author: PETERSON, Judge

text:
    STATE of Minnesota, Appellant, v. Signe Elissee PEARSON, Respondent.
    No. C9-99-2021.
    Court of Appeals of Minnesota.
    May 2, 2000.

      Mike Hatch, Attorney General, St. Paul, and Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, Stillwater, for appellant.
    Michael F. Cromett, McMahon & Cro-mett Criminal Defense, PLLP, Roseville, for respondent.
    Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

PETERSON, Judge

Appellant State of Minnesota argues that the district court erred by staying adjudication of felony theft charges against respondent Signe Elissee Pearson. Respondent moves to strike a portion of appellant’s brief and appendix. We reverse and remand, and grant respondent’s motion to strike.

FACTS

Pearson was charged by complaint with one count each of felony theft by wrongfully obtaining public assistance and felony theft by wrongfully obtaining food stamps in violation of Minn.Stat. §§ 256.98, subd. 1, 393.07, subd. 10(c)(1), 609.52, subd. 3(2)-(3) (1994). The complaint alleged the following facts: from May 1995 through February 1996, Pearson received $4,080 in aid to families with dependent children (AFDC) and $2,431 in food stamps from Washington County; Pearson was working 40 hours per week but stated in her application for assistance that she was earning no income; and if Pearson had disclosed her employment, she would not have received any AFDC or food stamps.

Pearson pleaded guilty to felony theft by wrongfully obtaining public -assistance. She admitted the allegations in the complaint and also admitted that she knew she was supposed to disclose any employment or income to Washington County when applying for or receiving public assistance or food stamps. Pursuant to the parties’ agreement, the district court referred the case to the Washington County circle sentencing process for a sentencing recommendation.

The sentencing circle met four or five times regarding Pearson’s case. Partid-pants included Pearson, her husband, the district court, and community members. The circle recommended a stay of adjudication of the charges against Pearson and that Pearson be required to pay restitution, obtain credit counseling and financial management help, perform community volunteer work, and participate in support/follow-up circles.

At the sentencing hearing, the county attorney stated that his office had not received notice of any of the circle meetings. He also stated that Washington County Community Services, the victim of the offense, had not received notice of the circle meetings, but a circle member stated, and the district court found, that community services had received notice of the meetings. Apparently, no one from community services was present at any of the circle meetings.

The district court accepted the circle’s recommendation and stated the following reasons for staying adjudication: the parties and the court had referred the matter “to the circle with a belief in that process and that standing by itself is a mitigating circumstance”; Pearson had no felony record or pattern of law violations and was not a public safety risk; to avoid impeding Pearson from obtaining future employment; a traumatic event in Pearson’s life affected her emotional and mental state at the time she committed the offense and was a contributing factor to the offense; and if Pearson had had the financial means to qualify for diversion, she would not have been charged with a felony.

ISSUES
I. Did the district court err in staying adjudication of the charges against Pearson?
II. Should Pearson’s motion to strike be granted?

ANALYSIS

I.

In State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn.1996), the supreme court concluded that a decision to stay adjudication of a criminal charge is within the “inherent judicial power” of the district court. The supreme court also concluded in Krotzer that the district court’s determination that a stay of adjudication was warranted was well-supported by the special circumstances of the case. Id. at 254.

In State v. Foss, 556 N.W.2d 540, 540 (Minn.1996), the supreme court explained that, in Krotzer, it had held that

if “special circumstances” are present, then a trial court may stay an adjudication of guilty over the prosecutor’s objection without violating the separation-of-powers doctrine.

The Foss court further explained:

It was not our intention that mere disagreement with the prosecutor’s exercise of the charging discretion would constitute “special circumstances.” Rather, it was our intention that the inherent judicial authority recognized in [Krotzer] be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s dear abuse of discretion in the exercise of the charging function.

Id. at 541 (emphasis in original).

In State v. Mitchell, 577 N.W.2d 481, 493 (Minn.1998), the supreme court reiterated the statements it made in Krotzer and Foss:

At times, this court has recognized exceptions when the [district court] does have inherent judicial power to act in the furtherance of justice, but this power is to be exercised only when there are special circumstances, such as selective or discriminatory prosecutorial intent. The inherent judicial power recognized in Krotzer is limited, and is to be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discre tion in the exercise of the charging function.

(Citation and quotation omitted) (emphasis in original).

In 1998, the legislature enacted Minn. Stat. § 611A.775 (1998), which authorizes restorative justice programs. Section 611A.775 states:

A community-based organization, in collaboration with a local governmental unit, may establish a restorative justice program. A restorative justice program is a program that provides forums where certain individuals charged with or petitioned for having committed an offense meet with the victim, if appropriate; the victim’s family members or other supportive persons, if appropriate; the offender’s family members or other supportive persons, if appropriate; a law enforcement official or prosecutor when appropriate; other criminal justice system professionals when appropriate; and members of the community, in order to:
(1) discuss the impact of the offense on the victim and the community;
(2) provide support to the victim and methods for reintegrating the victim into community life;
(3) assign an appropriate sanction to the offender; and
(4) provide methods for reintegrating the offender into community life.

There is no dispute that circle sentencing is a type of restorative justice program. Pearson argues that because restorative justice is an alternative to traditional sentencing under the criminal justice system and the state agreed to submit Pearson’s case to circle sentencing, it should be bound to follow the circle’s recommendation. We disagree. Although Minn.Stat. § 611A.775(3) authorizes a restorative justice program to “assign an appropriate sanction to the offender,” the statutory language does not indicate a legislative intent to authorize restorative justice programs to assign a sanction that would be an improper sentence if imposed by the district court. Nor does the statute indicate that the district court must impose the sanction assigned in the restorative justice program. Absent statutory language indicating a clear legislative intent to subordinate the sentencing authority of the district court to the decision of the forum provided in a restorative justice program, a construction of Minn.Stat. § 611A.775(3) that would have this effect is not reasonable. See Minn.Stat. § 645.17(1) (1998) (legislature does not intend result that is unreasonable).

Citing People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405, 410 (1974), a case cited in Krotzer, Pearson argues that the prosecutor should not be allowed to override a sentencing circle’s recommendation. But in that case, the California Supreme Court held that the decision to divert a defendant into a rehabilitation program could not constitutionally be subordinated to a prosecutor’s veto. The court specifically noted that the decision to divert was a disposi-tional determination, not an extension of the charging process. Thus, unlike a stay of adjudication in Minnesota, under California law, a decision to divert an offender does not interfere with the prosecutor’s charging authority.

Because the district court was not required to impose the sanction assigned in the restorative justice program, the district court could stay adjudication only if there were “special circumstances” warranting a stay of adjudication.

One reason the district court cited for staying adjudication was that if Pearson had had the financial means to qualify for diversion, she would not have been charged with a felony. Minn.Stat. § 401.065, subd. 2 (1998) (requiring counties to establish pretrial diversion programs for adult offenders). Neither Pearson nor the district court states the criteria for diverting welfare fraud offenders in Washington County, and we did not find this information in the record. The record, therefore, does not establish that the prosecutor abused its discretion by not referring Pearson to a diversion program.

Another reason for the stay of adjudication was to avoid impeding Pearson’s employment prospects. But case law indicates that possible loss of a job is not an appropriate factor for the court to consider when deciding whether to stay adjudication. See State v. Twiss, 570 N.W.2d 487, 487 (Minn.1997) (possible loss of a job due to criminal conviction is not a “special circumstance”; rather it is a typical consequence of a conviction for a serious offense); State v. Thoma, 569 N.W.2d 205, 209 (Minn.App.1997) (collateral consequences of conviction for underage drinking and driving, including loss of employment due to driver’s license suspension, not “special circumstances”), aff'd mem., 571 N.W.2d 773 (Minn.1997).

The remaining reasons cited by the district court do not constitute “special circumstances” warranting a stay of adjudication. The decision to refer Pearson to the sentencing circle was made as part of the sentencing process and, therefore, is not relevant to determining whether the prosecutor abused its discretion in charging Pearson. Pearson does not cite any authority indicating that an offender’s criminal history or the fact than an offender is not a threat to public safety is relevant to determining whether a stay of adjudication is warranted. As the state argues, these factors are taken into account in offense severity levels and in criminal history scores under the sentencing guidelines. Finally, the district court cited a traumatic event that occurred in Pearson’s life, but the record does not indicate what that traumatic event was. Consequently, we cannot determine how it may have affected the prosecutor’s charging decision.

II.

Pearson moves to strike from the brief and appendix to the state’s brief an affidavit by the county attorney regarding its participation in other sentencing circles and all references to the affidavit. The papers filed in the district court, the exhibits, and the transcript of the proceeding, if any, shall constitute the record on appeal in all cases. Minn. R. Civ.App. P. 110.01. Because the affidavit was not sworn until after Pearson’s sentencing, the motion to strike is granted.

DECISION

Because the sentencing circle had no authority to assign a stay of adjudication as a sanction for felony theft and the district court was not required to impose the sanction assigned by the sentencing circle, the state’s agreement to refer Pearson to the sentencing circle was not a proper basis for staying adjudication of the felony-theft charge. Because there were not other special circumstances that demonstrated a clear abuse of prosecutorial discretion in the exercise of the charging function, the district court improperly stayed adjudication of the felony-theft charge against Pearson.

Reversed and remanded; motion granted.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge

license: Public Domain

text:
    In re the Marriage of Diane ReNee TOUGHILL, Petitioner, Respondent, v. John Kenneth TOUGHILL, Appellant.
    No. C2-99-1485.
    Court of Appeals of Minnesota.
    May 9, 2000.

