author: WILLIS, Judge.

text:
    STATE of Minnesota, Respondent, v. Barbara Ann FRANKLIN, Appellant.
    No. A04-411.
    Court of Appeals of Minnesota.
    Jan. 31, 2005.
    Review Denied April 19, 2005.

      Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge; WILLIS, Judge; and HUDSON, Judge.
   OPINION

WILLIS, Judge.

Appellant Barbara Ann Franklin challenges her conviction of theft by temporary control, in violation of Minn.Stat. § 609.52, subd. 2(5)(i) (2002). She argues (1) that venue in Ramsey County was improper; (2) that the evidence was legally insufficient to support her conviction; and (3) that the statute is unclear regarding the conduct prohibited, and therefore, its application to her actions violates her due-process rights. Because we find that venue in Ramsey County was proper and that the evidence demonstrates beyond a reasonable doubt that Franklin committed theft by temporary control, we affirm.

FACTS

The facts are undisputed. In December 1996, appellant Barbara Franklin’s minor daughter, Delphina Griffin, was designated the sole surviving heir of her father, Darryl Griffin, when he died intestate. In November 2000, the Ramsey County Probate Court appointed Franklin trustee of a trust established for the benefit of Delphi-na Griffin for the protection and distribution of property and money from Darryl Griffin’s estate. The probate court ordered Franklin to establish a trust account within 30 days after receiving any money or property from Griffin’s estate and not to withdraw any funds from the trust account without court authorization.

In July 2001, the state issued an $18,000 check payable to “Franklin Barbara For Delphina L. Griffin Minor.” The money came from a cashier’s check that was payable to Darryl Griffin. Franklin cashed the check at the state treasurer’s office in Ramsey County. She then gambled and lost most of the $18,000 at either Mystic Lake Casino or Treasure Island Casino.

In April 2002, Franklin wrote a letter to the probate court acknowledging that “[t]here are no excuses for what I did with the money for the trust fund for Delphi-na.” Franklin also admitted in that letter that she did not have the money and that she has a gambling problem. In October 2002, the probate court sent a letter to an assistant Ramsey County attorney requesting a review of the case “for the purpose of filing criminal charges against [Franklin].” At the time of this request, no funds had been deposited into the trust.

In May 2003, Franklin was charged with theft by swindle, in violation of Minn.Stat. § 609.52, subd. 2(4) (2002). The complaint was later amended to add a charge of theft by temporary control, in violation of Minn. Stat. § 609.52, subd. 2(5)(i) (2002). Franklin waived her right to a jury trial and agreed to a trial on stipulated facts. The district court found that venue was proper, that Franklin was guilty of theft by temporary control, and that she was not guilty of theft by swindle. The district court stayed Franklin’s sentence and placed her on probation for ten years. This appeal follows.

ISSUES

I. Was venue in Ramsey County proper?

II. Is the evidence sufficient to support Franklin’s conviction of theft by temporary control?

ANALYSIS

I.

Franklin argues that her conviction must be reversed because her case should not have been tried in Ramsey County. But Franklin did not move for change of venue before trial. Objections to the place of trial are waived unless asserted before commencement of the trial. Minn. R.Crim. P. 24.01 cmt.; State v. Blooflat, 524 N.W.2d 482, 484 (Minn.App.1994). “Such waiver, however, does not relieve the state of its burden of proving venue.” Blooflat, 524 N.W.2d at 484.

Minnesota law requires that a criminal case be tried in a county where the offense was committed. Minn.Stat. § 627.01, subd. 1 (2002); Minn. R.Crim.- P. 24.01. “ ‘County where the offense was committed’ means any county where any element of the offense was committed or any county where the property involved in an offense is or has been located or where the services involved in an offense were provided.” Minn.Stat. § 627.01, subd. 2 (2002).

Here, the property involved in the offense is the $18,000 intended for the trust established for Delphina Griffin. This $18,000 was located in Ramsey County when Franklin received and cashed the check for that amount. Therefore, under the statute, Ramsey County was a county where the offense was committed, and venue in Ramsey County was proper.

II.

Franklin next argues that the stipulated evidence is insufficient to support her conviction of theft by temporary control. The application of law to stipulated facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992). “In a criminal trial, the burden is on the state to prove beyond a reasonable doubt the existence of every element of the crime charged.” State v. Larson, 605 N.W.2d 706, 710 (Minn.2000).

To show theft by temporary control, the state had to prove that Franklin committed an act of theft “with the intent to exercise temporary control only” and that “the control exercised manifest[ed] an indifference to the rights of the owner or the restoration of the property to the owner.” Minn.Stat. § 609.52, subd. 2(5)(i) (2002). Theft, as defined by the statute, includes the intentional taking, using, transferring, concealing, or retaining possession of the movable property of another, without claim of right and without the owner’s consent. Id., subd. 2(1).

The stipulated facts support a finding that Franklin committed such an act of theft. First, Franklin admits to using Del-phina Griffin’s trust money to gamble, an intentional act. Second, the trust money was movable property. Third, the check was payable to “Franklin ... for Delphina Griffin,” and thereby, the money belonged to the trust established for Delphina Griffin.

The questions of whether Franklin acted without claim of right and whether she acted without the owner’s consent are more complex because Franklin is both the trustee and a parent here. Franklin appears to argue that, as Delphina Griffin’s parent, she had a claim of right to use the trust funds. She points to the statute allowing a trustee to “pay a sum distributable to a minor [beneficiary] ... without liability to the trustee ... to a parent of the beneficiary.” Minn.Stat. § 501B.81, subd. 25(4) (2002). This statute does not require the child’s consent to this distribution, and it does not specify how the funds may be used. Id. Franklin argues that she cannot be convicted under Minn.Stat. § 609.52, subd. 2(5)(i), because she was entitled to pay the money to herself as a parent of Delphina Griffin.

But a person’s acts as trustee are separate from her acts as an individual. Cf. Norwest Bank Minn., N.A. v. Ode, 615 N.W.2d 91, 95 (Minn.App.2000) (determining that an agreement by a person acting as an individual is not binding on that person as a trustee because there is no legal relationship between a person as an individual and the same person as a trustee and noting that a trustee may not deal in trust property for his or her own benefit), revieio denied (Minn. Oct. 17, 2000). We conclude that Franklin’s role as trustee of the trust established for her daughter is separate from her role as a parent and that Franklin as trustee had duties and responsibilities with regard to trust money that Franklin as a parent might not have had. Therefore, Franklin may be held liable for her actions as trustee even if her actions as a parent only might not give rise to similar liability.

A trustee who uses trust funds without permission and for his or her personal benefit commits an act of theft. State v. O’Hagan, 474 N.W.2d 613, 618-19 (Minn.App.1991), review denied (Minn. Sept. 25, 1991). The trust for Delphina Griffin was established “for the protection and distribution of properties and monies from decedent’s estate.” As trustee, Franklin liad no claim of right to gamble with money intended for the trust or to use that money in any way for her personal benefit.

Franklin also appears to argue that she did not need consent to use the funds because she was Delphina Griffin’s parent. But the court order appointing Franklin as trustee required her to deposit into a trust account any money that she received from Darryl Griffin’s estate. She failed to do so here. Because Delphina Griffin was a minor, she could not legally consent to Franklin’s use of any funds intended for the trust. Therefore, the probate-court order also required Franklin to obtain probate-court authorization, or consent, before withdrawing any money from the trust. We conclude that it follows that Franklin also needed consent to use any funds intended for the trust. The probate court gave no such consent here.

Next, to support the conviction of theft by temporary control, the evidence must show beyond a reasonable doubt that Franklin intended to exercise temporary-control only over the funds. Minn.Stat. § 609.52, subd. 2(5)(i). A crime of theft by temporary control is complete upon the taking and does not require an intent to permanently deprive. Larson, 605 N.W.2d at 711. Here, when Franklin cashed the check and used the funds at a casino, she exercised control over the funds in a manner that was unauthorized by her role as trustee.

Finally, Franklin’s control of the funds must also have manifested “an indifference to the rights of the owner or the restoration of the property to the owner.” Minn. Stat. § 609.52, subd. 2(5)(i). Franklin gambled with funds intended for Delphina Griffin’s trust and exposed the funds to great risk. Her conduct demonstrated an indifference to Delphina Griffin’s right to have the money used for her welfare, as well as an indifference to whether the money would be restored to the trust.

We conclude that a parent who has been appointed trustee of a trust established for the benefit of his or her child is not shielded from prosecution for committing theft by temporary control, in violation of Minn.Stat. § 609.52, subd. 2(5)(i) (2002). And we conclude that a parent-trustee who gambles with the funds intended for the trust may be convicted of theft by temporary control. The stipulated evidence supports, beyond a reasonable doubt, Franklin’s conviction of theft by temporary control.

Franklin also argues that her conviction must be reversed because the statute did not provide fair warning that her conduct, as a parent, could subject her to prosecution for theft by temporary control. Franklin raises this argument for the first time on appeal.

We usually will not decide issues that are raised for the first time on appeal even if they involve constitutional questions. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). We choose, therefore, not to address Franklin’s due-process argument. But we note that she does not claim that she had no notice that her conduct as trustee would subject her to criminal liability.

DECISION

Because venue in Ramsey County was proper and because the evidence demonstrates beyond a reasonable doubt that appellant committed theft by temporary control, we affirm.

Affirmed.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    MIDDLE RIVER-SNAKE RIVER WATERSHED DISTRICT, Plaintiff, v. DENNIS DREWES, INC., Appellant, J.O.R. Engineering, Inc., Respondent.
    No. A04-825.
    Court of Appeals of Minnesota.
    Feb. 15, 2005.
    Zenas Baer, Zenas Baer and Associates, Hawley, MN, for appellant.

