text:
    Dale "J.R." HEIDBREDER, Appellant, v. Kathleen Jean CARTON, a/k/a Katie Carton, a/k/a Kate Carton, Respondent, M.J.P., et al., Respondents.
    No. C0-01-739.
    Court of Appeals of Minnesota.
    Dec. 11, 2001.

      Thomas Alan Jacobson, Swenson Ler-vick Syverson Anderson Trosvig Jacobson, P.A., Alexandria, MN, for appellant.
    Jill Alise Pinkert, Rinke Noonan, St. Cloud, MN, for respondent Carton.
    Wright S. Walling, Walling & Berg, P.A., Minneapolis, MN, for respondents M.J.P. et al.
    Amy M. Silberberg, Afton, MN, Ami-cus — Lutheran Social Services of Minnesota.
    Laura Susan 'Arvold, Hazelhust, WI, Amicus — Children’s Home Society of Minnesota.
    Considered and decided by SHUMAKER, Presiding Judge, TOUSSAINT, Chief Judge, and SCHUMACHER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In this paternity proceeding, Dale Heid-breder appeals from the summary judgment entered in favor of the adoptive parents of his child. Because the district court correctly concluded that (1) Heidbre-der was not entitled to notice of the adoption hearing; (2) his registration with the Fathers’ Adoption Registry was untimely and it was possible for him to timely register; and (3) the registry statute did not violate his rights to due process of law and equal protection, we affirm.

FACTS

Appellant Dale Heidbreder, biological father of K.M.C., commenced this paternity action against KM.C.’s natural mother, respondent Kathleen Carton. Adoptive parents, M.J.P. and M.B.P., intervened in the district court and are respondents on appeal.

It is undisputed that Heidbreder and Carton are the biological parents of K.M.C. Carton informed Heidbreder of the pregnancy soon after conception in November 1999. They discussed their options, including marriage, abortion, and adoption. They were both living in Iowa at the time, Carton at home with her mother and sisters.

Due to family conflict resulting from the pregnancy, Carton left the family home during the pregnancy. She spent some time with a family friend in Illinois and some time with her father in Bettendorf, Iowa. In May 2000, she and Heidbreder resided together in an apartment in Fort Madison, Iowa, but by June 2000, Carton had moved to Minnesota. She did not share her plans with Heidbreder, but he was aware that, about the time she left the apartment, her mother and sisters were moving to Minnesota. Carton stayed with her grandparents for several days in the St. Cloud, Minnesota, area and then moved to a home for pregnant teens where she remained until she entered the hospital.

Except during their cohabitation, Carton did not keep Heidbreder informed of her whereabouts. Heidbreder knew something about Carton’s friends and family, however, so when she left the apartment in June 2000, he called her parents and friends to try to locate her. Although Carton and Heidbreder continued to communicate by e-mail, Carton did not reveal her whereabouts to Heidbreder; neither did Carton’s friends or family.

While at the home for pregnant teens, Carton investigated adoption. She learned about the adoption registry and parents’ rights regarding adoption. She eventually selected M.J.P. and M.B.P, the interve-nors, as adoptive parents.

On August 12, 2000, Carton gave birth to K.M.C. at a St. Cloud hospital. No father was noted on the birth certificate. Two days later, K.M.C. was discharged into the custody of her adoptive parents, where she remains to this date.

On September 12, 2000, 31 days after KM.C.’s birth, Heidbreder heard from an acquaintance that Carton had given birth to a girl and possibly had chosen adoption in Minnesota. Heidbreder sent Carton an e-mail to which she responded, saying she would call him that night. Heidbreder then found the website for Minnesota’s adoption registry, phoned the registry, and sent the forms, postmarked September 12. When Carton phoned him in the evening, she explained that she was living in St. Cloud, had chosen adoption, and thought it was too late for him to register.

On October 23, 2000, Heidbreder commenced this paternity action. Carton answered, alleging that Heidbreder had failed to timely register. The adoptive parents’ motion to intervene was granted. On December 26, 2000, the adoptive parents moved to dismiss the action because no putative father had timely registered. On March 5, 2001, the district court granted the adoptive parents’ motion for summary judgment.

On appeal, Carton concurs with the adoptive parents’ brief and argument. Children’s Home Society of Minnesota, Inc., and Lutheran Social Services of Minnesota, Inc., appear as amici curiae.

ISSUES

I. Was appellant entitled to notice of the adoption petition hearing because he “openly lived with” the mother under Minn.Stat. § 259.49, subd. 1(4) (2000)?

II. Did appellant fail to timely register under the Fathers’ Adoption Registry statute, Minn.Stat. § 259.52 (2000)?

III. Does the Fathers’ Adoption Registry as applied to appellant violate the due-process or equal-protection clauses?

ANALYSIS

On appeal from summary judgment, we ask two questions: whether there are any genuine issues as to any material fact, and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

I.

Notice of Adoption Proceedings

It is mandatory that certain individuals receive notice of an adoption hearing before it may proceed. MinmStat. § 259.49, subd. 1 (2000). Not all putative fathers have a right to notice of an adoption proceeding. See Lehr v. Robertson, 4(53 U.S. 248, 103 S.Ct. 2985 (1983) (approving statutory notice provision analogous to Minnesota’s). If a father is not entitled to notice of the adoption proceeding, his consent is not required for the adoption. Minn.Stat. § 259.24, subd. 1(a) (2000).

Heidbreder argues that he was entitled to notice of the adoption proceeding because he falls within one category of individuals entitled to notice. He claims he is the person who, under the mandatory notice statute, “is openly living with the child or the person designated on the birth certificate as the natural mother of the child or both,” Id. § 259.49, subd. 1(4). The district court concluded that the provision means that one who is openly living with the child or mother after the birth is entitled to notice. We agree.

It is implicit in Minnesota’s adoption statutes that the adoption petition is brought on behalf of a living child. See Minn.Stat. § 259.23, subd. 2 (2000) (petition “shall allege * * * [t]he date of birth of the child.”). Thus, the adoption-notice statute’s use of the present tense, “is living openly with,” refers to the individual residing with the child or mother after the child’s birth. See Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995) (stating “[w]here the intention of the legislature is clearly manifested by plain unambiguous language * * * no construction is necessary”). Therefore, Heid-breder and Carton’s brief cohabitation only during the pregnancy does not entitle him to notice of the adoption proceeding.

II.

Failure to Timely Register

For fathers excluded from the mandatory-notice provision, Minnesota’s Fathers’ Adoption Registry provides a central location to record the identity and location of a putative father “interested in a minor child who is, or is expected to be, the subject of an adoption proceeding.” Minn.Stat. § 259.52, subd. 1 (2000). If the putative father registers by providing the requisite information to the department of health “no later than 30 days after the birth of the child,” then his name will be uncovered during the mandatory search of the registry prior to granting an adoption petition. Id., subds. 2 & 7.

If the putative father does not timely register, his name will not appear during the search, and he will not be entitled to notice of the adoption proceedings. Id., subd. 8. He also loses his right to assert any interest at the proceeding and “is considered to have abandoned the child.” Id. The failure to register also constitutes “prima facie evidence of sufficient grounds to support termination of the putative father’s parental rights.” Id. Given the severe consequences of failure to register, the statute provides an exception with added protection for the putative father. A putative father who

proves by clear and convincing evidence that
(i) it was not possible for him to register within the period of [30 days after the birth of the child];
(ii) his failure to register was through no fault of his own; and
(iii) he registered within ten days after it became possible for him to file,

is considered to have timely registered. Id. In applying this exception, however, “[a] lack of knowledge of the pregnancy or birth is not an acceptable reason for failure to register.” Id.

A. Impossibility

The parties agree that Heidbreder registered one day late. He registered on the 31st day and was required to register within 30 days after the child’s birth. Nevertheless, he argues that he timely registered because it was impossible for him to register within 30 days. The district court concluded that Heidbreder did not fall within the statutory exception. We agree.

Findings of fact are reviewed under a clearly erroneous standard and will not be reversed on appeal unless the reviewing court is left with the “definite and firm conviction that a mistake has been made.” In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn.App.1993) (citation omitted), review denied (Minn. Aug. 16, 1993). The district court made findings that it was possible for appellant to timely register and that it was Ms own fault for failing to do so. The court listed the undisputed facts showing that Heid-breder had time to take action and knew of Carton’s possible locations, but that he failed to adequately assert his rights. It is undisputed that he: (1) knew of three states, Iowa, Illinois, and Minnesota, to which Carton had recent ties; (2) knew as early as November 1999 that she was carrying the child; (3) knew that she planned to give birth; (4) knew that the due date was in August 2000; and (5) knew by no later than June 2000 that he and Carton would not marry and that Carton did not want to share her whereabouts with him. These findings were not clearly erroneous, and they do not support a conclusion that registration was impossible for appellant.

