author: SANDSTROM, Justice.

text:
    2004 ND 207
    Alissa FORSTER, VMB, Plaintiff, Appellee and Cross-Appellant v. WEST DAKOTA VETERINARY CLINIC, INC., and Kim Brummond, D.V.M., Defendants, Appellants and Cross-Appellees.
    No. 20040061.
    Supreme Court of North Dakota.
    Nov. 4, 2004.

      Rebecca S. Thiem (argued) and Tracy Lynn Vigness Kolb (appeared), Zuger Kir-mis & Smith, Bismarck, N.D., for plaintiff, appellee and cross-appellant.
    J. Matthew Berner (argued), Katherine C. Bloomquist (appeared), Bloomquist & Berner, LLC, Edina, MN and Todd D. Kranda (appeared), Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for defendants, appellants and cross-appellees.
   SANDSTROM, Justice.

[¶ 1] West Dakota Veterinary Clinic, Inc. (“Clinic”), and Kim Brummond appealed from a judgment entered on a jury verdict awarding Alissa Forster $264,884.57 in damages, attorney fees, costs, and disbursements in Forster’s defamation action against them. The Clinic and Brummond also appealed from orders denying their motions for judgment notwithstanding the verdict and for a new trial. Forster appealed from a judgment dismissing her employment contract claim against the Clinic and from an order denying her motion to alter or amend that judgment. We conclude there is sufficient evidence to support the jury’s verdict in the defamation action, and the district court did not commit reversible error in its instructions to the jury or in its evidentia-ry rulings during trial. We also conclude the district court’s implied finding that Forster and the Clinic did not reach an agreement for employment for a definite term, and that Forster was therefore an at-will employee, is not clearly erroneous. We affirm.

I

[¶ 2] Brummond received her veterinary medicine degree in 1984, and in 1986, she established the Clinic in Dickinson. Forster received her veterinary medicine doctorate in 1994 and became licensed to practice in North Dakota in 1995. In 1997, while Forster was working in Glen Ullin, Brummond contacted Forster and asked whether she would be interested in working at the Clinic. Forster and the Clinic eventually entered into a written two-year employment contract for Forster to work as an associate veterinarian beginning April 1, 1998, and ending April 1, 2000. Under the terms of the employment contract, Forster was to receive an annual salary of $36,000 plus benefits, including payment of her annual licensing fee, annual dues, malpractice insurance, and group health and life insurance.

[¶ 3] Shortly before the written agreement expired, in March 2000, Brummond asked Forster whether she intended to continue working at the Clinic. According to Forster, the parties agreed to renew the previous contract for an additional year and she would continue to receive the benefits listed in the written contract. According to Brummond, the parties did not agree to an additional year of employment, and Forster was intended to work as an at-will employee. Although Forster continued to work for the Clinic beyond the initial contract expiration date of April 1, 2000, the parties did not enter into another written employment agreement.

[¶ 4] During September 2000, Brum-mond’s friend, Bonnie Orvedahl, reported to the State Veterinarian’s Office that Forster was abusing a horse, boarded at Orve-dahl’s property, by riding the horse too hard for its health and age. The State Veterinarian contacted Forster on September 28, 2000, and Forster told him the horse had a nerve injury and was not being ridden. No formal abuse charges were brought against Forster.

[¶ 5] On October 2, 2000, Brummond presented Forster with a “Probation Agreement” setting forth a list of conditions Forster was required to comply with to remain employed at the Clinic. The document contained provisions addressing “improvement of client relations,” “treatment of support staff,” and “improvement of employer/employee relationship.” The document provided, “Failure to sign this agreement within 48 hours of its presentation will be construed by the employer as the employee exercising her option to terminate employment.” Forster refused to sign the agreement, removed her belongings from the Clinic, and returned her key to the Clinic. Forster then applied for unemployment benefits. Brummond disputed the application for benefits, claiming Forster had resigned, Forster had been the subject of an animal abuse complaint, and Forster had sold prescription medication across state lines without Brum-mond’s knowledge or consent while employed at the Clinic. Forster claimed she had received permission from Brummond to ship the medication and the purchaser sent a check for payment in Forster’s name to the Clinic. Forster offered to endorse the $45 check to the Clinic, but Brummond did not present the check to Forster for her signature. Forster was awarded unemployment benefits.

[¶ 6] On November 17, 2000, Brum-mond reported to the Dickinson police that the Clinic had been burglarized and that although there were no signs of forced entry and no money was missing from the Clinic, two bottles of medication had been taken. Brummond told police she suspected Forster had entered the Clinic because Forster had a horse that needed to be euthanized and Forster did not have a license that would allow her to purchase or possess the euthanasia medication. Brum-mond also told the police she had previously suspected Forster of illegal activities, she had a check showing Forster had illegally shipped prescription medication to a friend in Utah, there was a constant flow of those shipments, Forster had a key to the Clinic, and medications disappeared from other places Forster had worked. Dickinson police contacted the man who was boarding Forster’s horse, and he told them the horse was fine. Police also contacted Forster, who explained that her horse did not have to be euthanized and that she had the necessary license to purchase and dispense the medications. When police reported back to Brummond, Brummond claimed Forster lied and was possibly having an affair with the man boarding the horse. The police found no evidence Forster had burglarized the Clinic, and did not interview Forster again.

[¶ 7] In April 2001, Forster sued the Clinic, alleging it breached an oral one-year employment agreement by prematurely terminating her contract.

[¶ 8] In July 2001, an agent of the Bureau of Criminal Investigation, who was investigating a break-in at the Bowman Veterinary Clinic, was informed by the Bowman County Sheriffs Department that Forster was viewed as a suspect on the basis of information Brummond had given the Bowman Veterinary Clinic. The investigator contacted Brummond, who told him Forster had no license to purchase or sell medications. After the investigator verified that Forster had the necessary license, he advised Brummond that because of the manner in which the crime occurred, Forster was not a suspect in the break-in at the Bowman Veterinary Clinic.

[¶ 9] After the conversation with the investigator, Brummond continued to inform her employees and friends, including the assistant State Veterinarian, that the Bureau of Criminal Investigation was investigating Forster in connection with the break-ins at her Clinic and at the Bowman Veterinary Clinic. On August 8, 2001, Brummond reported to Dickinson police that another break-in had occurred at her Clinic. The locks at the Clinic had been changed, but a key was missing from Brummond’s home, and she reported several bottles of medication were missing. Brummond informed police that Forster was the only person she thought might have stolen the key and broken into the Clinic. The police did not interview Forster about the second break-in at the Clinic. Two weeks later, Brummond contacted the Stark County Sheriffs Department and reported her horse had been poisoned the day after the second break-in and she suspected Forster was responsible for the poisoning. Brummond told an employee the stolen medication can be used to treat schizophrenia or a bipolar condition, and suggested that Forster had those conditions. Forster was not questioned about the second break-in or the horse-poisoning incident.

[¶ 10] During August 2001, Forster attended the veterinary state convention and talked about potential employment with veterinarians in attendance. Some veterinarian offices eventually had contact with Brummond regarding Forster’s job applications. Brummond told the veterinarians she believed Forster had broken into her Clinic, stolen drugs, and poisoned her horse. The veterinarians did not hire Forster. The State Veterinarian Office occasionally provided job referrals to prospective employers, and Forster had previously received job references through the office. At the time of trial, Forster had been unsuccessful in obtaining employment.

[¶ 11] In January 2002, Forster moved to amend her complaint to add a defamation claim and to add Brummond as a defendant on the basis of Brummond’s deposition testimony. Forster claimed that Brummond had told several individuals, including law enforcement officers, other veterinarians, the assistant State Veterinarian, and her employees, friends, and family that Forster was dangerous and had broken into Brummond’s Clinic, stolen and sold drugs, poisoned Brummond’s horse, and abused animals. The district court granted the motion.

[¶ 12] The court ordered separate trials of the contract and tort claims under N.D.R.Civ.P. 42(b). The defamation claim was tried before a jury. In October 2003, the jury found Brummond and the Clinic had defamed Forster and awarded Forster $50,000 in past noneconomic damages, $10,000 in future noneconomic damages, and $100,000 in past economic damages. The jury also found Forster was entitled to an award of attorney fees. The district court denied Brummond and the Clinic’s motions for judgment notwithstanding the verdict and for a new trial, and a judgment was entered awarding Forster $264,884.57 in damages, attorney fees, costs, and disbursements.

[¶ 13] The employment contract claim was tried to the court without a jury. The district court found that after March 2000, Forster was an at-will employee and therefore was not entitled to damages for breach of an employment contract. The court dismissed the contract claim in October 2003, and also denied Forster’s motion to alter or amend the judgment.

[¶ 14] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The parties’ appeals are timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 15] Brummond and the Clinic argue the jury verdict is not supported by the evidence and the district court committed reversible error in its instructions to the jury and in several of its evidentiary rulings.

A

[¶ 16] Brummond and the Clinic claim they are entitled to judgment as a matter of law because Forster failed to produce evidence that they “published” any defamatory statements about her.

[¶ 17] We explained the standard for reviewing a N.D.R.Civ.P. 50 motion for judgment as a matter of law in Amyotte ex rel. Amyotte v. Rolette County Hous. Auth., 2003 ND 48, ¶ 15, 658 N.W.2d 324 (quoting Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450):

The trial court’s decision on a motion brought under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. In considering this motion, the trial court must apply a rigorous standard with a view toward preserving a jury verdict, and so must we in our review on appeal. In determining if the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which support the verdict. The trial court’s decision on a motion for judgment as a matter of law is fully renewable on appeal.
(Citations omitted.) In reviewing a district court ruling on a motion for judgment as a matter of law, we examine the sufficiency of the evidence by viewing the evidence supporting the jury verdict as the truth. Perry v. Reinke, 1997 ND 213, ¶ 13, 570 N.W.2d 224. This Court then applies the standard for a Rule 50 judgment as a matter of law, which is whether the evidence favoring the verdict is so insufficient, reasonable minds could reach only one conclusion as to the verdict. Id.