      Stephen W. Plambeck (pro hac vice), Jacqueline S. Anderson, Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Fargo, ND, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; LANSING, Judge; and WRIGHT, Judge.
   OPINION

LANSING, Judge.

In this dispute over the construction of a floodwater impoundment system, the contractor challenges two district court orders: its grant of summary judgment dismissing a counterclaim against the project engineer and its decision to cap damages. Because we find no error in the district court’s dismissal of the contractor’s counterclaim for failure to serve an expert-identification affidavit as required by Minn.Stat. § 544.42, subds. 2 and 4 (2004), we do not reach the damages issue, and we affirm.

FACTS

Middle River-Snake River Watershed District contracted with Dennis Drewes, Inc., to work on the Angus Oslo flood-impoundment project. After submitting its initial bid, Drewes inspected the project site several times and examined soil reports accompanying the project proposal. These soil reports, prepared by Midwest Testing Laboratory, indicated that the soil was “moist” and therefore ideal for construction. At the time of bidding, the site appeared undisturbed by farm operations, and the contract did not refer to ongoing farming operations.

The contract, in compliance with statutory requirements, appoints a project.engineer, J.O.R. Engineering, Inc., and describes the project engineer’s role. J.O.R. is not, however, a party to the contract. The contract sets forth specifications for the work, provisions for changed conditions, and responsibilities of the parties. It requires the contractor to achieve an overall compaction of 95% and prohibits lifts greater than twelve inches in height.

The contract explicitly addresses the work alterations and changed site conditions that relate to this litigation. If the contractor discovers a materially different site condition that affects its work, the contract requires it to provide written notice to the engineer and the other party before performing the affected work, particularly if the contract adjustment requires additional compensation. After acknowledging that the engineer shall have the right to modify specifications as circumstances may require, the contract provides that “[i]n this event, ... no change shall be made that will ... increase the total cost by more than ten percent (10%) of the total contract price.” The contract explains the engineer’s authority and responsibilities, including its involvement in developing the plan’s specifications and monitoring the site, but notes in several places that the engineer’s review of the work and specifications does not relieve Drewes of its contractual obligations.

After beginning work on the project, two independent problems arose. First, the soil was wetter than anticipated. Second, a neighboring farmer, who had a lease with the watershed district, disked the project site. The combined effect of the disking and the wet soil made it more difficult to obtain the required compaction and caused Drewes to use lifts greater than twelve inches in height. Drewes, however, did not notify either J.O.R. or the watershed district of the changed conditions before working on the affected areas.

Upon discovering that neither the compaction nor the lift heights complied with the contract’s specifications, the watershed district filed a declaratory action to determine the rights and respo'nsibilities of the parties under the contract. In its answer to the complaint, Drewes asserted multiple counterclaims against the watershed district. Drewes also impleaded J.O.R. as an “additional defendant on the counterclaim,” alleging three causes of action: negligence, estoppel, and tortious interference with its contract. The watershed district moved for summary judgment on Drewes’ counterclaims. J.O.R. also moved for summary judgment because, among other reasons, Drewes failed to serve a mandatory expert-identification affidavit.

The district court initially denied J.O.R.’s and the watershed district’s summary-judgment motions, but the motions were twice renewed. In the first renewal, the watershed district grouped them with a motion in limine to cap damages. The district court granted the motion to cap damages but again denied summary judgment against Drewes. Shortly before the second renewal, Drewes and the watershed district resolved their “respective claims against each other” and stipulated to dismissal. The stipulation preserved Drewes’ claim against J.O.R. Following the second renewal, initiated by J.O.R., the district court granted summary judgment for J.O.R. for three reasons: (1) Drewes failed to comply with the expert-witness disclosure requirements in Minn.Stat. § 544.42 (2004); (2) J.O.R. owed no duty to Drewes; and (3) the alleged breach did not proximately cause the harm suffered.

The district court’s summary-judgment order, in addition to dismissing Drewes’ negligence “counterclaim” against J.O.R., also dismissed Drewes’ claim for estoppel and intentional interference with contractual relations. Drewes appeals from that part of the summary judgment dismissing his negligence claim against J.O,R. and also appeals the district court’s earlier order that capped the amount of damages that could be recovered.

■ISSUES

I. Did the district court err in dismissing the contractor’s negligence Claim against the project engineer for failure to serve an expert-identification affidavit within 180 days after initiating the professional-malpractice claim?

II. Did the district court err in granting summary judgment because it concluded the engineer owed no duty to the contractor?

ANALYSIS

On appeal from summary judgment, we consider whether genuine issues of material fact exist and whether the district court erred in its application of the law. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). This consideration views the evidence in the light most favorable to the nonmoving party and resolves any doubts on the existence of a material-fact issue against the moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I

The .interpretation of a statute is a question of law that we review de novo. Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn.1996). When applying a statute, courts must give effect, to its plain meaning, which takes into account the structure of the statute and the language of the specific statutory provision in the context of the statute as a whole. Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56 (Minn.1989) (reasoning that sections of statute:must be read together to give words their plain meaning); see also United States v. Jennings, 323 F.3d 263, 274-75 (4th Cir.2003) (determining meaning by reference to language itself, specific context in which language is used, and broader context of statute as whole). We presume that plain and unambiguous statutory language manifests legislative intent. Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 9, 153 N.W.2d 209, 216 (1967). Courts refrain from construing statutory provisions that convey a plain meaning “in order to preserve language as an effective medium of communication from legislatures to courts.” Krzalic v. Republic Title Co., 314 F.3d 875, 879 (7th Cir.2002).

Negligence actions against professionals, including engineers, must comply with the disclosure requirements in Minn. Stat. § 544.42, subd. 2 (2004). Subject to exceptions that do not apply here, the expert-witness disclosure requirements provide for service of two affidavits on the adverse party. Id. Generally, a party must serve the first affidavit, an affidavit of expert review, with the pleadings. MinmStat. § 544.42, subds. 2(1), 3 (2004). Within 180 days after the first affidavit, the party must serve a second affidavit, the expert-identification affidavit, which identifies the expert witnesses and provides the substance of the experts’ opinions together with a summary of the grounds for each opinion. Id., subds. 2(2), 4 (2004). Only the second affidavit is at issue in this litigation.

A party’s failure to provide the second affidavit “results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie ease.” Id., subd. 6 (2004). The mandatory-dismissal subdivision provides that a motion to dismiss “based upon claimed deficiencies of the affidavit ... shall not be granted unless, after notice by the court, the nonmoving party is given 60 days to satisfy the disclosure requirements.” Id.

It is undisputed that Drewes served the expert-review affidavit, but failed to serve the expert-identification affidavit within the following 180 days. J.O.R. filed its motion to dismiss for noncompliance with the expert-identification requirements, and Drewes filed the missing affidavit three days later. Drewes contends that filing the missing affidavit within 60 days after the motion to dismiss exempts it from the mandatory-dismissal provision and that the district court erred in determining that the 60-day cure period did not apply. No Minnesota appellate court has addressed this precise issue.

The disputed statutory provision prescribes a penalty for failure to serve the expert-identification affidavit within the required time period:

Failure to comply ... results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie case, provided that an initial motion to dismiss an action under this paragraph based upon claimed deficiencies of the affidavit ... shall not be granted unless, after notice by the court, the nonmoving party is given 60 days to satisfy the disclosure requirements.... In providing its notice, the court shall issue specific findings as to the deficiencies of the affidavit....

Minn.Stat. § 544.42, subd. 6(c).

For three reasons we agree with the district court’s determination that the plain meaning of subdivision 6(c) requires dismissal of Drewes’ professional-malpractice claim against J.O.R.

First, the exception to mandatory dismissal that Drewes claims as a safe harbor allows 60 days to satisfy the disclosure requirement but only in response to a motion “based upon claimed deficiencies of the affidavit.” When no expert-identification affidavit has been filed, the motion is simply to dismiss, not to compel the errant party to cure claimed deficiencies in the affidavit’s contents. . See Minn.Stat. § 645.19 (2004) (supplying statutory construction canon that states, “[pjrovisos shall be construed to limit rather than to extend the operation of the clauses to which they refer”).

Second, courts must presume that the legislature intends to give effect to all provisions of a statute, Minn.Stat. § 645.17(2) (2004), and must construe every law, if possible, to give effect to all of its provisions. Minn.Stat. § 645.16 (2004). To apply a general 60-day extension whether or not an affidavit is filed would invalidate part of subdivision 6(c)’s operative language and eviscerate the effect of the mandatory-dismissal provision.

Third, a general 60-day extension, whether or not an expert-identification affidavit was initially filed, could not be reconciled with the last sentence of subdivision 6(c) that requires the court to issue specific findings on “the deficiencies of the affidavit.” When an initial expert-identification affidavit has not been filed, a court would be unable to make specific findings on the deficiencies.

A Minnesota federal district court reached the same conclusion in addressing this issue, and its reasoning is instructive. In House v. Kelbel, the court considered whether a party was entitled to the 60-day cure period. House v. Kelbel, 105 F.Supp.2d 1045, 1050-51 (D.Minn.2000). It concluded that the party could not benefit from the cure period because the initial motion to dismiss did not arise from claimed deficiencies in the affidavit but rather from the failure to serve any affidavit at all. Id. The court noted that an alternative ruling would give a party 240 days to file the affidavit instead of 180. Id. at 1051. The court reasoned that “[t]he additional 60 days are provided for the purpose of avoiding harsh consequences arising from inadvertent drafting errors of which a party might otherwise be unaware, and is available only when an [affidavit is in fact filed within 180 days.” Id.