It should be noted that once Heidbreder decided to register in Minnesota, he accomplished the task in less than one day. Prior to that, he had only phoned Carton’s mother, father, and friends and e-mailed her in an effort to learn her whereabouts. Although he had had nine months to act, during that time he did not retain a lawyer, he did not commence a paternity action, he did not register as a putative father in any state, and he did not otherwise arrange to become a parent. The law requires that a putative father do more to create a legal tie to the child or mother.

B. Fraud

Heidbreder argues that it was impossible for him to register within 30 days after the child was born because the mother “fraudulently concealed material facts surrounding her adoption plan.” He argues that “he did not know the date or place of [the child’s] birth until [respondent] conveniently called him thirty-one days later.” He also argues that Carton fraudulently concealed her whereabouts, thereby preventing him from knowing where an adoption might occur and where he should register.

Insofar as appellant relies on fraudulent concealment as an exception to the statute’s requirements, the question is one of statutory construction and is reviewed by this court de novo. See In re Paternity of J.A.V., 547 N.W.2d 374, 376 (Minn.1996).

The clear language of the adoption registry statute does not include an express or implied fraud exception. The legislature could have provided for this exception if it deemed it necessary or important to do so. Cf. Minn.Stat. § 259.24, subd. 6a (2000) (adoption statute makes parent’s consent irrevocable “except upon order of court of competent jurisdiction after written findings that consent was obtained by fraud.”) Moreover, it is not for this court to read an exception into the statute, see, e.g., State v. Tennyson, 212 Minn. 158, 161-62, 2 N.W.2d 833, 835 (1942) (“Where a statute is couched in broad and comprehensive language admitting of no exceptions, the court is not justified in engraft-ing thereon exceptions, however much it may deem the public welfare to require them.”), or find substantial compliance when statutory requirements are not met, see Matter of Petition of Gaus, 578 N.W.2d 405, 407 (Minn.App.1998), review denied (Minn. July 30,1998) (no substantial compliance where affidavit allegedly prepared within filing period without steps taken to confirm delivery and no excuse for not complying with statute).

Not only did the legislature decline to create a fraud exception, it expressly eliminated the putative father’s defense that he did not know of the birth or pregnancy. “[L]ack of knowledge of the pregnancy or birth is not an acceptable reason for failure to register.” Minn.Stat. § 259.52, subd. 8. Conversely, the mother is under no obligation to reveal the pregnancy or birth. Eliminating this defense is a legislative declaration that putative fathers must affirmatively act or permanently lose their parental rights.

In light of this clear statutory language, Heidbreder’s reliance on fraud and equitable-estoppel cases for the proposition that Carton had a duty to disclose her whereabouts to him are simply misplaced. See Richfield Bank & Trust Co. v. Sjogren, 309 Minn. 362, 365, 244 N.W.2d 648, 650 (1976) (fraud may result from suppression of facts that one party is under legal or equitable obligation to communicate to another, and that other party is entitled to have communicated to him). Minnesota law does not impose a duty on unmarried parents to disclose information to each other. For example, the mother has no duty to place a known unmarried father’s name on the child’s birth certificate. See Minn. Stat. § 144.215, subd. 3 (2000) (setting out situations requiring entry of father’s name); Minn. R. 4600.1000 (1999) (minimal information on birth certificate includes “date and place of birth; birth name of mother; full name of father (except for out of wedlock births); signature of certifier”). Similarly, the petitioner, not the mother, is required to notify the eligible putative father of an adoption proceeding. Minn. Stat. § 259.21, subd. 7 (2000).

Heidbreder’s attempt to carve out a broader exception to the statute also lacks policy support. The law creating the registry clearly balances the competing interests of the child, the mother, the father, and the adoptive parents. It provides rights to putative fathers, but it also seeks finality to the consent issues so that an adoption petition may proceed. Thirty days after the child is born, the rights of the unwed father who has no substantial tie to the child or mother give way to the child’s interest in stability and parentage finality. See, e.g., In re Petition of K.J.R. and D.F.R., 293 Ill.App.3d 49, 55, 227 Ill. Dec. 190, 687 N.E.2d 113, 117 (Ill.Ct.App.1997) (construing similar putative father registry statute). Therefore, the district court correctly concluded that Carton had no duty to disclose her adoption plans, her whereabouts, or the place or date of the child’s birth to Heidbreder. Because He-idbreder’s claim to have timely registered is based on a claim of fraudulent concealment and Carton owed no duty to disclose, he has not proved by clear and convincing evidence that he timely registered. He also cannot prevail on his statute-of-limitations argument, which relies on fraud to toll the running of the period for registration.

III.

Constitutional Rights

Heidbreder argues that Minnesota’s Fathers’ Adoption Registry as applied to him violates the due-process and equal-protection clauses of the United States Constitution. Minnesota laws are presumed constitutional. Minn.Stat. § 645.17(3) (2000); Guilliams v. Comm’r of Revenue, 299 N.W.2d 138, 142 (Minn.1980). This court “proceeds with extreme caution before declaring a statute unconstitutional.” McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605, 611 (Minn.1984). The party challenging the statute bears the burden of demonstrating beyond a reasonable doubt that the statute violates the constitution. Id.

A claimed violation of procedural due process triggers a two-part analysis. Cressy v. Grassmann, 536 N.W.2d 39, 43 (Minn.App.1995), review denied (Minn. Sept. 28, 1995). First, the court must determine whether a substantial right of life, liberty, or property is affected. Id. (citation and quotation omitted). Second, in determining what process is due, the court balances “the private interest at stake, the government interest in administrative efficiency and the risk of erroneous deprivation under current procedures.” Id. (citation and quotation omitted). The district court concluded that Minnesota’s statute does not violate Heid-breder’s procedural due-process rights. We agree.

In Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), a putative father challenged New York’s analogous adoption notice and putative fathers’ registry statutes. See id. at 251-52, 103 S.Ct. at 2988. The Court concluded that the putative father’s actions define his constitutional protections. Id. at 261, 103 S.Ct. at 2993.

If he grasps that opportunity [to develop a relationship with his child] and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests lie.

Id. at 262, 103 S.Ct. at 2993-94. While states are required to protect an unmarried father’s interest in establishing a relationship with his child, they are also allowed to define the conduct in which the father must engage to assume a parental role in the child’s life.

Minnesota’s Adoption Registry adequately protects the father’s rights. As in parental-rights termination cases, the parent must act to preserve his rights. See Matter of Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn.1981) (stating that “[t]he law secures their parental right only so long as [parents] shall promptly recognize and discharge their corresponding obligations.”) (citation omitted). The registry (1) clarifies who must receive notice of an adoption proceeding; (2) expands a putative father’s access to the adoption proceedings; and (3) ensures that adoptions, once finalized, remain undisturbed. Minn. S.Ct. Foster Care & Adoption Task Force Final Report (Jan. 1997). Thus, the registry . balances the important interests at stake; the father’s, the mother’s, the child’s, and the adoptive parents. As He-idbreder himself established, the registry is easily accessible. Therefore, the district court correctly required that Heidbreder adhere precisely to the procedural requirements of the statute.

The equal-protection clause “require[s] that all persons similarly situated be treated alike under the law.” In re Harhut, 385 N.W.2d 305, 310 (Minn.1986). Legislative classifications of persons, however, will generally be upheld if rationally related to a legitimate state interest. Id.

While biological mothers and fathers have different legal rights to “veto an adoption and * * * to prior notice of any adoption- proceeding,” the different rights are legitimately tied to “the existence or nonexistence of a substantial relationship between the parent and child.” Lehr, 463 U.S. at 266, 103 S.Ct. at 2996. Here, Carton carried the child, but Heid-breder never established any custodial, personal, or financial relationship with the child. Therefore, the state could afford the parents different legal rights. Id. at 267-68, 103 S.Ct. at 2996-97. Accordingly, the district court correctly concluded that the statute does not violate Heidbreder’s right to equal protection under the United States Constitution.

DECISION

The district court correctly concluded that appellant was not entitled to notice of the adoption proceeding, that he failed to timely register under the Fathers’ Adoption Registry, and that the registry did not violate his rights to due process and equal protection.