      Sarah C. Mardell, Kathleen E. Rusler O’Connor, Mardell Law Office, Apple Valley, for respondent.
    Joseph E. Marvin, Alexander M. Dashe, Marvin & Erhart, L.L.C., Anoka, for appellant.
    Considered and decided by PETERSON, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge

On appeal from marital-dissolution proceedings, appellant challenges the district court’s orders (1) denying his motion to vacate the dissolution stipulation; (2) awarding spousal maintenance; (3) limiting his infant son’s overnight visitation; and (4) denying his motion to change venue. We affirm the district court’s orders denying the motions, limiting visitation and setting the amount and duration of spousal maintenance, and we deny respondent’s motion for attorney fees and costs. But, the interests of justice require us to reverse the district court’s decision to divest itself of jurisdiction over spousal maintenance.

FACTS

Respondent Diane ReNee Toughill sought to end her nearly three years of marriage to appellant John Kenneth Toug-hill and hired an attorney. A few days later, appellant and respondent met at the attorney’s office. Appellant was served with a summons and petition for dissolution of marriage, and respondent’s attorney discussed a marital termination agreement with the parties. While appellant did not hire his own attorney, he had acted on his own behalf in his first divorce.

Respondent’s attorney did not give appellant legal advice. Respondent’s attorney did, however, confer with respondent in appellant’s presence throughout the meeting. As appellant .and respondent agreed to various items, respondent’s attorney entered the terms into a document on her computer. After about four hours of negotiation, both appellant and respondent signed that document — the marital termination agreement (MTA). Appellant also executed a waiver of independent counsel.

Two days later, appellant had misgivings about the MTA terms and retained independent legal counsel. Thereafter, appellant promptly moved to change venue from Dakota County to Washington County and filed a notice to rescind the MTA. The district court found that respondent resided with her parents in Dakota County and denied the motion to change venue.

The district court ordered appellant to file a formal motion to vacate the MTA, and he complied. The district court held a hearing on the motion, but found no mistake, duress, or fraud in the four hours of detailed negotiation and denied relief. The case immediately proceeded to a default hearing. Accepting some MTA provisions in their entirety, the district court reserved judgment on the issues of' attorney’s fees, spousal maintenance, the amount of any insurance payments, and overnight visitation pending a separate evi-dentiary hearing.

At the evidentiary hearing, respondent established that she is employed as part-time medical transcriptionist for a small clinic, working at home between six and fifty hours per month at $12.56 per hour. Appellant works for a railroad and earns a little less than $50,000 per year. Appellant moved into his mother’s home during the marriage dissolution, so the district court rejected Ms claimed rent and utility expenses, and discounted his claimed monthly food expenses. The MTA provided that appellant would pay respondent up to $600 of spousal maintenance per month for 61 months. The district court awarded respondent monthly maintenance of $500 for 52 months.

The MTA provided that the couple’s son would not visit appellant overnight before the age of three. In accordance with a Minnesota Supreme Court Task Force recommendation, the district court ordered that overnight visitation would begin when the child reached age two and a half.

ISSUES
I.Did the district court err by denying appellant’s motion to vacate the MTA?
II. Did the district court abuse its discretion by ordering spousal maintenance?
III. Did the district court abuse its discretion by limiting overnight visitation?
IV. Did the district court abuse its discretion by denying appellant’s motion to change venue?
V. Is respondent entitled to attorney fees?

ANALYSIS

I.

Appellant argues that the district court abused its discretion both by requiring him to bring a motion to vacate the MTA and by denying that motion.

A. Necessity of Motion

Appellant asserts that he had a right to unilaterally withdraw from the MTA because a dissolution stipulation does not become a binding contract until incorporated into the judgment. Appellant is incorrect. Stipulations are a judicially-favored means of simplifying and expediting dissolution litigation and, for this reason, are “accorded the sanctity of binding contracts.” Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn.1997). As “binding contracts,” a party cannot repudiate or withdraw from a stipulation without the consent of the other party, except “by leave of the court for cause shown.” Id. at 521-22 (quotation omitted). Thus, even though the district court had yet to adopt the parties’ stipulation or incorporate it into a dissolution judgment, appellant could not repudiate or withdraw from the stipulation absent respondent’s consent or the court’s permission. Here, because respondent did not consent to appellant’s attempt to withdraw from or repudiate the stipulation, the court’s permission, and hence a motion, was required.

B. Denial of Motion

Appellant argues that even if an MTA not yet adopted by a district court is provisionally binding on the parties, this district court should have granted this motion to vacate this MTA because this MTA was void for fraud and duress. Appellant also alleges that as a result of the district court’s erroneous refusal to grant his motion, he suffered and will suffer substantial prejudice under the terms of the stipulation-based dissolution judgment. Because appellant alleged both district court error and prejudice caused by that error, we will address the merits of his argument. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal, appellant must show both error and that error caused prejudice); Minn. R. Civ. P. 61 (harmless error is ignored). We will not disturb a district court’s determination whether to vacate a dissolution stipulation absent an abuse of discretion. See Anderson v. Anderson, 303 Minn. 26, 32, 225 N.W.2d 837, 840 (1975).

In dicta, Shirk suggested that a district court may relieve a party from the terms of a dissolution stipulation if, before entry of a judgment based thereon, it is determined that the stipulation was “improvidently made and in equity and good conscience ought not to stand.” 561 N.W.2d at 522; (citing John v. John, 322 N.W.2d 347, 348 (Minn.1982)). We adopt that dicta as our holding: When a district court is considering whether to allow a party to repudiate or withdraw from a dissolution stipulation which has not yet been incorporated into a dissolution judgment, the district court is to consider whether the stipulation was “improvidently made and in equity and good conscience ought not to stand.” Shirk, 561 N.W.2d at 522; see In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974) (stating that supreme court dicta is entitled to “considerable weight” if it contains “an expression of the opinion of the court”). Stipulations based on fraud or duress and which prejudice the defrauded or coerced party are improvidently made and in equity and good conscience ought not to stand. Cf. Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn.App.1998) (noting, historically, a party could be relieved of dissolution judgment for fraud, duress, or mistake); Tomscak v. Tomscak, 352 N.W.2d 464, 466 (1984) (stating that district courts may set aside stipulation-based dissolution judgments for fraud, duress, or mistake).

Here, in addressing whether this case involved fraud or duress, the district court, among other things, considered the so-called Tomscak analysis and specifically addressed the first two so-called Tomscak factors. Before Shirk, when deciding whether to grant a party’s motion to vacate a stipulation-based dissolution judgment, the district court evaluated the Tomscak factors of whether (1) the party was represented by competent counsel; (2) negotiations were extensive and detailed; (3) the party agreed to the stipulation in open court; and (4) when questioned by the judge, the party acknowledged understanding the terms and considering them fair and equitable. See, e.g., Glorvigen v. Glorvigen, 438 N.W.2d 692, 695-96 (Minn.App.1989). In 1988, Minn.Stat. § 518.145 was amended to include what is now subdivision 2 of that statute, regarding relief from dissolution judgments, orders, or proceedings. 1988 Minn. Laws ch. 668, § 11. Among other things, Shirk essentially recognized that the 1988 amendment functionally overruled Tomscak and its progeny to the extent that those cases allowed vacation of stipulation-based dissolution judgments on grounds other than those listed in the statute. See Shirk, 561 N.W.2d at 522 (stating that once judgment is entered based on stipulation, “sole” relief from judgment requires meeting requirements of Minn.Stat. § 518.145, subd. 2).

Here, the district court’s critical findings, including those addressing the first two Tomscak factors, state that (1) the parties agreed to enter into the MTA to save money; (2) before executing the MTA, the parties extensively negotiated visitation, physical custody, access to the child’s health and school records, and apportionment of assets, debts, and pensions; (3) appellant was not unfamiliar with MTAs, having entered into an MTA in the dissolution of a prior marriage; (4) appellant signed the waiver of counsel after negotiations and simultaneously with the MTA; and (5) the circumstances of the negotiations did not create any fraud, duress, or mistake.

These findings are not clearly erroneous. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous). The record shows (a) appellant participated in nearly four hours of negotiation before signing the MTA; (b) appellant conceded there was bargaining and revision of the MTA during the negotiations; and (c) although appellant was pro se during the negotiations, he had represented himself in the dissolution of a prior marriage and was in a position to appreciate the risks associated with representing himself in this proceeding. Cf. Glorvigen, 438 N.W.2d at 696 (discussing why, for public policy reasons, a party who understands the risks of proceeding pro se and voluntarily waives counsel is not deprived of competent counsel). At the motion hearing, appellant rejected the entire agreement, essentially alleging he was somewhat intimidated by respondent’s attorney and claiming he relied on what the attorney told respondent. But, there is nothing inherently coercive or fraudulent about knowingly choosing to proceed without counsel and, as a result, being somewhat intimidated by being forced to deal directly with another party’s attorney.

Because the district court’s findings are not clearly erroneous and because those findings indicate that the stipulation was not improvidently made and that equity and good conscience do not require that it be repudiated or withdrawn, we cannot say that the district court abused its discretion by denying appellant’s motion. Moreover, because any Shirk-related limitation of Tomscak goes to Tomscak ⅛ viability in a situation where a judgment has been entered on a stipulation, and because no judgment had been entered here, the district court did not err by considering the first two Tomscak factors in deciding whether to grant appellant’s motion.

II.

Appellant disputes the spousal maintenance award. We review a district court’s spousal maintenance award for abuse of discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982). Minnesota Statute section 518.552 (1998) lists nonexclusive factors to be considered in determining the amount and duration of maintenance; those factors basically balance the recipient’s need against the obli-gor’s financial condition. Erlandson, 318 N.W.2d at 39-40.