This analysis parallels the reasoning used in construing Minn.Stat. § 145.682 (2004), which provides for similar expert-disclosure affidavits for medical-malpractice actions. Under this statute, clear procedural violations result in mandatory dismissal. See House, 105 F.Supp.2d at 1052-58 (analyzing and comparing Minn. Stat. § 145.682). The supreme court, in construing section 145.682, reasoned that “[t]he statute provides for no ... exception and it is not for the courts to read into a clear statutory scheme something that plainly is not there.” Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn.1999). In a recent case applying section 145.682, the supreme court reaffirmed the necessity for strict adherence to procedural requirements for expert disclosure. See Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 726 (Minn.2005) (stating that plaintiffs failure to strictly comply with expert-disclosure procedure requires dismissal with prejudice). The court observed that failure to strictly adhere to the requirements of expert review and disclosure undermines the legislature’s procedural reforms in professional-malpractice actions and might ultimately require more intrusive or elaborate measures to avoid frivolous litigation. Id. These reasons for strict compliance apply equally to malpractice actions against other professionals.

At oral argument Drewes introduced a new contention — that dismissal was improper because the statute requires service of the affidavit only when expert testimony is necessary to establish a prima facie case of negligence, and its case did not require expert testimony. This issue was neither timely presented in the district court nor briefed on appeal. See Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997) (determining that issue was not adequately briefed on appeal); Thiele v. Stick, 425 N.W.2d 580, 582-83 (Minn.1988) (refusing to resolve issue not raised in district court). Furthermore, Drewes’ claim is un-disputably a claim of malpractice against a professional engineer. A negligence action against an engineer generally requires expert testimony that “the care, skill, and diligence exercised ... was less than that normally possessed and exercised by members of that profession in good standing and that the damage sustained resulted from the variance.” City of Eveleth v. Ruble, 302 Minn. 249, 254-55, 225 N.W.2d 521, 525 (1974). We discern no evident reason for an exemption from the general rule in this case. Under the plain meaning of the statute, dismissal is mandatory, and the district court did not err in dismissing Drewes’ professional-malpractice claim against J.O.R.

II

The district court relied on two additional reasons that provide a separate and independent basis for granting summary judgment: that as a matter of law, J.O.R. “neither breached any duty toward Drewes [n]or was the proximate cause of any alleged damages.” Drewes challenges the district court’s determination of no duty but has not challenged, in either its appellate brief or its reply brief, the district court’s determination that, as a matter of law, J.O.R. did not proximately cause any of Drewes’ alleged damages. Consequently Drewes has waived this issue on appeal. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982). Even if Drewes could demonstrate a material fact issue on the scope of J.O.R.’s duty, Drewes’ negligence claim would still fail for lack of proximate cause. See Funchess v. Cecil Neuman Corp., 632 N.W.2d 666, 672 (Minn.2001) (“A defendant in a negligence suit is entitled to summary judgment when the record reflects a complete lack of proof on any of the four essential elements of the negligence claim.”).

In addition to its appeal of the summary-judgment order, Drewes also challenges the district court’s decision to cap damages at 10% of the contract price. Because we are satisfied that the district court did not err in granting summary judgment, we do not consider Drewes’ challenge to the ordered damages cap.

DECISION

In failing to file the required expert-identification affidavit within 180 days after initiating an action against J.O.R., Drewes deprived itself of the benefit of the statute’s cure period. Dismissal of its negligence claim was therefore mandatory. Furthermore, Drewes has not demonstrated any error in the court’s determination that, as a matter of law, J.O.R. did not proximately cause Drewes’ damages. For these reasons we affirm the district court’s grant of summary judgment.

Affirmed.


text:
    James W. WILLHITE, et al., Appellants, v. CASS COUNTY BOARD OF SUPERVISORS, et al., Defendants, Lowell Schellack, an individual doing business as Schellack Engineering, Respondent.
    No. A04-660.
    Court of Appeals of Minnesota.
    Feb. 15, 2005.
    Review Denied April 19, 2005.

      David M. Van Sickle, St. Paul, MN, for appellants.
    Steven R. Peloquin, Peloquin & Minge, P.A., New York Mills, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; LANSING, Judge; and WRIGHT, Judge.
   OPINION

LANSING, Judge.

This appeal is from a summary judgment dismissing the landowners’ professional-negligence and intentional-misrepresentation claims against a surveyor who performed a survey on the landowners’ property in 1997. The landowners appeal the district court’s granting summary judgment and the underlying order allowing the surveyor to amend his answer to reassert a statute-of-limitations defense. We affirm the order permitting amendment of the answer, but we reverse and remand the summary-judgment dismissal because the landowners brought their action within two years of the discovery of an error in the survey of land and a genuine issue of material fact exists on whether the alleged survey error proximately caused the landowners’ damages.

FACTS

James and Bonnie Willhite purchased property on Crystal Lake in Cass County in 1980. After purchasing the property, the Willhites improved the western side of their land by completing a boat house and installing a septic drain field. The Will-hites’ immediate neighbors to the west, Cheryl and Donald Collins, purchased their property in 1971. In 1996 the Col-linses obtained a survey to determine the boundary line between the properties. The Collinses’ survey showed that the Willhites’ western boundary line was located thirty feet east of where the Willhites believed it to be. The Willhites concluded that the survey was in error and retained Schellack Engineering to survey the property. Lowell Schellack performed the survey. His initial survey and two survey revisions were consistent with the Collins-es’ survey.

In 1997 the Willhites initiated an adverse-possession action to establish ownership of the thirty-foot strip of land that the surveys showed was part of the Collinses’ property. The Willhites also attempted to obtain a resurvey of the land but were unable to find a surveyor who was willing to undertake a new survey within a reasonable time period. The district court determined that the Willhites had not exercised possession of the strip of property for a sufficient period of time to establish title by adverse possession. The Willhites appealed, and this court affirmed the district court’s determination. Willhite v. Collins, 2000 WL 1869564 (Minn.App. Dec.26, 2000).

In April 2002, the Willhites retained Roger Mustonen to resurvey their property. In the resurvey, Mustonen determined that Schellack relied on an incorrectly relocated south quarter corner and erred in locating the true position of the north quarter corner, causing Schellack to make about a thirty-foot error in the Willhites’ survey. According to Mustonen, he excavated evidence of the original south quarter corner and made measurements corroborated by global-positioning-system-survey instruments. Mustonen reestablished the south quarter corner as an “obliterated” corner and the north quarter corner as a “lost” corner and certified his survey results with the county. His resurvey, based on the original south quarter corner and the reestablished north quarter corner, placed the Willhites’ western boundary line about twenty-seven feet to the west, close to the location that they originally claimed.

After unsuccessfully attempting to vacate the adverse-possession judgment, the Willhites filed a complaint alleging, among other claims, that Schellack negligently performed a survey on their property that placed the western boundary of their property approximately thirty feet east of its true location. The Willhites further alleged a claim of intentional misrepresentation and specific economic and noneco-nomic damages proximately caused by the surveying error.

In his answer, Schellack denied the Will-hites’ allegations of negligence and intentional misrepresentation and asserted a statute-of-limitations defense. In a subsequently amended answer, Schellack failed to include the statute-of-limitations defense. Schellack moved for summary judgment and, at the hearing, moved to amend his answer to include the omitted defense. The district court granted both motions, concluding that the statute of limitations for damages based on errors in land surveys barred the Willhites’ claims ánd that the Willhites failed to demonstrate that Schellack’s actions were a substantial factor in causing their asserted damages. The Willhites appeal summary judgment and the underlying order granting leave to amend the answer.

ISSUES

I. Did the district court abuse its discretion in granting leave to amend the answer to assert a statute-of-limitations defense?
II. Does the statute of limitations for damages based on errors in land surveys • in Minnesota Statutes § 541.052 (2004) bar the landowners’ negligence claim?
III. Do genuine issues of material fact exist on whether the damages were proximately caused by the alleged errors in the land survey?

ANALYSIS

I

The district court permitted Lowell Schellack to amend his answer to reassert a statute-of-limitations defense that was asserted in his original answer to the complaint but inadvertently deleted from his amended answer. The Minnesota Rules of Civil Procedure provide that leave to amend pleadings “shall be freely given when justice so requires.” Minn. R. Civ. P. 15.01. We review a district court’s decision to allow amendments under an abuse-of-discretion standard. Warrick v. Giron, 290 N.W.2d 166, 169 (Minn.1980); see also Minn. R. Civ.App. P. 103.04 (providing appellate courts may review any order affecting order from which appeal is taken).

We discern no abuse of discretion in the district court’s order allowing Schellack to reassert his statute-of-limitations defense. It is true, as the Willhites contend, that the motion was made orally at the hearing on the dispositive summary-judgment motion. But it is also true that the Willhites were aware of the affirmative statute-of-limitations defense when they received the first answer to their complaint. The prejudice asserted by the Willhites is that they were unable to fully develop the factual record on their efforts to locate another surveyor. Schellack does not dispute this claim but contends that the extent of the Willhites’ timely efforts to obtain a resurvey is not relevant to the issues raised in this appeal. Accepting Schellack’s concession, we conclude that the Willhites were not prejudiced by Schellack’s failure to reassert this defense, which was originally alleged but inadvertently omitted from the amended answer to the Willhites’ third amended complaint. The district court did not abuse its discretion in allowing the amendment.

II

In Minnesota an action for damages based on errors in a land survey must be brought within two years after discovery of the error:

Except where fraud is involved, no action to recover damages for an error in the survey of land, nor any action for contribution or indemnity for damages sustained on account of an error, may be brought against any person performing the survey more than two years after the discovery of the error, nor in any event more than ten years after the date of the survey.

Minn.Stat. § 541.052, subd. 1 (2004).