Affirmed.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Glenn Vernon AKERS, Respondent.
    No. C2-01-1388.
    Court of Appeals of Minnesota.
    Dec. 18, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Thad N. Tudor, Assistant Isanti County Attorney, Cambridge, MN, for appellant.
    John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant State Public Defender, St. Paul, MN, for respondent.
    Considered and decided by AMUNDSON, Presiding Judge, HARTEN, Judge, and FOLEY, Judge.

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

   OPINION

HARTEN, Judge.

The state appeals from a pretrial order to suppress evidence obtained during a search of respondent’s property, arguing that even after supplying an omission, the warrant application set forth probable cause and that there was no evidence the omission was deliberate or reckless. Because we conclude that the issuance of the search warrant violated respondent’s due process rights, we affirm.

FACTS

The Isanti County Zoning Ordinance prohibited respondent Glenn Vernon Ak-ers from storing unlicensed vehicles on his property. After noting several unlicensed vehicles on respondent’s property, the Is-anti County Zoning Office informed respondent by a letter dated December 14, 1999, that storing such vehicles violated the zoning ordinance and gave him until January 31, 2000, to comply with the ordinance. On February 10, 2000, the zoning office sent respondent another letter warning that all vehicles must be removed from the property by April 1, 2000, to be in compliance. The zoning office sent a third letter on February 12, 2001, extending the compliance date to March 9, 2001, and stating, “[o]n or around that date, our office will conduct an inspection for compliance.”

On March 7, 2001, sheriffs investigator Timothy Akers applied for a search warrant of respondent’s property to determine whether respondent was operating an automobile salvage yard. Although the affidavit supporting the application referenced the first two letters, it did not mention the third letter that extended the compliance date to March 9, 2001.

Isanti County law enforcement officers executed the warrant on March 7, 2001, and discovered evidence of a methamphetamine lab in respondent’s basement. They then sought and received another search warrant for drug-related material. During the second search, they seized the lab and arrested respondent.

The state charged respondent with a felony controlled substance crime. Respondent filed a motion to suppress the use of evidence obtained during the two searches. In an order dated August 7, 2001, the district court granted respondent’s motion to suppress, finding that

there was no probable cause for law enforcement to obtain a search warrant on March 7, 2001[,] * * ⅝ as [respondent] had not yet failed to comply with the Isanti County Zoning Office’s request.

The district court also dismissed the case for lack of probable cause. The state appeals.

ISSUE

Did law enforcement officers violate respondent’s due process rights when they applied for and executed a search warrant before the zoning compliance deadline set by the government had passed?

ANALYSIS

Generally, this court will reverse a pretrial decision to suppress evidence only if the state demonstrates

clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.

State v. Peralta, 598 N.W.2d 698, 701 (Minn.App.1999) (quotation omitted), re-vietu denied (Minn. Oct. 21,1999). However, when the facts are not in dispute, we “may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” Id. (quotation omitted).

The Fourth Amendment forbids unreasonable searches and seizures and allows the issuance of search warrants only upon a showing of probable cause. U.S. Const. amend. IV. Probable cause exists when there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Hochstein, 623 N.W.2d 617, 623 (Minn. App.2001) (quotation omitted). If a warrant is invalid, the fruits of the search should be excluded from evidence. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).

The state argues this case should be analyzed under the material omission doctrine. Evidence traced to a warrant with a material omission will be excluded only if, after supplying the omission, there is no probable cause and the police acted deliberately or recklessly. See State v. Doyle, 336 N.W.2d 247, 250 (Minn.1983). The state contends that even after including the third letter, the totality of the circumstances shows a pattern of non-compliance such that there was probable cause to believe respondent was in violation of the ordinance when the search warrant was issued. The state also points to the lack of findings or evidence that police acted deliberately or recklessly.

Although this case involves a material omission, we believe the totality of the circumstances triggers the fundamental fairness doctrine of the Due Process Clause of the Fourteenth Amendment.

The United States Supreme Court has * * ⅛ recognized that due process does not permit those who are perceived to speak for the state to mislead individuals as to either their legal obligations or the penalties they might face should they fail to satisfy those obligations.

McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 854 (Minn.1991). In Raley v. Ohio, 360 U.S. 423, 437, 79 S.Ct. 1257, 1266, 3 L.Ed.2d 1344 (1959), the court found that the defendants’ conviction for refusing to answer questions before the Ohio legislature’s Un American Activity Committee after having been told they could assert the privilege against self-incrimination violated the Due Process Clause of the Fourteenth Amendment. See also State v. McKown, 475 N.W.2d 63, 68 (Minn.1991) (government may not inform an “individual that certain conduct is permitted and then prosecute the individual for engaging in that same conduct”).

The Isanti County Zoning Office informed respondent that he had until March 9, 2001, to comply with the ordinance. The state does not contest respondent’s assertion that he was attempting to remove the vehicles at the time the police procured the warrant and searched his property.

The state attempts to distinguish the above eases from the present facts because respondent was never told his conduct was legal. This distinction is irrelevant. Case-law holds that a person does not have to be told that certain conduct is legal to trigger this constitutional protection. See, e.g., State v. Scott, 473 N.W.2d 375, 377-78 (Minn.App.1991) (police misled defendant and violated due process when informing defendant that negative consequences would occur if he refused to take a sobriety test without also informing him a test would be given with or without his consent). Additionally, when the zoning office allowed respondent until March 9 to comply, respondent had reason to believe that, until the compliance deadline passed, he would suffer no consequences for having unlicensed vehicles on his property; indeed, he was in the process of removing them when law enforcement applied for the warrant. The law enforcement actions violated the constitutional principle that the government cannot mislead people about their legal obligations. See McDonnell, 473 N.W.2d at 854.

The state also contends it should not be bound by the compliance date because, by saying, “on or around that date, our office will conduct an inspection for compliance,” the letter made the date flexible. This argument also fails because “or around,” when combined with the March 9 deadline, would lead a reasonable person to believe that “or around” could mean after March 9. Construed otherwise, the March 9 compliance date would be utterly meaningless.

We conclude that the issuance of the search warrant on March 7, 2001, violated respondent’s due process rights because the government had led respondent to believe that he had until March 9 to correct the violation. Moreover, on March 7, there was no probable cause to support finding a violation of law under the county’s arrangement with respondent. The zoning office’s letter indicated that respondent would suffer no penalty if he were in compliance by March 9, 2001. Accordingly, the district court correctly found the search warrant void for lack of probable cause and suppressed evidence discovered as a result of these searches. See United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980) (requiring suppression of the fruits of constitutional violations).

Affirmed.


author: DANIEL F. FOLEY, Judge.

text:
    PRATT INVESTMENT COMPANY, Appellant, v. John D. KENNEDY, et al., Defendants, Lake Vadnais Free Church of St. Paul, Respondent.
    No. C6-01-664.
    Court of Appeals of Minnesota.
    Dec. 18, 2001.

      Robert A. Alsop, Larry M. Wertheim, Bonnie L. Wilkins, Kennedy & Graven, Chartered, Minneapolis, MN, for appellant.
    Fred A. Kueppers, Jr., Kueppers, Hack-el & Kueppers, P.A., St. Paul, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.
    OPINION
   DANIEL F. FOLEY, Judge.

In this boundary dispute, appellant challenges the referee’s refusal to rule that it had acquired land via practical location of boundaries by acquiescence. Appellant alleges that the referee (1) misapplied the law by confusing the doctrine of practical location of boundaries by acquiescence with adverse possession, and (2) ignored evidence of acquiescence. Because the referee correctly found no clear and convincing evidence of acquiescence, we affirm. We also affirm the denial of respondent’s request for rule 11 sanctions.

FACTS

The facts of this appeal are largely undisputed. Appellant Pratt Investment Company and respondent Lake Vadnais Free Church own neighboring tracts of land. In the early 1960s, respondent ordered a survey of its property (Georgi survey). This survey marked the property’s eastern boundary line 50 feet west of the recorded property line and identified two monuments along the northern part of the survey line. In 1964, Pastor Anvie Peterson of respondent church poured concrete around one of the monuments, either to preserve the monument or to mark the boundary.

In 1991, appellant ordered a survey of its property (Kemper survey), which concluded that the previously identified line, the Georgi line, was probably the common boundary between the two properties, although the easternmost line was also a possibility. In 1994, respondent ordered a new survey of its land (Carley-Torgersen survey), which concluded that the easternmost line was the common boundary.