When, as here, a party also brings a post-trial motion for judgment as a matter of law, we treat the post-trial motion as seeking judgment notwithstanding the verdict. See Diversified Fin. Sys. Inc. v. Binstock, 1998 ND 61, ¶ 10, 575 N.W.2d 677. A motion for judgment notwithstanding the verdict is addressed to the sound discretion of the district court, and the court’s ruling will not be overturned on appeal unless the court manifestly abused its discretion. Id. A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Ritter, Laber and Assoc., Inc. v. Koch Oil, Inc., 2004 ND 117, ¶ 34, 680 N.W.2d 634.

[¶ 18] To be defamatory, a statement must be false. Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 33, 651 N.W.2d 625; N.D.C.C. § 14-02-04. Actionable defamation requires publication, which necessitates communication of the alleged defamatory matter to a third person. Schultze v. Continental Ins. Co., 2000 ND 209, ¶ 12, 619 N.W.2d 510. “ ‘There can be no defamation unless the recipient of the communication believes it to be defamatory, i.e., the plaintiff is defamed in the recipient’s eyes.’ ” Little v. Spaeth, 394 N.W.2d 700, 706 (N.D.1986) (quoting L. Eldredge, The Law of Defamation 44 (1978)). In a defamation action, the court determines whether a communication is capable of bearing a particular meaning and whether that meaning is defamatory, and the jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient. Bertsch v. Duemeland, 2002 ND 32, ¶ 14, 639 N.W.2d 455, 460 (quoting Restatement (Second) of Torts § 614 (1977)). At Forster’s request, the district court instructed the jury in accordance with NDJI Civil C-9.40 (1997): “Publication means that the defamatory matter has been communicated by the Defendants to a third person who believes it to be defamatory. The action may be maintained even if communicated to only one person.”

[¶ 19] Brummond and the Clinic do not claim the statements were incapable of bearing a defamatory meaning. See N.D.C.C. § 14-02-04 (defining civil slander). Rather, they argue the evidence of publication is lacking in this case because Forster failed to produce any witnesses who testified they heard the statements and believed those statements to be defamatory.

[¶ 20] A jury has the right to consider circumstantial evidence as well as direct evidence. Leake v. Hagert, 175 N.W.2d 675, 687 (N.D.1970); see also NDJI Civil C-80.50 (1998) (stating “[a] fact can be proved by either direct evidence or circumstantial evidence, or by both”). Direct testimony of the recipient’s understanding of the defamatory nature of a libel is not required if other evidence is sufficient to permit an inference of that understanding. Wheeler v. Green, 286 Or. 99, 593 P.2d 777, 782 (1979); see also 53 C.J.S. Libel and Slander § 165(b) (1987). Brummond did not dispute that she told various individuals Forster was involved in the break-ins, the horse poisoning, and the alleged abuse of Forster’s horse. Forster presented evidence that some veterinarians expressed an interest in employing her before they communicated with Brum-mond. After communicating with Brum-mond, the veterinarian offices no longer had positions available for Forster. The jury was not required to believe testimony that the veterinarians did not hire Forster for reasons other than the concerns communicated to them by Brummond. We conclude the evidence in this case was sufficient for the jury to find that the “publication” element of defamation has been satisfied.

B

[¶ 21] Brummond and the Clinic argue they are entitled to judgment as a matter of law because Forster failed to meet her burden of proving damages.

[¶ 22] The determination of the amount of damages is in the province of the jury and rests largely in the discretion of the jury. Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶ 24, 559 N.W.2d 204. A district court should not disturb a jury’s verdict for damages unless the amount is against the weight of the evidence or is so excessive or inadequate as to be without support in the evidence. Rittenour v. Gibson, 2003 ND 14, ¶ 41, 656 N.W.2d 691.

[¶ 23] In Vanover v. Kansas City Life Ins. Co., 553 N.W.2d 192, 197 (N.D.1996), this Court held that proof of special damages is not required to recover in a defamation action for libel per quod, which requires reference to extrinsic evidence to establish a defamatory meaning, because a person’s reputation is a major factor in a satisfactory existence and the function of a libel action is to provide public vindication of a decent citizen’s good name. Brummond and the Clinic do not challenge the district court’s damage instruction to the jury, which was based on Vanover:

One who is liable for a defamatory communication is liable for the proved, economic harm caused to the reputation of the person defamed.
It is not necessary to prove noneco-nomic harm caused to the reputation of the person defamed. The law presumes the harm occurred under the facts of this case.

Therefore, Forster was not required to prove noneconomic damages, although she did testify about the stress she suffered from not being able to find a job as a veterinarian.

[¶ 24] With respect to economic damages, Forster testified about her unsuccessful employment applications and her other attempts to obtain employment with veterinarians. Any initial interest the veterinarians had in employing Forster vanished after they communicated with Brummond. Although Forster had earlier received employment through information from the State Veterinarian, that office provided no assistance to Forster after her termination from the Clinic and Brum-mond’s contacts with the office. Forster was unable to find employment from the time of her termination until the date of trial. We conclude there is sufficient evidence in the record to support the jury’s award of $50,000 in past noneconomic damages, $10,000 in future noneconomic damages, and $100,000 in past economic damages. The district court did not err in denying Brummond and the Clinic’s motion for judgment notwithstanding the verdict based on insufficient evidence of damages.

C

[¶ 25] Brummond and the Clinic argue they are entitled to a new trial because the jury’s verdict is not supported by the evidence.

[¶ 26] In a motion for new trial, the district court may, within limits, weigh the evidence and judge the credibility of witnesses. Perry v. Reinke, 1997 ND 213, ¶ 21, 570 N.W.2d 224. A verdict is against the weight of the evidence when it is not supported by substantial evidence. Id. at ¶ 22. When reviewing a motion for new trial, we do not apply the same standard as the district court and will not reweigh the evidence on appeal, but will review only whether the district court abused its discretion. Rittenour, 2003 ND 14, ¶ 13, 656 N.W.2d 691.

[¶ 27] The district court ruled there was sufficient evidence to establish that defamatory statements were made, that persons believed the statements to be defamatory, and that Forster suffered damages. Upon our review of the record, we conclude the district court did not abuse its discretion in refusing to grant a new trial based on insufficient evidence to sustain the verdict.

D

[¶ 28] Brummond and the Clinic argue they are entitled to a new trial because the district court erroneously instructed the jury on the qualified privilege defense.

[¶ 29] Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. Nesvig v. Nesvig, 2004 ND 37, ¶ 12, 676 N.W.2d 73. We review jury instructions as a whole, and they will be allowed if they fairly advise the jury of the law on the essential issues in the case. Rittenour, 2003 ND 14, ¶ 15, 656 N.W.2d 691. The district court is not required to instruct the jury in the exact language sought by a party if the court’s instructions adequately and correctly inform the jury of the applicable law. Langness v. Fencil Urethane Sys., Inc., 2003 ND 132, ¶ 31, 667 N.W.2d 596.

[¶ 30] An individual is not liable for defamatory statements if the statements are privileged. Wagner v. Miskin, 2003 ND 69, ¶ 11, 660 N.W.2d 593. “Privilege is based upon the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake.” Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 5 (citation omitted). Under N.D.C.C. § 14-02-05, a privileged communication is defined as one made:

1. In the proper discharge of an official duty;
2. In any legislative or judicial proceeding or in any other proceeding authorized by law;
3. In a communication, without malice, to a person interested therein by one who also is interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information; and
4. By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof.
In the cases provided for in subsections 3 and 4, malice is not inferred from the communication or publication.

A communication made under the circumstances set forth in N.D.C.C. § 14-02-05(1) and (2) is absolutely privileged. Wagner, at ¶ 11. A communication made under the circumstances set forth in N.D.C.C. § 14-02-05(3) and (4) is not absolutely privileged, but is qualifiedly privileged, and the privilege may be abused. Richmond v. Nodland, 552 N.W.2d 586, 588 (N.D.1996). A “qualified privileged communication is usually a good-faith communication wherein the author of the communication has an interest or duty which is public, personal, or private; either legal, judicial, political, moral, or social; and is made to a person having a corresponding duty or interest.” Emo v. Milbank Mut. Ins. Co., 183 N.W.2d 508, 514 (N.D.1971). A “qualified privilege is abused if statements are made with actual malice, without reasonable grounds for believing them to be true, and on a subject matter irrelevant to the common interest or duty.” Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 79 (N.D.1991).

[¶ 31] In considering whether an alleged defamatory statement is subject to a qualified privilege, we undertake a two-step analysis: first, we determine whether the attending circumstances of the communication occasion a qualified privilege, and, if so, we determine whether the privilege was abused. Fish v. Dockter, 2003 ND 185, ¶ 12, 671 N.W.2d 819. When the circumstances of the occasion for the communication are not in dispute, the determination whether there is a qualified privilege is a question of law for the court, but the determination whether a qualified privilege has been abused is generally a question of fact. Soentgen, 467 N.W.2d at 78. We have held that defamatory statements voluntarily made to law enforcement personnel during the investigation of criminal activity are qualifiedly privileged, see Richmond, 552 N.W.2d at 589, and that defamatory communications by an employer concerning the conduct of an employee are, when necessary to protect the interests of the employer, qualifiedly privileged. See Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 25, 599 N.W.2d 293; Soentgen, 467 N.W.2d at 79. In accordance with this precedent, the district court instructed the jury that a qualified privilege existed with respect to statements Brummond made to law enforcement officers and Clinic employees, and the special verdict form required the jury to decide whether Brummond and the Clinic abused the qualified privilege in these instances. The jury found that Brummond and the Clinic did not abuse their qualified privilege.

