author: SANDSTROM, Justice.

text:
    2005 ND 150
    Eugene MILLER and JoAnn M. Miller, Plaintiffs and Appellants v. DIAMOND RESOURCES, INC., Defendant and Appellee.
    No. 20040274.
    Supreme Court of North Dakota.
    Aug. 18, 2005.

      Suzanne M. Schweigert, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for plaintiffs and appellants.
    Dann E. Greenwood, Greenwood & Ramsey, PLLP, Dickinson, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Eugene and JoAnn Miller appeal from a summary judgment dismissing their lawsuit against Diamond Resources, Inc. (“Diamond”). We reverse and remand, concluding there are genuine issues of material fact that preclude summary judgment.

I

[¶ 2] The Millers own the surface estate of certain land in Bowman County, North Dakota. The Millers also own fifty percent of the minerals underlying the land. In January 1995, Diamond leased the mineral interests owned by the Millers. A title search revealed that Frank and Mary Kloeckner possibly owned the remaining fifty percent interest in the minerals. Diamond agreed to assist the Millers in acquiring the remaining fifty percent mineral interest in the property under the abandoned minerals statute, N.D.C.C. ch. 38-18.1. Diamond prepared a document entitled “Notice of Intent by Surface Owner to Succeed to Ownership of Abandoned Mineral Interests” and had the Millers sign it. In May 1995, Diamond published the Notice of Intent in the official county newspaper in compliance with N.D.C.C. § 38-18.1-06. Although N.D.C.C. § 38-18.1-06(2) required that the Notice of Intent be mailed to any mineral interest owner shown of record within ten days after the last publication, Diamond failed to mail notice to the Kloeekners within that time period. Instead, Diamond mailed the Affidavit of Publication and Notice of Intent to the Kloeekners on July 7, 1995, thirty-nine days late.

[¶ 3] In November 1995, Diamond sent to the Millers a letter enclosing the original Affidavit of Service by Mail, Affidavit of Publication, and Notice of Intent by Surface Owner to Succeed to Ownership of Abandoned Mineral Interests. Diamond did not advise the Millers that there was any problem, and the Millers believed they had succeeded to ownership of the remaining fifty percent mineral interest under N.D.C.C. ch. 38-18.1.

[¶ 4] On June 11, 1996, Diamond sent a letter to the Millers disclosing there may be a problem with their claim of ownership to the remaining fifty percent mineral interest and advising them to commence a quiet title action. The letter carried the subject line “RE: Possible Quiet Title Action covering lands in Bowman County, ND,” and the body of the letter stated:

Per your recent discussion with Mr. Wilson Windham of our office, you are aware that our attorney’s opinion indicates you may have a claim to the entire mineral interest under the above captioned lands. Enclosed you will find a copy of requirement No. 15 from our attorney’s opinion on the captioned.
You may wish to consult your own attorney as to his thoughts on this situation. At this point, we have taken protective leases from all parties so we are covered no matter who ends up owning the minerals hereunder.
If you are so inclined, you may wish to institute an action to quiet title to the minerals on this property and thus find out for certain who owns what. If we can assist you with any information that we possess, we will be glad to help.

Requirement 15 from Diamond’s attorney’s title opinion, referenced in and enclosed with the letter, stated in part:

As to the entire mineral estate underlying the SW1/4 of Section 17, a quiet title action should be commenced by Eugene E. Miller and Joann M. Miller to determine and resolve the competing claims for these mineral interests.

[¶ 5] As urged by Diamond, the Millers hired separate counsel and brought an action to quiet title to the minerals. Heirs of the Kloeckners intervened and claimed an undivided fifty percent ownership interest in the minerals. The district court in the quiet title action determined that Diamond’s failure to strictly comply with N.D.C.C. § 38-18.1-06(2) by failing to mail notice to the Kloeckners within ten days of the last publication was fatal to the Millers’ claim. The court therefore concluded the Kloeckner heirs retained ownership of the disputed fifty percent mineral interest.

[¶ 6] The Millers then brought this negligence action against Diamond, alleging Diamond’s failure to comply with N.D.C.C. ch. 38-18.1 resulted in the Millers’ losing a fifty percent interest in the minerals. The district court granted Diamond’s motion for summary judgment dismissing the action, concluding any negligence by Diamond was not the proximate cause of any damages suffered by the Millers, because the Millers could have made a second attempt to acquire the minerals under N.D.C.C. ch. 38-18.1 rather than bringing an action to quiet title. Judgment dismissing the action was entered, and the Millers appealed.

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

II

[¶ 8] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45; Martin v. Berg, 2005 ND 108, ¶ 9, 697 N.W.2d 723. Whether the trial court properly granted summary judgment is a question of law that we review de novo on the entire record. Johnson, at ¶ 9; Martin, at ¶ 9. On appeal, this Court decides whether the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Martin, at ¶ 9; State v. North Dakota State Univ., 2005 ND 75, ¶ 8, 694 N.W.2d 225. In determining whether summary judgment was appropriately granted, we view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences that can reasonably be drawn from the evidence. Anderson v. Selby, 2005 ND 126, ¶ 7, 700 N.W.2d 696; Johnson, at ¶ 9. Negligence and proximate cause are fact questions unless the evidence is such that reasonable minds can draw but one conclusion, and negligence actions are generally not appropriate for summary judgment. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639; Long v. Jaszczak, 2004 ND 194, ¶ 25, 688 N.W.2d 173; Azure v. Bel court Pub. Sch. Dist., 2004 ND 128, ¶ 9, 681 N.W.2d 816.

III

[¶ 9] The dispositive issue on appeal is whether the trial court erred in ruling Diamond was entitled to judgment as a matter of law because Diamond’s negligence was not the proximate cause of the Millers’ damages.

[¶ 10] Actionable negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of duty. Long, 2004 ND 194, ¶ 25, 688 N.W.2d 173; Azure, 2004 ND 128, ¶ 9, 681 N.W.2d 816. A proximate cause is a cause that, as a natural and continuous sequence unbroken by any controlling intervening cause, produces the injury, and without it the injury would not have occurred. Kimball v. Landeis, 2002 ND 162, ¶ 7, 652 N.W.2d 330; Beilke v. Coryell, 524 N.W.2d 607, 609 (N.D.1994). The negligence of two or more parties may contribute concurrently as the proximate cause of an injury, and a person’s conduct need not be the last cause nor the sole cause of an injury to be a proximate cause of the injury. Kimball, at ¶ 7; Beilke, at 609. The determination of proximate cause is generally a question of fact. Kimball, at ¶ 7.

[¶ 11] The trial court’s decision and Diamond’s argument on appeal are premised upon the fact that the Millers, after receiving Diamond’s June 11, 1996, letter, did not make a second attempt to acquire the minerals under the abandoned minerals statute, N.D.C.C. ch. 38-18.1. Diamond’s argument on appeal is essentially that the Millers’ failure to make a second attempt to acquire the minerals under N.D.C.C. ch. 38-18.1 was an intervening cause that superseded Diamond’s earlier negligence and causation of damages.

[¶ 12] Viewing the evidence in the light most favorable to the Millers, the record shows Diamond affirmatively accepted a duty to assist the Millers in acquiring the disputed mineral interests under the abandoned minerals statute and breached that duty when it negligently failed to comply with the notice requirements under N.D.C.C. ch. 38-18.1. For purposes of summary judgment, the parties do not dispute that, had Diamond mailed timely notice to the Kloeckners, the Millers would have acquired the remaining fifty percent interest in May 1995. At that point the Millers suffered damages proximately caused by Diamond’s negligence. Even if the Millers had later successfully acquired the minerals under N.D.C.C. ch. 38-18.1, their ownership would have commenced at a later date and they would have incurred additional expenses because of Diamond’s negligence. See N.D.C.C. § 38-18.1-02. The Millers’ injury — the failure to acquire the disputed mineral interests — was a natural consequence of Diamond’s negligent failure to comply with N.D.C.C. ch. 38-18.1 and would not have occurred without Diamond’s negligence. See Kimball, 2002 ND 162, ¶ 7, 652 N.W.2d 330; Beilke, 524 N.W.2d at 609. The Millers’ failure to make a second attempt to acquire the minerals under N.D.C.C. ch. 38-18.1 would only extinguish Diamond’s liability for its original negligence if the Millers’ conduct was an intervening, superseding cause.

[¶ 13] To relieve a defendant of the consequences of his negligence, an intervening cause must be both independent and unforeseeable. Stewart v. Ryan, 520 N.W.2d 39, 48 (N.D.1994); Champagne v. United States, 513 N.W.2d 75, 81 (N.D.1994). The intervening negligence of another cannot be a superseding cause that extinguishes a tortfeasor’s liability if that negligence was a foreseeable consequence of the situation created by the tortfeasor. First Trust Co. v. Scheels Hardware & Sports Shop, Inc., 429 N.W.2d 5, 8 (N.D.1988). The determination of whether certain conduct is a superseding, intervening cause is a question of fact. Stewart, at 48. Thus, in order to break the chain of causation in this case, Diamond would have to show that it was unforeseeable that the Millers would follow Diamond’s advice and bring a quiet title action rather than attempt to again comply with N.D.C.C. ch. 38-18.1.

