hall stated the social work professionals involved in this case behaved unethically. She stated there was no evidence of physical abuse by Lawrence, but there was evidence of parental alienation by Delkamp. She added, “Professionals who work with children in therapy are ethically obligated to work with the best interests and mental/emotional health of the child as primary consideration,” rather than advocating for one of the parents. Hall stated it was unprofessional to ignore clear indicators that Delkamp had mental health issues, to recommend that visitations with Lawrence be suspended, and to continue to engage in professional activities while apparently harboring strong biases.

[¶ 5] In November 2002, Lutheran Social Services, Roberdeau, and Larkin moved for summary judgment of dismissal. On February 25, 2003, the district court ordered a judgment of dismissal with costs. That same day, the district court ordered an amended judgment of dismissal without costs. On March 6, 2003, Lawrence appealed.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 7] We review this appeal under our standard for summary judgment, which is a procedural device allowing for a prompt resolution of a controversy on the merits without a trial if the evidence demonstrates no dispute as to either a genuine issue of material fact or the inferences to be drawn from undisputed facts and if the evidence shows a party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Bender v. Aviko, 2002 ND 13, ¶ 4, 638 N.W.2d 545; Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. “Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.” Knight v. North Dakota State Industrial School 540 N.W.2d 387, 388 (N.D.1995). Whether a trial court properly granted summary judgment is a question of law, which we review de novo on the entire record. Fetch, at ¶ 8. The party 'seeking summary judgment bears the initial burden of showing no genuine dispute regarding a material fact exists. Id. at ¶ 9. On appeal, we view the evidence in the light most favorable to the party opposing the motion. Id. at ¶ 8. The party resisting the motion, however, may not simply rely on unsupported and conclusory allegations or denials in the pleadings. The party must set forth specific facts, whether by affidavit or by directing the court to relevant evidence in the record illustrating a genuine issue for trial. N.D.R.Civ.P. 56(e).

Ill

[¶ 8] Lawrence claims malpractice by Lutheran Social Services, Larkin, and Ro-berdeau because his patient-social worker relationship was breached when Larkin recommended he seek treatment under a batterer’s program even though he had not been found to be a batterer under a professionally accepted definition. Lawrence argues that there was no evidence he was abusive, that Larkin wrongfully asserted he was abusive, and that Larkin and Ro-berdeau are working in concert and individually to limit or prevent visitation with his minor son. He claims Larkin and Ro-berdeau recommended the treatment for financial reasons because they were the only counselors in the Bismarck-Mandan area who offered such treatment.

[¶ 9] Under a professional negligence action, the plaintiff must prove the professional failed to possess and exercise the knowledge, skill, and care that would ordinarily be possessed and employed by members of the profession in good standing, under the same circumstances. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32, at 187 (5th ed.1984). “[T]he elements of a professional negligence action are: 1) existence of duty or standard of care to protect another from injury; 2) failure to discharge that duty; and 3) resulting injury proximately caused by the breach of the duty.” Rawl ings v. Fruhwirth, 455 N.W.2d 574, 579 (N.D.1990).

[¶ 10] This Court has stated that “[i]n a negligence action, whether or not a duty exists is generally an initial question of law for the court.” Id. at 577. “However, if the existence of a duty depends upon factual determinations, the facts must be resolved by the trier of fact.” Id. “Issues which are questions of fact for the jury may become issues of law for the court, however, where the facts are such that reasonable persons could not differ.” Id.

[¶ 11] The district court ordered Lawrence to undergo a batterer’s assessment. Larkin was subpoenaed to testify on the basis of the assessment administered under the court order. Lawrence relied on Larkin’s testimony in his malpractice complaint. Larkin argues that as a witness, he is immune to suit. The Supreme Court in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), recognized witness immunity and held it is governed by prior absolute immunity cases involving immunity for judges, prosecutors, and grand jurors. Justice White, writing for the United States Supreme Court in Butz v. Economou, stated the rationale underlying judicial immunity is that judges must have absolute immunity because of the special nature of their responsibilities rather than because of their particular location within the government. 438 U.S. 478, 511, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Absolute immunity protecting witnesses, prosecutors, and grand jurors stems from the characteristics inherent in the judicial process. Loran v. Iszler, 373 N.W.2d 870, 875 (N.D.1985). North Dakota recognized witness immunity in Loran, and quoting Butz, this Court stated:

Because losers in one forum often seek another forum to assail participants in the first forum, absolute immunity is essential “to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation. At the same time, the safeguards built into the judicial process tend to reduce the need for private damages actions.... ”

Loran, at 875 (quoting Butz, at 512, 98 S.Ct. 2894).