[¶ 32] Brummond and the Clinic argued to the district court and to this Court on appeal that the jury should have been permitted to determine whether every defamatory statement attributed to them was subject to a qualified privilege. They argue the defamatory statements made to others were qualifiedly privileged “because they involved plaintiffs competency as a practicing veterinary physician and were made to those with an interest in plaintiffs professional skills.” We reject this argument.

[¶ 33] First, because the circumstances of the various communications were undisputed, whether a qualified privilege existed with respect to these statements was a question for the court to determine as a matter of law, not a question for the jury to determine. See Soentgen, 467 N.W.2d at 78. As the district court explained in denying Brummond and the Clinic’s motion for new trial:

Brummond’s argument regarding qualified privilege was addressed at trial and certain statements were given qualified privilege. Brummond now argues all statements should be given this privilege without evidence at trial or argument now as to why these certain other statements qualify as privileged.

[¶ 34] Second, Brummond and the Clinic did not argue that a qualified privilege was applicable to job references under N.D.C.C. § 34-02-18, which provides immunity to an employer “who discloses information about a current or former employee’s job performance to a prospective employer of the employee.... ” Even if a qualified privilege existed with respect to job references, the record shows that Brummond was not requested by the veterinarians to provide job references for Forster. Indeed, Brummond contacted a veterinarian’s wife and told her about Forster. Brummond admitted talking to her friend, the assistant State Veterinarian, on more than ten occasions about Forster, but expected the assistant to “do nothing with the information” because the assistant had no disciplinary or licensing authority.

[¶ 35] We conclude Brummond and the Clinic’s argument that the jury should have been allowed to decide whether all communications to friends, family members, other veterinarians, and the assistant State Veterinarian’s office were subject to a qualified privilege is without merit. The district court did not err in concluding there was no basis for instructing the jury that a qualified privilege existed beyond the statements Brummond made to law enforcement officers and Clinic employees.

E

[¶ 36] Brummond and the Clinic argue the district court failed to properly instruct the jury on Forster’s duty to mitigate damages.

[¶ 37] The court instructed the jury based on part of Restatement (Second) of Torts § 918 (1977), which addresses diminution of damages:

§ 918. Avoidable Consequences
(1) Except as stated in Subsection (2), one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.
(2) One is not prevented from recovering damages for a particular harm resulting from a tort if the tortfeasor intended the harm or was aware of it and was recklessly disregardful of it, unless the injured person with knowledge of the danger of the harm intentionally or heedlessly failed to protect his own interests.

The court gave an instruction based on subsection 2 of the Restatement provision. Brummond and the Clinic do not argue the Restatement provision is inconsistent with North Dakota law. Rather, they argue the failure to include an instruction based on subsection 1, in addition to the instruction based on subsection 2, is reversible error.

[¶ 38] Defamation is an intentional tort. See Gratech Co., Ltd. v. Wold Eng’g, P.C., 2003 ND 200, ¶ 30, 672 N.W.2d 672. Courts have held that plaintiffs in a defamation action have a duty to mitigate damages. See, e.g., Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 837 A.2d 759, 767 (2004); see also 22 Am. Jur.2d Damages § 349, at p. 319 (2003) (noting the “rule of avoidable consequences generally is held to apply in actions involving intentional torts”) (footnote omitted). However, Section 918(2) of the Restatement “takes a restrictive view of the victim’s obligation to mitigate damages” in cases involving intentional torts. 22 Am.Jur.2d Damages § 349, at p. 320. Subsection 1 and subsection 2 of the Restatement provision are mutually exclusive, and Subsection 2 sets forth a lesser duty on the part of an injured person to mitigate damages “if the tortfeasor intended the harm or was aware of it and was recklessly disregardful of it....” In this defamation action, Forster was alleging either that Brummond and the Clinic intended the harm or they were aware of the harm and recklessly disregarded it. Subsection 2 of the Restatement provision was the applicable provision under the circumstances of this case. We conclude the district court’s refusal to include subsection 1 in its instruction on mitigation of damages was not error.

F

[¶ 39] Brummond and the Clinic argue they are entitled to a new trial because the district court erred in excluding evidence of Forster’s reputation and character.

[¶ 40] A district court has broad discretion on evidentiary matters, and we will not overturn its admission or exclusion of evidence on appeal unless that discretion has been abused. Flattum-Riemers v. Peters-Riemers, 2001 ND 121, ¶ 15, 630 N.W.2d 71. Under N.D.R.Civ.P. 61, “[n]o error in either the admission or the exclusion of evidence ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.” See also N.D.R.Ev. 103(a) (providing “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected”).

[¶ 41] Brummond and the Clinic claim the district court wrongfully precluded them from introducing any evidence of Forster’s reputation and character to mitigate damages or to demonstrate that the defamatory comments were communicated in good faith. Brummond and the Clinic sought to introduce the “Probation Agreement” and evidence surrounding its background to establish Forster did not get along with Clinic employees or clients. The court ruled the testimony was irrelevant, and in the alternative, concluded that any relevance was outweighed by its prejudicial effect under N.D.R.Ev. 403. Brum-mond and the Clinic also sought to introduce evidence that Forster had a poor reputation as a veterinarian. The court refused to allow evidence on this issue, reasoning it was irrelevant and unduly prejudicial, but said it would allow testimony if it addressed the specifics of the defamation, such as Forster’s “dangerous[ness].”

[¶ 42] Because the “gravamen of the tort of defamation is the injury to the plaintiffs reputation,” Shirley v. Freunscht, 303 Or. 234, 735 P.2d 600, 602 (1987), evidence of a plaintiffs general bad reputation or bad character is admissible in a defamation action. See, e.g., Nichols v. Philadelphia Tribune Co., 22 F.R.D. 89, 91 (E.D.Pa.1958); Raymond U v. Duke Univ., 91 N.C.App. 171, 371 S.E.2d 701, 709-10 (1988); L. Eldredge, The Law of Defamation § 97, at p. 564 (1978) (“El-dredge ”); W. Page Keeton, et ah, Prosser and Keeton on the Law of Torts § 116A, at p. 847 (5th ed.1984). However, specific instances of a plaintiffs conduct or a plaintiffs particular character traits are not relevant unless they were generally known by others in the community. See, e.g., Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481, 494-95 (1996); Shirley, 735 P.2d at 603. Moreover, reputation evidence is permissible only if it affects the aspects of reputation that were defamed. Gosden, 687 N.E.2d at 495; Eldredge § 97, at p. 566.

[¶ 43] Although the district court’s exclusion of reputation evidence appears to have been rather broad, we are unable to determine whether Brummond and the Clinic were prejudiced by the court’s ruling, because they did not make an offer of proof of the specific testimony that they sought to introduce and which the district court excluded. Without a sufficient offer of proof, we are unable to review whether exclusion of this evidence was prejudicial. See Blessum v. Shelver, 1997 ND 152, ¶ 22, 567 N.W.2d 844; Wagner v. Peterson, 430 N.W.2d 331, 333 (N.D.1988). Under these circumstances, we are unable to say the district court abused its discretion in excluding this evidence.

G

[¶ 44] Brummond and the Clinic argue the district court improperly excluded a toxicological laboratory report indicating that Brummond’s horse was poisoned.

[¶ 45] Under N.D.R.Ev. 803(6), records of a regularly conducted business activity are not excluded by the hearsay rule, even though the declarant is available as a witness:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstance of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph, includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

[¶ 46] Brummond and the Clinic offered a toxicological report of samples from Brummond’s horse submitted to a doctor in Colorado. The report included medical records, a chain-of-custody statement, and a certificate of analysis prepared by the doctor indicating Brum-mond’s horse had been poisoned. The exhibit was accompanied by an affidavit of the doctor attesting that it constituted a true and correct copy of her entire file and report on the matter and that it had been prepared in accordance with the business records exception to the hearsay rule. Forster objected, arguing an affidavit was insufficient to establish foundation and the custodian of the records was required to appear at trial or by deposition. Forster also argued the report contained expert testimony that had not been previously disclosed. The district court refused to allow the exhibit in evidence.

[¶ 47] Contrary to Forster’s argument, some courts have allowed the foundation for admission of business records to be established by the custodian’s affidavit under rules virtually identical to N.D.R.Ev. 803(6). See, e.g., Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir.1991); In re Estate of Davis, 775 A.2d 1127, 1130-31 (Me.2001); Chamberlain v. Thames, 131 N.C.App. 705, 509 S.E.2d 443, 450 (1998). Other jurisdictions have amended their rules to specifically allow the foundation to be established by affidavit. See, e.g., Lasater v. Lasater, 809 N.E.2d 380, 395 (Ind.App.2004); Venable v. State, 113 S.W.3d 797, 800 (Tex.App.2003). It is unnecessary to decide in this case whether an affidavit of a custodian can establish the foundation for admission of business records under N.D.R.Ev. 803(6), because even if the court erred in excluding the exhibit, the error did not affect Brummond and the Clinic’s substantial rights. Brummond was allowed to testify that she had a laboratory conduct toxicology testing and the results showed that her horse had been poisoned. While cumulative evidence may sometimes strengthen the weight and credibility of a witness’s testimony, a district court does not necessarily abuse its discretion by excluding cumulative evidence. Flahtum-Riemers, 2001 ND 121, ¶ 15, 630 N.W.2d 71. We conclude the exclusion of the laboratory report does not warrant a new trial.

H

[¶ 48] Brummond and the Clinic argue the district court erred in admitting the testimony and curriculum vitae of Forster’s expert witness.