[¶ 14] Diamond’s June 11, 1996, letter recommended that the Millers contact independent counsel and commence a quiet title action. Diamond did not suggest the Millers should make a second attempt to acquire the minerals under N.D.C.C. ch. 38-18.1, and the information in Diamond’s letter, if true, would have precluded a second attempt under the abandoned minerals statute. Diamond stated in the letter that it had “taken protective leases from all parties.” If Diamond had actually acquired leases from all parties, including the Kloeckners, those interests would be deemed to be used, not abandoned, and N.D.C.C. ch. 38-18.1 would not have applied. See N.D.C.C. § 38-18.1-03(4).

[¶ 15] Diamond’s argument is, in essence, that it was unforeseeable that the Millers would follow the advice given in Diamond’s letter and begin a quiet title action rather than make a second attempt to acquire the minerals under N.D.C.C. ch. 38-18.1. We conclude the Millers’ conduct, if negligent, was “a foreseeable consequence of the situation created by” Diamond and therefore cannot be an intervening, superseding cause. First Trust Co., 429 N.W.2d at 8.

[¶ 16] Rather than viewing the Millers’ conduct as an intervening cause, their actions should be analyzed under the comparative fault statutes. See N.D.C.C. §§ 32-03.2-01 and 32-03.2-02. If the jury finds that a reasonable person in the Millers’ position would have conducted further investigation, decided to ignore Diamond’s advice, and made a second attempt to acquire the minerals under N.D.C.C. ch. 38-18.1, the jury could find the Millers were negligent. If the jury finds that the Millers and Diamond were each negligent or otherwise at fault for the Millers’ damages, the jury must consider their relative degrees of fault and assess a percentage of fault to each of the parties. See Champagne, 513 N.W.2d at 79 (comparison of relative degrees of fault between parties is a question for the trier of fact). All of these questions raise genuine issues of material fact and preclude summary judgment.

[¶ 17] We conclude the trial court erred in determining Diamond’s negligence was not a proximate cause of the Millers’ damages, and the court therefore erred in granting summary judgment.

IV

[¶ 18] We do not answer questions that are not necessary to the determination of an appeal. Grand Forks County v. Tollefson, 2004 ND 161, ¶ 22, 684 N.W.2d 646; BTA Oil Producers v. MDU Res. Group, Inc., 2002 ND 55, ¶ 76, 642 N.W.2d 873. We have considered the remaining issues and arguments raised by the parties and find them unnecessary to our decision. We reverse and remand for trial.

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


source: Caselaw Access Project

author: SANDSTROM, Justice. KAPSNER, Justice,

license: Public Domain

text:
    2005 ND 151
    Leah M. LAGRO, Plaintiff and Appellant v. James A. LAGRO, Defendant and Appellee.
    No. 20050094.
    Supreme Court of North Dakota.
    Aug. 18, 2005.

      Loren C. McCray, Bismarck, N.D., for plaintiff and appellant.
    Brenda A. Neubauer, Neubauer & Oster, Bismarck, N.D., for defendant and ap-pellee.
   SANDSTROM, Justice.

[¶ 1] Less than ten months after the district court awarded primary physical custody of the child to the father, the mother moved to amend the judgment to change custody. After the district court denied the motion, she appealed the order. Concluding the district court did not err in denying an evidentiary hearing, we affirm.

I

[¶ 2] Leah and James Lagro were divorced on March 3, 2004. From their marriage, they have one child, who was five years old at the time of the divorce. The mother was given primary physical custody while the divorce was pending. After the divorce trial, the court wrote in its memorandum opinion:

[T]his Court ordered the [mother] to give the [father] notice whenever [the] minor child was in need of child care and to allow the [father] the first opportunity to provide the same. Notwithstanding the Court’s explicit admonition to the [mother] to allow the [father] first opportunity to provide child care, [the mother] has failed to grant the defendant this opportunity and has employed third-party child care providers. Additionally, [the mother] represents to the Court her extraordinary flexible work schedule, yet when the defendant attempted to exercise summertime week long visitation, it required multiple efforts on the part of the [father] to achieve the same.

The divorce judgment ordered “joint custody” of the minor child with physical custody going to James Lagro during the school year and to Leah Lagro during the summer months, beginning one week after school lets out until one week before the start of the next school year. The judgment also gave Leah Lagro visitation after school until 5:30 p.m. on Mondays, Wednesdays, and Fridays and until 8:00 p.m. on Tuesdays and Thursdays. The parties alternate holidays and weekends, and each is entitled to one week of summer vacation with the child. The court specifically found the “previous reluctance on the part of the mother to grant the father first opportunity to provide child care when the same is needed,” and ordered that “[e]ach of the parties ... are granted the exclusive first opportunity to provide child care for the minor child when the same is needed for more than two hours in length.”

[¶ 3] On December 30, 2004, Leah Lag-ro moved for an evidentiary hearing to modify the divorce judgment to give her exclusive care, custody, and control of the child. She filed affidavits alleging that James Lagro was neglecting his parental duties and that she had been acting as the primary physical custodian since the divorce. She alleged that when the child was with his father, there were problems that could endanger the child’s physical or emotional health as well as impair his emotional development.

[¶ 4] The district court denied the motion to amend the divorce judgment, stating there had not been a material change of circumstances since the original divorce judgment.

[¶ 5] Leah Lagro appeals the order.

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

II

[¶ 7] Leah Lagro argues the district court erred in denying an evidentiary hearing on her motion for custody modification. She claims her affidavits establish sufficient evidence to prove that a material change of circumstances has occurred. She argues her affidavits demonstrate the child’s present environment may endanger his physical or emotional health or impair his emotional development. She also claims the child is already in her care, custody, and control because she has been the primary caregiver for more than six months.

[¶ 8] James Lagro argues, on appeal, that Leah Lagro is rearguing the same issues presented during the original divorce hearing and that all of her new allegations were contradicted and discredited by his affidavits. He asserts the new allegations were not supported by teachers, qualified mental health experts, social service workers, or any other unbiased individuals. He argues these new allegations do not meet the more stringent burden placed on change-of-custody motions that occur within two years of the original divorce decree.

[¶ 9] The test for changing the custody of a child after a divorce decree is set out in N.D.C.C. § 14-09-06.6, which provides:

Limitations on postjudgment custody modifications.
4.A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving .party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.
5. The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.
6. The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.
8. Upon a motion to modify custody under this section, the burden of proof is on the moving party.

N.D.C.C. § 14-09-06.6.

[¶ 10] The district court analyzed the child custody modification motion under the more lenient N.D.C.C. § 14-09-06.6(6) standard, which applies if a modification is sought after two years following the date of an order establishing custody. “We will not set aside a correct result merely because an incorrect, more relaxed standard was applied, if the result is the same under the correct law and reasoning.” State ex rel. D.D. v. G.K., 2000 ND 101, ¶ 6, 611 N.W.2d 179; Interest of K.M.G., 2000 ND 50, ¶ 7, 607 N.W.2d 248.

[¶ 11] The legislature enacted N.D.C.C. § 14-09-06.6 to address the frequency of child custody disputes. 1997 N.D. Sess. Laws ch. 149, § 1. We have held:

The purpose of the legislation was to curtail repeat custody litigation. It is the product of the 1995 Joint Family Law Task Force formed by order of this Court at the request of the State Bar Association. Testifying on the legislation before the Senate Judiciary Committee, Chair Sherry Mills Moore explained the object of the proposed legislation:
With SB 2167 we are trying to put more stability in the lives of children who are the object of a custody dispute by slowing the revolving door to the courthouse....
.... The decision about custody, and the process attendant to making that decision are of their very nature painful, disruptive, and destabilizing....
Under SB 2167, for a period of two years following a custody determination there is something of a moratorium for the family. The custody-changing process cannot be initiated except in some specific and necessary situations.
Hearing on SB 2167 before the Senate Judiciary Committee, 55th N.D. Leg. Sess. (Jan. 21, 1997).

Quarne v. Quarne, 1999 ND 188, ¶ 9, 601 N.W.2d 256.

[¶ 12] Leah Lagro argues the district court erred by not ordering an evidentiary hearing. A party seeking modification of a custody order has to file moving papers and supporting affidavits with the court. N.D.C.C. § 14-09-06.6(4).

[¶ 13] This Court generally applies a clearly erroneous standard when reviewing child custody modifications. See Frieze v. Frieze, 2005 ND 53, ¶ 3, 692 N.W.2d 912; Roberson v. Roberson, 2004 ND 203, ¶¶ 4, 10, 688 N.W.2d 380; Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Seibel v. Seibel, 2004 ND 41, ¶ 5, 675 N.W.2d 182; Damron v. Damron, 2003 ND 166, ¶ 5, 670 N.W.2d 871; Lanners v. Johnson, 2003 ND 61, ¶ 4, 659 N.W.2d 864; Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38; Interest of K.M.G., 2000 ND 50, ¶ 4, 607 N.W.2d 248. A majority of this Court, however, has established a de novo standard of review when deciding whether a prima facie case is established requiring an evidentiary hearing. See Hawley v. LaRocque, 2004 ND 215, ¶ 4, 689 N.W.2d 386; Tank v. Tank, 2004 ND 15, ¶ 46, 673 N.W.2d 622 (Maring, J., dissenting). North Dakota patterned its affidavit procedure to modify custody within two years of a prior consideration on Minnesota’s statute. Joint Task Force on Family Law, Summary Report (June 17, 1996). Minnesota employs an abuse-of-discretion standard in reviewing the denial of an eviden-tiary hearing on change of custody. In re Weber, 653 N.W.2d 804, 809 (Minn.Ct.App.2002); Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn.1994); see also Smith v. Smith, 508 N.W.2d 222, 226-27 (Minn.Ct.App.1993); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981).