The district court assessed respondent’s ability to earn money as a medical transcriptionist working at home and awarded respondent $500 monthly maintenance for 52 months after considering testimony on (1) the feasibility of day-care; (2) the parties’ intent to have respondent stay at home with their son until he reaches school age; (3) the volume of transcription work available to respondent; (4) her expenses; and (5) appellant’s income and expenses. Appellant argues that respondent is voluntarily withholding herself from the job market by electing to work at home. Appellant further contends that the district court should not have discounted his claimed expenses for rent, utilities, and food just because appellant now temporarily lives with his mother. We disagree.

There is no evidence that respondent intended to reduce her income for the purpose of obtaining maintenance. Rather, she continues in the same job that she held before the dissolution because it allows her to earn money while caring for the parties’ young son at home. Cf. Carrick v. Carrick, 560 N.W.2d 407, 411 (Minn.App.1997) (recognizing that continuing to care for children at home does not amount to bad-faith underemployment). The district court also explained that it could not consider appellant’s anticipated rent, utility, and food expenses because it had no evidence about what those expenses would be if, in the future, appellant chose to move out of his mother’s home. On this record, these determinations fall within the district court’s broad discretion.

But we find that the district court abused its discretion by divesting itself of jurisdiction over modification of spousal maintenance. The court’s divestiture prevents the parties from seeking modification of maintenance even if their circumstances materially change. See Karon, 435 N.W.2d at 503. Because the district court did not impute basic housing expenses to appellant, the jurisdictional divestiture has the practical effect of requiring appellant to pay maintenance as if he had artificially low food expenses as well as no expenses for rent or utilities, even if he moves out of his mother’s home.

When the parties dissolved their marriage, each resided with family. The district court’s divestiture of jurisdiction prevents each from seeking modification of the spousal maintenance award if they establish their own residences. We find these circumstances warrant continuing jurisdiction over maintenance and accordingly reverse the district court’s order insofar as it divests the district court of jurisdiction over modification of the spousal maintenance award. See Minn. R. Civ. App. P. 103.04 (allowing appellate court to address any issue as justice requires).

III.

Appellant and respondent have joint legal custody of their son, but respondent has physical custody subject to visitation. Appellant challenges the district court’s limitations on his son’s overnight visitation.

The district court has broad discretion to determine what is in the best interests of the child in the area of visitation and we will not overturn its determination absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn.1995). Here, the district court ordered overnight visitation beginning when the child reached age two and a half. Because the court-ordered visitation begins six months before the date agreed to by the parties, the prejudice to appellant is minimal. Also, the district court made its visitation decision by consulting A Parental Guide to Making Child-Focused Visitation Decisions, a publication created by the Minnesota Supreme Court Task Force to assist parents and judges in establishing age-appropriate visitation schedules. Appellant has not shown that the district court abused its discretion by following the guidelines recommended by the supreme court’s visitation task force.

IV.

Appellant argues that the district court should have granted his motion to change venue. Appellant claims that respondent did not reside in Dakota County on the date proceedings commenced. We review a district court’s denial of a motion for a change of venue in a family law case under an abuse-of-discretion standard. See County of Nicollet v. Haakenson, 497 N.W.2d 611, 614 (Minn.App.1993). Residence has been defined as “an abode, dwelling, habitation or place where one actually lives.” Buckheim v. Buckheim, 231 Minn. 333, 337, 43 N.W.2d 113, 115 (1950). Venue in family law cases is proper in the county where either spouse resides. Minn.Stat. § 518.09 (1998).

Respondent moved to her parents’ home in Dakota County before the dissolution proceedings commenced and continued to live there throughout the proceedings, but may have returned to the marital home in Washington County for a night or two. The evidence supports the district court’s findings on respondent’s residence. The district court’s decision to deny appellant’s motion to change venue was not an abuse of discretion.

V.

Finally, respondent moves for bad-faith attorney fees and costs. Minn. Stat. § 549.211 (1998) allows this court, in its discretion, to award reasonable attorney fees when a party acts in bad faith by asserting frivolous or unfounded claims solely to harass or to delay proceedings. See Allstate Ins. Co. v. Allen, 590 N.W.2d 820, 823 (Minn.App.1999) (stating that whether to award attorney fees on appeal under MinmStat. § 549.211 is discretionary with the appellate court). Respondent is commendably precise in pointing out errors and incorrect statements in appellant’s brief, but these misstatements by counsel do not rise to the level of conduct that should be sanctioned by this court. Accordingly, we deny respondent’s motion for attorney fees and costs.

DECISION

We affirm the district court’s orders on the dissolution stipulation, venue, visitation, and the amount and duration of spousal maintenance, and we deny respondent’s motion for attorney fees and costs. But the interests of justice compel reversal of the district court’s order insofar as it divests the district court of jurisdiction over modification of the maintenance award.

Affirmed in part and reversed in part; motion denied.

      . The district court is a third party to dissolution proceedings and has the authority to refuse to accept the terms of a stipulation "in part or in toto." Karon v. Karon, 435 N.W.2d 501, 503 (Minn.1989); see Schreck v. Schreck, 445 N.W.2d 861, 863 (Minn.App.1989), review denied (Minn. Nov. 15, 1989). Therefore, while a party, absent consent of the other party or permission of the court, may not withdraw from or repudiate a stipulation after entering it (even if the district court has yet to approve the stipulation), the district court is not bound by a stipulation merely because the parties have entered it. We note that while a district court may reject all or part of a stipulation, generally, it cannot, by judicial fiat, impose conditions on the parties to which they did not stipulate and thereby deprive the parties of their “day in court.” Alternatively stated, while parties to a dissolution stipulation are precluded from disavowing that stipulation before the district court decides whether to accept the stipulation, to the extent that the district court does not accept the stipulation, the parties should not, absent unusual circumstances, be precluded from litigating their claims.

      . Obviously, the third and fourth Tomscak factors, which deal with approval of the stipulation in open court and the response by parties to questioning by a judge, do not apply in those cases, like the present one, where the relief sought is rejection of a stipulation not yet incorporated into judgment.


author: DANIEL F. FOLEY, Judge

text:
    RYAN CONTRACTING, INC., Respondent, v. JAG INVESTMENTS, INC., et al., Appellants, Metro Home Insulation, Inc., et al., Defendants, GMH Asphalt Corporation, Respondent.
    No. C5-99-1688.
    Court of Appeals of Minnesota.
    May 9, 2000.

      Jeffrey C. Paulson, David D. Hammar-gren, Hammargren & Meyer, P.A., Minneapolis, for respondent Ryan Contracting.
    Kay Nord Hunt, James M. Lockhart, Lommen, Nelson, Cole & Stageberg, Minneapolis, for appellants.
    Patrick J. Neaton, Neaton & Puklieh, P.L.L.P., Wayzata, for respondent GMH Asphalt.
    Considered and decided by HARTEN, Presiding Judge, LANSING, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

Appellants challenge the district court’s denial of their motion to dismiss, arguing that the court lacks personal jurisdiction over them in this mechanic’s lien action, due to improper service of process. We affirm in part and reverse in part.

FACTS

Defendant Jagodzinski Development Corporation (JDC) and appellant JAG Investments, Inc. (JAG) entered into a joint venture to develop certain real property. JDC contracted with respondent Ryan Contracting to perform street construction on the residential development project. Ryan hired respondent GMH Asphalt Corporation (GMH) as a subcontractor to perform the street paving. Appellant Darlene M. Chiles is the owner of one lot in the Fairway Hills subdivision.

Ryan completed the work on December 16, 1997. On April 8, 1998, Ryan served and filed a mechanic’s lien against all lots on the development property to recover for its construction work. On December 4, 1998, Ryan .filed this suit against JDC, JAG, Chiles, and several other defendants to foreclose the mechanic’s lien. On December 28, GMH served a cross-claim and counterclaim on appellants’ attorney to foreclose GMH’s mechanic’s lien on the subject property.

This suit was served on the attorney that represented JDC, JAG, Chiles, and several other defendants. JDC was, properly served. Appellants asserted an affirmative defense of lack of personal jurisdiction in their answer to the complaint and in their answer to GMH’s cross-claim, and continued to assert this defense throughout the proceedings.

On July 15, 1999, appellants JAG and Darlene Chiles moved for dismissal of the action for lack of personal jurisdiction and for lack of subject-matter jurisdiction. The district court denied appellants’ motion. On appeal, this court issued an order finding that appellants could pursue their interlocutory appeal on the issue of personal jurisdiction, but that the portion of the appeal on the issue of subject-matter jurisdiction was dismissed.

ISSUES

1. Is service on one member of a joint venture sufficient to establish personal jurisdiction over another member of the joint venture?

2. Is service of process on an individual’s attorney, rather than the individual, effective service of process?

3. Will this court review an interlocutory appeal issue that has already been dismissed by this court’s special term panel?

ANALYSIS

Mechanic’s lien laws are strictly construed to determine whether a lien has attached, but are liberally construed once a lien has attached. Cox v. First Nat’l Bank of Aitkin, 415 N.W.2d 385, 387 (Minn.App.1987), review denied (Minn. Jan. 20, 1988). Appellants did not contest the filing of the hen statement. Therefore, the only issue is whether appellants were properly served. The construction of a court rule and the determination of whether service is proper are questions of law, which we review de novo. Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn.1996).

I.