[¶ 49] In Gonzalez v. Tounjian, 2003 ND 121, ¶ 24, 665 N.W.2d 705 (citations omitted), we set forth the standards for introduction of expert testimony:

Introduction of expert testimony is governed by N.D.R.Ev. 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Under Rule 702, expert testimony is admissible whenever specialized knowledge will assist the trier of fact. Rule 702 envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which she is to testify. Whether a witness is qualified as an expert and whether the witness’s testimony will assist the trier of fact are decisions within the sound discretion of the trial court which will not be overturned on appeal absent an %buse of discretion.

[¶ 50] Forster offered economic calculations of her past and future economic loss through the testimony of a certified public accountant, who had been providing financial analysis and calculations for 30 years. Brummond and the Clinic argued that the certified public accountant had no education, training, or experience as a vocational expert or in the veterinary business and was therefore not qualified to render an expert opinion on Forster’s past and future earning potential. The district court allowed the testimony, ruling Brum-mond and the Clinic’s objection went to the weight of the testimony rather than to its admissibility.

[¶ 51] The district court did not abuse its discretion in allowing the certified public accountant to testify in this case or in admitting his curriculum vitae in evidence. The certified public accountant had some degree of expertise and experience in the area of financial analysis that the district court deemed helpful to the jury. Brum-mond and the Clinic’s attorney cross-examined him and made the jury aware of his lack of education, training, and experience in the veterinary business, and the jury awarded Forster substantially less in economic damages than the expert’s calculations established. We conclude Brum-mond and the Clinic are not entitled to a new trial on the basis of admission of this evidence.

I

[¶ 52] Brummond and the Clinic argue they are entitled to a new trial because the jury’s award of attorney fees is irreconcilably inconsistent with its findings that they did not abuse their qualified privilege and that Forster was not entitled to an award of exemplary damages.

[¶ 53] Reconciliation of a verdict requires that we examine both the law of the case and the evidence in order to determine whether the verdict is logical and probable and therefore consistent or whether it is perverse and clearly contrary to the evidence. Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553. Having examined the law of the case and the evidence, we see no irreconcilable inconsistency in this jury verdict.

[¶ 54] Brummond and the Clinic did not object to the district court’s instruction on attorney fees:

A Defendant who publishes a false statement harmful to the business interests of another is subject to liability for pecuniary loss resulting to the other, including attorney’s fees and other expenses required by the party to counteract the publication, if:
(a) the Defendant intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and
(b) the Defendant knows that the statement is false or acts in reckless disregard of its truth or falsity.

Therefore, the jury could award attorney fees if it found that Brummond and the Clinic knew that a statement was “false or act[ed] in reckless disregard of its truth or falsity.” The jury was instructed that a qualified privilege was abused if Brum-mond and the Clinic “made statements with ill will or wrongful motive or without reasonable grounds for believing them to be true.” Under N.D.C.C. § 32-03.2-11, an award of exemplary damages is authorized “when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice,” and the jury was so instructed. The state of mind required for the jury to find no abuse of the qualified privilege and no entitlement to exemplary damages differs from the state of mind required for the jury to award attorney fees. Therefore, there is no irreconcilable inconsistency in the jury verdict, and the district court did not abuse its discretion in failing to grant a new trial on this basis.

[¶ 55] We conclude there is sufficient evidence to support the jury’s verdict, and the district court did not commit reversible error in its instructions to the jury or in its evidentiary rulings during the jury trial.

Ill

[¶ 56] Forster argues the district court erred as a matter of law in ruling after the bench trial in the employment contract action that the parties’ written contract was not extended for an additional year and that she was an at-will employee.

[¶ 57] Under N.D.C.C. § 34-03-01, employment without a definite term is presumed to be at will, and an at-will employee may be terminated with or without cause. Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 28, 630 N.W.2d 46; Dahlberg v. Lutheran Soc. Serv., 2001 ND 73, ¶ 13, 625 N.W.2d 241; Jose, 1999 ND 175, ¶ 10, 599 N.W.2d 293. However, an oral promise can create a contract of em ployment for a definite term. See Aaland v. Lake Region Grain Coop., 511 N.W.2d 244, 245-46 (N.D.1994). The existence of an oral contract and the extent of its terms are questions of fact which will not be reversed on appeal unless they are clearly

erroneous under N.D.R.Civ.P. 52(a). See Comstock Constr., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶ 13, 651 N.W.2d 656; GeoStar Corp. v. Parkway Petroleum, Inc., 495 N.W.2d 61, 66 (N.D.1993). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is some evidence to support it, or if, although there is some evidence to support it, on the entire evidence, this Court is left with a definite and firm conviction a mistake has been made. Tibert v. City of Minto, 2004 ND 97, ¶ 17, 679 N.W.2d 440.

[¶ 58] In this case, the parties’ written two-year employment contract provided:

Any modification of this agreement or additional obligation assumed by either party in connection with this agreement shall be binding only if evidenced in writing and signed by each party or an authorized representative of each party.

Although there were discussions about preparing another contract after the previous written agreement expired, the parties did not enter into an additional written employment agreement. Forster testified the parties verbally agreed to “renew” the written “contract for [an] additional year.” Brummond testified the written contract was not extended for an additional year and she considered Forster “an at-will employee .... Both she and I are free to continue or not continue the relationship as we each see fit.”

[¶ 59] In a three-page opinion reciting the conflicting evidence and dismissing the breach of employment contract action, the district court concluded:

The parties continued to work together and the pay remained the same as set out in the contract. Forster stated she was under the impression the contract continued,' and Brummond stated she understood the contract no longer applied and the relationship was one of at-will employment. The Court finds because no writing was created extending the contract as required by the contract, the April 1998 contract was not extended beyond March 2000.

Forster argues the district court’s decision is erroneous as a matter of law because there is no legal requirement that an employment agreement be in writing. However, we refuse to hold that the district court’s decision was induced by an erroneous view of the law solely on the basis of the last sentence of the court’s three-page decision.

[¶ 60] We will rely on implied findings of fact when the record enables us to understand the factual determination made by the district court and the basis for its conclusions of law and judgment. See, e.g., Almont Lumber & Equip., Co. v. Dirk, 1998 ND 187, ¶ 13, 585 N.W.2d 798; First Am. Bank West v. Berdahl, 556 N.W.2d 63, 65 (N.D.1996). It is a very well-established principle of contract law that oral agreements made subsequent to a written agreement containing an integration or modification clause are not rendered ineffective by the prior writing. See 11 R. Lord, Williston on Contracts § 33:23 (4th ed.1999); 6 A. Corbin, Corbin on Contracts § 594 (1979). Thus, the prior written agreement providing it could be modified only in writing did not prevent the parties from entering into a new oral agreement. If the court had been under the impression a writing was required to create an employment relationship beyond March 2000, there would have been no need for the court to recite evidence of the parties’ respective understandings of their employment relationship after March 2000. We interpret the court’s reference to the lack of a writing as further evidence that the parties never reached an oral agreement on employment for a definite term. Given the conflicting evidence on the issue, we conclude the district court’s implied finding that there was no oral agreement about employment for a definite term is not clearly erroneous. Consequently, Forster was an at-will employee, and the district court did not err in dismissing her breach of employment contract claim against the Clinic.

IV

[¶ 61] In view of our disposition of this case, it is unnecessary to address other issues raised. The judgments and post-trial orders are affirmed.

[¶ 62] GERALD W. VANDE WALLE, C.J., DAVID W. NELSON, D.J., WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ, concur.

[¶ 63] The Honorable DAVID W. NELSON, D.J., sitting in place of MARING, J., disqualified.


source: Caselaw Access Project

author: MARING, Justice. DALE V. SANDSTROM, J.,

license: Public Domain

text:
    2004 ND 215
    Rosa HAWLEY, f/k/a Rosa LaRocque, Plaintiff and Appellant, v. Sam D. LaROCQUE, Defendant and Appellee.
    No. 20040057.
    Supreme Court of North Dakota.
    Nov. 19, 2004.

      Michael S. Mclntee, Mclntee Law Firm, Bottineau, N.D., for plaintiff and appellant.
    Galen J. Mack, Mack Law Offices, P.C., Rugby, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Rosa Hawley (“Hawley”), formerly known as Rosa LaRocque, appeals from a trial court amended judgment denying her motion to change the child custody provisions in her divorce judgment. Haw-ley argues that she has established a pri-ma facie case for a change of custody under N.D.C.C. § 14-09-06.6(4) and is therefore entitled to an evidentiary hearing on the matter. We conclude the trial court was correct in holding Hawley has failed to establish a prima facie case and, therefore, is not entitled to an evidentiary hearing, and we affirm.

I

[¶ 2] Rosa and Sam LaRocque (“LaR-ocque”) were divorced in 1997. The terms of the divorce stipulated that LaRocque receive full custody of the parties’ four sons, with Hawley receiving liberal visitation rights. In September 2003, Hawley filed a motion for a change of custody, requesting that she be granted full physical custody of the four children. Hawley claimed there had been a substantial change in circumstances and the custodial change would be in the best interests of the children. Hawley’s affidavit in support of her motion alleged that three of the children have stated they wish to live with her, that the fourth child would like to spend more time with her, that LaRocque and his family repeatedly prevented Haw-ley from exercising her visitation rights, that LaRocque is not providing for the children’s medical or dental needs, that LaRocque does not adequately supervise the children, and that LaRocque has prevented Hawley from obtaining school information on the children. Other than the aforementioned allegations in her affidavit, Hawley’s motion for a change of custody was not accompanied by any supporting documentation. In LaRocque’s response, he denied each allegation, arguing that the lack of detail in Hawley’s motion, “i.e., no time, date, circumstances, witnesses, context, etc.,” failed to establish a prima facie case warranting an evidentiary hearing. LaRocque included letters from the children’s school teachers, principal, and football coach in support of his position.