In determining whether a statute has been correctly applied, this court looks first to its language to ascertain and effectuate legislative intent. Minn.Stat. § 645.16 (2004) (setting forth plain-meaning rule); Kersten v. Minn. Mut. Life Ins. Co., 608 N.W.2d 869, 874-75 (Minn.2000). If the meaning of a statute is plain; no construction is necessary or permitted. Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995). The rules of construction forbid adding words or meaning to a statute if the words were intentionally or inadvertently left out. Id. Construction of a statute is a legal conclusion that we review de novo. In re Welfare of A.A.E., 590 N.W.2d 773, 776 (Minn.1999).

The district court analogized the limitation of actions for damages based on errors in land surveys to the limitation on actions for damages based on services or construction to real property in Minn.Stat. § 541.051 (2004). The statute of limitations for damages to real property provides that no action may be brought “more than two years after discovery of the injury.” Minn.Stat. § 541.051, subd. 1 (emphasis added). Relying on cases interpreting section 541.051, the district court reasoned that the statute of limitations begins to run when an actionable injury is discovered regardless of whether the precise nature of the defect causing the injury is known. Applying this analysis, the district court concluded that the Willhites are barred from bringing this action because their deposition statements established that they knew that Schellack’s survey was incorrect when they received it in 1997 but failed to bring their professional-negligence action until 2002.

The Willhites do not dispute that they genuinely believed that the Schellaek survey was incorrect, but they did not know that it was based on an error in negligently locating the south and north quarter corners until Mustonen discovered that error through his 2002 resurvey of the property. Without an expert opinion that Schellack’s survey contained an error, which deviated from a professional-survey- or’s duty of care, the Willhites had no basis on which to bring an action against Schellaek.

Minnesota appellate courts have not previously interpreted our statute limiting the time to bring actions for errors in land surveys. Other jurisdictions, however, have construed statutes with substantially similar language. See, e.g., 735 Ill. Comp. Stat. 5/13-222 (2003) (stating that no action may be brought against professional land surveyor more than four years after claimant “actually knows or should have known of the negligence, errors, omissions, torts, breaches of contract, or other action”); Md.Code Ann., Cts. & Jud. Proc. § 5-112 (2002) (requiring action be brought within twenty years of survey, or within three years “after the discovery of the error”); Mo.Rev.Stat. § 516.098 (2002) (providing that no action may be brought “more than five years after the discovery of the [survey] error or omission”); 42 Pa. Cons.Stat. Ann. § 5537 (2004) (mandating that action to recover damages “occurring as the result of any deficiency, defect, omission, error , or miscalculation” by professional land surveyor be brought within four years of discovery of cause of action).

These courts have not equated “discovery of error” to “discovery of injury;” the decisions apply plain meaning to the word “error.” See, e.g., Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656, 664 (1969) (applying earlier version of current statute and observing that when passage of time does not increase problems of proof, justice is served by allowing plaintiff to sue when cause of action exists); Martin v. Crowley, Wade & Milstead, Inc., 702 S.W.2d 57, 57-58 (Mo.1985) (determining, in action heard before enactment of governing statute, that plaintiffs claiming surveyor negligence “had no duty to double check defendant’s work”). Other jurisdictions have expressed similar views. See, e.g., Hodges v. Smith, 517 A.2d 299, 301 (Del.Super.1986) (concluding, under the “time-of-discovery” rule, that erroneous nature of survey was “inherently unknowable” and that balance between surveyor’s difficulty of proof and preclusion of plaintiffs’ claim tipped in favor of allowing claim to proceed).

The Wyoming Supreme Court has held, on facts similar to those in this case, that the plaintiffs did not discover surveying errors until they received a second survey confirming those errors, even though a title-insurance agent had expressed earlier concerns about the survey results. Bredthauer v. Christian, Spring, Seilbach & Assocs., 824 P.2d 560, 562-63 (Wyo.1992). The Bredthauer court recognized that, before the plaintiffs received the second survey, their claims would have been merely speculative, and they could not reasonably have known the cause, nature, or extent of their damages. Id. at 563.

Some courts have also employed a balancing test to apply the discovery rule to surveyor negligence based on alleged errors. In Klinger v. Rightly, 791 P.2d 868, 872 (Utah 1990), the Utah Supreme Court stated that the relevant policy consideration is that an innocent reliant party should not bear the burden of a surveyor’s professional mistake; that promoting cautionary techniques of surveyors would be encouraged if a foreseeable reliant user is allowed to recover; that the passage, of time does not involve the danger of a false or frivolous claim or make testimonial proof of a defense more difficult; that it is illogical to require a plaintiff to hire two or three surveyors to insure the accuracy of the first survey; and that a plaintiff may lack the means or ability to determine that a wrong has been committed. Id. at 871.

The Willhites’ deposition statements that they knew that Schellack’s'survey was incorrect were based on their belief of where their boundary line should have been located. They were unable to obtain any confirmation of that belief until Musto-nen, in his 2002 resurvey, discovered the errors in locating the south and north quarter corners. Before that .time, their claims against Schellack were merely speculative and did not reflect a professional opinion that the survey was in error.

We do not see a basis to read “discovery of error” to mean “discovery of injury” in a limitations statute that applies to professional surveying- services. To apply a discovery-of-injury standard would impose on plaintiffs the unreasonable duty of fifing suit against a surveyor before verifying the accuracy of his professional opinion, which is inherently undiscoverable without a second survey. The Willhites’ limited lay observations that they believed the survey was wrong did not constitute a “discovery of the error” that triggered the running of the státute of limitations under Minn.Stat. § 541.052 before they learned of the error through the resurvey. Although we are mindful of the necessity for repose and also of evidentiary problems caused by the passage of time, the statute’s absolute repose period of ten years from the time of the survey provides reasonable certainty. Additionally, the passage of time would not unfairly prejudice the defense of a surveyor because the surveyor would likely be relying on his previous records for testimonial proof of his defense.

Ill

The district court granted summary judgment on the Willhites’ negligence claim on an alternative basis: that the Willhites failed to show that their damages were caused by Schellack’s survey because they did not rely on it. The district court granted summary judgment on the Willhites’ intentional-misrepresentation claim for the same reason.

For a defendant’s negligence to be the proximate cause of an injury, the plaintiff must show the defendant’s conduct was a substantial factor in bringing about the injury. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995); see also Davis v. Re-Trac Mfg. Corp., 276 Minn. 116, 117, 149 N.W.2d 37, 39 (1967) (stating that elements of intentional misrepresentation include “proximate cause”). The Willhites, in their complaint, provided a list of injuries that resulted from the alleged error in the survey. These injuries include attorneys’ fees in defending a criminal violation of building and set-back ordinances; the cost of moving their boathouse; and other economic and noneconomic damages. The basis for the dismissal was not the failure to demonstrate that they suffered these injuries but that neither the alleged negligence nor the intentional misrepresentation was a substantial factor in causing the damages.

The record contains sufficient evidence to raise a material fact issue on whether Schellack’s alleged negligence or intentional misrepresentation caused the Willhites’ damages. The survey, which contains an allegedly incorrect property line, left the Willhites with no alternative to their adverse-possession action, substantially affected their loss of the disputed property, resulted in legal fees, and, at minimum, required a resurvey. The evidence adequately raises genuine material issues of fact on causal damages, and summary judgment on this basis is not appropriate.

DECISION

The district court did not abuse its discretion in allowing the surveyor to amend his answer to allege a statute-of-limitations defense. A surveyor’s discovery that a previous surveyor erred in locating the property’s western boundary about thirty feet east of its true location is a discovery of error in a land survey that triggers the statute of limitations in an action to recover damages for professional negligence; a layperson’s belief that the survey is incorrect does not. Genuine issues of material fact preclude the district court’s summary judgment on the existence of damages caused by the alleged negligence and intentional misrepresentation, and we reverse and remand.

Affirmed in part, reversed in part, and remanded.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. James Edward CARR, Jr., Appellant.
    No. A04-338.
    Court of Appeals of Minnesota.
    Feb. 15, 2005.

      Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN, and Joseph A. Evans, Becker County Attorney, Detroit Lakes, MN, for respondent.
    Bridget Kearns Sabo, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, HUSPENI, Judge, and CRIPPEN, Judge.

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

   OPINION

CRIPPEN, Judge.

Appellant James Edward Carr, Jr. contends, under Minn.Stat. § 609.035 (2002), that he is entitled to the reversal of his sentence for possessing a controlled substance, arguing that this conviction arose out of the same behavioral incident that led to his conviction of unlawful manufacture of the substance. We reverse the possession sentence. There being no merit in appellant’s additional contention that his right to judicial review was handicapped by the district court’s failure to record the instructions read to the jury, we affirm appellant’s convictions for manufacture and possession.

FACTS

In June 2003, during a lawful search of appellant’s garage, Becker County deputy sheriffs found muriatic acid, a hotplate, and a coffee pot and spoon coated in a white powder. Behind the garage they found an empty toluene can. Because the items found in and near the garage can be used to make methamphetamine, the deputies contacted a narcotics investigator, who obtained a search warrant for appellant’s residence.

Officers executing the search warrant found four empty bottles of pseudoephed-rine pills, over 100 pills, a lithium battery, a half-used box of coffee filters, coffee filters with white residue on them, more toluene cans, two hoses, Coleman fuel, three glass jars, salt, and an empty propane tank that had stored anhydrous ammonia. In the yard they found a one-liter soda bottle containing two layers of liquid; the liquid tested positive for methamphetamine.

Appellant was charged with a first-degree controlled substance crime for possessing methamphetamine under Minn. Stat. § 152.021, subd. 2 (Supp.2003) and a first-degree controlled substance crime for manufacturing methamphetamine under Minn.Stat. § 152.021, subd. 2a(a) (Supp. 2003). At appellant’s jury trial, a narcotics investigator testified that methamphetamine is unusable in a liquid form. To finish the manufacturing process and turn the liquid methamphetamine into a usable powder, the liquid methamphetamine must be mixed with pseudoephedrine and water; separated; filtered using a baster, funnel, or cooler with a spout; mixed with hydrogen chloride gas; filtered again; and dried.