Appellant JAG argues that there was not an effective service of process to give the court personal jurisdiction. Service of process on a corporation requires delivery “to an officer or managing agent, or to any other agent authorized expressly or impliedly or designated by statute to receive service of summons.” Minn. R. Civ. P. 4.03(c). The mechanic’s lien statute requires that service occur “within one year after the date of the last item of the claim as set forth in the recorded lien statement.” Minn.Stat. § 514.12, subd. 3 (1998).

Here, respondent Ryan initially served JAG’s attorney, and then properly served JAG over eight months after the statutory limit had expired. The complaint, however, alleged that JDC and JAG “are related business entities and share common ownership and control,” and the district court found that JAG was properly served based, in part, on the fact that JDC and JAG undertook “the development of the subject property as a ‘joint venture.’ ”

Minnesota courts have not explicitly ruled on whether one member of a joint venture is an “agent” authorized to accept service of process for another member. In determining who is an authorized agent for proper service, the supreme court has observed:

The primary concern with allowing an agent to receive service for the corporation has generally been to protect a defendant from any prejudice which could result from a lack of notice.

Erickson v. Coast Catamaran Corp., 414 N.W.2d 180, 183 (Minn.1987). While the case at hand involves a mechanic’s lien, this rule would apply with equal force to any procedure that requires service in compliance with Minn. R. Civ. P. 4.

Here, we are dealing with a mechanic’s lien. This court has stated that the substantive rights of the lien claimant should not be decided on technical grounds, particularly if no harm results. See R.B. Thompson, Jr. Lumber Co. v. Windsor Dev. Corp., 383 N.W.2d 357, 361 (Minn.App.1986) (allowing lien claimant to add parent corporation after one-year statute of limitation had run because it received actual notice and no prejudice occurred), review denied (Minn. May 22, 1986).

JDC and JAG were engaged in a joint venture and JDC was properly served the foreclosure complaint. JAG also received actual notice of the service, served discovery on other parties, attended depositions, attended and participated in mediation, and filed a motion to compel discovery responses.

It is sufficient for us to say that, whatever may be the conflicting decisions of other tribunals, we are of the opinion that no narrow or limited construction of our mechanic’s lien law should be indulged in by the courts, and that the labor and industry of the country should not be hampered by technicalities or harsh interpretations of what was evidently intended to be a just law for the benefit of our industrial pursuits, which tends so materially to the building of cities and towns, and is the embodiment of so much natural justice. He whose property is enhanced in value by the labor and toil of others should be made to respond in some way by payment and full satisfaction for what he has secured. To accomplish this result is the intent of the lien law.

O.B. Thompson Elec. Co. v. Milliman & Larson, Inc., 268 Minn. 299, 303, 128 N.W.2d 751, 754 (1964) (quoting Emery v. Hertig, 60 Minn. 54, 57, 61 N.W. 830, 831 (1895)). Under these circumstances, we find that there was effective service of process on JAG to give the court personal jurisdiction.

II.

The district court found that it had personal jurisdiction over appellant Darlene Chiles based on service of process on her attorney. Service of process on an individual is governed by Minn. R. Civ. P. 4.03(a). It provides for service

[ujpon an individual by delivering a copy to the individual personally or by leaving a copy at the individual’s usual place of abode with some person of suitable age and discretion then residing therein.

The exceptions to service on an individual occur when an individual appoints an agent to receive service of a summons, or when the party has actual notice of attempted personal service at the party’s residence. Allstate Ins. Co. v. Allen, 590 N.W.2d 820, 822 (Minn.App.1999).

It is undisputed that Chiles did not appoint her attorney to receive service of a summons. Service on Chiles’s attorney is not effective service. See id. (service on defendant’s attorney is ineffective where attorney had merely been retained by defendant and nothing indicated he had appeared before the court or availed himself of the court system before receiving the summons).

The district court also found that Chiles waived her defense of lack of personal jurisdiction. A recent Minnesota Supreme Court case, Patterson v. Wu Family Corp., 608 N.W.2d 863 (Minn.2000), found waiver in a case with similar facts. Chiles, like the defendant in Patterson, asserted the defense of insufficient service of process in her answer and continued to assert this defense throughout the proceedings. Patterson, however, is distinguishable from the current case because while Chiles made a motion to compel discovery before making a motion to dismiss for lack of personal jurisdiction, the defendant in Patterson made a motion for partial summary judgment before making a motion to dismiss for lack of personal jurisdiction. In Patterson, the supreme court concluded that,

once a defendant affirmatively invokes the couH’s power to determine the merits of all or part of a claim, the defendant cannot then deny the court’s jurisdiction over him based on defective service.

Id. at 867 (emphasis added). A motion to compel discovery does not affirmatively invoke the court’s power to determine the merits of a claim. Chiles, therefore, did not waive her defense of lack of personal jurisdiction.

GMH never personally served Chiles, but merely asserted a cross-claim, which, based on the original service being ineffective, did not give the court jurisdiction over Chiles. Therefore, the claims against Chiles are dismissed.

III.

Appellants also argue that the subject-matter jurisdiction issue should also be addressed based on the interests of justice. See Minn. R. Civ.App. P. 103.04 (permitting review as justice requires). Because this court’s special term panel already dismissed this issue, we decline to review it now.

DECISION

Service of process on JAG was effective because JAG’s joint venture partner was properly served, JAG received actual notice, and JAG was not prejudiced. Likewise, because the court has jurisdiction over JAG, based on Ryan’s original service being effective, the court also has jurisdiction over GMH’s crossclaim against JAG. Respondent Ryan’s service on Chiles’s attorney was ineffective service of process because Minn. R. Civ. P. 4 does not allow service on an individual’s attorney rather than the individual. We decline to review an issue already dismissed by this court’s special term panel.

Affirmed in part and reversed in part.

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

      . This service was ineffective because JAG's attorney was not authorized to accept service.

      . This court has further observed:
      [A] fundamental principle of the rules of civil procedure is that cases should be decided on the merits rather than on technicalities, and where the intended recipient receives actual notice of the action, the rules governing such service should be liberally construed to avoid depriving a litigant of his day in court.

        Pederson v. Clarkson Lindley Trust, 519 N.W.2d 234, 235 (Minn.App.1994) (citation omitted) (quotation omitted).

      . Because the court has jurisdiction over JAG based on Ryan’s original service being effective, the court also has jurisdiction over GMH's crossclaim against JAG.


author: MARING, Justice.

text:
    2000 ND 84
    BANK CENTER FIRST, Plaintiff and Appellant, v. William A. KOSTELECKY, Defendant and Appellee.
    No. 990392.
    Supreme Court of North Dakota.
    April 25, 2000.
    Lisa D. Lauinger (argued) and Clifton G. Rodenburg, Johnson & Rodenburg, Bismarck, ND, for plaintiff and appellant.
    William A. Kostelecky, Jr. (no appearance), pro se, Jacksonville, AL, defendant and appellee.
   MARING, Justice.

[¶ 1] Bank Center First (“the Bank”) appeals from a trial court order denying its motion to compel answers to interrogatories served under N.D.R.Civ.P. 69. We reverse and remand.

[¶ 2] On August 31, 1999, the Bank obtained a default judgment against William A. Kostelecky in the amount of $415.63. Kostelecky accepted service of the summons and complaint which were sent by certified mail, restricted delivery under N.D.R.Civ.P. 4. Following entry of the judgment, the Bank realized the certified mail return receipt listed a forwarding address for Kostelecky in Alabama. The Bank then served post-judgment interrogatories on Kostelecky by mail to his Alabama address. Kostelecky failed to answer the interrogatories or to file objections, and the Bank moved for an order compelling answers on October 12, 1999. Kostelecky did not respond to the motion. The trial court denied the motion, reasoning it did not have personal jurisdiction over a resident of Alabama and, thus, could not compel Kostelecky to answer the interrogatories.

[¶3] In Mid-Dakota Clinic, P.C. v. Kolsrud, this Court concluded the service of post-judgment discovery documents under N.D.R.Civ.P. 69 does not begin a new action, but instead is a continuation of the original action on a judgment. 1999 ND 244, ¶ 18, 603 N.W.2d 475. The trial court gained personal jurisdiction over Koste-lecky through the proper service of the summons and complaint and did not lose its jurisdiction over him when the judgment was entered. See American State Bank of Dickinson v. Stoltz, 345 N.W.2d 365, 367 (N.D.1984). Therefore, because the trial court retains jurisdiction over Kostelecky, it has the authority to issue an order compelling answers to the interrogatories.

[¶ 4] We reverse the trial court’s order and remand for the trial court to determine whether it should issue an order compelling answers to the interrogatories under N.D.R.Civ.P. 37.

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


author: NEUMANN, Justice.

text:
    2000 ND 78
    Harold BAIER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Interstate Brands Corporation, Respondent
    No. 990310.
    Supreme Court of North Dakota.
    April 25, 2000.
    Kathryn L. Dietz, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.

      Brent J. Edison, Special Assistant Attorney General, Bismarck, N.D., for appel-lee.
   NEUMANN, Justice.

[¶ 1] Harold Baier appeals from a district court judgment affirming a Workers Compensation Bureau order denying his reapplication for benefits. Concluding the doctrine of administrative res judicata barred the Bureau from relying upon Baier’s termination from employment to deny wage loss benefits, we reverse and remand.

I

[¶ 2] While working for Interstate Brands Corporation (“Interstate”) as a dough mixer, Baier suffered work-related injuries to his right shoulder and his back in 1993 and 1995, respectively. The Bureau accepted claims and paid benefits for those injuries. After the second injury, Baier returned to work at Interstate as a sanitation worker in a modified position with restrictions.