[¶ 14] Our North Dakota statute requires not only a prima facie case but also provides the opposing party may file affidavits, and it requires the court to “deny the motion unless the court finds the moving party has established a prima facie case justifying a modification.” N.D.C.C. § 14-09-06.6(4) (emphasis added). The word “finds” reflects a degree of weighing of conflicting evidence, and the word “justifying” reflects “to show ... to be just or right.” The Random House Dictionary of the English Language 719, 1040 (2d ed.1987); see also Black’s Law Dictionary 882-83 (8th ed.2004). In view of the statutory language, and consistent with the legislative history, our review of the denial of an evidentiary hearing on change of custody will be under an abuse-of-discretion standard. Tank and Hawley are superseded to the extent they established a de novo review of a denial of an evidentiary hearing.

[¶ 15] The moving party must present prima facie evidence. Prima facie evidence is admissible evidence that, if uncon-tradicted, would be sufficient to justify a judgment in the presenting party’s favor. Black’s Law Dictionary 598, 1228 (8th ed.2004).

[¶ 16] We have outlined our standard for establishing a prima facie case for a child custody modification:

A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party. Generally, the opposing party must rebut a prima facie case by going forward with evidence showing the moving party is not entitled to the relief requested. Helbling [v. Helbling], 541 N.W.2d [443,] 445-46 [ (N.D.1995) ]; see also Bismarck Baptist Church v. Wiedemann Industries, Inc., 201 N.W.2d 434, 441 (N.D.1972). Where the opposing party presents counter affidavits which conclusively establish that the allegations of the moving party have no credibility or where the movant’s allegations are, on their face, insufficient, even if uncontradicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing.

O’Neill v. O’Neill, 2000 ND 200, ¶ 5, 619 N.W.2d 855.

[¶ 17] A majority of this Court has stated:

A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. A prima facie case is only “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” It is a bare minimum.

Tank v. Tank, 2004 ND 15, ¶ 12, 673 N.W.2d 622 (citations omitted).

[¶ 18] Even if we were to apply the lower standard enunciated in Tank, allegations alone do not establish prima facie evidence requiring an evidentiary hearing. See Hawley, 2004 ND 215, 689 N.W.2d 386 (general allegations to support a motion to modify custody are not enough to prove a prima facie case). Affidavits must be competent in order to fulfill the legislative requirement of showing prima facie evidence before the moving party is entitled to an evidentiary hearing. Tank, 2004 ND 15, ¶¶ 52, 54, 673 N.W.2d 622 (Sandstrom, J., dissenting). Affidavits are not competent when “they do not show a basis of actual personal knowledge, or they are conclusory, stating conclusions without the support of evidentiary facts.” Id. at ¶ 56. “Competence generally requires that the witness have first-hand knowledge,” and witnesses “are generally not competent to testify to what they only ‘suspect’ or ‘secretly hope’ the facts are.” Id. at ¶ 55. “A district court may properly deny an evidentiary hearing where the affidavit submitted in support of a modification of custody ‘was devoid of allegations supported by any specific, credible evidence.’ ” In re Weber, 653 N.W.2d at 811 (quoting Axford v. Axford, 402 N.W.2d 143, 145 (Minn.Ct.App.1987)).

A

[¶ 19] To prove the present environment may endanger the child’s physical or emotional health or impair the child’s emotional development, Leah Lagro alleged in her affidavit that James Lagro has attended only a few post-divorce counseling appointments with the child and wants to cancel the remaining appointments; that he procrastinates and often fails to take care of the child’s medical, optometric, and dental needs; that he allows the child to stay up too late and makes him eat breakfast at school instead of at home; that he discusses the court proceedings with the child; that he had police officers accompany him to her house to pick up the child; and, that he “wrestles” with his girlfriends in front of the child.

[¶ 20] The district court held, “A review of plaintiffs affidavit and supporting affidavits, together with other materials, and the response of the defendant herein do not convince this Court that there exists a prima facie case justifying a modification or amendment to the existing Judgment.”

[¶ 21] Leah Lagro’s assertions do not create prima facie evidence that the child’s living environment with James Lag-ro may endanger his physical or emotional health or impair his emotional development. Although inappropriate behavior in front of the child, if adequately supported, could present a prima facie case, the affidavits here do not present competent evidence that the child was exposed to such behavior. See Hawley, 2004 ND 215, ¶ 10, 689 N.W.2d 386. Leah Lagro did not provide a basis for her claimed knowledge about various claimed incidents or what exactly the claimed incidents entailed. As this Court has said before, “Such bare-bones allegations, without support, are insufficient to meet the required prima facie standard.” Id; see also Lawrence, 2003 ND 53, ¶ 8, 658 N.W.2d 758. The remaining allegations do not present a prima facie case, within the record, as required under N.D.C.C. § 14-09-06.6(4).

B

[¶ 22] The merit of Leah Lagro’s assertion that primary physical care of the child has changed to her and has lasted longer than six months is not clear from the record. She claims in her affidavit that the child “has stayed with me over night usually two to three nights per week along with every other weekend. There was a stretch of eleven weekends where [the child] stayed with me eight out of eleven of them.” Leah Lagro argues she has become the primary physical caregiver by virtue of the amount of time she spends with the child. A strict mathematical calculation from the affidavits of the time spent with the child does not establish a change of primary physical care, nor does the legislative history reflect such a method. Hearing on S.B. 2167 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 21, 1997) (testimony of Senator Wayne Stenehjem and Sandi Tabor, Executive Director of the State Bar Association of North Dakota). Her use of the word “usually” also does not clearly reflect how often the child stays with her. This is not sufficient evidence of a change of primary physical care to meet the prima facie requirement under N.D.C.C. § 14-09-06.6(4).

[¶ 23] The lack of detail and competency in Leah Lagro’s allegations make them insufficient on their face to establish a prima facie case for custody modification.

III

[¶ 24] We affirm the district court’s order denying the motion to amend judgment.

[¶ 25] MARY MUEHLEN MARING, concurs.

I concur in the result. GERALD W. VANDE WALLE, C.J.

[¶ 26] The Honorable DANIEL J. CROTHERS did not participate in this decision.

KAPSNER, Justice,

dissenting.

[¶ 27] I respectfully dissent. The majority ignores the accepted meaning of the term “prima facie” used in N.D.C.C. § 14-09-06.6(4), thereby changing the legal standard by which this Court reviews whether a custody hearing must be held. The majority bases its determination on Minnesota precedent which makes it a matter of discretion whether to hold such a hearing. However, Minnesota precedent is not applicable. Nowhere in the Minnesota statute governing custody modifications, Minn.Stat. Ann. § 518.18 (West 2004), is the term “prima facie” used. Although there are similarities between N.D.C.C. § 14-09-06.6 and Minn.Stat. Ann. § 518.18, I do not assume that our legislature engaged in a meaningless act when it added the concept of establishing a prima facie case to our statute. Bickel v. Jackson, 530 N.W.2d 318, 320 (N.D.1995) (“There is a presumption the legislature acts with purpose and does not perform idle acts”).

[¶ 28] Subsection 4 of N.D.C.C. § 14-09-06.6, which is unlike the Minnesota statute, provides:

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

Prima facie is a defined legal term:

A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. See Volz[ v. Peterson], 2003 ND 139, ¶ 8, 667 N.W.2d 637. A prima facie case is only “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary 1209 (7th ed.1999). It is a bare minimum. The affidavits Koble presented establish a prima facie case that would support, though not necessarily require, custody modification, if the allegations were ultimately proven. The trial court erred with regard to the allegations Ro-ble presented of child preference, frustration of visitation, and physical and emotional endangerment when it found Koble’s allegations were insufficient to support modification, even if uneontra-dicted.

Tank v. Tank, 2004 ND 15, ¶ 12, 673 N.W.2d 622 (footnote omitted).

[¶ 29] Whether a prima facie case has been made is a matter of law. O’Neill v. O’Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855; Quarne v. Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256. See generally Helbling v. Helbling, 541 N.W.2d 443 (N.D.1995).

[¶ 30] The allegations of the mother’s affidavit in support of her motion to change custody include the following:

10. I have talked with Jim about doctors, dentist, eye doctors, as far as setting up [the child’s] appointments. He fails to set up any of them and after I remind him two or three times, he asks me to just take care of it.
12. [The child] has a heart murmur and Jim didn’t even show up at [the child’s] echocardiogram because he said he forgot. He had dropped [the child] off with me that morning and I reminded him, but he still did not attend.
13. [The child] was complaining that his tooth was hurting and I asked Jim to set up an appointment, this was in February. After a couple of months and a few reminders, Jim told me to set it up since I would be taking [the child] to it. He stated that there really was no need for [the child] to go because they are just baby teeth and are going to fall out anyway. I tried to set up the appointment with my dentist of twenty-eight years and found out that they wouldn’t see [the child] until Jim paid off his own bill that was outstanding. The dentist office agreed to set [the child] and I up on a separate account from Jim and I would be ultimately responsible to pay the bill, in full at the time of the appointment, which I agreed to do. I asked Jim if he would help me pay it and he said that he had no money, even though he bought [the child] a 3-wheeler a few weeks prior. I called [the child’s] grandma and asked if I could borrow the money and she agreed. She was reimbursed as soon as the insurance company reimbursed me. The dentist has stated that [the child] will be seeing an orthodontist by the time he is eight.
14.Besides [the child’s] bad teeth he failed his eye test in school. Jim didn’t take [the child] in for a follow up eye exam so I took [the child] in and got everything done. End result, [the child] had to get glasses. I paid for everything that my insurance wouldn’t cover, which is the case for all of [the child’s] medical bills. [The child] has a lazy eye and the doctor said that since he’s so young we could probably correct his eye with exercises that he’s supposed to do every night for ten minutes. [The child] never does his eye exercises at his dads. He says that they never have enough time and his dad told him he wouldn’t go blind if he doesn’t do them.