At the sentencing hearing following appellant’s conviction of both charges, he argued that because the two crimes were part of the same course of conduct, he should be given one sentence for both convictions and that the possession conviction was actually a lesser-ineluded offense of the manufacturing conviction. The district court imposed two concurrent sentences, one for each conviction. To determine the sentence for appellant’s second conviction, the district court counted appellant’s first conviction towards his criminal-history score. With a criminal-history score of one point for appellant’s first sentence and three points for the second, the district court imposed a 98-month sentence for the manufacturing conviction and a 122-month sentence for the possession conviction.

ISSUES

1. For an appellant convicted of manufacturing an unlawful substance, does the charge of possessing that substance before completion of the manufacturing process arise out of the same behavioral incident under Minn.Stat. § 609.035, subd. 1 (2002)?

2. Where an appellant has made no attempt to reconstruct the record and makes no claim that the district court provided erroneous instructions to the jury, is the district court’s failure to transcribe the reading of jury instructions reversible error?

ANALYSIS

1.

If a defendant’s conduct constitutes multiple offenses but is part of the same behavioral incident, the district court may impose only one sentence. Minn.Stat. § 609.035, subd. 1 (2002); State v. Heath, 685 N.W.2d 48, 61 (Minn.App.2004), review denied (Minn. Nov. 16, 2004). The state has the burden to prove by a preponderance of the evidence that the underlying conduct was not part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn.2000). “The determination of whether multiple offenses are part of a single behavioral act under section 609.035 is not a mechanical test, but involves an examination of all the facts and circumstances.” State v. Soto, 562 N.W.2d 299, 304 (Minn.1997). The factors to be considered under Minn.Stat. § 609.035 are “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.” Id. The district court’s decision of whether multiple offenses are part of a single behavioral incident is a fact determination and should not be reversed unless clearly erroneous. Heath, 685 N.W.2d at 61.

The state contends that the offenses did not occur at the same time and were motivated by different criminal objectives. First, the state argues that the offenses of manufacturing and possessing methamphetamine did not take place during the same time period because, until appellant completed manufacturing the methamphetamine, there would have been no methamphetamine for him to possess. But the methamphetamine found outside appellant’s garage, although having characteristics permitting a possession conviction, was in liquid form, and needed to be mixed with pseudoephedrine and water, separated, mixed with hydrogen chloride gas, filtered, and dried before the manufacturing process was complete. Second, the state argues the objective of one offense was to manufacture the drug and the objective of the other was to possess 'it. But if the methamphetamine was not yet in a usable form, the only reason to possess it would be to complete the manufacturing process.

The state compares this case to Heath, but Heath was charged with conspiracy to manufacture methamphetamine and aiding and abetting the possession of methamphetamine with intent to sell. Id. at 55. The court in Heath noted that a conspiracy had been committed when the co-conspirators agreed to manufacture methamphetamine and completed an overt act in furtherance of the conspiracy. Id. at 61. The court stated that the agreement and overt act of purchasing materials to make methamphetamine was completed before the co-conspirators possessed the drug, so that the two offenses were divisible. Id. In the immediate case, the methamphetamine in appellant’s possession was in an unusable liquid form, still involved in the manufacturing process. Although the methamphetamine in Heath was wet, it was already in a usable powder form.

Additionally, appellant is charged with manufacturing and possession, not conspiracy to manufacture and possession. Although a conspiracy to manufacture methamphetamine will typically be completed by the time the conspirators are in possession of the drug, manufacture and possession can occur at the same time because a person in the later stages of the manufacturing process would be in possession of some form of methamphetamine and the manufacture may not be complete.

Taking into account the time, place, and objectives of appellant’s manufacture and possession of methamphetamine, the manufacture and possession were part of the same behavioral incident, and sentencing appellant twice was not permissible. See Minn.Stat. § 609.035, subd. 1; Williams, 608 N.W.2d at 841.

Additionally, appellant’s challenge to his second sentence poses an argument asserting that possession of methamphetamine is a lesser-included offense of manufacturing methamphetamine. If so, the second conviction could not stand. The legislature has defined a lesser-included offense, in part, as “[a]n attempt to commit the crime charged; or ... [a] crime necessarily proved if the crime charged were proved[.]” Minn.Stat. § 609.04, subd. 1 (2002). As the state asserts, to determine whether one crime necessarily is proved by proof of another, the court looks at the statutory definitions of the crimes, not the facts of a particular case. State v. Gisege, 561 N.W.2d 152, 156 (Minn.1997). Possession of methamphetamine is not necessarily part of an attempt to manufacture methamphetamine. Possession is not necessarily proven if manufacture is proven because the prosecutor can prove a person manufactured “any amount of methamphetamine” without proving the elements of a possession charge, that the person “unlawfully possess[ed] one or more mixtures of a total weight of 25 grams or more containing cocaine, heroin, or methamphetamine[.]” Minn.Stat. § 152.051, subds. 2, 2a (2002). Ultimately, we decline to decide this issue because it has not been fully presented; appellant erroneously posed the argument as part of his attack on the sentence.

2.

Appellant also contends that the district court committed reversible error in failing to require recording and transcription of its reading of jury instructions. Before the parties delivered their closing arguments, the judge announced that written jury instructions would be read aloud “so that [my] words are selected in advance and [I don’t] say something inadvertently that seems to favor one side of an issue.” The court reporter did not record the instructions the judge read. Appellant does not argue that the district court gave an erroneous instruction but asserts that the failure to record and transcribe jury instructions destroyed appellant’s right to review. Although it would be a mistake to minimize the importance of making a record of all proceedings in the district court, appellant has not demonstrated that his right to review was destroyed or that he is entitled to a reversal of his convictions.

The Minnesota Rules of Criminal Procedure provide methods for dealing with an incomplete transcript, calling for development of a statement of the case or proceedings that is approved by the trial court and becomes the record on appeal. Minn. R.Crim. P. 28.02, subds. 8-9; see also Minn. R. Civ.App. P. 110.03.

Appellant cites to Hoagland v. State, 518 N.W.2d 531 (Minn.1994), to support his claim that the reversal of his convictions is required. In Hoagland, the Minnesota Supreme Court considered a case in which there was no transcript of a jury trial. The court reporter’s notes were never transcribed, and the court reporter destroyed the stenographic notes of the trial. Id. at 533. The district court denied Hoagland’s subsequent petition for post-conviction relief. Id. at 532. Because the district court judge and defense counsel made potentially misleading statements to Hoagland about the appeal process, and because the death of the trial judge made it impossible to reconstruct the trial in a statement of the case, the supreme court determined that a new trial would be necessary unless the state would be unduly prejudiced by a retrial. Id. at 535, 537. Thus, the supreme court remanded the case to the district court to determine whether the state would be unduly prejudiced. Id. at 537. The court noted that if reconstruction of the record had been possible, the court would not have remanded the case for a determination of prejudice. Id. at 535.

Appellant has not shown that the prosecutor, appellant’s trial attorney, or the district court judge are unavailable to provide their recollection of what the judge said when instructing the jury. Appellant did not attempt to reconstruct the record, and he asserts no claim that the district court judge gave the jury improper instructions. Under these circumstances, appellant is not entitled to the reversal of his convictions.

DECISION

Because the offenses of possession and manufacturing methamphetamine arose from the same behavioral incident, we reverse appellant’s sentence for possession. We also affirm appellant’s convictions because appellant has not shown the district court judge provided erroneous instructions to the jury and appellant failed to follow the proper procedure to reconstruct the missing part of the record.

Affirmed in part and reversed in part.

      . Appellant makes the additional argument that the district court erred in using the Hernandez method to increase his sentence for possessing methamphetamine from 98 months to 122 months. Because we conclude that the district court erred by sentencing appellant twice, we do not need to independently address the question of whether the district court erred by adding the criminal-history points for appellant’s manufacturing conviction to his criminal-history score before calculating appellant’s sentence for possession.


author: NEUMANN, Justice.

text:
    2005 ND 30
    STATE of North Dakota, Plaintiff and Appellant, v. Paul BUCHHOLZ, Defendant and Appellee.
    No. 20040118.
    Supreme Court of North Dakota.
    Feb. 16, 2005.
    H. Jean Delaney, Assistant State’s Attorney, Valley City, N.D., for plaintiff and appellant.
    Richard E. Edinger, Fargo, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] The State appeals the district court’s order discharging Paul Buchholz, finding no probable cause to believe he committed the crime of a felon in possession of a firearm in violation of N.D.C.C. § 62.1-02-01(2). We reverse and remand.

I

[¶ 2] On September 27, 2002, Paul Buchholz pled guilty to a class C felony, issuing a check without sufficient funds. He received a sixty-day suspended sentence and one year of unsupervised probation.

[¶ 3] On November 26, 2003, during execution of a search warrant, law enforcement found a rifle under the bed in a residence where Buchholz was staying. He admitted ownership and possession of the gun. Buchholz was charged with being a felon in possession of a firearm in violation of N.D.C.C. § 62.1-02-01(2). The district court discharged Buchholz, finding he was not a “convicted felon.” Section 12.1-32-02(9), N.D.C.C., provides, in part, “[a] person who is convicted of a felony and sentenced to imprisonment for not more than one year is deemed to have been convicted of a misdemeanor.” Because of the sixty-day length of Buchholz’ NSF sentence, the district court found Buchholz was not a felon.

[¶ 4] The State appeals, arguing whether a felony conviction has been reduced to a misdemeanor conviction is irrelevant under the clear language of N.D.C.C. § 62.1-02-01(2).