[¶ 3] On August 13, 1996, Baier suffered a work-related injury to his left shoulder while lifting a dough-filled pipe. The injury was originally diagnosed as a muscle strain or tear, and Baier was released to return to work on August 19, 1996. Baier filed a claim for benefits with the Bureau on August 21,1996.

[¶ 4] Baier continued to have pain in the shoulder, and an MRI performed in late September 1996 revealed a torn rotator cuff. Baier’s doctor determined surgery was necessary, and advised the Bureau by letter dated October 7, 1996, Baier was to be off work as of October 4, 1996, the last day Baier had worked. Baier ultimately had surgery to repair the shoulder on November 19,1996.

[¶ 5] Interstate alleged Baier performed work beyond his restrictions on October 4 and was therefore fired for misconduct on that date. The parties dispute whether misconduct occurred and whether Baier was advised on October 4 he was fired. On October 16, 1996, Interstate sent Baier a letter advising him he was terminated effective October 4.

[¶ 6] The Bureau ultimately denied Baier’s application for benefits, and Baier requested a formal hearing. The Bureau’s specification of issues for the hearing limited the issues to:

1) Whether claimant sustained a com-pensable work injury;
2) whether claimant performed work duties that exceeded his physical restrictions;
3) whether claimant complied with the requirements regarding an employer’s designated medical provider; and
4) whether claimant sustained willfully self-inflicted injury.

[¶ 7] The hearing was held before an administrative law judge (“ALJ”) on June 5, 1997. The Bureau introduced evidence, over Baier’s objection, about Baier’s disciplinary history at Interstate leading to his discharge. Baier’s counsel objected to that evidence as irrelevant to the issues which had been raised in the specification of issues, and referred to a separate grievance which had been filed with the union over Baier’s firing:

MS. DIETZ: Well, we have no objection to the bureau’s exhibits on any foundational basis. I do need to note, though, an objection in terms of B7 through B12 in terms of relevance. B7 through 12 are employer generated materials which reflect apparently safety violations of one sort or another, write-ups, if you will, that the employer apparently put in some sort of file with respect to Mr. Baier.
So my position is this is sort of a smoke blowing thing. I understand that there is — there are proceedings between the employer and Mr. Baier, the union is involved, and so on in terms of whether or not he should have been discharged, I want to make clear that none of that has any place in this proceeding. And to the extent, you know, that that goes on in some, you know, ancillary proceeding, that’s fine and good, and surely those matters are relevant in that.

In closing argument, Baier’s counsel reiterated the position that “whether or not he should have been let go because of his safety practices” was irrelevant to the issues raised. The Bureau made no attempt to amend the specification of issues or to otherwise reserve the issue of Baier’s termination at the hearing.

[¶ 8] The ALJ issued a recommended decision finding in favor of Baier on the issues raised in the specification of issues. The ALJ went on, however, to conclude Baier had been justifiably discharged from employment and he therefore was not entitled to wage loss benefits. Baier’s counsel contacted the Bureau and opposing counsel, urging rejection of the findings and conclusions addressing Baier’s termination from employment. On September 4, 1997, the Bureau issued its order adopting the ALJ’s recommended findings and conclusions on the four specified issues, but rejecting the findings and conclusions addressing Baier’s termination because they were “beyond the scope of the issues before the ALJ.”

[¶ 9] Although the Bureau’s September 4 order specifically found in Baier’s favor on the issues which had been specified for hearing, the Bureau did not thereafter pay disability wage loss benefits to Baier. Rather, a Bureau claims analyst advised Baier’s counsel the Bureau was now taking the position Baier was not entitled to disability benefits because he could not show loss of earnings due to his termination from employment. When the Bureau continued its refusal to pay benefits, Baier filed a reapplication for benefits. The Bureau denied the reapplication, determining Baier had not sustained loss of earnings due to his injury, and Baier requested a hearing.

[¶ 10] A second hearing was held before the ALJ on May 28, 1998. Baier argued the prior order was res judicata on the issue of Baier’s termination because the Bureau could have raised the issue at the prior hearing but did not. The ALJ issued a recommended decision, finding Baier had been terminated for just cause. The ALJ thus concluded that, except for a twelve-week period commencing on the date of his surgery, Baier had failed to demonstrate wage loss attributable to his work injury. The Bureau accepted the ALJ’s findings and conclusions that Baier was terminated for cause, but rejected the ALJ’s conclusion that Baier was entitled to twelve weeks of disability wage loss benefits for the time immediately following his surgery. The Bureau therefore denied all wage loss benefits for Baier’s injury by an order dated February 24, 1998. Baier appealed to the district court, which affirmed the Bureau’s order.

II

[¶ 11] We must initially address the procedural posture of this case. After the Bureau refused to pay benefits despite the original order in Baier’s favor, Baier filed a reapplication for benefits. Reapplication is governed by N.D.C.C. § 65-05-08(1):

When disability benefits are discontinued, the bureau may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the bureau. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:
a. The employee has sustained a significant change in the compensable medical condition;
b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and
c. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3.

[¶ 12] By its terms, the statute applies only when a claimant has received disability benefits, those benefits have been discontinued, and the claimant then sustains a significant change in medical condition which causes further wage loss. Under those circumstances, the claimant may reapply to “begin payment again.”

[¶ 13] In his brief on appeal, Baier concedes he does not fit under the statute:

In the instant case, Baier never received disability benefits for the claim which had been discontinued; therefore, he did not really have to file a reapplication and prove a significant change in his medical condition as a precondition to eligibility for disability benefits.

Baier nevertheless asserts he was in “administrative limbo,” being denied benefits but without an order from which to appeal, and argues he should be allowed to file a reapplication which doesn’t fit the statutory requirements.

[¶ 14] Baier cites no authority for this unique assertion. We recognize that Baier was caught in a procedural quagmire, with no adverse order to appeal from but nevertheless being' denied disability wage loss benefits. There was, however, an appropriate available remedy. Baier could have sought a writ of mandamus in district court directing the Bureau to pay benefits in accordance with its original September 4, 1997, order. See Frank v. Traynor, 1999 ND 183, ¶ 9, 600 N.W.2d 516; Lende v. North Dakota Workers’ Compensation Bureau, 1997 ND 178, ¶ 25, 568 N.W.2d 755; Tooley v. Alm, 515 N.W.2d 137, 139-40 (N.D.1994); Schiff v. North Dakota Workers Compensation Bureau, 480 N.W.2d 732, 733 (N.D.1992). Where an appeal is not authorized from the Bureau’s adverse decision, mandamus is available if the claimant has a clear legal right to performance of the act and there is no other plain, speedy, and adequate remedy in the ordinary course of law. Frank, at ¶ 9; Tooley, 515 N.W.2d at 139-40.

[¶ 15] Although we would ordinarily at this point require the claimant to start the process over, seeking the appropriate remedy in the district court, we are concerned in this case with the lengthy delay which has already occurred due to the Bureau’s continued refusal to comply with the mandates of administrative res judicata. Baier’s injury, surgery, and resulting wage loss occurred in 1996. Now, nearly four years later, he is still seeking wage loss benefits for that injury. We have previously noted the difficulties resulting from lengthy delays in payment of benefits. See, e.g., Siewert v. North Dakota Workers Compensation Bureau, 2000 ND 33, ¶¶ 26-27, 606 N.W.2d 501; Stewart v. North Dakota Workers Compensation Bureau, 1999 ND 174, ¶¶ 23, 29, 599 N.W.2d 280; Lende, 1997 ND 178, ¶¶ 25-27, 568 N.W.2d 755. A claimant’s interests are significantly affected by a Bureau procedure which leaves him with no benefits and no meaningful way to challenge the decision. Sie-wert, at ¶ 36; Stewart, at ¶ 23.

[¶ 16] We recognize the difficult situation in which Baier was placed. He had prevailed at the formal hearing and an order favorable to him was entered. Rather than paying benefits in accordance with the order, the Bureau instead advised Baier it would not pay benefits based upon an issue which should have been, but was not, raised at the initial formal hearing. Under these circumstances, considering the already lengthy delay and the additional expense and delay of a remand, as well as the fact that the dispositive issue on appeal is one entirely of law, we will treat the appeal to the district court as an application for a writ of mandamus and reach the merits on this appeal. See, e.g., Olsen v. Koppy, 1999 ND 87, ¶ 16, 593 N.W.2d 762 (an appeal from an unappealable order may be treated as a request for a supervisory writ); Mitchell v. Sanborn, 536 N.W.2d 678, 682-88 (N.D.1995); City of Fargo v. Casper, 512 N.W.2d 668, 670 (N.D.1994); B.H. v. K.D., 506 N.W.2d 368, 372-73 (N.D.1993).

Ill

[¶ 17] The dispositive issue on appeal is whether res judicata barred the Bureau from relying upon Baier’s termination to deny benefits after it failed to timely specify and raise the issue at the first hearing.

[¶ 18] We explained the application of res judicata in an administrative context in Cridland v. North Dakota Workers Compensation Bureau, 1997 ND 223, ¶¶ 17-18, 571 N.W.2d 351 (citations omitted):

Res judicata ... prohibits relitigation of claims that were raised or could have been raised in a prior proceeding between the same parties or their privies, and which were resolved by a final judgment in a court of competent jurisdiction. The applicability of the doctrine of res judicata is a question of law.
Administrative res judicata is the judicial doctrine of res judicata applied to an administrative proceeding. See Restatement (Second) of Judgments § 83 (1982) (“a valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata ... as a judgment of a court”).