In August 1996, appellant sued to acquire the area between the westernmost line and the easternmost line (e.g., the disputed area), principally alleging adverse possession and practical location by acquiescence, and respondent requested rule 11 sanctions. In January 2001, the referee ruled in favor of respondent, finding insufficient evidence of either adverse possession or practical location, but denied sanctions. This appeal followed.

ISSUES

I. Did the referee confuse adverse possession with practical location of boundaries by acquiescence, by erroneously requiring appellant to prove possession?

II. Did the referee err by concluding that appellant did not establish its claim of practical location by acquiescence?

III. Did the referee abuse his discretion by not awarding respondent rule 11 sanctions?

ANALYSIS

I.

The legal theories of adverse possession and practical location are not interchangeable. See Denman v. Gans, 607 N.W.2d 788, 796 (Minn.App.2000) (“Although the doctrine of practical location, at least in effect, is similar to acquiring title by adverse possession, the two theories are distinct and require proof of different elements.”), review denied (Minn. June 27, 2000); see also Engquist v. Wirtjes, 243 Minn. 502, 507, 68 N.W.2d 412, 417 (1955) (stating practical location is “independent of adverse possession”). A reviewing court is not bound by and need not give deference to a referee’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. State, Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). The application of law to stipulated facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

Appellant argues that the referee inappropriately dismissed its practical location claim based upon a lack of possession or occupation and that, unlike adverse possession, practical location by acquiescence does not require possession. A boundary line may be established by practical location in one of three ways:

(1) The location relied upon must have been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations; (2) the line must have been expressly agreed upon between the parties claiming the land on both sides thereof and afterward acquiesced in; or (3) the parties whose rights are to be barred must have silently looked on, with knowledge of the true line, while the other party encroached upon it or subjected himself to expense in regard to the land which he would not have had the line been in dispute.

Gifford v. Vore, 245 Minn. 432, 436, 72 N.W.2d 625, 628 (1955). While case law does not say that “possession” is an element of establishing a boundary by practical location, “[ajcquiescence entails affirmative or tacit consent to an action by the alleged disseizor, such as construction of a physical boundary or other use * * LeeJoice v. Harris, 404 N.W.2d 4, 7 (Minn.App.1987). Implicit in the case law is the notion that the disseizor has claimed, by way of some action, that a boundary has existed for the statutory period, and the disseized has acquiesced to that boundary. Here, the referee concluded:

The sheep rearing by John Mitchell, a predecessor in [appellant’s] title, was not of a sufficient character or duration to be the clear and convincing evidence of occupation as required for adverse possession or'practical location * * *.

The referee further held that, because the disputed land was vacant and heavily wooded, “there is no possession on the part of either party to constitute grounds for adverse possession or to establish the boundary by practical location.”

The referee correctly reasoned that appellant’s nonuse of the disputed land was relevant to establishing a practical location by acquiescence claim. While the findings seemingly apply more toward appellant’s adverse possession theory, they also refute appellant’s practical location claim. For example, if appellant has not used or possessed the disputed land, respondent cannot have acquiesced to any supposed boundary. See Engquist, 243 Minn. at 507-08, 68 N.W.2d at 417 (holding that the required acquiescence is not passive consent to a boundary, but rather conduct or lack thereof from which assent may be reasonably inferred). In addition, if appellant or his predecessor never substantially used or possessed the disputed territory, appellant can hardly claim that he has “relied” upon any supposed boundary for purposes of the practical location doctrine. See Fishman v. Nielsen, 237 Minn. 1, 6, 53 N.W.2d 553, 556 (1952) (explaining that “the location relied upon must have been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations”).

II.

To acquire land by practical location of boundaries by acquiescence, a person must a show by evidence that is clear, positive, and unequivocal that the alleged property line was “acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations.” Theros v. Phillips, 256 N.W.2d 852, 858 (Minn.1977). The statute of limitations is 15 years. Minn.Stat. § 541.02 (2000); see Allred v. Reed, 362 N.W.2d 374, 376 (Minn.App.1985) (citing Minn.Stat. § 541.02 in practical-location case), review denied (Minn. Apr. 18, 1985). A referee’s findings on the practical location of a boundary “will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence.” Gifford, 245 Minn. at 434, 72 N.W.2d at 627; see Minn. R. Civ. P. 52.01.

Appellant claims that respondent acquiesced to the westernmost line because (1) respondent ordered a 1964 survey that delineated the westernmost line as the common boundary; and (2) respondent fortified artificial landmarks on the westernmost line. Appellant’s argument is inconsistent with established case law.

Acquiescence exists when adjoining landowners, for example, mutually construct a fence with the intention that the fence represents an adequate reflection of the property line. Fishman, 237 Minn. at 7-8, 53 N.W.2d at 555-56 (finding practical location by acquiescence when parties and their predecessors in title built dividing fence as close as possible to actual boundary and remained satisfied with fence’s location for statutory period); Allred, 362 N.W.2d at 376-77 (finding practical location by acquiescence when disseizor built fence with intent to be as close to boundary as possible and when disseized treated fence as boundary); In the Matter of Zahradka, 472 N.W.2d 153, 156 (Minn.App.1991) (finding practical location by acquiescence when disseizor builds parking lot on disseized’s land and disseized makes no claim to ownership of land for forty years), review denied (Minn. Aug. 29,1991).

The acquiescence required is not merely passive consent, but conduct from which assent may be reasonably inferred. Engquist, 243 Minn. at 507-08, 68 N.W.2d at 417 (affirming no practical location finding absent evidence that disseized or predecessors recognized or treated a fence as a division line, or that disseizor or predecessors used the disputed land); LeeJoice, 404 N.W.2d at 7 (no practical location by acquiescence when disseizor does not use disputed area for statutory period, even though disseized “tacitly consented” to boundary by failing to dispute a sightline).

Nor is there acquiescence when landowners erect markers or physical barriers that are not intended to identify boundaries. See Gifford, 245 Minn. at 436, 72 N.W.2d at 628 (no acquiescence when disseizor believes line of rocks to be boundary line but never asserts it as the boundary to adjacent landowner); Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn.1980) (erecting fence for uncertain purpose did not establish acquiescence); Weis v. Kozak, 410 N.W.2d 903, 906 (Minn.App.1987) (constructing fence to restrain cattle, rather than as boundary line, did not establish acquiescence). When a landowner unilaterally builds a fence on his own land, not intending it to be the true boundary, an adjacent owner who has had nothing to do with its location, construction, or use should not rely on the fence as a division line by implied agreement or acquiescence. Roy v. Dannehr, 124 Minn. 233, 237-38, 144 N.W. 758, 760 (1914).

The referee correctly concluded that appellant did not put forth clear and convincing evidence of acquiescence. The referee found, for example, that appellant’s predecessor’s sheep rearing on the disputed property “was not of a sufficient character or duration to be the clear and convincing evidence of occupation as required for adverse possession or practical location ⅜ ⅜ rphyg, was insufficient evidence that appellant or its predecessors used the disputed land or relied on the 1964 boundary. And contrary to what appellant argues, the disseizor must take some action with or make some use of the disputed land. Otherwise, there would be nothing to which the disseized could acquiesce. Also, there was no clear and convincing evidence that respondent intended the 1964 markers to constitute a boundary line. For example, respondent •witness Pastor Anvie Peterson gave conflicting testimony.

Q: What was your understanding of the import of that stake that Mr. Georgi had placed there? * * * He put one in and what was he telling the world when he put the stake there?
A: All I know is that I didn’t think that it was substantial enough to remain, so I put the marker in that is usually put in.
Q: And the purpose of [reinforcing the Georgi marker] was to mark the boundary line; is that correct?
A: Yes.

Practical location by acquiescence usually occurs when neighbors attempt to establish a fence as close to the actual boundary as possible, or when the disseizor unilaterally marks the boundary, and the disseized neighbor thereafter recognizes that line as the actual boundary. Here the parties had no agreement as to a common boundary, and each commissioned separate and independent surveys. Moreover, respondent unilaterally established the markers in 1964. As the court in Roy v. Dannehr explained,

Our decisions are to the effect that one is not to be deprived of his land because he, through mistake or ignorance, placed a fence on what he thought was the division line, when it was not such in fact, unless the evidence of practical location, or acquiescence for at least 15 years is clear, positive, and unequivocal.