[¶ 12] We conclude no professional malpractice claim can be maintained because Larkin is immune from suit on the basis of his testimony as a witness.

[¶ 13] Lawrence’s negligence claim against Roberdeau is determined by a state employee’s liability under N.D.C.C. § 32-12.2-03. “A state employee is not personally liable for money damages for an injury when the injury is proximately caused by the negligence, wrongful act, or omission of the employee acting within the scope of employment.” N.D.C.C. § 32-12.2-03. There is no evidentiary dispute that Roberdeau was acting within the scope of her employment. Therefore, Ro-berdeau is not hable.

IV

[¶ 14] We conclude any malpractice claim Lawrence would have against Larkin is prevented by witness immunity. We conclude Lawrence does not have a claim of malpractice against Roberdeau because of N.D.C.C. § 32-12.2-03. We affirm the district court’s summary dismissal.

[¶ 15] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING and ALLAN L. SCHMALENBERGER, D.J., concur.

[¶ 16] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of KAPSNER, J., disqualified.


text:
    2003 ND 123
    Cheryl L. BLADOW, Plaintiff and Appellant, v. Bruce A. BLADOW, Defendant and Appellee.
    No. 20030011.
    Supreme Court of North Dakota.
    July 18, 2003.

      Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, for plaintiff and appellant.
    Jerilynn Brantner Adams, Vogel Law Firm, Fargo, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Cheryl Bladow is appealing an East Central Judicial District Court judgment granting Bruce Bladow an equal distribution of the marital estate. Cheryl Bladow argues the district court erred in dividing the marital estate in half, because the majority of the parties’ total estate consists of her personal injury settlement. She argues the district court’s findings of fact, taken as a whole, were clearly erroneous and led to an inequitable distribution of the parties’ property. We affirm the judgment of the district court.

I

[¶ 2] The parties were married in Fargo, North Dakota, on August 22, 1986. At the time of the marriage, the parties moved into Bruce Bladow’s home, which had a fair market value of $55,500 and on which he owed between $15,000 and $17,000 on the first mortgage. The parties satisfied the mortgage in 1993, and substantial improvements were made on the home during the marriage. From August of 1988 until May 2001, Cheryl Bladow worked at the Southeast Human Service Center as a therapist and, later, as a supervisor. In July 1999, she opened a rubber stamp business called “Border Buddies,” which has held a deficit. During the entire marriage, Bruce Bladow worked a variety of intermittent jobs. The two parties made equal contributions during the first two years and the last four years of the marriage. During the middle ten years of the marriage, Cheryl Bladow made the majority of financial contributions. In February 2001, she received a $650,000 personal injury settlement for personal injuries and pain and suffering from taking the drug Phen-Fen. Her net settlement after fees and costs was $430,970.39, and of that amount, the district court concluded she dissipated $105,948.70. The settlement check was written out jointly to Cheryl L. Bladow and Bruce Bladow, and both parties signed a “confidential, release, indemnity, and assignment agreement.” The trial was held on September 17-18, 2002. The district court found the parties’ marital estate had a value of $427,151.56, of which $325,021.69 was traceable to Cheryl Bladow’s settlement. The district court awarded $213,639.56 to her and $213,512.00 to him.

[¶ 3] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 4] Cheryl Bladow argues the district court erred in dividing the marital estate in half, because the majority of the parties’ total estate consists of her personal injury settlement. She argues she should be awarded the entire amount of her settlement because it was compensation for her personal injuries and pain and suffering, not for a loss of wages, and Bruce Bladow was not a party to her action. She argues this Court should find that personal injury awards should be distributed to the recipient unless Rujf-Fischer guidelines would force a different result. She argues the court erred in finding she intended to make the settlement proceeds part of the marital estate.

[¶ 5] “A trial court’s findings on matters of property division will not be set aside on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a), or they are induced by an erroneous view of the law.” Wald v. Wald, 556 N.W.2d 291, 294 (N.D.1996). Section 14-05-24, N.D.C.C., requires the court to make an equitable distribution of the marital estate. Hendrickson v. Hendrickson, 553 N.W.2d 215, 220 (N.D.1996). It is well-settled that a property division need not be equal to be equitable, but a substantial disparity must be explained. Fisher v. Fisher, 1997 ND 176, ¶ 15, 568 N.W.2d 728.