As we summarized in Fuchs v. Moore, 1999 ND 27, ¶ 6, 589 N.W.2d 902, “[u]nder the doctrine of administrative res judicata an agency order issued after a formal adjudicative proceeding ordinarily bars the agency from later raising issues in new proceedings which could have been resolved in the prior formal adjudicative proceeding that had become final.” See also Saakian v. North Dakota Workers Compensation Bureau, 1998 ND 227, ¶ 14, 587 N.W.2d 166.

[¶ 19] All of the requisites of administrative res judicata are present in this case. The Bureau issued a final order after a formal hearing before an ALJ. The parties stipulated the failure to show lost earnings because of Baier’s discharge was not raised as an issue in the first hearing. At the time of the first hearing, the Bureau was well aware of Baier’s discharge and the conduct leading to his termination. In fact, evidence on that issue was presented to the ALJ, and he made recommended findings and conclusions on the issue. The Bureau rejected those findings and conclusions because they were “beyond the scope of the issues before the ALJ.” Baier’s termination was clearly an issue which could have been raised at the prior hearing but was not.

[¶ 20] The Bureau argues the first hearing was limited to the issue of whether Baier’s injury was compensable, and the Bureau was free to later reject the claim on other grounds. That approach has been rejected by our prior cases on administrative res judicata. For example, in Cridland, the claimant suffered a work-related back injury. She later reinjured her back in a bathroom fall at home. Following a formal hearing, the Bureau issued an order determining Cridland was disabled by her work-related back injury, without addressing whether the injury had been aggravated by the bathroom fall or whether apportionment of benefits was appropriate. In response to the Bureau’s argument the aggravation and apportionment issues could be subsequently relied upon by the Bureau to limit benefits, we held:

Hearing officer Mikkelson decided Cridland’s claim for disability and medical benefits after a trial-type procedure and without apportioning benefits between the work injury and the bathroom fall. Under N.D.C.C. § 65-05-03, the Bureau has authority to decide “all questions within its jurisdiction” and its decisions are final and entitled to the same full faith and credit as a judgment of a court of record. Given the Bureau’s knowledge of the bathroom fall and the medical records indicating a herniated disc, the underlying rationale for res judicata is not served by permitting multiple adjudicative proceedings first to decide a claimant’s continued entitlement to benefits and then to decide apportionment of those benefits.
The aggravation and apportionment issues decided in the later proceeding were issues that could have been resolved in the previous formal adjudicative proceeding before hearing officer Mikkelson. Permitting litigation of the aggravation and apportionment issues after a formal adjudicative hearing deciding compensability does not promote finality or the “sure and certain relief1’ envisioned by the workers compensation act. See N.D.C.C. § 65-01-01. Under administrative res judicata, the Bureau’s July 27,1995 order would ordinarily preclude the Bureau from apportioning Cridland’s benefits between the two occurrences because the aggravation and apportionment issues should have been decided in the formal adjudicative proceeding before hearing officer Mikkel-son.

Cndland, 1997 ND 223, ¶¶ 21-22, 571 N.W.2d 351 (citations omitted).

[¶ 21] Similarly, in McCarty v. North Dakota Workers Compensation Bureau, 1998 ND 9, 574 N.W.2d 556, we rejected the Bureau’s assertion it could deny a claim based upon alleged false statements after it had held a formal hearing on the issue of compensability of the injury. There was no claim the false statements issue arose from newly discovered evidence. Because this was an issue which could have been raised in the prior formal adjudicative hearing, and the Bureau had a full and fair opportunity to present the issue at the hearing, we held the Bureau was barred by res judicata from denying benefits on the basis of the alleged false statements. McCarty, at ¶¶ 19-20.

[¶ 22] We have clarified the Bureau’s statutory authority to reopen a claim does not preclude application of the doctrine of res judicata:

The plain language of N.D.C.C. § 65-05-04, authorizes the Bureau to review an award “at any time” and “in accordance with the facts found on such review” to “end, diminish, or increase the compensation previously awarded.” That language, however, does not preclude application of the doctrine of administrative res judicata to Bureau decisions entered after a formal adjudicative hearing. Although the Bureau has some discretionary authority to review previous awards under N.D.C.C. § 65-05-04, that statutory authority does not mean the Bureau can relitigate issues that were or should have been decided in a prior formal adjudicative proceeding. We are not persuaded the Legislature intended to give the Bureau unlimited authority to relitigate issues that should have been raised in a prior formal adjudicative hearing. Rather, Johnson [v. North Dakota Workers’ Compensation Bureau, 484 N.W.2d 292 (N.D.1992)] and N.D.C.C. §§ 65-05-04 and 65-05-29(3) must be considered in light of the doctrine of administrative res judicata, the importance of finality of agency decisions, and the purpose of the workers compensation law to provide injured workers with “sure and certain relief’ to preclude the Bureau, in the absence of new evidence or a change in medical condition, from relitigating claims which were, or should have been decided, in a prior formal adjudicative hearing.

Cridland, 1997 ND 223, ¶29, 571 N.W.2d 351 (footnote omitted).

[¶ 23] The Bureau contends it must be given “the flexibility to resolve different issues at different times.” The Bureau’s argument demonstrates a fundamental misunderstanding of our prior decisions on administrative res judicata. We have repeatedly rejected the Bureau’s position that it is entitled to unilaterally decide to bifurcate claims and resolve issues on a piecemeal basis in separate, multiple proceedings. See McCarty; Cridland. The Bureau’s position flies in the face of the express purpose of res judicata: to have all disputes finally resolved in a single adjudicative proceeding. As we noted in Cridland, 1997 ND 223, ¶ 13, 571 N.W.2d 351 (quoting K & K Implement v. First Nat’l Bank, 501 N.W.2d 734, 738 (N.D.1993)):

The doctrines promote efficiency for the judiciary and the litigants by requiring that disputes be finally resolved and ended.... “Courts apply the doctrine of res judicata to promote the finality of judgments, which in turn increases certainty, discourages multiple litigation and conserves judicial resources.”... A party who brings some claims into one court without seeking complete relief and brings some related claims in another court, or who presents some issues in one court proceeding and reserves others to raise them in another court, invites wasteful expense and delay. Application of the law of res judi-cata conserves scarce judicial resources and avoids wasteful expense and delay.

The import of our prior cases is clear: When a claimant requests a formal hearing, the Bureau should at that time present all known grounds upon which it intends to rely to deny, limit, or restrict the claim. It would be patently unfair, and a waste of the parties’ and the system’s time, expense, and resources, to allow the Bureau to proceed in a piecemeal fashion when it had a full and fair opportunity to present the issue at the initial formal hearing.

[¶ 24] Finally, relying upon Saakian v. North Dakota Workers Compensation Bureau, 1998 ND 227, 587 N.W.2d 166, the Bureau asserts the issue of Baier’s termination was reserved for resolution at a later date. In Saakian, at ¶ 14, we said:

While our case law on administrative res judicata would not foreclose the ALJ and the parties from reserving for future hearing and decision issues not delineated in the specification of issues but which arise during a formal administrative hearing and are tried by implied consent, neither the ALJ nor the parties did so in this case.

There is no showing the parties or the ALJ agreed at the first hearing to reserve the issue for later hearing and decision, nor is there evidence the issue was tried by implied consent. Rather, Baier specifically objected to any evidence pertaining to his discharge on the basis it was beyond the scope of the specified issues. The Bureau did not attempt to amend the specification of issues or seek an agreement to reserve the issue for later hearing and decision. This is not the situation contemplated in Saakian.

[¶ 25] Because the Bureau had full knowledge of the matter of Baier’s discharge prior to the June 5, 1997, hearing' and failed to include it in its specification of issues, we conclude the Bureau was precluded by the doctrine of res judicata from subsequently relying upon Baier’s discharge to deny disability wage loss benefits. Our resolution of this issue makes it unnecessary to address the other issues raised by the parties. We reverse the judgment and remand to the district court for entry of a writ of mandamus directing the Bureau to determine the duration of Baier’s disability and award wage loss benefits accordingly.

[¶ 26] GERALD W. VANDE WALLE, C.J., MARY MUEHKEN MARING, DALE V. SANDSTROM, JJ, concur.

[¶ 27] The Honorable CAROL RONNING KAPSNER disqualified herself subsequent to oral argument and did not participate in this decision.


author: KAPSNER, Justice.

text:
    2000 ND 85
    Dale J. BURKE, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Appellee.
    No. 990258.
    Supreme Court of North Dakota.
    April 25, 2000.

      Dale J. Burke, pro se, N.D. State Penitentiary, Bismarck, for plaintiff and appellant. Submitted on brief.
    William G. Peterson, Assistant Attorney General, Attorney General’s Office, Bismarck, for defendant and appellee. Submitted on brief.
   KAPSNER, Justice.

[¶ 1] Dale J. Burke appealed from a judgment dismissing his suit against the North Dakota Department of Corrections and Rehabilitation (“Department”). We hold Burke failed to state a claim upon which relief can be granted. We therefore affirm.

I

[¶ 2] In late 1998 and early 1999, the Department implemented regulations restricting inmates’ ability to purchase personal property at the state penitentiary. In February 1999, Burke, an inmate, brought suit against the Department. Burke asserted the Department conspired with Best Commissary, Inc. (“Best”) to implement rules that would force inmates “to buy almost all property allowed in these facilities from [Best]” at prices approximately 30% higher than the average retail price. Burke alleged the Department’s actions violated his rights to due process and equal protection and imposed cruel and unusual punishment. Burke also implied the arrangement allowed the Department and Best to “monopolize on all inmates.” Burke sought reimbursement of unfair profits, an order preventing the Department from enforcing its regulations, and an investigation into the Department’s activities.