[¶ 31] We have said allegations of neglect of the health needs of the child is an assertion of a prima facie case. Lanners v. Johnson, 2003 ND 61, ¶ 12, 659 N.W.2d 864. The allegations made by the mother in this case are specific and she is competent to make most of them. I would hold that a prima facie case has been made requiring custody to be examined under N.D.C.C. § 14-09-06.6 and a hearing to be conducted to determine whether those allegations will be supported or refuted by the evidence introduced at that hearing.

[¶ 32] Because allegations supporting a prima facie case are rather easy to make, the practice of making unsubstantiated allegations would defeat the purpose of the statute which is to reduce the number of unsettling motions to modify custody. To counteract that potential, the statute on attorney fees for making unsubstantiated allegations should be used by the trial courts whenever it appears parties have subverted the process by this means. Allegations of harm that prove to be unfounded subject the parent making the allegations to court costs and attorney fees. N.D.C.C. § 14-09-06.5; Sweeney v. Sweeney, 2002 ND 206, ¶ 18, 654 N.W.2d 407.

[¶ 33] It is improper for this Court to ignore the plain words of the statute by changing what is a matter of law, the prima facie case, into a matter of discretion:

The legislature has provided that before there is a hearing on change of custody, the petitioner must present affidavits establishing a prima facie case justifying a modification. N.D.C.C. § 14-09-06.6(4). “Prima facie evidence” or “prima facie case” are legal terms with well-established meanings. See Black’s Law Dictionary 579 & 1209 (7th ed.1999). The North Dakota Century Code itself specifies how it is to be interpreted. N.D.C.C. tit. 1. The Code specifies that words are to be understood in their ordinary sense unless a contrary meaning plainly appears. N.D.C.C. § 1-02-02. The Code specifies that there is no common law (judge-made law) when the law is declared by statute. N.D.C.C. § 1-01-06. Here the majority interprets prima facie evidence in a way contrary to the ordinarily understood meaning of the term, and the majority substitutes its judge-made law for the enactment of the legislature.

Tank v. Tank, 2004 ND 15, ¶ 52, 673 N.W.2d 622 (Sandstrom, J., dissenting).

[¶ 34] Changing the prima facie showing, which is a question of law, required by statute, to a matter of discretion is a change that, if it is to be made, should come from the legislature. Therefore, I dissent.

[¶ 35] CAROL RONNING KAPSNER


text:
    2005 ND 149
    HEART RIVER PARTNERS, a partnership, and Dave D. Mees and James W. Allen, partners, Plaintiffs and Appellants v. Darrell S. GOETZFRIED and Karen A. Goetzfried, Defendants and Appellees.
    No. 20050003.
    Supreme Court of North Dakota.
    Aug. 18, 2005.

      Thomas D. Kelsch, Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for plaintiffs and appellants.
    Charles “Casey” L. Chapman, Chapman and Chapman, P.C., Bismarck, N.D., for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] Heart River Partners and its partners, David D. Mees and James W. Allen, (collectively referred to as the “Partnership”) appealed from a summary judgment dismissing their lawsuit against Darrell and Karen Goetzfried for reformation of a warranty deed and for damages. We affirm.

I

[¶ 2] In March 2002, Mees approached the Goetzfrieds on behalf of the Partnership to purchase commercial property consisting of seven lots and three storage buildings in Mandan. The property is bordered by 4th Street and 5th Street and was subject to two separate special assessments for completed improvements on those streets. In March 2002, the costs for the improvements on 5th Street had been assessed and certified with a balance due of about $8,000, but the costs for the improvements on 4th Street had not been certified. A special assessment of $46,599.18 for the 4th Street improvements was certified in the fall of 2002.

[¶ 3] According to Darrell Goetzfried, he told Mees about both special assessments at a March 2002 meeting, and the Goetzfrieds agreed to pay the balance of the assessment for 5th Street but not the uncertified assessment for 4th Street. According to Mees, he did not recall being told about the uncertified assessment for the improvements on 4th Street. In his deposition, Mees testified:

Q. Okay. During that conversation Darrell Goetzfried told you that there had been work done on Fourth Street, did he not?
A. No.
Q. He didn’t mention anything about Fourth Street?
A. No.
Q. Didn’t mention anything about construction?
A. No.
Q. Nothing about sewers?
A. No.
Q. Wasn’t mentioned at all?
A. No.
Q. Did you ask anything about improvements that had been done?
A. The only thing that was talked about was some specials for some water and sewer that had been put in on Fifth Street.
Q. Okay. So tell me, if you could, what was said about Fifth Street.
A. Water and sewer, that there was some specials on that.
Q. Okay. Was there any other conversation about that?
A. That he would- — I’m not sure if it was that day. He said he would pay for the specials that were there.
Q. Okay. That he’d pay for the specials that were there, and those were his words?
A. Basically.
Q. Okay. That’s what I’m asking. You’re not saying those were his exact words. You’re kind of paraphrasing?
A. Right.
Q. And, to your knowledge, he was talking at that time about Fifth Street?
A. Right.
Q. Did you actually walk over to Fifth Street to look at it?
A. No.
Q. Did he just mention Fifth Street by name?
A. I believe not. He just looked that direction — we were looking that direction and he pointed to that direction. I knew it was Fifth Street.
Q. Okay. That’s what I was getting to. So at some point in this conversation he points over in the direction of Fifth Street and talks about the specials; is that correct?
A. Right.
Q. And he said that he would pick up those specials?
A. Right.
Q. Okay. Was there any other talk about special assessments?
A. No.
Q. In fact, up until the date of closing, Mr. Mees, other than this one conversation that you just related to me, was there any discussion at all about special assessments?
A. There possibly could have been maybe something, you know, about him picking up them specials, but other than that, no.
Q. Okay. What I’m asking- — understand this as you hear this — I’m asking for you to recall for me, can you recall any other conversation? You said maybe there might have been. Can you remember any?
A. No.
Q. So what you actually remember is the one conversation?
A. Right.
Q. And that would have been either, what, the first or second time that you met at the property?
A. Right.
Q. And that’s when Mr. Goetzfried pointed over towards Fifth Street and said he’d pick up the specials?
A. Right.
Q. And is it fair that other than that conversation, you can’t actually tell me about any other conversation prior to closing in which special assessments were even discussed?
A. Right.

In a subsequent affidavit, Mees stated the Goetzfrieds agreed to pay for all the special assessments against the property and did not specify that the agreement to pay was limited to the special assessment for the 5th Street improvements or to the special assessment that had been certified.

[¶ 4] Before the closing, the Goetz-frieds provided Mees with a copy of the annual tax statement for the property, which showed the certified special assessment for the improvements on 5th Street. On April 10, 2002, the parties executed an offer to purchase the property for $465,000. The offer to purchase said the property was “free and clear of all encumbrances,” and it did not refer to either special assessment or indicate who would pay for special assessments. On May 1, 2002, the parties executed a warranty deed for the property, which stated the property was “free from all encumbrances, except installments of special assessments or assessments for special improvements which have not been certified to the County Auditor for collection.” The Goetzfrieds’ “seller’s affidavit” stated there were “no unrecorded contracts for sale, liens, encumbrances or easements which affect the marketability of title to said property.” Although the parties’ closing statement prorated the 2002 installment for the special assessment for the improvements on 5th Street, Darrell Goetzfried thereafter paid the balance for that assessment. In the fall of 2002, the Auditor certified a special assessment of $46,599.18 for the improvements on 4th Street.

[¶ 5] The Partnership subsequently sued the Goetzfrieds, seeking reformation of the deed to require the Goetzfrieds to pay all the special assessments for the property, and $45,599.18, plus interest, for the special assessment for the improvements on 4th Street. The Goetzfrieds admitted they agreed to pay the special assessment for 5th Street, but denied they had agreed to pay all the certified and uncertified special assessments for the property.

[¶ 6] The trial court granted the Goetz-frieds’ motion for summary judgment, concluding the warranty deed unambiguously required the Partnership to pay the special assessment for the improvements on 4th Street. The court concluded there was no evidence of a mutual mistake by the parties, nor were the Goetzfrieds aware the Partnership was under a mistaken impression about the assessments. The court decided the Goetzfrieds did not commit constructive fraud, because there was no special relationship between the Goetz-frieds and the Partnership that placed an affirmative duty of disclosure on the Go-etzfrieds. The court decided the Goetz-frieds had no affirmative duty to the Partnership to disclose the uncertified special assessment for the improvements on 4th Street. The court also decided the Goetz-frieds did not commit actual fraud when they signed a disclosure statement indicating there were no unrecorded liens or unsatisfied encumbrances against the property, because the pending special assessment for the improvements on 4th Street was not at that time an encumbrance on the property under N.D.C.C. § 42-24-03.