[¶ 3] The trial court concluded that Hawley’s affidavit failed to establish a pri-ma facie case justifying modification and denied her motion without an evidentiary hearing.

II

[¶ 4] Whether a party has established a prima facie case entitling them to an evidentiary hearing on a motion to change custody is a question of law. Tank v. Tank, 2004 ND 15, ¶ 6, 673 N.W.2d 622. We review questions of law de novo on the entire record. See Peterson v. North Dakota Univ. Sys., 2004 ND 82, ¶ 6, 678 N.W.2d 163.

III

[¶ 5] In a custody modification decision, the trial court must first determine whether a material change in circumstances has occurred and then whether “[t]he modification is necessary to serve the best interest of the child.” N.D.C.C. § 14-09-06.6(6).

[¶ 6] In the instant case, we are only concerned with the first requirement of N.D.C.C. § 14-09-06.6(6), whether a material change in circumstances has occurred. “The moving party demonstrates a material change in circumstances by establishing a prima facie case justifying custody modification.” Tank, 2004 ND 15, ¶ 8, 673 N.W.2d 622. A party seeking modification of a custody order is entitled to an evidentiary hearing only if the party establishes a prima facie case by alleging in their supporting affidavits, sufficient facts, which, if uncontradicted, would support a custody modification in favor of that party. Mock v. Mock, 2004 ND 14, ¶ 5, 673 N.W.2d 635 (citing Volz v. Peterson, 2003 ND 139, ¶ 7, 667 N.W.2d 637; Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Quarne v. Quarne, 1999 ND 188, ¶ 11, 601 N.W.2d 256).

[¶ 7] The procedure for resolving a motion to modify custody is set forth in N.D.C.C. § 14-09-06.6(4):

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

N.D.C.C. § 14-09-06.6(4).

[¶ 8] A trial court must set a date for an evidentiary hearing only if the moving party presents a prima facie case. Mock, 2004 ND 14, ¶ 5, 673 N.W.2d 635. We have defined a prima facie case in this way: “The plaintiff or moving party generally bears the burden of proof. If the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor, that party has made a prima facie case.” Id. (citations omitted).

[¶ 9] This Court has recently described how to establish a prima facie case for a change of custody and what a trial court must consider in deciding whether the burden has been met and an evidentiary hearing is warranted:

The moving party establishes a prima facie case by alleging, with supporting affidavits, sufficient facts which, if they remained uncontradicted at an eviden-tiary hearing, would support a custody modification in her favor. A trial court can find the moving party has failed to bring a prima facie case only if the opposing party presents counter affidavits conclusively establishing the allegations of the moving party have no credibility, or if the movant’s allegations are insufficient, on their face, to justify custody modification. If the opposing party meets that burden, the prima facie case is rebutted and the trial court may deny the motion to modify custody without holding an evidentiary hearing. However, if the opposing party fails to meet that burden, an evidentiary hearing must be held to resolve conflicting evidence and determine whether custody modification is warranted.

Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622 (internal citations omitted).

IV

[¶ 10] Hawley failed to provide the type of detailed allegations necessary to establish a prima facie case necessitating an evidentiary hearing on a change of custody motion. “A trial court can find the moving party has failed to bring a prima facie case ... if the movant’s allegations are insufficient, on their face, to justify custody modification.” Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622. In her supporting affidavit, Hawley alleged that three of the children have stated they wish to live with her, that the fourth child would like to spend more time with her, that LaRocque and his family repeatedly prevented Haw-ley from exercising her visitation rights, that LaRocque is not providing for the children’s medical or dental needs, that LaRocque does not adequately supervise the children, and that LaRocque has prevented Hawley from obtaining school information on the children. Although any one of these allegations, if adequately supported, could present a prima facie case, Hawley has not provided anything beyond very general allegations to support her motion to modify custody. See Volz v. Peterson, 2003 ND 139, ¶ 11, 667 N.W.2d 637 (a mature child’s preference to live with one parent may be a significant change of circumstances necessitating a change in custody); Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896 (custody change may be appropriate when children’s best interests are affected by visitation problems); Tank, at ¶ 10 (allegations of neglect of the children’s physical or mental health raise a prima facie case for a custody modification). Hawley has not provided witness affidavits, reference to specific incidents, specific conversations, or specific dates. Such bare-bones allegations, without support, are insufficient to meet the required prima facie standard. See Lawrence v. Delkamp, 2003 ND 53, ¶ 8, 658 N.W.2d 758.

[¶ 11] In circumstances such as this, where the movant’s allegations are clearly insufficient, it is not necessary to consider whether LaRocque’s response conclusively establishes Hawley’s allegations have no credibility. See Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622. The complete lack of detail in Hawley’s allegations make them insufficient on their face to establish a prima facie case for a custody modification.

V

[¶ 12] We affirm the trial court’s order denying Hawley’s motion to modify custody.

[¶ 13] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ., concur.

DALE V. SANDSTROM, J.,

concurring.

I concur in the result.


author: KAPSNER, Justice.

text:
    2004 ND 213
    John Willard GREYWIND, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20040080.
    Supreme Court of North Dakota.
    Nov. 19, 2004.

      Jonathon Willard Greywind, pro se, Bismarck, N.D., petitioner and appellant.
    Birch Peterson Burdick, State’s Attorney, Fargo, N.D., for respondent and ap-pellee.
   KAPSNER, Justice.

[¶ 1] Jonathon Willard Greywind appealed from a judgment denying his application for post-conviction relief. We conclude the district court did not err in ruling Greywind’s guilty pleas were voluntary, he did not receive ineffective assistance of counsel, and his newly discovered evidence does not provide grounds for post-conviction relief. We affirm.

I

[¶ 2] Greywind was involved in two criminal cases which underlie this appeal. In the first case, Greywind was charged with burglary, terrorizing and three counts of theft of property. In the second case, Greywind was charged with conspiracy to commit murder and accomplice to tampering with a witness who was going to testify against him in the first case. It was alleged that in October 1999, Greywind arranged to have Ngoc Huynh and Ben Berns kill the witness in exchange for $2,000 and bus tickets to California. Grey-wind allegedly drove Huynh and Berns to the vicinity of the witness’s home in Fargo and Huynh fired a number of shots from a handgun into the home. The witness was unharmed and gave physical descriptions of Huynh and Berns to police. Police arrested Huynh and Berns in Moorhead, Minnesota, while they were in the company of Greywind. Huynh and Berns both gave videotaped statements to law enforcement officers in which they provided details of how Greywind arranged to have them kill the witness.

[¶ 3] Greywind was represented by different attorneys in the initial theft case and in the subsequent conspiracy case. On February -17, 2000, Greywind and his attorneys signed a N.D.R.Crim.P. 11 plea agreement in which Greywind acknowledged his guilt in both the theft case and the conspiracy case. On February 18, 2000, Greywind appeared before the district court and was advised of his constitutional rights. Greywind acknowledged that he understood his rights and that he understood the contents of the plea agreement. The State recited a factual basis for the offenses which was acknowledged by Greywind and his attorneys. The district court sentenced Greywind to 20 years imprisonment on the charge of conspiracy to commit murder. The court sentenced Greywind to shorter terms of imprisonment on the other charges, and those sentences were ordered to run concurrently with the 20-year sentence. The district court denied Greywind’s subsequent motion for reduction of sentence under N.D.R.Crim.P. 35(b).

[¶ 4] In August 2003, Greywind filed an application for post-conviction relief. Greywind argued his guilty plea was involuntary because his attorneys coerced him into pleading guilty and because he has a limited education and was unable to understand the terms of the plea agreement. Greywind claimed he was denied effective assistance of counsel because neither of his attorneys adequately investigated the case. Greywind also argued he had newly discovered evidence in the form of affidavits from Huynh and Berns recanting their prior statements to police implicating Greywind in the conspiracy and stating that the prior statements were coerced, untrue, and were made to help them receive lighter sentences. The district court held an evidentiary hearing in which Grey-wind, his former attorneys, Huynh, Berns, and law enforcement officers investigating the crimes testified. The court denied the application, ruling Greywind “failed to prove that he received ineffective assistance of counsel in either criminal” case, “or that his pleas entered in those cases were anything other than voluntary, or that he has newly discovered evidence that would provide grounds for post conviction relief.” Greywind appealed.

II

[¶ 5] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Garcia v. State, 2004 ND 81, ¶ 6, 678 N.W.2d 568. In post-conviction relief proceedings, a district court's findings of fact will not be disturbed unless they are clearly erroneous under N.D.R.CivJP. 52(a). Cue v. State, 2003 ND 97, ¶ 10, 663 N.W.2d 637. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by the evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction that a mistake has been made. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on appeal of a post-conviction proceeding. Peltier v. State, 2003 ND 27, ¶ 6, 657 N.W.2d 238.

A

[¶ 6] Greywind argues his guilty plea was involuntary because his counsel coerced him into pleading guilty and his limited fourth-grade education precluded him from understanding the terms of the plea agreement.

[¶ 7] When a defendant applies for post-conviction relief seeking to withdraw a guilty plea, we generally treat the application as one made under N.D.R.Crim.P. 32(d). Bay v. State, 2003 ND 183, ¶ 7, 672 N.W.2d 270. Withdrawal of a guilty plea is allowed when necessary to correct a manifest injustice, and whether there has been a manifest injustice supporting withdrawal of the plea lies within the district court’s discretion. State v. Zeno, 490 N.W.2d 711, 713 (N.D.1992). In determining whether the district court abused its discretion, we may be required to review the court’s preliminary findings of fact, which will not be disturbed unless they are clearly erroneous. Houle v. State, 482 N.W.2d 24, 25-26 (N.D.1992).