124 Minn. at 237-38, 144 N.W. at 760 (citations omitted). Equity does not permit appellant to profit from another’s mistake.

III.

Minn. R. Civ. P. 11 “provide[s] relief to parties who are victims of bad pleading and abuse of process.” State Bank of Young Am. v. Fabel, 530 N.W.2d 858, 863 (Minn.App.1995), revietv denied (Minn. June 29, 1995). Under rule 11, an attorney has an affirmative duty to investigate the factual and legal basis for claims and assure that no claim is brought for an improper purpose. Radloff v. First Am. Nat’l Bank, 470 N.W.2d 154, 156 (Minn.App.1991), review denied (Minn. July 24, 1991). The purpose behind rule 11 is deterrence, not punishment or cost shifting. Kellar v. Von Holtum, 605 N.W.2d 696, 702 (Minn.2000). Sanctions under rule 11 require a finding of bad faith. Whalen v. Whalen, 594 N.W.2d 277, 282 (Minn.App.1999). Rule 11 should be narrowly construed and “while some sanctionable conduct might escape discipline, that is preferable to deterring legitimate or arguably legitimate claims.” Leonard v. Northwest Airlines, Inc., 605 N.W.2d 425, 432 (Minn.App.2000) (citation omitted). We review a rule 11 sanction under an abuse-of-discretion standard. Id.

Respondent argues that, upon remand for rule 11 sanctions, it would submit evidence that appellant has long tried to acquire respondent’s property. But respondent never brought this information to the referee’s attention and this court will not consider matters not argued and considered in the court below. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (reviewing court generally considers only those issues presented and considered by trial court). Respondent also argues that appellant should be sanctioned because it had no evidentiary or legal support for its adverse possession, practical location, or other claims. While the referee stated that this was “a close case,” the evidence is notable by its scarcity. Nevertheless, because some evidence of practical location and adverse possession existed, and because the decision to grant sanctions is discretionary, the referee did not abuse his discretion in denying sanctions.

DECISION

The referee did not confuse the doctrine of practical location by acquiescence with adverse possession because, under the circumstances of this case, appellant’s nonuse of the disputed land was relevant to both claims. Also, respondent’s unilateral construction of two stakes, without any proof that respondent intended or permitted them to act as a boundary line, cannot constitute clear, positive, and unequivocal evidence of acquiescence. Appellant’s case was not so frivolous, however, that it should pay sanctions, and thus the referee did not abuse his discretion in denying respondent’s rule 11 motion.

Affirmed.

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

      . The district court ordered a trial by referee.


author: NEUMANN, Justice.

text:
    2001 ND 200
    Chad Joseph HEICK, Petitioner and Appellant, v. Ralph R. ERICKSON, Judge of the District Court, East Central Judicial District, and the State of North Dakota, Respondents and Appellees.
    No. 20010212.
    Supreme Court of North Dakota.
    Dec. 20, 2001.

      Mark A. Beauchene, Wold Johnson, P.C., Fargo, N.D., for petitioner and appellant.
    Adam Wade Hamm, Assistant State’s Attorney, Fargo, N.D., for respondents and appellees.
   NEUMANN, Justice.

[¶ 1] Chad Heick appealed from a district court order denying his motion for a writ of certiorari, claiming the court exceeded its jurisdiction in finding probable cause to bind him over for trial on a charge of gross sexual imposition. We hold the trial court did not exceed its jurisdiction, and we affirm.

I

[¶ 2] On June 21, 2000, Heick was living with his fiancee and her younger sister, the eleven-year-old victim in this case. Heick told an investigating officer that in the early morning hours of that day he masturbated in the same room that the victim was sleeping on a sofa a few feet away from him. He also told the officer that after ejaculating into his, hand he wiped the semen onto the victim’s “face and the blanket.” The victim told investigating officers that when she awoke “there was some liquid substance that was in her hair and on her face.”

[¶ 3] Heick was charged with committing class B felony gross sexual imposition, in violation of N.D.C.C. § 12.1-20-03(2), by engaging in sexual contact with a minor under fifteen years old. The trial court found probable cause to bind Heick over for trial on the charge. Heick filed an application for a writ of certiorari with the district court, claiming the court exceeded its jurisdiction in finding probable cause, because there was no evidence that Heick had touched the sexual or other intimate parts of the victim. The district court denied the writ, and Heick filed this appeal.

II

A

[¶ 4] Rule 5.1(a), N.D.R.Crim. P., requires the court at a preliminary hearing to hold the defendant for trial “[i]f it appears from the evidence there is probable cause to believe an offense has been committed and the defendant committed the offense.” A finding of probable cause at a preliminary hearing does not require that the commission of the offense be established with absolute certainty or beyond a reasonable doubt. State v. Serr, 1998 ND 66, ¶ 10, 575 N.W.2d 896. To justify binding over for trial a person accused of a crime, it is only necessary at the preliminary examination that sufficient evidence be introduced to satisfy the judge that a crime has been committed and that the accused is probably guilty. Id.

[¶ 5] Our review of a district court’s denial of a petition for a writ of certiorari is limited to the question of whether the court exceeded its jurisdiction. Hinkel v. Racek, 514 N.W.2d 382, 383 (N.D.1994). We do not weigh the evidence, but simply ascertain whether there was some relevant evidence to support the finding of probable cause. Id.

B

[¶ 6] Section 12.1-20-03(2)(a), N.D.C.C., defines one type of conduct constituting gross sexual imposition:

A person who engages in sexual contact with another, or who causes another to engage in sexual contact, is guilty of an offense if:
a. The victim is less than fifteen years old....

Under N.D.C.C. § 12.1-20-02(4) the term “sexual contact” is defined as:

... any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires.

[¶ 7] Heick does not dispute that he touched the hair and face of the victim when he rubbed his ejaculate on her. The prosecutor contends Heick’s actions constituted a touching of the victim’s “intimate parts,” but Heick asserts the hair and face of a person are not intimate parts of the body and, therefore, his conduct was not proscribed by the statute.

[¶ 8] The court, in the exercise of its jurisdiction, construed the statute and concluded touching the face of a person was an act of touching an intimate part of the body which, together with proof of the other elements, constitutes a violation of the law. In finding probable cause, the district court concluded Heick’s alleged conduct could have constituted a touching of the victim’s intimate parts. The court applied the facts, as supported by the evidence introduced at the preliminary hearing, and found there was probable cause to bind over Heick for trial.

Ill

[¶ 9] In reviewing the denial of an application for writ of certiorari, this Court does not delve into the merits of the trial court’s decision, but only determines whether the court exceeded its jurisdiction in acting. Section 32-33-09, N.D.C.C., provides:

Except as otherwise provided by law, the review upon a writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer has pursued regularly the authority of such court, tribunal, board, or officer.

The phrase “pursued regularly the authority” is synonymous with “jurisdiction” and, therefore, our review is limited to the sole question of whether the inferior court or tribunal has exceeded its jurisdiction. Manikowske v. N.D. Workmen’s Comp. Bureau, 373 N.W.2d 884, 886 (N.D.1985).

[¶ 10] In affirming the denial of a writ to overturn an order binding over a defendant for trial, this Court explained:

The reviewing court has nothing to do with the proceedings before the inferior tribunal, except so far as an examination of such proceedings is necessary for the determination of the question of its jurisdiction. If such tribunal has regularly pursued its authority, the inquiry stops. Errors of law committed by the inferior court in the exercise of its authority cannot be considered; and in such case, no matter how erroneous the decision may be, even on the face of the record, the reviewing court has no' power to change, annul, or reverse it in a proceeding in certiorari.

State v. Skar, 313 N.W.2d 746, 748-49 (N.D.1981) (quoting City of Fargo v. Annexation Review Commission, 148 N.W.2d 338, 351-52 (N.D.1966)). The decision whether the facts reach the level of probable cause to bind over a defendant for trial is a question of law. See State v. Serr, 1998 ND 66, ¶9, 575 N.W.2d 896. The trial court’s decision on this issue is appropriately made within the court’s exercise of its jurisdiction to bind over a defendant for trial, and an error made by the court in its exercise of this function is not within the scope of review of an application for writ of certiorari.

[¶ 11] In concluding a writ of cer-tiorari could not issue on the basis that a small claims court had made an erroneous conclusion of law, this Court explained:

The test of the jurisdiction of a court is whether or not it had power to enter upon the inquiry; not whether its conclusion in the course of it was right or wrong....
Excess of jurisdiction is to be distinguished from errors of law or' of fact committed by the inferior tribunal within the limits of its jurisdiction. Such an error does not constitute an excess of jurisdiction. If a court acts in the exercise of its lawful jurisdiction, and not in excess of such jurisdiction, the mere fact that its conclusion is wrong does not make its action an excess of jurisdiction.