[¶ 7] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 8] In State v. North Dakota State University, 2005 ND 75, ¶ 8, 694 N.W.2d 225 (quoting Zuger v. State, 2004 ND 16, ¶¶ 7-8, 673 N.W.2d 615 (citations omitted)), we explained our standard of review for summary judgment:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. “Whether summary judgment was properly granted is ‘a question of law which we review de novo on the entire record.’ ” On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim.

[¶ 9] Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive evidentiary standard of proof when ruling on a motion for summary judgment. Swenson v. Raumin, 1998 ND 150, ¶ 9, 583 N.W.2d 102; Estate of Stanton, 472 N.W.2d 741, 743 (N.D.1991). In considering the substantive standard of proof, the court must consider whether the trier of fact “could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not.” Stanton, at 743 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

III

A

[¶ 10] The Partnership argues there are genuine issues of material fact regarding its claim for reformation of the warranty deed. The Partnership argues the warranty deed does not reflect the parties’ intent, because of fraud or mistake, and the trial court erred in granting summary judgment on the reformation claim.

[¶ 11] “The construction of a written contract to determine its legal effect is generally a question of law.” Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774, 779 (N.D.1996). A court interprets a written contract to give effect to the mutual intention of the parties as it existed at the time of contracting. N.D.C.C. § 9-07-03; Pear, at 779. The parties’ intentions must be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Pear, at 779. In the absence of an ambiguity, a written contract supersedes any prior oral agreement or negotiations between the parties. N.D.C.C. § 9-06-07; Pear, at 779.

[¶ 12] Parol evidence is admissible, however, in an action to reform a written contract on the grounds of fraud or mutual mistake to establish the alleged fraud or mistake and to correct the instrument to conform to the agreement or intention of the parties. Ell v. Ell, 295 N.W.2d 143, 149 (N.D.1980). This Court has said, “Reformation is an ‘[e]quitable remedy used to reframe written contracts to reflect accurately [the] real agreement between contracting parties.’ ” Biteler’s Tower Serv., Inc. v. Guderian, 466 N.W.2d 141, 143 (N.D.1991) (quoting Black’s Law Dictionary 1152 (5th ed.1979)). Section 32-04-17, N.D.C.C., provides for the equitable remedy of reformation of a written contract:

When, through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that intention so far as it can be done without prejudice to rights acquired by third persons in good faith and for value.

[¶ 13] In considering reformation claims under similar statutes that were derived from the same common source as N.D.C.C. § 32-04-17, other courts have recognized the purpose of reformation is to correct a written contract to effectuate the common intention of the parties, which was incorrectly reduced to writing. Lemoge Elec. v. County of San Mateo, 46 Cal.2d 659, 297 P.2d 638, 640 (1956); Bailard v. Marden, 36 Cal.2d 703, 227 P.2d 10, 13 (1951); Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 152 (S.D.1986). See 66 Am.Jur.2d Reformation of Instruments § 1 (2001) (“Reformation is based on the premise that the parties had reached an agreement concerning the instrument, but while reducing their agreement to written form, and as a result of mutual mistake or fraud, some provision or language was omitted from, inserted, or incorrectly stated in the instrument intended to be the expression of the actual agreement of the parties.”). In Bailard, at 13 (citations omitted), the California Supreme Court explained:

To obtain the benefit of this statute, it is necessary that the parties shall have had a complete mutual understanding of all the essential terms of their bargain; if no agreement was reached, there would be no standard to which the writing could be reformed.
Otherwise stated, “[I]nasmuch as the relief sought in reforming a written instrument is to make it conform to the real agreement or intention of the parties, a definite intention or agreement on which the minds of the parties had met must have pre-existed the instrument in question.” Our statute adopts the principle of law in terms of a single intention which is entertained by both of the parties. “Courts of equity have no power to make new contracts for the parties, ... [N]or can they reform an instrument according to the terms in which one of the parties understood it, unless it appears that the other party also had the same understanding.” If this were not the rule, the purpose of reformation would be thwarted.

[¶ 14] This Court has said a party who seeks reformation has the burden to prove by clear and convincing evidence that a written agreement does not fully or truly state the agreement the parties intended to make. Ell, 295 N.W.2d at 150. Parol evidence of an alleged mutual mistake must be clear, satisfactory, specific, and convincing, and a court of equity will not grant reformation upon a mere preponderance of evidence, but only upon certainty of error. Id. Any evidence that tends to show the true intention of the parties, whether it be evidence of conduct or declarations of the parties extrinsic to the contract or documentary evidence, is admissible. Id. at 149. See N.D.C.C. § 32-04-19. In an action for reformation, a presumption arises from the terms of a written instrument that it correctly expresses the parties’ true agreement and intent. Ell, at 150. “Courts will not make a new contract through reformation of a written instrument in a manner never considered or intended by the parties.” Id.

[¶ 15] The Partnership argues there are issues of material fact about mistake which support its claim for reformation. Ordinarily, whether there has been a mistake sufficient to support a reformation claim is a question of fact. See City of Fargo v. D.T.L. Props., Inc., 1997 ND 109, ¶ 16, 564 N.W.2d 274. In Mau v. Schwan, 460 N.W.2d 131, 134-36 (N.D.1990), this Court discussed mistake in the context of a reformation action. This Court cited the definition of mistake in N.D.C.C. § 9-03-13 and said a mutual mistake that will justify reformation requires that, at the time of the execution of the agreement, both parties intended to say something different from what was said in the document. Mau, at 135 (citing Meyer v. McCormick, Inc., 445 N.W.2d 21, 24 (N.D.1989)). See Anderson v. Selby, 2005 ND 126, ¶¶ 12-13, 700 N.W.2d 696. See also 66 Am. Jur.2d Reformation of Instruments at § 21 (mistake cannot be mutual if the minds of the parties did not meet in a common intent, and for a mutual mistake to justify the reformation of an agreement, it must be shown that at the time of the execution of the agreement, both parties intended to say something different from what was said in the instrument).

[¶ 16] In Lemoge Elec., 297 P.2d at 640-41 (citations omitted), the California Supreme Court explained:

Reformation may be had for a mutual mistake or for the mistake of one party which the other knew or suspected, but in either situation the purpose of the remedy is to make the written contract truly express the intention of the parties. Where the failure of the written contract to express the intention of the parties is due to the inadvertence of both of them, the mistake is mutual and the contract may be revised on the application of the party aggrieved. When only one party to the contract is mistaken as to its provisions and his mistake is known or suspected by the other, the contract may be reformed to express a single intention entertained by both parties. Although a court of equity may revise a written instrument to make it conform to the real agreement, it has no power to make a new contract for the parties, whether the mistake be mutual or unilateral.

[¶ 17] The parties have contrary views about whether they agreed the Go-etzfrieds would pay the special assessments for the improvements for 4th Street. According to the Goetzfrieds, Darrell Goetzfried told Mees about both special assessments at the March 2002 meeting, and the Goetzfrieds agreed to pay only for the improvements for 5th Street. According to Mees, however, he did not recall hearing anything about the assessment for 4th Street at that meeting, and, in a subsequent affidavit, Mees claimed the Goetz-frieds agreed to pay for all the special assessments against the property without any limitation for only the improvements on 5th Street, or for only the specials that had been certified at that time. Federal courts have held that a party may not use a subsequent affidavit to impeach or controvert, without explanation, prior sworn testimony. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir.1996). See 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3rd § 2726 (1998). More important, however, the conflicting factual versions of the parties’ negotiations indicate there may be a dispute about the terms of the parties’ oral agreement, but that dispute is not a material fact for purposes of the reformation claim because there was no common intention entertained by both parties. The warranty deed unambiguously stated the property was “free from all encumbrances, except installments of special assessments or assessments for special improvements which had not been certified to the County Auditor for collection.” The written deed conformed to the Goetzfrieds’ version of the facts and does not support a claim that both parties intended to say something different from what was said in the deed.

[¶ 18] Moreover, the Partnership does not claim the Goetzfrieds knew about the Partnership’s alleged mistake or misunderstanding, and there is no evidence the Goetzfrieds “knew or suspected” a mistake by the Partnership “at the time” the deed was executed. See Anderson, 2005 ND 126, ¶¶ 14-15, 700 N.W.2d 696; Mau, 460 N.W.2d at 135; Buskohl, 398 N.W.2d at 153. In Anderson, at ¶ 14, the sellers sought reformation of a warranty deed, claiming the deed mistakenly did not include a reservation of a flowage easement and the buyer knew about or suspected the mistake. In Anderson, at ¶ 15, there was evidence the buyer instructed his real estate agent not to say anything about the flowage easement during the closing, and the purchase price for the land was consistent with the market price for the land with a flowage easement. There was also evidence the buyer told the sellers there “was a mistake, which [the buyer] understood.” Id. We reversed a summary judgment dismissal of the sellers’ reformation claim, concluding the evidence supported an inference there was a mistake that the buyer at the time knew or suspected. Id. In this case, the Partnership has not cited any evidence to support an inference the Goetzfrieds knew or suspected a mistake by the Partnership at the time the deed was executed. We conclude the trial court did not err in granting the Goetzfrieds summary judgment on the Partnership’s claim for reformation based upon mistake.

B

[¶ 19] The Partnership also argues reformation is appropriate because of fraud. A party alleging fraud has the burden of proving each element by clear and convincing evidence. First Union Nat’l Bank v. RPB 2, LLC, 2004 ND 29, ¶ 22, 674 N.W.2d 1; Luallin v. Koehler, 2002 ND 80, ¶ 26, 644 N.W.2d 591; Smith v. Land O’Lakes, Inc., 1998 ND 219, ¶ 12, 587 N.W.2d 173. Fraud is ordinarily treated as a question of fact. Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555.