[¶ 8] Due process is satisfied when the whole record clearly reflects the defendant’s knowledge of the rights being waived. State v. Olson, 544 N.W.2d 144, 147 (N.D.1996). A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea, and its voluntariness turns on whether the advice was within the range of competence demanded of attorneys in criminal cases. Damron v. State, 2003 ND 102, ¶ 9, 663 N.W.2d 650. A guilty plea is valid if it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Houle, 482 N.W.2d at 26.

[¶ 9] The record reflects that the district court questioned Greywind at length at the time of his pleas, advised him of his rights and the rights he was waiving by pleading guilty, reviewed the plea agreement with him, asked whether he agreed with the factual basis given by the State for the pleas, and gave him an opportunity to address the court. Greywind did not claim any lack of understanding. Rather, Greywind told the court his attorneys explained the provisions of the plea agreement to him and that he understood those provisions. Greywind told the court he was “very sorry for what I did ... I was intoxicated at the time ... [a]nd I made a stupid choice.” The court found at the time of sentencing that the pleas were freely and voluntarily made and there was a factual basis for each of the pleas.

[¶ 10] Although Greywind claims he did not understand the terms of the plea agreement because of his limited education, the record shows that Greywind had substantial experience with the criminal justice system. Between 1994 and 1998, Greywind was convicted of giving false information to law enforcement officers, simple assault, possession of drug paraphernalia and marijuana, and theft of property, for which he was sentenced to the State Penitentiary. Greywind was originally scheduled to change his plea to guilty in December 1999, but changed his mind and refused to do so. Greywind again refused to change his plea at a January 2000 hearing scheduled for that purpose. Greywind’s attorneys informed him of the possibility of life in prison and consecutive sentences if he had gone to trial and been found guilty, and Greywind pled guilty in February 2000. Informing a defendant of the prospect of receiving a harsher sentence if he were to go to trial is not coercion sufficient to render a guilty plea involuntary. See State v. Hobus, 535 N.W.2d 728, 729 (N.D.1995). In his May 2000 motion for reduction of sentence under N.D.R.Crim.P. 35(b), Greywind acknowledged that he, “of his own freewill and accord pleaded guilty” in the cases and that he “excepted [sic] responsibility for his actions and realizes that my behavior was nothing to be proud of.”

[¶ 11] The district court found “[t]here is nothing in the record to indicate that [Greywind] did anything other than enter voluntary pleas,” and we agree. We conclude the district court did not abuse its discretion in refusing to allow Greywind to withdraw his guilty plea.

B

[¶ 12] Greywind argues he received ineffective assistance of counsel because his attorneys failed to adequately investigate the case. In particular, Grey-wind claims his attorneys should have interviewed Huynh and Berns before he pled guilty.

[¶ 13] Ineffective assistance of counsel is one ground for relief from a criminal conviction under N.D.C.C. § 29-32.1-01(l)(a). To succeed on a claim of ineffective assistance of counsel, the defendant must prove counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced him. Garcia, 2004 ND 81, ¶ 5, 678 N.W.2d 568. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. Eagleman v. State, 2004 ND 6, ¶ 6, 673 N.W.2d 241. Although our standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, the district court’s findings of fact are subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Kamara v. State, 2003 ND 179, ¶ 7, 671 N.W.2d 811.

[¶ 14] The district court ruled Grey-wind’s argument that his trial attorney in the theft case was ineffective for failing to interview Huynh or Berns had “no merit” because those persons were not involved in the theft case. Regarding Greywind’s trial attorney in the conspiracy case, the court noted Huynh and Berns were both “important witnesses” and that the attorney indicated he would have interviewed them if the case had been tried, but Greywind “entered pleas a number of weeks prior to the time the conspiracy ease would have been tried.” Because there was “substantial other evidence” implicating Greywind in the crimes and Greywind admitted to committing the crimes, the court ruled Greywind “failed to prove that counsel fell below an objective standard of reasonableness” or that “the outcome would have been any different.”

[¶ 15] If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed. Garcia, 2004 ND 81, ¶ 5, 678 N.W.2d 568. In Damron, 2003 ND 102, ¶ 18, 663 N.W.2d 650, the defendant similarly claimed he was denied effective assistance of counsel because “he would not have pled guilty had his attorney adequately investigated the facts or produced more alibi witnesses.” We held “[b]ecause Damron pled guilty knowingly and voluntarily, he cannot show in what manner actual prejudice resulted from his trial counsel’s failure to investigate more thoroughly or to move to suppress specific evidence.” Id.

[¶ 16] Likewise, we have concluded the trial court did not err in ruling Greywind knowingly and voluntarily pled guilty. Therefore, Greywind cannot establish actual prejudice has resulted from his attorney’s allegedly deficient performance. We conclude the district court did not err in ruling Greywind was not denied effective assistance of counsel.

C

[¶ 17] Greywind argues the district court erred in failing to grant him a new trial based on newly discovered evidence in the form of recanted statements of Huynh and Berns.

[¶ 18] Under N.D.C.C. § 29-32.1-01(l)(e), post-conviction relief may be granted on the ground that “[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.” This ground is similar to a request for a new trial based on newly discovered evidence under N.D.R.Crim.P. 33 and requires the same showing to obtain a new trial. Breding v. State, 1998 ND 170, ¶ 19, 584 N.W.2d 493. In State v. Steinbach, 1998 ND 18, ¶ 22, 575 N.W.2d 193 (citations omitted), we explained:

Under N.D.R.Crim.P. 33(a), the trial court may grant a new trial to the defendant if required in the interests of justice. To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal. A motion for new trial based upon newly discovered evidence rests within the discretion of the trial court, and we will not reverse the court’s denial of the motion unless the court has abused its discretion. If the newly discovered evidence is of such a nature that it is not likely to be believed by the jury or to change the results of the original trial, the court’s denial of the new trial motion is not an abuse of discretion.

[¶ 19] Courts look upon recantation with suspicion and disfavor. See State v. Garcia, 462 N.W.2d 123, 124 (N.D.1990); State v. Hegland, 355 N.W.2d 803, 806 (N.D.1984). The district court appropriately examined the credibility of the recantations of Huynh and Berns. See State v. Ford, 377 N.W.2d 125, 127 (N.D.1985); State v. Pusch, 79 N.W.2d 295, 296 (N.D.1956).

[¶ 20] In support of the application for post-conviction relief, Greywind submitted affidavits from Huynh and Berns. Huynh stated “Greywind has been falsely blamed for his role in my case” and “[t]his was due to the State offering me a lesser sentence for my testimony against” him. Berns claimed that during police questioning he “was intoxicated and under the influence of narcotics;” that he “was coerced and prompted by Detective Stoner that if I made statements and/or testified against John Greywind ... I would be given a ‘light’ sentence for my involvement in the crime;” and that the police and assistant State’s Attorney “said that I must testify against John Greywind in order to get a deal ... even when they knew that my testimony was fabricated.” At the eviden-tiary hearing, Huynh testified that “I was intoxicated, drunk and high, and so I don’t remember much about that day,” he did not remember implicating Greywind in the conspiracy, and “[i]f I did at the time I was trying to get myself a better deal, push the blame on another person.” Berns testified he had been drinking vodka and beer and smoking marijuana on the day of the shooting and could not remember the details of what he told law enforcement officers:

I was heavily intoxicated and I didn’t— that night that everything happened, the shooting, I didn’t quite understand what took place and I — I was scared, you know. They — they just — the detective said I was going to get 20 to 25 years, you know, so I wanted to be cooperative and give the police what they wanted, so when things were suggested to me, I would agree with them, you know.

The State introduced a videotape of Huynh and Berns’s statements and the testimony of law enforcement officers involved in the arrests. The law enforcement officers testified they did not coerce Huynh and Berns into making false statements and did not believe them to be intoxicated at the time.

[¶ 21] In rejecting Greywind’s claim of newly discovered evidence, the district court noted “the police had substantial evidence implicating [Greywind] in the conspiracy case other than the statements of Huynh and Berns,” and stated:

In addition, there were the detailed statements of both Berns and Huynh. The fact that Berns and Huynh are now saying that their memory was impaired by alcohol and drugs is not credible when one views the actual videotaped statements. Huynh and Berns may be willing to change their statements now that they have received the benefit of those statements in their sentencing; however, in light of [Greywind’s] acknowledgment of guilt in his Rule 11 plea agreement, at the time he pled before the Court, his acknowledgment of the factual basis, and his subsequent acknowledgment of his guilt at the time of his Rule 35 Motion, [Greywind] has failed to prove that Huynh’s and Berns’ original statements were not accurate, nor has [Greywind] proved that it would be probable to get an acquittal in the event of a retrial.

[¶ 22] The task of weighing the evidence and judging the credibility of witnesses belongs exclusively to the trier of fact, and we do not reweigh credibility or resolve conflicts in the evidence. City of Jamestown v. Tahran, 2003 ND 35, ¶ 4, 657 N.W.2d 235. The district court’s finding that the recantations were not credible is not clearly erroneous, and we conclude the court did not err in rejecting Grey-wind’s claim of newly discovered evidence.

Ill

[¶ 23] In view of our disposition of this case, it is unnecessary to address other issues raised. See Greybull v. State, 2004 ND 116, ¶ 9, 680 N.W.2d 254. The judgment denying Greywind’s application for post-conviction relief is affirmed.

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


text:
    2004 ND 217
    Robert V. BOLINSKE, Plaintiff and Appellant v. Thomas J. HERD and Gaddis, Kin & Herd, P.C., Defendants and Appellees.
    No. 20040086.
    Supreme Court of North Dakota.
    Nov. 19, 2004.