Kostelecky v. Engelter, 278 N.W.2d 776, 778 (N.D.1979) (quoting Baker v. Lenhart, 50 N.D. 30, 35, 195 N.W. 16, 17 (1922)). Mere error of judgment by a lower tribunal in exercising its power does not constitute excess of jurisdiction. See State v. Brekke, 75 N.D. 468, 28 N.W.2d 598, 600 (1947).

IV

[¶ 12] We conclude the district court properly exercised its jurisdiction in construing N.D.C.C. § 12.1-20-02(4) and in finding probable cause to bind Heick over for trial. The questions of whether Heick’s actions — the extent of which can undoubtedly be more fully developed at a trial on the merits — constitute a violation of the statute and the proper interpretation of the criminal statute are issues appropriate for decision on a direct appeal from a conviction, not in a proceeding to review the denial of a writ of certiorari. We hold the district court did not act in excess of its jurisdiction in binding Heick over for trial, and we, therefore, affirm the denial of Heick’s motion for a writ of cer-tiorari.

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

      . Heick was also charged with violating N.D.C.C. § 12.1-20-03(l)(d), by engaging in a sexual act with the victim. The district court found no probable cause on that count. Heick was charged on a separate incident of violating N.D.C.C. § 12.1-20-03(l)(c), by engaging in a sexual act with an adult knowing that person was unaware that a sexual act was being committed upon her. The district court found probable cause to bind Heick over for trial on that charge, but Heick has not contested that probable cause finding in these proceedings.

      . The 57th Legislative Assembly amended N.D.C.C. § 12.1-20-02(4), effective August 1, 2001, to provide:
      "Sexual contact” means any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission of urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires.
      This amendment was not in effect when Heick allegedly violated the statute and is not, therefore, applicable to this case.


author: KAPSNER, Justice.

text:
    2001 ND 206
    Ricky BELGARDE, Sr., Cora Belgarde, individually and on behalf of their minor children, Kenneth Carl Belgarde, Patrice Belgarde, and Ricky Belgarde, Jr., Plaintiffs and Appellants, v. Floyd ASKIM, Defendant and Appellee, and The Minot Housing Authority, Defendant.
    No. 20010179.
    Supreme Court of North Dakota.
    Dec. 20, 2001.

      Larry M. Baer (argued), and Robert G. Ackre (appeared), Ackre Law Firm, Can-do, ND, for plaintiffs and appellants.
    Moody M. Farhart, Farhart Law Firm, Minot, ND, for defendant and appellee Floyd Askim.
   KAPSNER, Justice.

[¶ 1] Cora and Ricky Belgarde, individually and as parents of Kenneth, Patrice, and Ricky, Jr. (collectively, the “Bel-gardes”) appeal from the trial court’s dismissal with prejudice of their claims against Floyd Askim. Because the trial court’s analysis was incomplete, it abused its discretion in sanctioning the Belgardes by dismissing with prejudice their negligence claim of providing and installing a defective stove. The trial court also failed to identify any viable reason for dismissing the Belgardes remaining claims. We reverse and remand for further proceedings consistent with this opinion.

I

[¶ 2] The Belgardes rented a house from Askim in Minot. Because the Bel-gardes qualified for federal housing assistance, this rental relationship was set up and partially funded by the Minot Housing Authority. The Belgardes, along with them four children, moved into the house on June 1, 1992. As landlord, Askim agreed to provide a stove and refrigerator for the rental unit.

[¶ 3] On September 22, 1993, the stove in the rental unit allegedly turned over and spilled boiling water on three of the Bel-garde children. In November 1993, a Minot attorney sued Askim on behalf of the Belgardes and their three injured children. The stove was inspected at Belgardes’ attorney’s request by an inspector of his choosing. While the attorney directed the inspector not to complete an in-depth report of his inspection, a letter setting out some of his preliminary findings was sent to the attorney. In December 1993 the parties stipulated to a dismissal of this action.

[¶ 4] Following dismissal, Askim stored the stove for an unknown period of time before disposing of it sometime before the Belgardes refiled their suit. Suit was refiled against Askim and the Minot Housing Authority on September 27, 1999 by a different attorney. The complaint alleged breach of express and implied warranties of habitability, breach of contract in not providing a working refrigerator and stove, and negligence in providing an allegedly defective stove. On December 13, 2000, the claims against the Minot Housing Authority were dismissed with prejudice.

[¶ 5] On January 15, 2001, Askim moved for the sanction of dismissal of the causes of action against him. His motion was based upon the Belgardes failing to request preservation of the stove, or for failing to take any steps to preserve the stove. Askim argues without the stove he neither would be able to mount adequate defenses nor would the Belgardes be able to prove their prima facie case. Based on its inherent power to sanction, the trial court granted Askim’s motion and dismissed all of the Belgardes’ claims with prejudice. The Belgardes have appealed.

II

[¶ 6] “Sanctions may be appropriate when evidence relevant to the lawsuit is destroyed.” Bachmeier v. Wallwork Truck Centers, 507 N.W.2d 527, 532 (N.D.1993) (“Bachmeier /”). “The trial court has broad discretion in determining when sanctions are appropriate, and what sanctions to impose.” Id. at 534. A trial court’s use of its inherent power to impose sanctions for the destruction of evidence ■will be overturned on appeal only upon showing an abuse of discretion. Id. at 533. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner.” Anderson v. Jacobson, 2001 ND 40, ¶ 10, 622 N.W.2d 730. “A trial court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination.” Kopp v. Kopp, 2001 ND 41, ¶7, 622 N.W.2d 726. A trial court also abuses its discretion “when it misinterprets or misapplies the law....” Woodworth v. Chillemi, 1999 ND 43, ¶ 7, 590 N.W.2d 446.

[¶ 7] When using its inherent power to sanction a party, a “case-by-case analysis of all the circumstances presented in the case” is required. Bachmeier I, 507 N.W.2d at 534. While all the circumstances must be considered, we have focused on three factors — “the culpability, or state of mind, of the party against whom sanctions are being imposed; a finding of prejudice against the moving party, and the degree of this prejudice, including the impact it has on presenting or defending the case; and, the availability of less severe alternative sanctions.” Id.

[¶ 8] In Bachmeier I, we reversed and remanded a trial court’s sanction of summary judgment against a party when the party failed to preserve evidence, in that case the right front hub of a truck. Id. at 535. The party moving for sanctions had argued it would be irreparably prejudiced without the actual hub in question. Id. at 534. We directed the trial court to make findings as to why less restrictive sanctions were not appropriate:

Although we agree with [the defendant] and the trial court that the actual hub would be superior to the photographs and the testimony of [a metallurgical engineer], dismissal of a case with prejudice requires more than an undifferentiated .finding of prejudice. Prejudice is a matter of degree, and trial courts have the duty to impose the least restrictive sanction in light of the circumstances. A determination of the appropriate sanction in a case such as this requires consideration of the significance of the detriment to [the defendant] (and possibly to Bachmeier, as well), the culpability of Bachmeier, and the efficacy of lesser sanctions for leveling the playing field. Without these considerations, the trial court’s analysis is incomplete.

Id. at 535. On remand, the trial court once again granted summary judgment for the defendant, only this time we noted the trial court addressed the three factors of culpability, prejudice, and availability of less severe sanctions. Bachmeier v. Wallwork Truck Centers, 544 N.W.2d 122, 124 (N.D.1996) (“Bachmeier II”).

[¶ 9] In the case before us, the trial judge produced a memorandum in which he holds the Belgardes at fault for the loss of the stove because they did not take steps to preserve the stove. The trial judge wrote “[t]he plaintiffs after December 13, 1993 did nothing to protect the interest of their own litigation other than to photo on November 15, 1999 a stove that they believed to be ‘the stove,’ the critical evidence in this case.” The trial judge did not address the factors of prejudice to the party moving for sanctions and the availability of less severe sanctions. He instead focused on culpability, in particular, he focused on the Belgardes not preserving, or arranging for preservation of, the stove in issue. Without consideration of prejudice to the moving party and the availability of less severe sanctions, the trial court’s analysis is incomplete. See Bachmeier I, 507 N.W.2d at 535.