II

[¶ 5] The district court held the 2001 amendment to N.D.C.C. § 12.1-32-02(9) instantaneously converts a felony conviction with a sentence of less than one year to a misdemeanor. The district court compared the 2001 amendment to the old statute in which a felony conviction could be reduced to a misdemeanor only after completing a sentence of less than one year. Therefore, the district court found no probable cause to believe Buchholz was a felon in possession of a firearm in violation of N.D.C.C. § 62.1-02-01(2). The district court incorrectly interpreted N.D.C.C. § 12.1-32-02(9).

[¶ 6] Our standard of review for the interpretation of criminal statutes is clearly articulated:

Construction of a criminal statute is a question of law, fully reviewable by this Court. Our primary goal in interpreting statutes is to ascertain the Legislature’s intentions. In ascertaining legislative intent, we first look to the statutory language and give the language its plain, ordinary and commonly understood meaning. We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage. When a statute’s language is ambiguous because it is susceptible to differing but rational meanings, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the Legislature’s intent. We construe ambiguous criminal statutes against the government and in favor of the defendant.

State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878 (citations omitted).

[¶ 7] Buchholz was charged with violating N.D.C.C. § 62.1-02-01(2). The statute prohibits a person who has been convicted of a certain class of felonies from possessing a firearm for a period of five years after the date of conviction. N.D.C.C. § 62.1-02-01(2). The relevant portion of N.D.C.C. § 62.1-02-01 provides:

For the purposes of this section, “conviction” means determination by a jury or court that a person committed one of the above-mentioned crimes even though ... the defendant’s conviction has been reduced in accordance with subsection 9 of section 12.1-32-02.

Section 12.1-32-02(9), N.D.C.C., provides:

A person who is convicted of a felony and sentenced to imprisonment for not more than one year is deemed to have been convicted of a misdemeanor. However, if an order is entered revoking a probation imposed as a part of the sentence, the person is deemed to have been convicted of a felony.

[¶ 8] We conclude the statutory language is clear and unambiguous. A person convicted of a felony and sentenced to not more than one year, despite the immediate reduction to a misdemeanor conviction, is still initially convicted of a felony. See N.D.C.C. § 12.1-32-02(9). The 2001 amendments to N.D.C.C. § 12.1-32-02(9) merely changed the point in time when a felony conviction is reduced to a misdemeanor conviction; the fact remains that the defendant was originally convicted of a felony and that the felony is thereafter reduced. After the 2001 amendments, the reduction from a felony conviction to a misdemeanor conviction occurs immediately upon the entry of sentence. See N.D.C.C. § 12.1-32-02(9). Before the 2001 amendments, the reduction occurred after the completion of sentence and probation. See N.D.C.C. § 12.1-32-02(9) (1997).

[¶ 9] Section 62.1-02-01, N.D.C.C., specifically states a person is convicted of a felony even if “the defendant’s conviction has been reduced in accordance with subsection 9 of section 12.1-32-02.” We do not interpret statutes under a construction that would render part of the statute mere surplusage. Bruns v. North Dakota Workers Comp. Bureau, 1999 ND 116, ¶ 16, 595 N.W.2d 298. Because Buchholz was sentenced to sixty days, his felony conviction was reduced to a misdemeanor conviction under N.D.C.C. § 12.1-32-02(9). Accordingly, Buchholz was convicted of a felony and probable cause to believe he was a felon in possession of a firearm exists under N.D.C.C. § 62.1-02-01(2). The district court’s April 2, 2004, order discharging Buchholz from the charge of felon in possession of a firearm is reversed.

Ill

[¶ 10] Buchholz argues the district court’s discharge order should be affirmed because he relied on a mistake of law.

[¶ 11] The district court’s discharge order arose from a preliminary hearing held under Rule 5.1, N.D.R.Crim.P. We have described the function of a preliminary hearing:

The purpose of the preliminary examination is to determine if a crime has been committed and if probable cause exists requiring the accused to stand trial. The preliminary examination is not a trial nor is it a pretrial proceeding. In reality, it is a proceeding to determine if a trial should be held to determine the guilt or innocence of the accused. It is also a safety device to prevent the accused’s detention without probable cause.

Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72, 75 (N.D.1983). A preliminary hearing is not held to determine a defendant’s guilt or innocence. Id. Therefore, Buchholz cannot assert a mistake of law defense to overcome the charged offense at a preliminary hearing. Whether Buchholz relied on a mistake of law is an affirmative defense and must be proven by Buchholz by a preponderance of the evidence at trial. See State v. Purdy, 491 N.W.2d 402, 411 (N.D.1992).

IV

[¶ 12] We reverse and remand for further proceedings consistent with this opinion.

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


author: KAPSNER, Justice. SANDSTROM, Justice,

text:
    2005 ND 31
    Sandra WIGGINTON, Plaintiff and Appellee v. Joel WIGGINTON, Defendant and Appellant.
    No. 20040153.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      Kevin J. Chapman (argued), Chapman Law Office, Williston, ND, for plaintiff and appellee.
    Tom P. Slorby (argued) and Eric P. Baumann (on brief), Slorby Law Office, Minot, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Joel Wigginton appeals an amended judgment granting Sandra Wig-ginton custody of their two children and granting him visitation at her discretion, ordering him to pay child support effective June 1, 2001, and allowing Sandra Wiggin-ton to claim both children as dependents on her income tax returns. We affirm the award of custody, visitation and tax dependency and reverse the effective date of the child support obligation.

I.

[¶ 2] Joel Wigginton and Sandra Wig-ginton divorced in 1999 after 10 years of marriage. They have two minor children. He farms near Ambrose and plans to begin custom combining and doing contract concrete work for additional income. She owns Divide County Abstract in Crosby.

[¶ 3] The original divorce decree granted joint custody and liberal visitation to both parties. Sandra Wigginton had the children April through September subject to liberal and reasonable visitation by Joel Wigginton, and he had the children October through March subject to liberal and reasonable visitation by her. No set amount of child support was ordered; instead, the parties were ordered to share all expenses equally. Sandra Wigginton was to maintain health insurance for the children, and Joel Wigginton was to reimburse her one-half the cost. Each party was allowed to claim one of the children as a dependent for income tax purposes.

[¶ 4] This arrangement worked well until spring 2001, when Joel Wigginton was charged with possession of methamphetamine and paraphernalia with intent to deliver. These charges were dismissed on a search warrant issue, but Joel Wig-ginton acknowledged a dependency problem and voluntarily checked himself into a rehabilitation facility. He claims to have been drug-free since, although he failed a urine analysis at the close of trial.

[¶ 5] Sandra Wigginton filed a motion to modify judgment on May 21, 2001. An ex parte order was issued that same day granting her “sole, primary care, custody and control of the minor children of the parties, subject to supervised visitation rights of [Joel Wigginton] ...” The order was to remain in effect until a hearing could be held, and it did not mention child support. The children have lived with Sandra Wigginton full-time since, and Joel Wigginton continued to reimburse her for one-half of the children’s expenses. He testified he was billed for and paid approximately $300 monthly from May 2001 through September 2003 for expenses. Sandra Wigginton acknowledged receipt of these payments.

[¶ 6] A hearing was held on Sandra Wigginton’s motion on February 19, 2004. At the hearing she testified that Joel Wig-ginton was often late for visitation and saw the children less frequently after May 2001. She said he seldom attended their sporting events and other school activities. Joel Wigginton said he would like to see his children more, but his farm is 11 miles from her home and he never has the kids long enough to justify the drive. He also testified that he works a lot and is very-busy between farming and working on his house. Both parties agree Sandra Wiggin-ton has never denied Joel Wigginton visitation when he has requested it.

[¶ 7] The district judge issued a first amended judgment on April 15, 2004. The judgment granted Sandra Wigginton “primary care, custody and control ... subject to reasonable visitations [by Joel Wiggin-ton] ... to be conducted at the sole discretion of [Sandra Wigginton].” The judgment granted her discretion to require him to submit to drug testing, have certain persons present during visitation, and forbid certain persons from being present during visitation. The judgment further ordered Joel Wigginton to pay child support of $252 per month effective June 1, 2001. Sandra Wigginton was allowed to claim both children as dependents starting with her 2004 income tax return. Joel Wigginton appealed.

II.

[¶ 8] A trial court’s decision on visitation is a finding of fact reviewed under the clearly erroneous standard of review. Berg v. Berg, 2002 ND 69, ¶ 4, 642 N.W.2d 899. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire record, this Court believes a mistake has been made. Id.

[¶ 9] The decision to award visitation to a noncustodial parent is based on the best interests of the child and not the wishes or desires of the parents. K.L.G. v. S.L.N., 2001 ND 33, ¶ 11, 622 N.W.2d 232; Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81.

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

N.D.C.C. § 14-05-22(2). A restriction on visitation must be based on a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation. Johnson v. Schlotman, 502 N.W.2d 831, 835 (N.D.1993).