[¶ 20] The Partnership argues the Go-etzfrieds were guilty of actual fraud under N.D.C.C. § 9-03-08 for making an affirmative fraudulent representation or for suppressing a known fact. The Partnership relies upon evidence the Goetzfrieds provided the Partnership with tax statements showing only the certified assessments for the property and upon the Go-etzfrieds’ affirmation at closing that there were no other unrecorded liens or encumbrances on the property. The Partnership also argues the Goetzfrieds suppressed known facts. The Partnership claims the Goetzfrieds’ affirmative representations and suppression of facts induced it to enter into the contract.

[¶ 21] This Court has said that although fraud may be a ground for reformation of a written instrument, fraud perpetrated to induce a party to enter into the agreement is a ground for rescission, but is not a ground for reformation. Earthworks, Inc. v. Sehn, 553 N.W.2d 490, 495 (N.D.1996); Striegel v. Dakota Hills, Inc., 365 N.W.2d 491, 496 (N.D.1985). See Vermilyea v. BDL Enters., Inc., 462 N.W.2d 885, 887-88 (S.D.1990). See generally Dan B. Dobbs, The Law of Remedies § 9.5 (1973); 2 Dan B. Dobbs, The Law of Remedies § 9.5 (2d ed.1993); John D. Calamari & Joseph M. Perillo, The Law of Contracts § 9-35 (3d ed.1987); 27 Richard A. Lord, Williston on Contracts § 69:55 (4th ed.2003); 66 Am.Jur.2d Reformation of Instruments at § 23.

[¶ 22] In Sehn, 553 N.W.2d at 495, a defendant’s counterclaim alleged he was fraudulently induced to enter into an agreement to terminate a business relationship. The defendant claimed the agreement allocated $100,000 to him for a covenant not to compete when the parties’ intended allocation of that amount of money was for the corporation’s physical assets. Id. This Court recognized fraud perpetrated to induce another to enter into a contract is not a ground for reformation of the agreement, but is a ground for rescission of the agreement. Id. In Sehn, at 495, the defendant affirmed the contract and did not seek rescission. This Court said the written agreement explicitly allocated $100,000 for the covenant not to compete and $140,000 for stock that comprised the physical assets of the corporation and held parol evidence was not admissible to vary or contradict the explicit terms of the agreement. Id.

[¶ 23] In Striegel, 365 N.W.2d at 492, the plaintiffs sold campground property to the defendant by contract for deed, and plaintiffs sued to foreclose and cancel the contract for deed, alleging the defendant failed to make required monthly payments. The defendant counterclaimed, asserting fraud and material misrepresentations by the plaintiffs regarding the capacity of the campground to provide adequate income for the payments. Id. The defendant sought to “modify” the contract for deed to make payments consistent with the capacity of the campground to provide adequate income. Id. at 492, 496. This Court treated the defendant’s request to “modify” as a claim for reformation. Id. at 496. This Court recognized that although fraud is a ground for reformation of a written instrument, fraud perpetrated to induce a party to enter into the agreement itself is not a ground for reformation, but is a ground for rescission. Id. This Court said there were no allegations the parties agreed the payments under the contract for deed would be dependant on the capacity of the campground to provide adequate income and held the defendant’s allegations related to fraud in the inducement rather than fraud in the execution of the agreement. Id. This Court held reformation did not apply to the defendant’s claim as a matter of law. Id.

[¶ 24] Fraud may be a ground for reformation of a written contract when a party is misled or deceived into signing a written contract that differs from the parties’ prior oral agreement. See Dobbs, The Law of Remedies at § 9.5; Calamari & Perillo, The Law of Contracts at § 9-35; 27 Lord, Williston on Contracts at § 69:54; 66 Am.Jur.2d Reformation of Instruments at § 23.

[¶ 25] The Partnership does not claim the parties reached an agreement, but by fraudulent misrepresentations failed to write the agreement down to truly reflect their contract. The Partnership’s allegations, however, relate to fraudulent representations during negotiations and not fraudulent representations as to the contents of the written agreement. The Partnership’s claims about the terms of the agreement are inconsistent with the plain language of the warranty deed that the property was “free from all encumbrances, except installments of special assessments or assessments for special improvements which have not been certified to the County Auditor for collection.” We conclude reformation based on actual fraud does not apply to the Partnership’s claims.

[¶ 26] The Partnership also claims the Goetzfrieds had a duty to inform Mees about the uncertified special assessments, and their failure constitutes constructive fraud under N.D.C.C. § 9-03-09. In Bourgois v. Montana-Dakota Utils. Co., 466 N.W.2d 813, 819 (N.D.1991), this Court discussed constructive fraud in the context of a commercial transaction. This Court said constructive fraud arises from the breach of a duty that is owed ordinarily because of a fiduciary, confidential, or other special relationship between the parties. Id. In Bourgois, at 819, this Court said constructive fraud warrants rescission of the sale of a home as an exception to the rule of caveat emptor, but declined to extend that rule to commercial transactions, and said a fiduciary or confidential or other special relationship does not ordinarily exist when business persons deal with each other at arm’s length.

[¶ 27] This was a commercial transaction with the parties dealing at arm’s length, and the existence of a tax assessment district is a matter of public record. See N.D.C.C. ch. 40-22. Moreover, the Partnership approached the Goetzfrieds about the property, and the Partnership, or its agents, prepared the documents for the sale of the property. We decline to extend the rule of constructive fraud to the Partnership’s claims for reformation in this commercial transaction, and we conclude the Goetzfrieds did not have an affirmative duty to disclose the existence of the tax assessment district to Mees so that their failure to do so can constitute constructive fraud. We conclude the trial court did not err in granting summary judgment on the Partnership’s claim for reformation based on actual or constructive fraud.

IV

[¶ 28] We affirm the summary judgment.

[¶ 29] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2005 ND 154
    Krista M. FRISK, Petitioner and Appellee v. Daniel J. FRISK, Respondent and Appellant.
    No. 20050051.
    Supreme Court of North Dakota.
    Aug. 23, 2005.

      Benjamin E. Thomas, Wold Johnson, P.C., Fargo, ND, for petitioner and appel-lee.
    Robert J. Schultz, Con my Feste, Ltd., Fargo, ND, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Daniel J. Frisk appealed a Domestic Violence Protection Order entered against him, claiming the district court erred in entering the protection order without explicitly finding actual or imminent domestic violence and without explaining the factual basis for its decision. We reverse the Domestic Violence Protection Order and remand to the district court for further proceedings.

[¶ 2] Daniel Frisk and Krista M. Frisk separated on May 9, 2004. Following their separation, Krista Frisk filed a Petition for Protective Relief. The district court issued a Temporary Domestic Violence Protection Order. The district court held a contested hearing on the petition, but, pri- or to the culmination of the hearing, the parties entered into a stipulation and settlement agreement read into the record. The settlement agreement provided for the continuation of the previous Temporary Domestic Violence Protection Order for a period not to exceed six months. The parties specifically agreed there would be no findings of domestic violence. The district court entered the Domestic Violence Protection Order as agreed to by the parties, stating “[t]he parties stipulated and agreed that there would be no finding regarding the issue of domestic violence.”

[¶ 3] Five months later, Krista Frisk filed an Application for Extension of Domestic Violence Protection Order. Following a contested hearing (the “second contested hearing”), the district court extended the stipulated Domestic Violence Protection Order for an additional two years, entering a new Domestic Violence Protection Order on December 27, 2004.

[¶ 4] On appeal, Daniel Frisk argues the trial court abused its discretion in extending the stipulated Domestic Violence Protection Order for an additional two years without ever having made a finding of domestic violence. He contends Krista Frisk has the burden of establishing domestic violence and, without having met this burden, she should not be granted an extension of the Domestic Violence Protection Order. Further, he asserts the district court erred in failing to make findings to support or explain the basis for its decision to continue the Domestic Violence Protection Order. Finally, he argues the parties’ stipulation, which provided that the Domestic Violence Protection Order would not exceed six months in duration, precludes an extension of the stipulated Domestic Violence Protection Order.

[¶ 5] In contrast, Krista Frisk argues the district court did not abuse its discretion in extending the stipulated protection order. She contends there is no specific statutory requirement that the district court make a finding of domestic violence in cases where the parties stipulate to entry of a protection order, and she notes statutory law provides a district court may amend an agreement regarding a protection order at any time upon a petition of a party. She disputes there is any requirement that the district court explicitly find acts of domestic violence in order to extend the protection order, given the broad purpose of N.D.C.C. § 14-07.1-02, the prevention of domestic violence. She argues the extensive pleadings, testimony, and affidavits in the record demonstrate the district court had sufficient cause to extend the protection order. Finally, she contends the parties’ prior stipulation does not foreclose the district court from extending a protection order, citing N.D.C.C. § 14-07.1-02(6), which permits a district court to amend an agreement between the parties at any time.

I.

[¶ 6] “Whether there is domestic violence sufficient to support the issuance of a protection order is a question of fact which will be overturned on appeal only if it is clearly erroneous. However, a trial court’s decision to extend an existing protection order is reviewed under an abuse of discretion standard.” Gaab v. Ochsner, 2001 ND 195, ¶ 6, 636 N.W.2d 669 (internal citations omitted). A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law. Mellum v. Mellum, 2000 ND 47, ¶ 21, 607 N.W.2d 580.