[¶ 10] As the party moving for the sanction of dismissal, Askim must convince the trial court he is prejudiced by the unavailability of the stove. In this case, unlike Bachmeier /, where the critical piece of evidence was destroyed by a third party, Askim destroyed the stove. See id. at 530. Askim now seeks protection against the Belgardes’ claims through sanctions in the form of dismissal of the claims. In his brief in support of his motion for summary judgment, Askim simply asserted he “has no opportunity to present a defense without the actual stove to show that it’s [sic] condition was not defective.” He quoted from Bachmeier II and wrote his ability to demonstrate causation is significantly impaired. See Bachmeier II, 544 N.W.2d at 127. The trial court did not address the sufficiency of these mere assertions.

[¶ 11] In Bachmeier I, we directed the trial court that it could not merely rely on assertions of counsel. Bachmeier I, 507 N.W.2d at 535. Mere assertions were not adequate in Bachmeier I because we were “not convinced that this is a case where unavailability of the hub, in and of itself, is adequate proof of prejudice.” Id. As in Bachmeier I, the current record does not support a conclusion that Askim’s defense would be “insurmountably difficult” without the stove. See id. There are photographs of the stove, and the stove was examined in 1993 by an expert initially retained by the Belgardes. Askim has not sufficiently buttressed his claim of prejudice with adequate proof. Because the district court’s analysis is incomplete and a misapplication of the law, the district court abused its discretion by dismissing with prejudice the Belgardes’ negligence claim.

Ill

[¶ 12] In addition to alleging negligence, the Belgardes’ complaint also alleged breach of express and implied warranties of habitability and breach of contract in not providing a working refrigerator and stove. The Belgardes’ complaint alleged breach of express and implied warranties of habitability in that the following were defective and out of repair: the windows, refrigerator, stove, roof, plumbing, floor coverings, interior painting, stairwell handrail, ceilings, and light fixtures. The stove was just one out of many allegedly defective components of the rental unit. The breach of express and implied warranties of habitability and the breach of contract claims can go forward with or without the stove in question. The trial court did not make any findings on the warranty and contract claims. The trial court erred when it failed to identify any legal impediment which would prevent these causes of action from going forward.

IV

[¶ 13] In sanctioning the Belgardes by dismissing their causes of action, the trial court must consider the culpability of the Belgardes, prejudice against Askim, and the availability of less severe sanctions. Because the trial court did not consider these three factors, it abused its discretion in dismissing the Belgardes’ negligence claim. The trial court also failed to identify any reason for dismissing the remaining express and implied warranties of habitability and contractual claims.

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

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


text:
    2001 ND 203
    In the Interest of D.P. Sylvia Williams, Petitioner and Appellee, v. D.P., Respondent and Appellant.
    No. 20010285.
    Supreme Court of North Dakota.
    Dec. 20, 2001.

      Eric P. Baumann of Kropp Law Offices, Jamestown, ND, for respondent and appellant.
    Daniel D. Narum, Assistant State’s Attorney, LaMoure, ND, for petitioner and appellee.
   NEUMANN, Justice.

[¶ 1] D.P. appeals from an involuntary treatment order committing him to the North Dakota State Hospital for ninety days. We affirm in part, reverse in part, and remand for a hearing on whether a less restrictive alternative treatment is appropriate.

I

[¶ 2] On October 19,. 2001, a treatment hearing was held in the district court to decide whether D.P. should be committed to the North Dakota State Hospital for treatment. The district court concluded D.P. is a person requiring treatment. The district court found D.P. is mentally ill and suffers from delusions that law enforcement is a threat to both him and his family, and that his wife and brother are a threat to him. These findings were based on the testimony of Nadeen Haider, M.D., D.P.’s treating psychiatrist, D.P.’s brother, and the sheriff who initially committed D.P. The district court also found that if D.P. was not treated, he posed a serious risk of harm to himself or others, and hospitalization would be the only adequate treatment program to meet D.P.’s needs. Based on these findings, the district court entered an involuntary treatment order committing D.P. to the North Dakota State Hospital for a period not to exceed ninety days. D.P. appeals, arguing the district court erred in concluding he was a person requiring treatment under N.D.C.C. § 25-03.1-02(11), and by failing to order alternative treatment. D.P. contends the district court’s findings that he is mentally ill and poses a risk of harm to others if he is not hospitalized are not supported by clear and convincing evidence.

II

[¶ 3] In involuntary commitment cases, our scope of review is limited to a review of the procedures, findings, and conclusions of the lower court. In the Interest of H.G., 2001 ND 142, ¶ 3, 632 N.W.2d 458. To balance the compelling interests of protecting a mentally ill person and of preserving that person’s liberty, district courts are required to use a clear and convincing standard of proof, while this Court uses a more probing clearly erroneous standard of review. In the Interest of J.K., 1999 ND 182, ¶ 10, 599 N.W.2d 337. A district court’s finding that a person requires treatment is a finding of fact and will not be set aside unless it is clearly erroneous. Id. A district court’s finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no 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. H.G., 2001 ND 142, ¶ 3, 632 N.W.2d 458.

III

[¶ 4] D.P. argues the district court erred in finding he is a person requiring treatment under N.D.C.C. § 25-03.1-02(11). Before the district court can issue an involuntary treatment order, the petitioner has the burden to prove by clear and convincing evidence that the respondent is a person requiring treatment. In the Interest of C.W., 552 N.W.2d 382, 383 (N.D.1996). Section 25-03.1-02(11), N.D.C.C., defines “person requiring treatment” as:

[A] person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
a. Suicide, as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care; or
d. Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors.

[¶ 5] In order to be a person requiring treatment under N.D.C.C. § 25-03.1-02(11) it must be shown by clear and convincing evidence that the person is mentally ill, and there exists a reasonable expectation that if the person is not hospitalized, there exists a serious risk of harm to himself, others, or property. J.K., 1999 ND 182, ¶ 11, 599 N.W.2d 337.

[¶ 6] Under the first part of the test, the district court found, by clear and convincing evidence, that D.P. was mentally ill because D.P. suffered from delusions that law enforcement was a threat to both him and his family, and his family was a threat to him. The district court’s findings were based on the testimony of Dr. Haider, D.P.’s psychiatrist, who testified D.P. suffered from schizoaffective disorder depressed type. Dr. Haider based his diagnosis on interviews with D.P. and a review of D.P.’s medical record. D.P. did not present a mental health expert to refute the medical testimony presented at the hearing. The district court’s acceptance of unrefuted expert testimony showing D.P. is mentally hi is not clearly erroneous. See J.K., 1999 ND 182, ¶ 13, 599 N.W.2d 337. We conclude clear and convincing evidence existed to support the district court’s finding that D.P. was mentally ill.

[¶ 7] Once a person is found to be mentally ill, the district court must find there is a reasonable expectation that, if the person is not hospitalized, there exists a serious risk of harm to himself, others, or property. In the Interest of R.N., 1997 ND 246, ¶ 11, 572 N.W.2d 820. The district court was required to find D.P. posed a serious risk of harm under one of the four factors listed in N.D.C.C. § 25-03.1-02(11). See H.G., 2001 ND 142, ¶6, 632 N.W.2d 458. The petitioner conceded that the only evidence presented at trial addressed the risk of harm D.P. posed to others under N.D.C.C. § 25-03.1-02(ll)(b). D.P. argues the district court erred in finding D.P. posed a risk of harm to others if he was not committed.

[¶ 8] The district court found that if D.P. was not treated, he posed a serious risk of harm to himself and others and a substantial likelihood of killing or inflicting serious bodily harm on another person. The district court’s findings were based on the testimony describing the events on September 21, between D.P. and his family. D.P.’s brother testified D.P. became very agitated after a conversation with a law enforcement officer. D.P.’s wife was worried about D.P.’s condition and called local law enforcement to come to the house and commit D.P. D.P. commented that “it’s going down” and started taking inventory of firearms and ammunition. At this point, D.P.’s family, knowing law enforcement was on the way, physically subdued D.P. to prevent a confrontation.

[¶ 9] D.P. contends that absent an overt violent action or expressed intent to commit violence, there is no clear and convincing evidence to support a finding that he posed a serious risk of harm. Direct evidence of overt violence or an expressed intent to commit violence are not required. When one or more reasonable inferences can be drawn from credible evidence, this Court must accept the inferences drawn by the district court. In the Interest of M.S., 1999 ND 117, ¶ 8, 594 N.W.2d 924. Based on the inferences drawn from D.P.’s brother’s testimony, we conclude there was clear and convincing evidence to support the district court’s finding that D.P. posed a serious risk of harm to others if he was not involuntarily committed.