[¶ 10] Joel Wigginton argues he has been denied visitation with his children. The amended judgment actually states, “... subject to reasonable visitations being awarded to [Joel Wigginton], but to be conducted at the sole discretion of [Sandra Wigginton].” The judge’s order explains the basis for his decision:

After the testimony and after oral arguments of counsel, ... Joel Wigginton, was ordered to submit a urine sample for the purpose of testing for the use of marijuana and/or methamphetamine. At the close of the hearing, [Joel Wig-ginton] was to go to the Williams County Jail to give the urine sample ... [Joel Wigginton] tested negative for marijuana but positive for methamphetamine use.
This motion was originally filed by [Sandra Wigginton] when [Joel Wigginton] was arrested for having a methamphetamine lab at his farm. [Joel Wigginton] was charged, but he never went to trial ... While spared the possibility of jail, [Joel Wigginton] was nevertheless using methamphetamine and apparently took his arrest as a wake-up call. He entered and completed a treatment program and went through aftercare as well.
[Joel Wigginton] testified on the stand that his use of methamphetamine harmed his relationship with his children and did place his children in danger. [Sandra Wigginton] had requested that testing be a part of any visitation order, as she was concerned that [Joel Wigginton] had not stopped the use of methamphetamine. It appears [Sandra Wigginton’s] fears were warranted. [Joel Wigginton] continues to use methamphetamine and had done so within a few days of trial. [Joel Wigginton] does not appear to have a handle on his drug use, and this drug use places his children in danger.
... Giving a party such control over visitation is an unusual ruling and is not done lightly. [Sandra Wigginton] has shown that she will not play the games sometimes seen in these situations. [Sandra Wigginton] has not denied [Joel Wigginton] visitations when the request was reasonable. [Sandra Wigginton] is deeply concerned that the children, for the children’s benefit, maintain a relationship with their father. [Sandra Wig-ginton] is simply concerned for the children’s safety. I have the utmost faith in [Sandra Wigginton], that she will allow [Joel Wigginton] to see the children as much as is possible and safe. If [Sandra Wigginton] requires drug testing, so be it. If she requires third parties to be present, or specific people to not be present, so be it. The bottom line is [Joel Wigginton] will need to re-earn the trust that he has lost, the trust of his children as well as them mother.
If [Joel Wigginton] ever feels in the future that [Sandra Wigginton] is wrongfully restricting his visitation, he will be allowed to file a motion, and the Court will revisit this issue. But for now, [Sandra Wigginton] is 100% in charge, and what she says goes.

[¶ 11] Sandra Wigginton correctly argues that Joel Wigginton has not technically been denied visitation with his children, but there is no doubt his visitation has been restricted. This Court has held visitation should be restricted only upon a showing by the preponderance of the evidence that visitation “is likely to endanger the child’s physical or emotional health.” Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986); N.D.C.C. § 14-05-22(2). Joel Wig-ginton testified his methamphetamine use places his children in danger and harms his relationship with them. The trial court considered this testimony along with the fact Joel Wigginton tested positive for methamphetamine use at the close of trial. While the record contains no evidence of actual physical or emotional harm to the children, both parties acknowledge there is a potential for such damage.

[¶ 12] The record contains sufficient evidence for the trial court to restrict Joel Wigginton’s visitation, including his history and the results of the urine analysis. The provisions the trial court used to restrict that visitation are highly unusual and, as the trial court said, should not be “done lightly.” This Court has said visitation is “a right of the child which is not to be subverted by the custodian.” Gardebring v. Rizzo, 269 N.W.2d 104, 110 (N.D.1978). Giving the custodial parent such complete discretionary authority over the manner and timing of visitation should be used only when there is a demonstrated need to protect the children from the potential for physical or emotional harm and where, as here, the custodial parent has demonstrated that he or she is “deeply concerned that the children, for the children’s benefit, maintain a relationship with” the noncustodial parent. The findings of the trial court specifically indicate Sandra Wigginton’s willingness to foster the parent-child relationship between Joel Wigginton and his children. The court made a point of stating the visitation award can be modified at any time if Joel Wigginton feels he is being treated unfairly by Sandra Wigginton. He can also move to modify visitation once he has taken actions to convince the court he is no longer using drugs. Based on the evidence in this case, the trial court’s award of custody and restricted visitation is not clearly erroneous.

III.

[¶ 13] Child support determinations are mixed questions of law subject to the de novo standard' of review, findings of fact subject to the clearly erroneous standard of review, and may include matters of discretion subject to the abuse of discretion standard of review. Lukenbill v. Fettig, 2001 ND 47, ¶ 9, 623 N.W.2d 7 (quoting Buchholz v. Buchholz, 1999 ND 36, ¶¶ 11, 12, 590 N.W.2d 215). “The determination of back child support under N.D.C.C. § 14-17-14(4) lies within the trial court’s discretion, and its decision will be reversed on appeal only if the court abused its discretion.” Lukenbill, at ¶ 6 (quoting In re S.J.F., 2000 ND 158, ¶22, 615 N.W.2d 533). “A district court abuses its discretion if it acts arbitrarily, capriciously, or unreasonably.” Lukenbill, at ¶ 6 (citing Christl v. Swanson, 2000 ND 74, ¶ 7, 609 N.W.2d 70).

[¶ 14] Under the original judgment, the parties were to share the children and expenses equally. After the ex parte order in May 2001, the children spent most of their time with Sandra Wig-ginton. Both parties acknowledge Joel Wigginton continued to pay half the expenses, or approximately $300 per month, until September 2003. Sandra Wigginton stated at trial, “he paid me up until September.” She testified that he paid her everything she asked for, and she acknowledged certain expenses that she did not request compensation for, such as mileage to and from the children’s events. Sandra Wigginton further stated that Joel Wiggin-ton had paid her for half of what she spent on the kids, and the only expenses she had paid herself were housing, food, and heat. She again stated he paid the full amount requested until September 2003. Sandra Wigginton’s attorney said in his closing arguments, “[w]e don’t need to talk about what Joel has — -what Joel did pay. That’s not an issue.” He also concurred with the judge’s statement that Joel Wigginton paid his half of the expenses until September 2003.

[¶ 15] The district court decided to make Joel Wigginton’s child support obligation effective June 1, 2001, despite testimony by both parties that he complied with the original judgment until September 2003. Sandra Wigginton claims this decision was not an abuse of discretion because the original judgment contemplated both parties would have physical custody of the children, but beginning in May 2001, they were primarily in her care. She acknowledged at trial that Joel Wig-ginton complied with the original judgment until September 2003, and paid her everything she asked him for.

[¶ 16] We have said, “[t]he amount of child support is set from the date of the motion to modify, absent a good reason for not doing so.” McDowell v. McDowell, 2003 ND 174, ¶28, 670 N.W.2d 876 (citing Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237). Although Sandra Wigginton filed her motion to modify in May 2001, neither party denies that Joel Wigginton complied with the original child support order through September 2003. It is also undisputed that he paid an average of $300 per month.

[¶ 17] Under these circumstances, the trial court could have entered the order effective the date of the motion and given Joel Wigginton credit for child support actually paid against the amended order. However,' the trial court did not engage in such an analysis, and the parties did not provide adequate evidence for it to do so. There is merely evidence that Sandra Wig-ginton billed Joel Wigginton and that his expenditures were approximately $300 per month. Affirming the date that child support was to commence under the amended judgment would leave Joel Wigginton subject to two judgments for child support. Based on the facts of this case, we find there are sufficient good reasons for making Joel Wigginton’s support obligation effective after the date of the motion. Joel Wigginton’s child support obligation should be effective the month after he stopped complying with the original judgment, or October 1,2003.

IV.

[¶ 18] A trial court has the authority to allocate income tax dependency exemptions. Lukenbill, 2001 ND 47, ¶ 13, 623 N.W.2d 7 (citing Mahoney v. Mahoney, 1997 ND 149, ¶ 21, 567 N.W.2d 206). Such allocations are reviewed under the clearly erroneous standard. Id. The order states, “2. [Sandra Wigginton] will claim both children as dependants for income tax purposes beginning in the year 2004.” There are no findings of fact supporting the judge’s decision, but the reasons for it can be determined from the record.

[¶ 19] Trial exhibits and testimony by both parties indicate Joel Wigginton has shown a loss on his recent income tax returns. Both parties agree the tax exemptions should be maximized. Based on the parties’ current incomes, it makes the most sense for Sandra Wigginton to claim the children as dependents. The trial court’s allocation of the income tax dependency exemptions is not clearly erroneous.

V.

[¶ 20] We affirm the awards of custody, visitation, income tax dependency allocations, and the amount of child support. We reverse the award of child support as to the effective date of the obligation and direct that the judgment for child support be amended to an effective date of October 1, 2003.

[¶ 21] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 22] I write separately to once again note that the right of noncustodial parents to visitation is not just a “wish or desire”— not just a statutory right — it is a right of constitutional magnitude. Berg v. Berg, 2002 ND 69, ¶¶ 24-33, 642 N.W.2d 899 (Sandstrom, J., concurring in the result). Unless restricted or forfeited by serious misconduct of the noncustodial parent, noncustodial-parent visitation rights must be vindicated by court judgment and enforced by court action if necessary. See id. at ¶ 32; N.D.C.C. § 14-09-06.6.

[¶ 23] Dale V. Sandstrom


author: SANDSTROM, Justice.

text:
    2005 ND 32
    Robin PRATT, Plaintiff and Appellant v. Richard ALTENDORF d/b/a Northwood Aero Spray and/or Northwood Aero Service, Defendant and Appellee.
    No. 20040163.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      Adam Wade Hamm (argued) and David J. Hauff (on brief), Anderson & Bottrell, Fargo, ND, for plaintiff and appellant.
    E. Thomas Conmy III (argued), Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Fargo, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Robin Pratt appealed from a summary judgment dismissing his claim for damages against Richard Altendorf for breach of a contract to provide aerial spraying of fungicide on Pratt’s growing crops. We hold the notification requirements under N.D.C.C. § 4-35-21.1(1) do not apply to Pratt’s action against Alten-dorf, and we reverse and remand for a trial on the merits.

I

[¶ 2] Altendorf, doing business as Northwood Aero Spray or Northwood Aero Service, has a crop spraying business in Grand Forks. In the spring of 2000, Pratt, a Northwood farmer, contracted with Altendorf to spray fungicide on his growing crops. Altendorf was to spray a fungicide called Folicur to prevent scab and foliar disease, which can infect crops and result in a lower crop yield. Altendorf performed the spraying services, but after the crops were harvested Pratt sued Al-tendorf for breach of contract, alleging that Altendorf sprayed the crops too early in their growing cycle for the fungicide to be completely effective, thereby resulting in a reduced crop yield.