[¶ 3] The Department moved to dismiss Burke’s complaint under N.D.R.Civ.P. 12(b), asserting Burke failed to state a claim upon which relief can be granted. Burke subsequently filed a motion for a temporary restraining order, seeking to prevent the Department from retaliating against him for bringing suit. Burke also filed a supplemental complaint, alleging a new regulation restricting inmates’ ability to possess certain items violated his rights. A hearing was held in June. The district court granted the Department’s motion to dismiss, and judgment was entered in September 1999. Burke appealed.

II

[¶ 4] In reviewing an appeal from a Rule 12(b) dismissal, we construe the complaint in the light most favorable to the plaintiff, taking as true the allegations in the complaint. Ennis v. Dasovick, 506 N.W.2d 386, 389 (N.D.1993). When a plaintiff has merely imperfectly stated what may be an arguable claim, leave to amend is usually appropriate. Kouba v. Febco, Inc., 543 N.W.2d 245, 248 (N.D.1996). Further, “it is settled law that the allegations of a prisoner’s complaint, however inartfully pleaded[,] are held to less stringent standards than formal pleadings drafted by lawyers.” Ennis v. Schuetzle, 488 N.W.2d 867, 870 (N.D.1992) (citation omitted).

A

[¶ 5] Burke argues he pled a valid due process claim. We disagree. An inmate’s rights are limited, and prison administrators are afforded broad discretion:

Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives— including deterrence of crime, rehabilitation of prisoners, and institutional security.
In considering the appropriate balance of these factors, we have often said that evaluation of penological objectives is committed to the considered judgment of prison administrators.

Ennis v. Berg, 509 N.W.2d 33, 35 (N.D.1993) (citation omitted). A prison regulation therefore will not be struck down if it is reasonably related to legitimate penological objectives. Id.

[¶ 6] Prison regulations similar to the ones here have been upheld. See id. at 36 (upholding a regulation allowing cassette tapes to be sent to inmates only directly from publishers); Bannan v. Angelone, 962 F.Supp. 71, 73-74 (W.D.Va.1996) (upholding a regulation precluding inmates from possessing certain items such as word processors and typewriters); Wenzler v. Warden of G.R.C.C., 949 F.Supp. 399, 402 (E.D.Va.1996) (upholding a regulation precluding inmates from possessing items such as typewriters); Avery v. Powell, 806 F.Supp. 7, 12 (D.N.H.1992) (upholding a regulation prohibiting inmates from receiving blank greeting cards sent by nonvendors); see also Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir.1984) (upholding a regulation limiting the amounts and types of personal property protective custody inmates could possess in their cells); Robinson v. Illinois St. Correctional Ctr., 890 F.Supp. 715, 718 (N.D.Ill.1995) (upholding a regulation restricting segregated inmates from possessing certain items such as canned goods).

[¶ 7] Here, the regulations are reasonably related to legitimate penological objectives. The Department has an interest in institutional security. See Ennis v. Berg, 509 N.W.2d at 36 (upholding a regulation limiting inmates’ access to taped materials because taped materials could contain contraband or other information detrimental to institutional security); Schuetzle v. Vogel, 537 N.W.2d 358, 360 (N.D.1995) (noting the state has an “important interest in maintaining the confinement of the prisoner and the integrity of its correctional system”). The regulations reduce the risk of inmates’ receipt of contraband and weapons because the inmates may only receive goods from the Department’s designated supplier. The regulations are a reasonable effort to maintain institutional security. We therefore conclude, as a matter of law, the Department has not violated Burke’s due process rights.

B

[¶ 8] Burke argues he pled a valid state antitrust law claim and seeks damages for unfair profits and equitable relief under N.D.C.C. ch. 51-08.1. Under N.D.C.C. § 51-08.1-08(2), “[a] person threatened with injury or injured in that person’s business or property by a violation of this chapter may bring an action for appropriate injunctive or other equitable relief, damages sustained and, as determined by the court, taxable costs and reasonable attorney’s fees.”

[¶ 9] Although the Legislature has recognized the state’s potential liability in damages to individuals, it has restricted that liability to specific circumstances as designated in N.D.C.C. ch. 32-12.2, “Claims Against The State.” Section 32-12.2-02(1), N.D.C.C., provides “[n]o claim may be brought against the state or a state employee acting within the employee’s scope of employment except a claim authorized under this chapter or otherwise authorized by the legislative assembly.” Section 32-12.2-02(3)(k), N.D.C.C., provides “[njeither the state nor a state employee may be held liable under this chapter for any of the following claims: ... [a] claim resulting from damage to the property of a patient or inmate of a state institution.”

[¶ 10] Neither N.D.C.C. § 51-08.1-08(2) nor N.D.C.C. ch. 32-12.2 authorizes Burke’s claim for damages. Consistent with N.D.C.C. § 32-12.2-02(1), the Legislature has expressly authorized actions against the state and state employees in certain situations. See N.D.C.C. § 24-02-15 (providing “any person damaged by any wrongful act or omission of any bonded employee of the department [of transportation] in the performance of his official duties may maintain an action on his bond for the recovery of damages so sustained”); N.D.C.C. § 57-08-01 (providing “[i]f any company whose property has been valued and assessed for taxation purposes by the state board of equalization under the constitution or statutes of this state, or against whom any tax is levied or assessed by said board, feels aggrieved for any reason with the assessment so made, the company may bring an action ... against the state and any subdivision's thereof which may be interested, for relief therefrom”); N.D.C.C. § 32-13-03(l)-(2) (providing “[a]n action may be commenced by ... any person who has a special interest in the action, against the parties offending in the following cases: 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office ... [and] 2. When any public officer ... shall have done or suffered an act which by the provisions of law shall make a forfeiture of the officer’s office”). Section 51-08.1-08, N.D.C.C., however, does not authorize a person to bring a suit against the state or a state employee and does not refer to such a suit. Moreover, N.D.C.C. § 32-12.2-02(3)(k) expressly bars an inmate’s claim resulting from damage to property. Burke’s claim is based on injury or threatened injury to his property under N.D.C.C. § 51-08.1-08. Burke thus cannot recover damages.

[¶ 11] Burke’s claim for equitable relief turns on whether the remedies he seeks are “appropriate injunctive or other equitable relief’ under N.D.C.C. § 51-08.1-08(2). Three factors compel a holding Burke’s action for equitable remedies under state antitrust law is not an action for “appropriate injunctive or other equitable relief.” First, a claim for injunctive relief requires a clear legal right to the performance of the act, Ennis v. Dasovick, 506 N.W.2d 386, 392 (N.D.1993). Section 51-08.1-08(2), N.D.C.C., does not expressly authorize injunctive action against the state. Further, no section in N.D.C.C. ch. 51-08.1 expressly authorizes a person to seek an injunction against the state. Second, N.D.C.C. § 32-12.2-02(3)(k)’s express exclusion of “claimfs] resulting from damage to the property of ... [an] inmate,” shows legislative intent to preclude an inmate’s property-related actions against the state. Third, prison administrators have broad discretion, and inmates’ rights may lawfully be restricted by regulations which are reasonably related to legitimate peno-logical objectives, such as institutional security. See Ennis v. Berg, 509 N.W.2d 33, 35 (N.D.1993); see also supra text at ¶¶ 5-7. In light of these three factors, we conclude Burke’s action for equitable remedies does not constitute an action for “appropriate injunctive or other equitable relief’ and, as a matter of law, Burke cannot recover equitable relief under N.D.C.C. § 51-08.1-08(3).

[¶ 12] We hold Burke cannot obtain either damages or equitable relief under N.D.C.C. ch. 51-08.1 and thus did not state an antitrust law claim upon which relief can be granted.

Ill

[¶ 13] Because Burke failed to state a claim upon which relief can be granted, we affirm the district court’s judgment of dismissal.

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

      . Burke also alleged the Department violated his right to equal protection and imposed cruel and unusual punishment. The trial court aptly disposed of Burke's equal protection claim, noting Burke did not allege he was treated differently than other inmates. See Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir.1984). Burke’s cruel and unusual punishment allegation does not merit discussion.

      . Although Burke does not specify which regulations he is challenging, the record contains two Department memorandums regarding inmate property policies. One indicates inmates will be prohibited from receiving packages, from possessing more than a designated number of certain electronic items, and from possessing certain types of property.. The other indicates inmates will be permitted to order items approved by the property officer and not available at the commissary and "[a]ll other items will be stocked, or can be ordered from the commissary when out of stock.”

      . In Dasovick, we reversed the dismissal of an inmate’s suit for damages and equitable relief against individual prison authorities. 506 N.W.2d 386, 393-94 (N.D.1993). The inmate alleged prison authorities' refusal to provide him with eyeglasses caused him serious eye damage. Id. at 388. Acknowledging deliberate indifference to a prisoner's serious medical needs violates the eighth amendment, we concluded the inmate had stated a valid claim. Id. at 390-91. We further noted "[generally, a clear constitutional right to the performance of an act cannot be decided on the pleadings alone” and concluded the inmate may be entitled to injunctive relief against individual prison authorities. Id. at 392. Burke has failed to raise a valid constitutional claim.


text:
    2000 ND 89
    Steve WEBSTER, Bradford T. Webster, William J. Webster, Meredith Owens, and Blanche Webster, Plaintiffs and Appellants, v. Richard REGAN, Defendant and Appellee
    No. 990130.
    Supreme Court of North Dakota.
    April 27, 2000.