[¶ 10] The district court’s finding that D.P. is a person requiring treatment was not clearly erroneous because the finding was based on clear and convincing evidence showing D.P. is mentally ill and there exists serious risk of harm to himself or others.

IV

[¶ 11] D.P. argues the district court erred in failing to order a less-restrictive alternative treatment required by N.D.C.C. § 25-03.1-21(1). Section 25-03.1-21(1), N.D.C.C., provides:

Before making its decision in an involuntary treatment hearing, the court shall review a report assessing the availability and appropriateness for the respondent of treatment programs other than hospitalization which has been prepared and submitted by the state hospital or treatment facility. If the court finds that a treatment program other than hospitalization is adequate to meet the respondent’s treatment needs and is sufficient to prevent harm or injuries which the individual may inflict upon the individual or others, the court shall order the respondent to receive whatever treatment other than hospitalization is appropriate for a period of ninety days.

[¶ 12] We have stated numerous times that our statutory procedures require that a mental health patient has a right to the least restrictive conditions necessary to achieve the purpose of treatment. See, e.g., In the Interest of R.M., 555 N.W.2d 798, 800 (N.D.1996). To comply with the requirements of N.D.C.C. § 25-03.1-21(1), the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual’s treatment needs, and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which an individual may inflict on himself or others. J.K., 1999 ND 182, ¶ 15, 599 N.W.2d 337. The district court must find, by clear and convincing evidence, that alternative treatment is not adequate or that hospitalization is the least restrictive alternative. Id. The district court’s findings are critical not merely for purposes of our review, but also to ensure the basis for the district court’s decision is clearly articulated, thereby demonstrating that the careful and serious consideration so clearly warranted in the context of an involuntary commitment proceeding has indeed been given. In the Interest of Palmer, 363 N.W.2d 401, 403 (N.D.1985).

[¶ 13] D.P. contends the district court erred in its finding, because the petitioner failed to present clear and convincing evidence that alternative treatment was not available or adequate to prevent harm to D.P. or others. The district court found that a treatment program other than hospitalization would not be adequate to meet D.P.’s needs or sufficient to prevent harm or injuries to D.P. or others. The only evidence presented at the hearing was Dr. Haider’s response to a question of whether any less restrictive form of treatment existed. Dr. Haider stated, “We’re currently exploring [less restrictive alternatives]. We have talked to him on considering the possibility such as transitional living home or Lisbon Soldiers Home, at this time it does not appear that such facilities would be adequate.” Dr. Haider’s comments indicate he was currently exploring other less restrictive treatment options for D.P. There was no mention of what options existed or why these potential options would not be appropriate for D.P.

[¶ 14] Dr. Haider prepared a report assessing the availability and appropriateness of alternative treatment concluding an alternative treatment program would not be sufficient because D.P. “does not feel he is ill, continues to stabilize.” The report was apparently filed with the petition for involuntary commitment, but was not offered into evidence at the hearing. There is no evidence in the record to indicate whether the district court considered the report when concluding no alternative treatment program existed.

[¶ 15] The district court’s finding that no less restrictive alternative treatment existed for D.P. is not supported by clear and convincing evidence. Accordingly, that portion of the district court’s order is reversed, and this matter is remanded for a hearing on whether a less restrictive alternative treatment is available.

V

[¶ 16] We affirm the district court’s order finding D.P. is a mentally ill person requiring treatment, reverse its finding of no less restrictive alternative treatment, and remand for further proceedings to determine if a less restrictive alternative treatment is appropriate for D.P.

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


text:
    2001 ND 204
    CITY OF FARGO, Plaintiff and Appellee, v. Robbie Del James ROBERSON, Defendant and Appellant.
    No. 20010038.
    Supreme Court of North Dakota.
    Dec. 20, 2001.

      Michael S. Montgomery of Montgomery, Goff and Bullís, Fargo, N.D., for defendant and appellant.
    Timothy Michael O’Keeffe, City Prosecutor, Fargo, N.D., for plaintiff and appel-lee.
   NEUMANN, Justice.

[¶ 1] Robbie Del James Roberson appeals from a judgment finding him guilty of unlawfully resisting an officer. Roberson argues he was justified in resisting the officer because the officer was acting unlawfully, and the evidence was insufficient to support the conviction. We affirm.

I

[¶ 2] Shortly before 1:00 a.m., March 3, 2000, Roberson was walking through a parking lot in Fargo. Officer Chris Potter was on patrol and observed Roberson duck between two cars in the parking lot, as if he was trying to hide. Officer Potter attempted to communicate with Roberson. When Roberson did not respond, Officer Potter ordered' him to stop and put his hands in the air. Roberson did not initially follow Officer Potter’s requests. Officer Potter repeated his requests numerous times. Eventually, with the help of other officers, Roberson was handcuffed and arrested. Roberson was charged with disorderly conduct under Fargo Municipal Code § 10-0301 and unlawfully resisting an officer under § 10-0317.

[¶ 3] The trial court found there was no evidence linking Roberson to any criminal activity, and subsequently dismissed the disorderly conduct charge. The court also found Roberson had resisted the officer and was guilty on that charge. Roberson appeals his conviction, arguing the conviction should be dismissed based on the officer’s unlawful actions, and there was insufficient evidence in the record to support the conviction.

II

[¶ 4] Roberson argues Officer Potter lacked any reasonable suspicion to stop him. Officer Potter’s unlawful conduct thus creates a defense to the crime of resisting arrest under N.D.C.C. § 12.1-08-02(2). Roberson claims the facts in this case do not support a reasonable belief that he was engaged in criminal activity, and therefore, the charge of resisting arrest should be dismissed. We disagree.

[¶ 5] Roberson failed to raise the justification defense of unlawful police conduct to the trial court. Roberson conceded that the first time he raised the justification defense was before this Court on appeal. Roberson failed to preserve the issue of whether he was justified in resisting the officer because he did not raise the issue with the trial court. See Matter of B.E.M., 1997 ND 134, ¶ 21, 566 N.W.2d 414. One of the touchstones for an effective appeal on any proper issue is that the issue was appropriately raised at trial so the trial court could intelligently rule on it. State v. Glass, 2000 ND 212, ¶ 10, 620 N.W.2d 146. This Court will not consider questions that were not presented to the trial court and are raised for the first time on appeal. Selzler v. Selzler, 2001 ND 138, ¶ 7, 631 N.W.2d 564.

III

[¶ 6] Roberson argues there was not sufficient evidence presented at trial to support his conviction of resisting an officer. Roberson was charged with resisting an officer under Fargo Municipal Code § 10-0317, which states, “It shall be unlawful for any person by the use of force, violence, or flight to resist knowingly any police officer in the performance of his duties.” To successfully challenge the sufficiency of the evidence on appeal, Roberson must convince us the evidence permits no reasonable inference of guilt. See State v. Ebach, 1999 ND 5, ¶24, 589 N.W.2d 566. We will only reverse a criminal conviction if, after viewing the evidence and all reasonable inferences in a light most favorable to the verdict, no rational fact finder could have found the defendant guilty beyond a reasonable doubt. Id. In deciding whether sufficient evidence exists to support the verdict, we do not resolve conflicts in the evidence nor do we weigh the credibility of the witnesses. State v. Gagnon, 1999 ND 13, ¶23, 589 N.W.2d 560.

[¶ 7] We conclude there was sufficient evidence to support the trial court’s finding that Roberson unlawfully resisted the officers. Officer Potter testified Roberson failed to follow his requests and physically struggled with the other officers. Officer Dan Hudson also testified Roberson was yelling and kicking the officers while attempting to get up.

[¶ 8] When viewed in a light most favorable to the guilty verdict, we find ample evidence was presented to show Roberson physically resisted an officer. We affirm.

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

      . Though Roberson did not raise the question, we note there are significant differences between Fargo Municipal Code § 10-0317 and N.D.C.C. § 12.1-08-02, the statutory provision governing preventing arrest or discharge of official duties. The conflict between the ordinance and the statute could pose a problem under N.D.C.C. § 12.1-01-05. Because neither party raised this issue or addressed it in their briefs, we will not consider it. See Romanyshyn v. Fredericks, 1999 ND 128, ¶ 3 n. 1, 597 N.W.2d 420.