[¶ 3] Altendorf moved for and was granted a summary judgment dismissing the action on the ground that Pratt did not comply with the notification reporting requirements under N.D.C.C. § 4-35-21.1(1) prior to filing his action against Altendorf. The district court concluded the notification statute applied and Pratt had failed to comply with it. However, the court also concluded that under N.D.C.C. § 4-35-21.1(3), the 60-day time limit for Pratt to serve notice upon Altendorf prior to commencing his action did not apply, because Altendorf had failed to inform Pratt of the statutory notice requirements. The court, therefore, dismissed Pratt’s action without prejudice. ' On appeal, Pratt argues the statutory notice requirement does not apply and the trial court erred in dismissing the action.

II

[¶4] The right to appeal is a jurisdictional matter which this Court may consider on its own. Frontier Enterprises, LLP v. DW Enterprises, LLP, 2004 ND 131, ¶ 3, 682 N.W.2d 746. The right of appeal in North Dakota is governed by statute. State v. Moore, 2003 ND 83, ¶ 4, 662 N.W.2d 263, cert. denied, 540 U.S. 906, 124 S.Ct. 268, 157 L.Ed.2d 192. Ordinarily, a dismissal without prejudice is not appealable, because either side may start another action. Winer v. Penny Enter prises, Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9. A dismissal without prejudice, however, may be final and appealable if it has the practical effect of terminating the litigation in the plaintiffs chosen forum. Id.

[¶ 5] The judgment from which Pratt has appealed dismissed his action for damages against Altendorf without prejudice to his filing another complaint. Pratt’s claim is based on breach of contract, and actions arising in contract are governed by a six-year statute of limitations. N.D.C.C. § 28-01-16(1). The alleged breach of contract occurred in the spring of 2000. Therefore, Pratt would not be barred by the statute of limitations from bringing a subsequent action.

[¶ 6] If we assume, for purposes of determining whether Pratt has a right to appeal from the summary judgment, the trial court is correct that the notification requirements under N.D.C.C. § 4-35-21.1 apply, the dismissal would have the practical effect of terminating the litigation. We reach that conclusion because subsection 2 of the statute provides that when damages are alleged to have occurred to growing crops, a notification report “must be filed prior to the time fifty percent of the field is harvested.” If the statute applies, Pratt would have had to notify Alten-dorf before the crop was more than 50 percent harvested, even though Altendorf did not inform Pratt of the statute’s notice requirements. See N.D.C.C. § 4-35-21.1(3). The crop is fully harvested, and Pratt did not comply with the notice requirement. Because the summary judgment dismissing this action would have the practical effect of terminating the litigation, we conclude the judgment is final and appealable.

[¶ 7] The district court had subject matter jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. §§ 27-02-04 and 28-27-01.

Ill

[¶ 8] Pratt contends the district court should not have granted Altendorfs motion for summary judgment dismissing Pratt’s action for failure to provide notice to Altendorf prior to commencing the action, because the statutory notice requirement does not apply to this case.

[¶ 9] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact or conflicting inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Kondrad ex rel. McPhail v. Bismarck Park Dist., 2003 ND 4, ¶ 4, 655 N.W.2d 411. Whether the trial court properly granted summary judgment is a question of law and is reviewed de novo. Id.

[¶ 10] Section 4-35-21.1(1), N.D.C.C., provides:

No civil action may be commenced arising out of the application of any pesticide by any applicator inflicting damage on property unless, within sixty days from the date the claimant knew or reasonably should have known of the damage:
a. The claimant has served the applicator allegedly responsible for damage with a verified report of loss;
b. If the claimant is someone other than the person employing the applicator alleged to be responsible for the damage, the claimant has served the person who employed the applicator allegedly responsible for the damage with a verified report of loss; and
c. The claimant has mailed or delivered to the commissioner of agriculture a verified report of loss together with proof of service of the report required by subdivision a and the report required by subdivision b, if applicable.

[¶ 11] Pratt argues the statutory notice requirement does not apply, because his action against Altendorf does not arise “out of the application of any pesticide by any applicator inflicting damage.” Pratt argues that he is not claiming Altendorf inflicted damage to his crops or any other property by the application of the pesticide. Rather, he is claiming that Altendorf breached his contract by not timely spraying when the fungicide application would have produced the desired result.

[¶ 12] Interpretation of a statute is a question of law fully renewable on appeal. State ex rel. Heitkamp v. Family Life Services, Inc., 2000 ND 166, ¶ 7, 616 N.W.2d 826. Our primary objective in construing a statute is to ascertain the intent of the legislature. N.D.C.C. §§ 1-02-02 and 1-02-03. We determine intent by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. § 1-02-02. Although the courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. N.D.C.C. §§ 1-02-05, 1-02-39. Words in a statute are to be understood in their ordinary sense. N.D.C.C. § 1-02-02.

[¶ 13] Section 4-35-21.1(1), N.D.C.C., requires a report of loss prior to commencing an action against the applicator of pesticides “inflicting damage on property.” The term “inflict” is defined in Webster’s New World Dictionary 722 (2nd Coll. Ed. 1982) to mean:

to strike or beat against ... to give or cause (pain, wounds, blows, etc.) by or as by striking; cause to be borne ... to impose (a punishment, disagreeable task, etc. on or upon)

The Random House Dictionary of the English Language (2nd ed. 1987) defines “inflict” to mean:

to impose as something that must be borne or suffered ... to deal or deliver, as a blow

Using its general and ordinary meaning, the term inflicting is a word of action, such as striking, beating, or imposing. Consequently, a reasonable interpretation of the statutory language, “application of any pesticide ... inflicting damage on property,” is that it applies to an application of chemicals affirmatively imposing harmful results upon a property. In the context of crop dusting, for “inflicting damage on property,” liability of the applicator generally arises in tort, not contract. See An-not., Liability for Injury Caused by Spraying or Dusting of Crops, 37 A.L.R.3d 833, 839 (1971).

[¶ 14] Liability for the application of herbicide or pesticides inflicting damage on property, usually by drift of the chemical resulting in severe damage or destruction of the property upon which it lands, is based upon principles of tort, such as negligence, trespass, and strict liability. See, e.g., Langan v. Valicopters, Inc., 88 Wash.2d 855, 567 P.2d 218, 220 (1977); see also Foust v. Estate of Walters, 21 S.W.3d 495, 507-08 (Tex.App.2000) (neighbor who hired aerial application of herbicide that inflicted damage on nearby crops was liable under tort principles for decision to apply the herbicide when conditions favored drift); Leonard v. Abbott, 357 S.W.2d 778, 782 (Tex.Civ.App.1962), rev’d on other grounds, 366 S.W.2d 925 (1963) (aerial spraying of chemical defoliants, insecticides, and herbicides are activities having such potential for inflicting injury as to be considered inherently dangerous); Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312, 314 (1961) (chemical application that drifted onto neighbors’ land was “trespassory invasion of their rights” inflicting damage on the property); Alexander v. Seaboard Air Line R. Co., 221 S.C. 477, 71 S.E.2d 299, 302 (1952) (liability imposed on tort principles for injury inflicted upon cotton crop by chemical being used to kill weeds on nearby right-of-way). Also, in other contexts the term “inflicting damage” has meant causing harm by actions resulting in tort liability, not breach of contract. Koos v. Roth, 293 Or. 670, 652 P.2d 1255, 1268 (1982) (farmer burning field from which fire escaped upon neighbor’s property thereby inflicting damage to it was strictly liable for the damages caused); Kell v. Appalachian Power Co., 170 W.Va. 14, 289 S.E.2d 450, 454 (W.V.1982) (power company held strictly liable for use of toxic herbicides inflicting damage upon property by application of herbicide in clearing trees, branches, and other obstructions from nearby right-of-way).

[¶ 15] Our statute requires the giving of notice as a prerequisite to filing an action arising out of the application of pesticide “inflicting damage” on property. Used in its general sense, as indicated by the foregoing authorities, “inflicting damage on property” by the application of pesticide connotes tortious action resulting in harm or destruction to property not intended to be adversely impacted by the chemical application. There is no allegation by Pratt that Altendorfs application of the fungicide was a tortious act inflicting damage on Pratt’s crops. Rather, Pratt contends Altendorfs spraying services constituted a breach of his contract by providing the services “prior to being directed to by [Pratt] .and prior to those fields being ready for the application of the fungicide,” thereby rendering the spraying less effectual and resulting in a reduced crop yield. The alleged harm was not caused by the “application .. .■ inflicting damage” but. rather by the untimely or premature provision of the contracted services. The statutory notification requirement, by its clear language, does not apply to an action of -this type, Construing the words used in the statute in their ordinary sense, we conclude the notice reporting requirements apply only to actions arising out of the “application” of pesticides .by an applicator “inflicting damage on property.” Pratt’s action against Altendorf is based upon contract principles, not tort, and does not arise out of “the application [of the fungicide by Altendorf]- inflicting damage on property.” Rather, Pratt’s claim is based on Altendorfs failure to timely perform his contractual agreement to spray Pratt’s crops:

IV

[¶ 16] We conclude Pratt’s lawsuit does not fall within those actions for which the claimant must give statutory notice under N.D.C.C. § 4-35-21.1(1) prior to filing the action. Consequently, the court erred in dismissing the action for Pratt’s failure to provide notice. We, therefore, reverse the summary judgment dismissing Pratt’s action against Altendorf and remand for further proceedings on the merits.

[¶ 17] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER,-JJ., concur.