      Douglas A. Christensen of Pearson Christensen, Grand Forks, N.D., for plaintiffs and appellants.
    Neil Thompson of Thompson and Thompson, Devils Lake, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ i] Steve Webster, Bradford T. Webster, William J. Webster, Meredith Owens, and Blanche Webster appeal from the trial court’s partial summary judgment and judgment. We affirm.

[¶ 2] In 1976, Helena Webster and Earl Webster stipulated to a property settlement. On December 1, 1976, the trial court incorporated the stipulation into a judgment, providing:

Earl L. Webster, will grant unto the Plaintiff, Helena R. Websrer [sic], an easement for a strip of land 200 feet wide along the southwesterly shore of Morrison Lake from the meander line ... running ... to Gordon’s Pass ... for a period of 99 years, and use of such 200 foot strip ... shall not be restricted in any way.

[¶ 3] On November 14, 1979, Helena Webster assigned the easement to Richard Regan. Steve Webster, Bradford T. Webster, William J. Webster, Meredith Owens, and Blanche Webster (‘Websters”) are Earl Webster’s successors through inheritance. On September 20, 1996, the Websters sued Regan to define the easement, seeking a determination of whether the 200-foot-wide easement was on the meander line’s upland side or on its littoral side; Regan’s natural resource removal rights; and the location of Gordon’s Pass, the easement’s termination point. The Websters later dismissed the natural resource removal claim.

[¶ 4] On July 9, 1997, Regan moved for summary judgment based on the December 1, 1976, judgment. On September 18, 1997, the trial court granted partial summary judgment decreeing the easement was general in nature and the littoral land between the meander line and the lake shore was for Regan’s sole benefit. Regan moved for clarification of the partial summary judgment. On November 17, 1997, the trial court entered a clarification order, finding the 200-foot-wide easement was on the meander line’s upland side.

[¶ 5] A trial was held on February 4, 1999. Despite the November 17, 1997, order clarifying summary judgment, the trial court accepted evidence of Helena Webster and Earl Webster’s intentions regarding the easement’s location in relation to the meander line. On March 18, 1999, the trial court issued findings of fact, conclusions of law, and order for judgment incorporating the earlier finding that the easement was on the meander line’s upland side. The trial court also determined the location of Gordon’s Pass and the scope of Regan’s rights to use the easement’s littoral land. The trial court found:

Since Gordon’s Pass is described as being in Section 24 it is this Court’s Finding that the easement terminates on its south end at a point on the north south running section line between Sections 23 and 24, where the meander line crosses from the NW ⅝ of the SW ⅜ of Section 24 to the NE ⅛ of the SE ⅜ of Section 23.

The trial court concluded, “[t]he Defendant Richard Regan has the right to use the riparian land [between] the meander line [and Morrison Lake] in any lawful manner.” On April 6, 1999, the trial court entered judgment. The Websters appealed to this Court.

[¶ 6] On February 18, 2000, this Court temporarily remanded for a more explicit finding regarding the easement’s location in relation to the meander line and the factual basis for that determination. Webster v. Regan, 2000 ND 18, ¶ 8, 605 N.W.2d 808. On March 30, 2000, the district court, clarified its finding, providing it “found as a matter of law that the easement along the meander line was on the fee title side of the meander line or 200 feet from the line away from the lake and not on the meander land side of the line.”

[¶ 7] The Websters argue the trial court erred by concluding the 200-foot-wide easement was on the meander line’s upland side. We disagree. A trial court’s conclusions of law are fully reviewable on appeal. Fargo Foods, Inc. v. Bernabucci, 1999 ND 120, ¶ 10, 596 N.W.2d 38.

[¶ 8] The relevant clause of the December 1, 1976, judgment provides, “Earl L. Webster will grant unto the Plaintiff, Helena R. Websrer [sic], an easement for a strip of land 200 feet wide along the southwesterly shore of Morrison Lake from the meander line.” (Emphasis added.) This language is ambiguous. Webster, at ¶ 8. Generally, courts look to extrinsic evidence to determine the parties’ intention when a grant’s language is ambiguous and the intent cannot be determined from the writing alone. N.D.C.C. §§ 9-07-03, 47-09-11; Miller v. Schwartz, 354 N.W.2d 685, 689 (N.D.1984). However, this language was stipulated to by Helena Webster and Earl Webster and incorporated into the December 1, 1976, judgment.

[W]hen a stipulation is incorporated into a judgment, the stipulation and judgment are merged, and courts look to the incorporating judge’s intent, not the intent of the parties to the stipulation. Botner v. Botner, 545 N.W.2d 188, 190 (N.D.1996); In re Marriage of Sylvester, 412 N.W.2d 624, 628 (Iowa 1987). Extrinsic evidence of the parties’ intent is considered only if, after an examination of the judgment, the stipulated language is ambiguous and the incorporating court’s intent cannot be determined. See In re Marriage of Hoffman, 264 Ill.App.3d 471, 202 Ill.Dec. 89, 637 N.E.2d 628, 630 (1994); In re Marriage of Winningstad, 99 Or.App. 682, 784 P.2d 101, 103-04 (1989); In re Marriage of Trearse; Janish, 195 Cal.App.3d 1189, 1194, 241 Cal.Rptr. 257, 260-61 (Cal.App.1987).

Webster, at ¶ 7.

[¶ 9] Here, the incorporating court’s intent cannot be determined. The trial court, therefore, properly considered extrinsic evidence showing Helena Webster and Earl Webster’s intentions. After remand, the trial court found Earl Webster staked out a 200-foot-wide easement from the meander line away from the lake, Earl Webster assumed the meander line closely followed the ordinary high watermark or vegetation line, and the 200-foot-wide easement could not be located below the meander line because a significant portion would have been underwater.

[¶ 10] The trial court also concluded, as a matter of law, the easement was on the upland side. Ambiguous grants are interpreted in a grantee or its successor’s favor. N.D.C.C. § 47-09-13; Terrill v. Tuckness, 985 S.W.2d 97, 106 (Tex.Ct.App.1998) (discussing an interpretation presumption in favor of the grantee and against the drafter); Windell v. Miller, 687 N.E.2d 585, 589 (Ind.App.1997) (construing ambiguities in the grantee’s favor when the deed was prepared by the grant- or); St. Pierre v. Grondin, 513 A.2d 1368, 1370 (Maine 1986) (resolving ambiguities against the grantor and in favor of the grantee). The trial court determined the grant did not explicitly and clearly convey the land and, therefore, should be interpreted in Regan’s favor. See North Shore, Inc. v. Wakefield, 530 N.W.2d 297, 300 (N.D.1995) (providing “our rules for construing deeds thus express a preference for clear and explicit reservations or exceptions in a deed”).

[¶ 11] However, interpretation of ambiguities in a grantee’s favor is a last resort rule of construction, applied when all other means of ascertaining the parties’ intent have failed. Red Hill Outing Club v. Hammond, 722 A.2d 501, 506 (N.H.1998). Here, non-application is especially proper because Helena Webster and Earl Webster stipulated to the ambiguous language and the record contains evidence of their intentions. After considering this extrinsic evidence, we hold the trial court did not err by concluding the 200-foot-wide easement was on the meander line’s upland side. We make this determination without construing ambiguities in Regan’s favor.

[¶ 12] The Websters also argue the trial court erred by concluding Regan can use the easement “in any lawful manner.” We disagree. A trial court’s conclusions of law are fully reviewable on appeal. Fargo Foods, at ¶ 10. The relevant language, as stipulated and incorporated into the December 1, 1976, judgment between Helena Webster and Earl Webster, provides:

[Ujse of such 200 foot strip, including the right to assign this easement, shall not be restricted in any way whatsoever provided such use is lawful and not in violation of the laws of the Townership [sic], the County, the State and Federal Government.

[¶ 13] Language contained in a judgment that is clear and unambiguous must be construed to give effect to the unambiguous language. Knoop v. Knoop, 542 N.W.2d 114, 117 (N.D.1996). The language defining the easement’s scope is clear and unambiguous. The trial court did not err by concluding Regan can use the easement “in any lawful manner.”

[¶ 14] The Websters argue the trial court clearly erred in finding the location of Gordon’s Pass. We disagree. A trial court’s findings of fact are subject to the clearly erroneous standard of review under Rule 52(a), N.D.R.Civ.P. Griffeth v. Eid, 1998 ND 38, ¶ 6, 573 N.W.2d 829. A 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 record, a reviewing court is left with a definite and firm conviction a mistake has been made. Fargo Foods, at ¶ 10. The trial court specifically relied on Regan’s surveyed location of Gordon’s Pass. We are not left with a definite and firm conviction a mistake has been made and the finding had evidentiary support. See id. at ¶ 10. The trial court did not clearly err in finding the location of Gordon’s Pass.

[¶ 15] The trial court’s partial summary judgment and judgment are affirmed.

[¶ 16] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ„ GERALD G. GLASER, S.J., concur.

[¶ 17] GERALD G. GLASER, S.J., sitting in place of MARING, J., disqualified.

      . According to Black’s Law Dictionary, "littoral” relates to "the coast or shore of an ocean, sea, or lake” and "riparian” generally relates to “the bank of a river or stream (or occasionally another body of water such as a lake).” Black’s Law Dictionary 945, 1328 (7th ed. 1999).

      . This determination was originally labeled as a finding of fact before remand and a conclusion of law after remand. We will treat it as a conclusion of law. Whether a determination is a finding of fact or a conclusion of law is decided by the reviewing court and labels applied by the trial court are not conclusive. Guardianship of Braaten, 502 N.W.2d 512, 517 (N.D.1993).