[¶ 7] Section 14-07.1-02, N.D.C.C., provides:

(1) An action for a protection order commenced by a verified application alleging the existence of domestic violence may be brought in district court by any family or household member or by any other person if the court determines that the relationship between that person and the alleged abusing person is sufficient to warrant the issuance of a domestic violence protection order. An action may be brought under this section, regardless of whether a petition for legal separation, annulment, or divorce has been filed.
(2) Upon receipt of the application, the court shall order a hearing to be held not later than fourteen days from the date of the hearing order.
(3) Service must be made upon the respondent at least five days prior to the hearing. If service cannot be made, the court may set a new date.
(4) Upon a showing of actual or imminent domestic violence, the court may enter a protection order after due notice and full hearing....
(6) The court may amend its order or agreement at any time upon subsequent petition filed by either party.

[¶ 8] “Section 14-07.1-02, N.D.C.C., is a remedial statute which we construe liberally, with a view to effecting its objects and to promoting justice.” Gaab v. Ochsner, 2001 ND 195, ¶ 5, 636 N.W.2d 669 (internal quotations omitted). Section 14-07.1-02, N.D.C.C., “makes it clear that a domestic violence proceeding is not a plenary action that requires a full-blown trial. Rather, the statute creates a special summary proceeding and directs a motion hearing noticed by order of the court.” Peters-Riemers v. Riemers, 2001 ND 62, ¶ 12, 624 N.W.2d 83.

[¶ 9] “Given the fundamental purpose of ... section 14-07.1-02, the prevention of further acts of domestic violence,” this Court concluded in Gaab v. Ochsner that, “once a petitioner succeeds in obtaining a permanent domestic violence protection order, the petitioner is not required to prove actual or imminent domestic violence in order to succeed on a motion to extend that order under N.D.C.C. § 14-07.1-02(6).” Gaab, 2001 ND 195, ¶ 5, 636 N.W.2d 669. However, Gaab involved a party’s attempt to extend a protection order initially entered by a district court following a contested hearing on the merits, not an extension of a protection order originally entered pursuant to a stipulation or agreement of the parties. Id. at ¶ 3. Significantly, in Gaab we noted “a party seeking a domestic violence protection order must prove actual or imminent domestic violence by a preponderance of evidence,” id. at ¶ 4, but we rationalized that our Legislature did not intend “to require a petitioner to make a second showing of actual or imminent domestic violence in order to obtain an extension of an existing protection order.” Id. at ¶ 5 n. 1 (emphasis added). Here, because of the stipulation, Krista Frisk has never proven “actual or imminent domestic violence” by a preponderance of the evidence.

[¶ 10] Section 14-07.1-02(6), N.D.C.C., grants the district court authority to “amend its order or agreement at any time upon subsequent petition filed by either party.” A review of the statutory text and the relevant legislative history does not reveal what the Legislature meant by the term “agreement.” Although we have previously stated that “[w]hen a stipulation is incorporated into a judgment, we are concerned only with interpretation and enforcement of the judgment, not with the underlying contract,” Karsky v. Kirby, 2004 ND 110, ¶ 8, 680 N.W.2d 257 (citing Botner v. Botner, 545 N.W.2d 188, 190 (N.D.1996)), we do not believe the Legislature envisioned a procedure through which a party could have his or her liberty interests impinged on a reoccurring basis, despite no finding ever having been made that the party is an “actual or imminent” threat to the petitioner. A stipulation or agreement specifying there are no findings of domestic violence cannot be the factual basis on which to “amend” an “order or agreement” by extending its applicability without the consent of the respondent.

[¶ 11] Allowing a stipulation in which there is no finding of domestic violence to serve as the grounds for an extension of a protection order is also at odds with the purpose of the statute, namely “the prevention of further acts of domestic violence.” Gaab, 2001 ND 195, ¶ 5, 636 N.W.2d 669 (emphasis added); see also N.D.C.C. § 14-07.1-02(4) (court may enter a protection order “[u]pon a showing of actual or imminent domestic violence”). Furthermore, to the extent parties find it advantageous to enter into stipulations to avoid the prejudicial effect of a possible finding of domestic violence on child-custody arrangements, see N.D.C.C. § 14-09-06.2(1)(j), and to the extent district courts see fit to give life to these stipulations through issuing protection orders based upon the stipulations, we see no reason to discourage this practice. If we were to determine that stipulations, however limited or carefully drafted to not reach the issue of domestic violence, can be the basis for reoccurring extensions of protection orders, it will likely diminish, if not eliminate, such arrangements.

[¶ 12] Although Krista Frisk did submit evidence at the second contested hearing that could plausibly lead to a finding of “actual or imminent domestic violence,” the district court did not explicitly indicate it was drawing this conclusion, nor did it indicate what facts would contribute to such a finding. The Domestic Violence Protection Order simply stated the district court “reviewed the pleadings and the testimony presented at the [second contested] hearing.” At the second contested hearing, the judge stated “[a] lot of things have happened since we had that last hearing,” but the court appeared to address the Application for Extension of Domestic Violence Protection Order against the backdrop of the parties’ child-visitation arrangement and pending divorce case, rather than in the context of domestic violence. It is not clear to us whether the district court believed a finding of “actual or imminent domestic violence” was necessary.

[¶ 13] We recognize a domestic violence proceeding is not a plenary action requiring a full-blown trial, but the district court must nevertheless explain the reasoning behind its decision and the factual basis supporting it. Yet, our concern with this case is one of substance, not form. Whether a party files a new application for a protection order, N.D.C.C. § 14-07.1-02(1), or files a petition to amend the stipulated protection order or agreement, N.D.C.C. § 14-07.1-02(6), is a procedural matter of lesser importance than the substantive question of whether the applicant or petitioner has satisfied the threshold burden of demonstrating “actual or imminent domestic violence,” as determined by the district court.

[¶ 14] We reverse the Domestic Violence Protection Order and remand to the district court for consideration of whether the evidence supports a finding that Daniel Frisk poses an “actual or imminent” danger of domestic violence to Krista Frisk.

[¶ 15] DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ, and GORDON O. HOBERG, Surrogate Judge, concur.

[¶ 16] The Honorable GORDON O. HOBERG, Surrogate Judge, sitting in place of MARING, J., disqualified.

[¶ 17] The Honorable DANIEL J. CROTHERS, did not participate in this decision.


author: PER CURIAM.

text:
    2005 ND 153
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael R. HOFFMAN, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of North Dakota, Petitioner v. Michael R. Hoffman, Respondent.
    No. 20040379.
    Supreme Court of North Dakota.
    Aug. 23, 2005.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, ND, for petitioner.
    Irvin B. Nodland, PC, Bismarck, ND, for respondent.
   DISMISSED

PER CURIAM.

[¶ 1] Michael R. Hoffman filed objections to the hearing panel’s recommendation that he be reprimanded and required to pay costs of the disciplinary proceeding for violation of N.D.R. Prof. Conduct 1.1, competence, and N.D.R. Prof. Conduct 1.3, diligence. We conclude there is not clear and convincing evidence of a violation and decline to adopt the hearing panel’s recommendation. We dismiss.

I.

[¶ 2] Hoffman was retained by Mark Steinbach in October 1997 to represent Steinbach in the appeal of his murder conviction. The appellate brief had already been filed by Steinbach’s previous attorney. Hoffman moved this Court for an opportunity to supplement the brief. This Court denied his motion. Steinbach’s conviction was affirmed on January 21, 1998. State v. Steinbach, 1998 ND 18, 575 N.W.2d 193. The mandate was issued on February 12, 1998.

[¶ 3] Hoffman filed for post-conviction relief in state court in May 1999 to raise issues not addressed in Steinbach’s appeal to this Court. Filing a post-conviction relief petition in state court tolls the time to file for federal habeas corpus relief if the state court filing is made within one year and ninety days of the order affirming the state court conviction. Hoffman thought the date to commence the limitations period was the date this Court issued its mandate to the district court, giving him until May 13, 1999, to file for post-conviction relief. The United States District Court found the commencement date is the date the opinion of this Court is filed, meaning Hoffman needed to file the petition before April 21, 1999.

[¶ 4] There is no question Hoffman incorrectly calculated the filing date that would toll the time to file for federal habeas corpus relief. A case becomes final when “the judgment of conviction [has been] rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed.” Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (quoting Linkletter v. Walker, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)). Rule 13 of the Supreme Court Rules states:

The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.

[¶ 5] Another attorney was representing Steinbach when the application for state post-conviction relief was dismissed without prejudice in April 2002. A second application was also dismissed later that year. This Court affirmed the second dismissal in Steinbach v. State, 2003 ND 46, 658 N.W.2d 355. Steinbach filed for federal habeas corpus relief with the United States District Court for the District of North Dakota in April 2003. The petition was dismissed with prejudice because it had not been timely filed. The Eighth Circuit Court of Appeals affirmed the dismissal, and there is currently no action pending in federal court.

[¶ 6] After a hearing, the hearing panel found Hoffman violated N.D.R. Prof. Conduct 1.1, which states “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,” and N.D.R. Prof. Conduct 1.3, which states “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Hoffman had been privately admonished by the Inquiry Committee West for violating N.D.R. Prof. Conduct 1.15 and N.D.R. Prof. Conduct 1.4(A) in the same representation of Steinbach, and the hearing panel considered this and Hoffman’s “substantial experience in the practice of law” as aggravating factors that, when combined with his acts of negligence, warranted discipline. The panel also considered mitigating factors, including: Hoffman had a good reputation within the legal community and no record of prior discipline, he did not act with selfish intent, he cooperated with the disciplinary board, and he appeared remorseful. The panel recommended Hoffman be reprimanded and required to pay the costs of the disciplinary proceedings. Hoffman filed objections with this Court.