      Robert V. Bolinske, pro se, Bismarck, ND; plaintiff and appellant.
    Lawrence A. Dopson, Zuger Kirmis & Smith, Bismarck, ND, for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] Robert Bolinske appeals a summary judgment dismissing his lawsuit against Thomas Herd and Gaddis, Kin & Herd, P.C. (“Gaddis”), a Colorado law firm, for lack of personal jurisdiction. We affirm the district court’s summary judgment.

I

[¶ 2] In September 1998, Bolinske contacted Herd, an attorney at Gaddis, for the purpose of representing two North Dakota residents, Ronald and Marci Schorsch (“the Sehorsches”), who were involved in a motor vehicle accident in Colorado. On September 17, 1998, Bolinske sent a letter to Herd, stating he understood he would receive one-third of the fee while Herd’s firm would receive two-thirds. Herd, in an affidavit, said that they talked only briefly about dividing the fees and that they would divide them only if Bolinske participated in the case, because Colorado prohibited referral fees.

[¶ 3] After agreeing to represent the Sehorsches, Herd filed a complaint in the Colorado district court. Gaddis contacted persons or entities in North Dakota at least 168 times by mail and telephone for the purpose of representing the Schorseh-es, but all of the legal pleadings and discovery were conducted in or from Colorado, Gaddis deposed a North Dakota doctor over the telephone, and the lawsuit was settled through arbitration in Colorado. No one from the firm ever traveled to North Dakota for any purpose during the time of the litigation.

[¶ 4] Bolinske called Gaddis in January 2001 to inquire about the case and learned Herd had settled the case on behalf of the Sehorsches. Bolinske inquired twice more about the fee agreement, by letter on March 1, 2001, and by telephone to the firm on January 17, 2002. Bolinske was told by the senior partner at Gaddis that he would check into the agreement. Bol-inske did not hear back from the firm after the telephone call and subsequently filed a lawsuit in the South Central Judicial District Court on July 3, 2002. Herd filed a limited appearance for the purpose of objecting to the jurisdiction on July 29, 2002.

[¶ 5] The district court dismissed Bol-inske’s claim, holding Bolinske failed to demonstrate that Herd subjected himself, along with Gaddis, to personal jurisdiction in North Dakota.

[¶ 6] 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.R.App.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.

II

[¶ 7] Analysis of a trial court’s ruling regarding personal jurisdiction is a question of law, and we use the de novo standard of review for legal conclusions and a clearly erroneous standard for factual findings. Ensign v. Bank of Baker, 2004 ND 56, ¶ 11, 676 N.W.2d 786; Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶ 10, 611 N.W.2d 173. “A finding of fact is clearly erroneous if it is not supported by any evidence, if, although there is some evidence supporting the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous conception of the law.” Auction Effertz, Ltd., at ¶ 10. If the defendant challenges the court’s jurisdiction, the plaintiff bears the burden of proving jurisdiction exists. Ensign, at ¶ 11. “The plaintiff must make a prima facie showing of jurisdiction to defeat a motion to dismiss for lack of personal jurisdiction, and if the court relies only on pleadings and affidavits, the court must' look at the facts in the light most favorable to the plaintiff.” Id. “Questions of personal jurisdiction must be decided on a case-by-case basis, depending on the particular facts and circumstances.” Id.

III

[¶ 8] “A court has subject matter jurisdiction over an action if the constitution and the laws authorize that court to hear the type of eases to which the particular action belongs.” Larson v. Dunn, 474 N.W.2d 34, 38 (N.D.1991). In Ensign, we stated:

“A court has personal jurisdiction over a person if the person has reasonable notice that an action has been brought and sufficient connection with the forum state to make it fair to require defense of the action in the state.” In determining personal jurisdiction over a nonresident defendant, a court must first decide whether the forum state’s long-arm provision confers jurisdiction over the nonresident defendant, and, if it does, the court must decide whether the exercise of personal jurisdiction over the nonresident comports with due process. To satisfy due process concerns, the nonresident defendant must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.

Ensign, 2004 ND 56, ¶ 9, 676 N.W.2d 786 (citations omitted).

[¶ 9] For personal jurisdiction, one of the subparagraphs of N.D.R.Civ.P. 4(b) must be satisfied. Hansen v. Scott, 2002 ND 101, ¶ 16, 645 N.W.2d 223; Auction Effertz, Ltd., 2000 ND 109, ¶ 6, 611 N.W.2d 173. The rule provides, in part:

(b) Jurisdiction Over Person.
(2) Personal Jurisdiction Based Upon Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person’s having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:
(A) transacting any business in this state;
(B) contracting to supply or supplying service, goods, or other things in this state;
(H) enjoying any other legal status or capacity within this state; or
(I) engaging in any other activity ... within this state.
(3) Limitation on Jurisdiction Based Upon Contacts. If jurisdiction over a person is based solely upon paragraph (2) of this subdivision, only a claim for relief arising from bases enumerated therein may be asserted against that person.

N.D.R.Civ.P. 4(b)(2), (3). North Dakota’s long-arm provision is designed to permit state courts to exercise personal jurisdiction to the fullest extent permitted by due process. Ensign, 2004 ND 56, ¶ 10, 676 N.W.2d 786.

[¶ 10] The phrase “transacting any business in this state” should be given an expansive interpretation. United Accounts, Inc. v. Quackenbush, 434 N.W.2d 567, 570 (N.D.1989). Transacting business is used in a broader sense than merely doing business. Id. We recognize that operative facts vary in each case, but when a nonresident initiates contact, by telephone or other electronic medium, with a resident seeking a product or service, that action is generally sufficient to show the nonresident transacted business for purposes of establishing personal jurisdiction. Auction Effertz, Ltd., 2000 ND 109, ¶ 8, 611 N.W.2d 173. Transacting business, however, does not extend to activities relating to third parties or to other transactions that are not related to the activity in question under Rule 4(b)(2)(B). See Lumber Mart, Inc. v. Haas International Sales and Service, Inc., 269 N.W.2d 83 (N.D.1978) (the fact the defendant extensively used North Dakota’s roads and had substantial business with a third party within the state does not subject it to personal jurisdiction).

[¶ 11] Because Bolinske sought legal services in Colorado, Bolinske’s argument that Herd subjected himself, as well as Gaddis, to personal jurisdiction in North Dakota is misplaced. Bolinske relies on Auction Effertz, Ltd., to support his contention that Herd conducted business in this state by use of the interstate telephone system. Auction Effertz, Ltd., is antithetic because in that case the nonresident initiated the contact with a North Dakota resident, as opposed to this case in which Bolinske initiated contact and sought services from a nonresident. Bol-inske is also not able to show that Herd or Gaddis entered into a contract, enjoyed legal status, or engaged in any other activity within North Dakota. Neither Herd nor any other attorney at Gaddis ever applied for pro hoc vice status in North Dakota, nor did any of them ever form a contract in the state. N.D.R.Ct. 11.1. Bolinske solicited Herd in Colorado to represent the Schorsches; therefore, the contract, if there is one, was entered into in Colorado and not North Dakota. Because Herd and Gaddis did not transact business, contract to supply services to Bol-inske, or enjoy other legal status in North Dakota, the requirements under N.D.R.Civ.P. 4(b)(2) have not been satisfied.

TV

[¶ 12] The exercise of personal jurisdiction in this case would offend traditional notions of justice and fair play under the concept of due process, because Herd and Gaddis had insufficient contacts with North Dakota. We have enumerated “five factors for assessing personal jurisdiction over a nonresident defendant: (1) the nature and quality of a nonresident defendant’s contacts with the forum state; (2) the quantity of the nonresident defendant’s contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the forum state’s interest in providing a forum for its residents; and (5) the convenience of the parties.” Ensign, 2004 ND 56, ¶ 12, 676 N.W.2d 786. The first three factors are of primary concern, while the fourth and fifth factors are of secondary importance and are not determinative. Id.

[¶ 13] Bolinske argues Gaddis’s contacts are sufficient to establish personal jurisdiction because individuals from the firm contacted North Dakota roughly ninety-eight times by telephone and sent at least sixty-three letters of correspondence to North Dakota. But Herd personally contacted Bolinske only one time, and that was in response to Bolinske’s request that he represent the Schorsches. After the initial correspondence between Herd and Bolinske, Herd filed the case in Colorado, conducted all of the depositions, prepared interrogatories, prepared all witnesses and clients for their testimony, and represented the clients during the settlement conference and arbitration. After he contacted Herd, Bolinske did not participate in the case and did not facilitate its settlement. We have held that contacts consisting merely of long-distance telephone calls do not satisfy the minimal constitutional contacts required by due process. Lumber Mart, Inc., 269 N.W.2d at 90. Contacts including the use of the mail system and trucking and banking facilities, however, along with telephone lines, have been held to be sufficient to impose personal jurisdiction on an out-of-state defendant. Hebron Brick Co. v. Robinson Brick and Tile Co., 234 N.W.2d 250, 257 (N.D.1975).

[¶ 14] A Montana Supreme Court case is persuasive. A Montana attorney referred Montana residents to an Idaho attorney for representation in a claim arising out of an automobile accident in Idaho. Bird v. Hiller, 270 Mont. 467, 892 P.2d 931, 934 (1995). The Montana Supreme Court held jurisdiction was not acquired through interstate communications under a contract to be performed in another state despite the fact the Idaho attorney sent the contingency fee agreement and other letters to Montana. Id.