[¶ 6] “ ‘[A]ll of the real and personal property accumulated by the parties ..., regardless of the source’ must be included in the marital estate to be divided by the trial court.” Glander v. Glander, 1997 ND 192, ¶ 10, 569 N.W.2d 262 (quoting Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994)). We have repeatedly held that “[separate property, whether inherited or otherwise, must initially be included in the marital estate.” Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994) (citations omitted). See also Grinaker v. Grinaker, 553 N.W.2d 204, 208 (N.D.1996); van Oosting v. van Oosting, 521 N.W.2d 93, 96 (N.D.1994).

[¶ 7] After a trial court has included all of the assets in the marital estate, it considers the Ruff-Fischer guidelines in its distribution of the assets to the parties. Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462. The Ruff-Fischer guidelines are a list of factors used by trial courts in dividing marital property and awarding spousal support. The guidelines originate from Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952), and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966).

“Considered under the Rujf-Fischer guidelines are: the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination.”

Weigel, at ¶ 6 (quoting Wilhelm v. Wilhelm, 1998 ND 140, ¶ 11, 582 N.W.2d 6).

[¶ 8] The origin of the property is only one factor to consider under the Rujf-Fischer guidelines, even if the property was acquired before the marriage or was inherited. Winter v. Winter, 338 N.W.2d 819, 822 (N.D.1983). We have never held that property brought into a marriage or acquired by gift or inheritance by one spouse must be irrevocably set aside to that spouse. Grinaker, 553 N.W.2d at 208. As we held in Gaulrapp, 510 N.W.2d at 621, the length of the marriage is relevant to the distribution of gifts and inherited property as part of the “equitable” division of the marital estate. In general, a lengthy marriage supports an equal division of all marital assets. Glander, 1997 ND 192, ¶ 11, 569 N.W.2d 262.

[¶ 9] Cheryl and Bruce Bladow had been married for 16 years at the time of the divorce trial. The district court found the parties jointly agreed to use the proceeds of the Phen-Fen settlement to pay off the two mortgages against the home, totaling $35,274.75, and to invest $4000 in each party’s IRA account and $150,000 in a joint investment account through Primerica. The court found the parties jointly agreed to buy a 2001 Jeep Cherokee for her, and pay off the remaining debt of between $6,000-$7,000 on his Ford Ranger. The court found the parties further agreed to put $100,000 into an investment account solely in her name, pay off her business debt of approximately $7,000, and send her on a vacation to Salt Lake City. The court found she dissipated the remainder of the proceeds without discussion or consent from him. The proceeds of a personal injury settlement received during the marriage are part of the marital estate, and their distribution is part of the equitable distribution of property in a divorce. Gronland v. Gronland, 527 N.W.2d 250, 252 (N.D.1995).

[¶ 10] Cheryl Bladow argues the district court’s findings of fact, taken as a whole, were clearly erroneous. She argues the court erred in not giving enough weight to the evidence tending to prove that she was the primary wage earner. She further argues that the court erred in giving too much weight to the evidence tending to prove that Bruce Bladow helped with the cooking and household chores and contributed to paying the monthly bills, and that she accumulated the majority of the marital credit card debt. She also argues that because she has not been able to work and currently needs the personal injury award to pay her living expenses, the court erred in finding she was able to earn enough to pay for her own normal living expenses.

[¶ 11] The district court found that “[o]ver the course of the parties’ marriage, Cheryl used numerous credit cards and incurred significant credit card debt. On a number of occasions, the parties refinanced the home, in part, to pay off this credit card debt.” The court specifically set out the loans taken by the Bladows and what debt the loans covered. The district court also found that “[b]oth parties are employed on a full-time basis and able to earn sufficient income to pay for their normal living expenses.” The court stated:

Although Cheryl has shown a greater income producing capacity than Bruce, Cheryl’s spending habits have resulted in substantial credit card debt. A considerable portion of the phen-fen settlement proceeds were used to pay off credit card debt and put into joint investment accounts, which shows an intent not to keep the settlement as separate property. The portion of the settlement proceeds which were jointly invested or used to pay off debts has benefitted the parties. The portion Cheryl spent on personal and business expenses has been dissipated with essentially nothing to show for it.
Under the Ruff-Fiseher guidelines, a substantially disparate asset and debt allocation in Cheryl’s favor is not justified or equitable in this case.

[¶ 12] The trial court considered all of the facts of the case against the Ruff-Fiseher guidelines, and we do not conclude that the district court’s property division under the guidelines was clearly erroneous.

Ill

[¶ 13] The district court did not err in its property division to Cheryl and Bruce Bladow. We affirm.

[¶ 14] GERALD W. VANDE WALLE, C.J., JOHN C. McCLINTOCK, JR., District Judge, WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.

[¶ 15] The Honorable JOHN C. McCLINTOCK, JR., District Judge, sitting in place of KAPSNER, J., disqualified.