[¶ 15] Several other courts that have addressed the issue of in-state lawyers requesting out-of-state firms to pay referral fees have found the in-state lawyer’s act of soliciting the out-of-state firm is an important factor in determining whether the firm subjected itself to personal jurisdiction in the state. See Jaffe v. Julien, 754 F.Supp. 49 (E.D.Pa.1991) (the unsolicited referral of business to an out-of-state lawyer from an in-state lawyer does not provide sufficient contacts to make the former amenable to suit in Pennsylvania); Shirkey v. McMaster, 876 S.W.2d 648 (Mo.Ct.App.1994) (a Kansas lawyer was not subject to personal jurisdiction in Missouri when he accepted an offer initiated by a Missouri lawyer to represent the Missouri lawyer’s client on a 50/50 split fee). Because the nature, quality, and quantity of the contacts between Bolinske and Herd and Gaddis were few and were initiated by Bolinske, Herd and Gaddis’s contacts fail to fulfill the first two factors of the due process personal jurisdiction test.

[¶ 16] Bolinske argues that North Dakota acquired personal jurisdiction based on the contacts Herd and Gaddis had with the state, through their representation of the Schorsches. The relationship between those contacts and Bolinske’s suit is, at best, tenuous. The minimal contacts of the nonresident party in the forum state must be directly related to and connected with the cause of action involved. Lumber Mart, Inc., 269 N.W.2d at 89. “ ‘Case law overflows on the point that providing out-of-state legal representation is not enough to subject an out-of-state lawyer or law firm to the personal jurisdiction of the state in which a client resides.’ ” Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 529 (Ala.2003) (quoting Cape v. von Maur, 932 F.Supp. 124, 128 (D.Md.1996)). The out-of-state activities undertaken on behalf of an in-state client by an out-of-state lawyer, however substantial, are immaterial to the minimum-contact analysis. Id. The mere fact that an attorney-client relationship exists, without other sufficient contacts with the forum, does not confer personal jurisdiction over the firm. Id.; see also Cerberus Partners, L.P. v. Gadsby & Hannah, LLP, 836 A.2d 1113 (R.I.2003) (the mailing of bills and invoices aggregating in the hundreds of thousands of dollars to an instate client by an out-of-state firm was not sufficient contact with the state; more was required).

[¶ 17] Bolinske attempts to count the contacts Herd and Gaddis had with North Dakota through their representation of the Schorsches as contacts that are relevant and related to this suit. The contacts Herd and Gaddis had with North Dakota, however, were for the purpose of representing the Schorsches and are only tangentially related to Bolinske’s suit, thus failing to fulfill the third factor for assessing personal jurisdiction.

V

[¶ 18] Because Bolinske failed to show that Herd or Gaddis is subject to N.D.R.Civ.P. 4(b)(2), and failed to satisfy the first three determinative factors for assessing personal jurisdiction, we affirm the district court’s dismissal.

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


author: MARING, Justice.

text:
    2004 ND 216
    In the Matter of the ADOPTION OF H.R.W., a minor child C.M.W., Petitioner and Appellee v. J.C.S., Respondent and Appellant. The Executive Director of the North Dakota Department of Human Services, Respondent.
    No. 20040108.
    Supreme Court of North Dakota.
    Nov. 19, 2004.

      Janet M. Gregory (on brief), Eslinger, Farroh & Gregory, P.L.L.P., Grand Forks, N.D., for petitioner and appellee.
    Kevin B. Spaeth (on brief), Spaeth, The-len & Jasmer, Grand Forks, N.D., for respondent and appellant.
   MARING, Justice.

[¶ 1] J.C.S. (“John”) the natural father of H.R.W. (“Helen”) appealed from a judgment terminating his parental rights and granting the petition of C.M.W. (“Charles”) to adopt Helen. We affirm.

I

[¶ 2] Helen’s mother, C.J.W. (“Carla”) met John in 1997. They resided together for about two years, between December 1997 and October 1999. Helen was born in August 1998, and the parties acknowledge that John is her natural father. In 1999, John and Carla separated. John moved to his hometown in Michigan and Carla remained with Helen in North Dakota.

[¶ 3] In 2001, Carla met and married Charles. They moved to Texas in April 2002. During this time they had marital problems and divorced. They later reconciled, moved back to North Dakota, and remarried in February 2003. In July 2003, Charles filed a petition to adopt Helen. After an evidentiary hearing, at which John was present and represented by counsel, the court terminated John’s parental rights to Helen and granted Charles’ petition to adopt Helen.

II

[¶ 4] On appeal, John asserts the trial court erred in terminating his parental rights. Generally, parental consent is a prerequisite to adoption. N.D.C.C. § 14-15-05. However, N.D.C.C. § 14-15-06(1) provides exceptions:

1. Consent to adoption is not required of:
a. A parent who has deserted a child without affording means of identification or who has abandoned a child.
b. A parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause:
(1) To communicate with the child; or
(2) To provide for the care and support of the child as required by law or judicial decree.

A party seeking termination of the parent-child relationship in the context of an adoption proceeding must prove the elements necessary to support termination by clear and convincing evidence. In re Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913. Clear and convincing evidence means evidence which leads to a firm belief or conviction the allegations are true. Id. Under N.D.R.Civ.P. 52(a), as amended effective March 1, 2004, the findings of fact by the trial court in matters of adoption will not be set aside on appeal unless clearly erroneous. Id. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672.

[¶ 5] The trial court found that John’s parental rights to Helen should be terminated, because John abandoned Helen and for at least one year failed without justifiable cause to communicate with the child or to provide for her care and support. On this issue, the court made the following specific relevant findings:

The court finds that [John] has abandoned [Helen]. He has not communicated significantly with her and has failed to provide court ordered support to her. There is no justifiable reason for his failure to pay child support and he appears to have had the means to do so and evaded his responsibilities. His argument that [Carla] prevented him from significantly communicating with [Helen] because of her conduct is rejected. He could and should have made an effort to become involved when the chance for doing so was offered. A child should not have to wait indefinitely for a biological father to mature sufficiently to be able to fill the parental role of father. [John] did not put forth the effort to be a parent, and [Helen] should not be penalized for that failure.
[T]he court finds in the present case that [John] simply did not show any substantial commitment to the care and well-being of [Helen], [Carla] did not refuse him contact with [Helen], and even as recently as the summer of 2002, he did not take any action to go to Texas and be with [Helen] and [Carla] when [Carla] made that offer.
The court is of the opinion that [John] has abandoned [Helen] by his failure to make child support payments as ordered for a period in excess of one year and by his failure to maintain significant contacts with the child. Clear and convincing evidence has been presented to that effect.

Section 14-15-01, N.D.C.C., defines the term “abandon:”

1. “Abandon” means:
a. As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause to:
(1) Communicate with the child; or
(2) Provide for the care and support of the child as required by law.

[¶ 6] In determining whether abandonment has taken place, we look to such factors as the parent’s contact and communication with the child, the parent’s love, care and affection toward the child, and the parent’s intent. Matter of Adoption of A.M.B., 514 N.W.2d 670, 672 (N.D.1994). Also relevant is the parent’s acceptance of parental obligations such as pro viding care, protection, support, education, moral guidance, and a home for the child. Id. A casual display of interest by a parent does not preclude a finding of abandonment, and a parent’s negligent failure to perform parental duties is significant to the issue. Matter of Adoption of J.W.M., 532 N.W.2d 372, 379 (N.D.1995), overruled on other grounds by In re Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913 (de novo review of court findings overruled and clearly erroneous standard applied).

[¶ 7] John concedes that even though he made $40,000 in 2002, he has not paid any child support toward Helen’s care. A judgment entered in August 2002 ordered John to pay support for Helen of $298 per month, but as of November 2003 he had paid no support and was $7,427 in arrears.

[¶ 8] John concedes the last time he saw Helen was in 2001. However, John asserts that Carla does not want him in Helen’s life and has made it difficult for him to have any contact with the child. Carla concedes she did not want Helen to know John was her father until Helen was older and better able to understand the situation. However, Carla asserts she did not prohibit visitations and did not attempt to prevent John from having contact with Helen. Carla testified that John has not contacted Helen or attempted to speak with her since July 2001. Carla testified that on rare occasions when John would call Carla he did not ask to speak to Helen. She also testified that John has provided no gifts for Helen and has not attempted to maintain any type of relationship with her.

[¶ 9] The evidence suppoi'ts the trial court’s findings that John has failed significantly without justifiable cause to communicate with Helen or to provide for her care and that he has effectively abandoned her. We conclude those findings are not clearly erroneous.

Ill

[¶ 10] John also asserts the trial court erred in deciding the adoption of Helen by Charles was in the child’s best interest. We review this issue under the clearly erroneous standard. S.R.F., 2004 ND 150, ¶ 15, 683 N.W.2d 913. On this issue, the trial court made the following significant finding:

[T]he petition should be granted so that [Helen] has two parents who are committed to her care and well-being.... [Carla] and [Charles], the Petitioner herein, are in the best position to provide the parenting that [Helen] needs, and it is in [Helen’s] best interests for the court to grant the petition.

Carla testified that Charles has a “wonderful relationship” with the child. With regard to his relationship with Helen, Charles testified:

A It’s wonderful. We do everything together. She’s my little sidekick. We go out and build snowmen. We color. We practice reading. We practice the alphabet. We count. We go to church. I take her to Sunday School. I drive her to school in the morning. She comes everywhere with me. Last weekend we went up and seen [sic] her grandma just me and the kids. . We do everything together. We’re always together. We play. We rough-house. We wrestle. It’s a wonderful relationship.
Q Do you feel it’s a close father/daughter type of relationship?
A Very close, yes.

We conclude the trial court’s finding that the adoption was in Helen’s best interest is not clearly erroneous.

IV

[¶ 11] We conclude the trial court did not err in terminating John’s parental rights to Helen and in granting Charles’ petition to adopt her. Judgment affirmed.

[¶ 12] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

      . The names of the parties are pseudonyms.