II.

[¶ 7] This Court reviews disciplinary proceedings “de novo on the record.” Disciplinary Board v. McKechnie, 2003 ND 170, ¶ 7, 670 N.W.2d 864. Due weight is given to “the findings, conclusions, and recommendations of the hearing panel,” but this Court does not act as a “rubber stamp.” Id. Disciplinary counsel must prove each alleged violation by clear and convincing evidence. Id. A disciplinary case is considered on its own facts to determine what discipline is needed. Id.

[¶ 8] “Disciplinary proceedings differ significantly, both procedurally and substantively, from civil legal malpractice actions.” Disciplinary Board v. McKechnie, 2003 ND 22, ¶ 16, 656 N.W.2d 661. “[T]he rules of professional conduct set a minimum level of conduct with the consequence of disciplinary action.” Id. (citing Matter of Disciplinary Action Against Jaynes, 267 N.W.2d 782, 784 (N.D.1978) (“stating the Tact that an injured party may recover from a lawyer , in a malpractice action is in itself not sufficient to maintain the necessary high standard’ ” to demonstrate a disciplinary offense)).

[¶ 9] This Court has previously expressed concern over disciplining an attorney for a single occasion of negligence. McKechnie, 2003 ND 22, ¶ 23, 656 N.W.2d 661. In McKechnie, we stated:

We note the California Supreme Court’s concern over “the problems inherent in using disciplinary proceedings to punish attorneys for negligence, mistakes in judgment, or lack of experience or legal knowledge.” Lewis v. State Bar of California, 28 Cal.3d 683, 170 Cal.Rptr. 634, 621 P.2d 258, 261 (1981). We share that concern. In C. Wolfram, Modem Legal Ethics § 5.1, at p. 190 (1986) (footnotes omitted), the author states:
To date, the enforcement of competence standards has been generally limited to relatively exotic, blatant, or repeated cases of lawyer bungling. Lawyers who make some showing of effort, and who do nothing other than perform badly, rarely appear in the appellate reports in discipline cases. The lawyers who are disciplined for incompetence have usually aggravated their situation. For example, several cases involve lawyers who, after their incompetent work, concocted elaborate schemes or lies to deceive a client whose case was mishandled. Most decisions and official ABA policy insist that a single instance of “ordinary negligence” is usually not a disciplinary violation, although some decisions hold a lawyer to a standard of ordinary care that is similar to that required in malpractice cases ... or discipline a lawyer for a single instance of neglect. Consistent with that position, courts will discipline lawyers when the neglect is accompanied by some other violation, as an impermissible conflict of interest, or when the acts of negligence are repeated.
We agree with the observation of the Arizona Supreme Court in Matter of Curtis, 184 Ariz. 256, 908 P.2d 472, 477-78 (1995) (footnote omitted):
Neither failure to achieve a successful result nor mere negligence in the handling of a case will necessarily constitute an ER 1.1 violation. We recognize the important distinction between conduct by an attorney that is simply negligent and conduct that rises to the level of an ethical violation. Clearly, the Bar must be vigilant in guarding the rights of clients, “but care should be taken to avoid the use of disciplinary action ... as a substitute for what is essentially a malpractice action.” See In re Myers, 164 Ariz. 558, 561 n. 3, 795 P.2d 201, 204 n. 3 (1990) (citations and internal quotations omitted); see also In re Mulhall, 159 Ariz. 528, 531, 768 P.2d 1173, 1176 (1989) (noting that negligently allowing a statute of limitations to run does not constitute an ethical violation). Thus, although not every negligent act violates an ethical rule, neglect in investigating the facts and law necessary to present a client’s claim crosses the fine line between simple neglect and conduct warranting discipline.

See also The Florida Bar v. Neale, 384 So.2d 1264, 1265 (Fla.1980) (stating the “rights of clients should be zealously guarded by the bar, but care should be taken to avoid the use of disciplinary action ... as a substitute for what is essentially a malpractice action”); In re Complaint as to Conduct of Gygi, 273 Or. 443, 541 P.2d 1392, 1396 (1975) (stating “we are not prepared to hold that isolated instances of ordinary negligence are alone sufficient to warrant disciplinary action”); Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427, 430 (1976) (stating “[c]harges of isolated errors of judgment or malpractice in the ordinary sense of negligence would normally not justify the intervention of the ethics committee”), overruled on other grounds, Committee on Legal Ethics v. Cometti, 189 W.Va. 262, 430 S.E.2d 320, 330 (1993); 1 R. Mallen and J. Smith, Legal Malpractice § 1.9, at p. 45(5th ed.2000) (stating “[o]rdinary negligence should not warrant discipline”).

McKechnie, at ¶¶ 23-24.

[¶ 10] McKechnie mis-informed his client about the statute of limitations and the client’s case was dismissed for failure to file within the limitations period. McKechnie, 2003 ND 22, ¶¶ 2-3, 5, 656 N.W.2d 661. The hearing panel found McKechnie violated N.D.R. Prof. Conduct 1.1 and recommended a 30-day suspension. Id. at ¶ 6. This Court found McKechnie’s actions were “nothing more than an isolated instance of ordinary negligence, or error of judgment” and concluded he did not violate N.D.R. Prof. Conduct 1.1. Id. at ¶ 26.

[¶ 11] McKechnie’s actions were distinguished from the actions of the attorney in Disciplinary Board v. Nassif, 504 N.W.2d 311 (N.D.1993). Nassif had allowed a statute of limitations to expire, but he also “was ‘oblivious[] to the statute of limitation,’ was unaware of the date of the client’s injury, failed to communicate with the client, and when the client sought to change representation for her claim, the lawyer told her ‘he was still entitled to “my share of the money,” ’ and would continue to handle her claim.” McKechnie, at ¶ 25 (quoting Nassif, at 312, 315). Nassif was publicly reprimanded and ordered to pass the Multistate Professional Responsibility Examination and pay costs. Nassif, at 312.

[¶ 12] The record contains deposition testimony of Mark Steinbach. Deposition exhibit 1 is a letter Steinbach sent Hoffman, dated March 31, 1999. The letter states, in pertinent part:

When I talked to you today I forgot to express my concern over my ability to file a writ of habeas corpus in the U.S. District Court.
I was recently made aware of the fact that I only have one (1) year in which to file my writ of habeas corpus, due to the anti-terrorism act of 1996.
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) determined that direct review ends “where the judgement of conviction was rendered, the availability of appeal is exhausted and the time for petition for cert, had elapsed.” Teague 489 U.S., at 295.
It appears that the Teague decision adds the ninety (90) day period to petition for cert., making the time to file habeas in Federal District Court one year and ninety (90) days.
On April 21, 1999, my year and ninety (90) days is up, I am giving you a direct order to file my Post-Conviction Relief, No later than Monday April 5, 1999, I am a paying client, the facts are clear if my time is not already up it will be, as you know, you can amend a PCR, but it must be filed so I have time to do a writ of habeas corpus if needed.

Steinbach testified the letter was mailed April 1, 1999.

[¶ 13] Steinbach further testified:

Q. After sending out that letter on March 31st, did you have any further discussions with Mr. Hoffman relating to — well, the substance of this letter relating to the post-conviction relief and Federal habeas corpus?
A. Yes. After that letter, yes, we did, and his — he said he was aware of the ruling. He — first he said he would have it done on time. It was getting closer to the 21st, it wasn’t going to get done, and he said there are ways around the rule, and he came to visit me.... He also at the time said, Well, your calculation was wrong because it was the — it should be — it should go until February 12th when it was filed with District Court, and so that would mean he had until May 12th to file it.
Q. Okay. When you say “it was filed with District Court”—
A. The — when your Supreme Court case is affirmed or if it’s reversed or whatever, the judgment has to be sent back and filed with the District Court. That was done on February 12th of '98.
Q. Okay. And this discussion concerning what you just talked about, you said that occurred here?
A. Yes. It was in the old visiting room.
Q. And that would have been when?
A. It was before the 21st.
Q. Of April?
A. Of April, yes.
Q. Okay. Did you talk to Mr. Hoffman again after that meeting here that we just talked about prior to April 21st of 1999?
A. No. Because then, you know, I — -I— you know, I just took it that he knew what he was doing because he said, Well, the 21st isn’t the date. It just has to be in before the 12th, because the day it was filed, that’s when it was finalized.
Q. Okay. Did you talk to him then again before the 12th of May?
A. Yes. I called a few days before the 12th and just — is it ready to go? He says, Yes, I’ll have it filed on time.
Q. And then it was filed; correct?
A. No. Yeah, but it was still filed a day late.
Q. Okay. It was filed the 13th of May; correct?
A. Well, it was dated the 12th. He mailed it, but it didn’t arrive at the Court until the 13th.
Q. Okay. Now you have told us that Mr. Hoffman mentioned to you that the time that started the running for this habeas corpus time period, as he understood it, it started to run from not the filing of the opinion but the later date—
A. The day it was filed.
Q. —May 12th or 13th, and then we’ve talked about May 13th has come and gone and you’ve talked to Mr. Hoffman. At some time did you become aware that there might be a problem with calculating the start of the Federal habeas corpus time limit after May 12th or May 13th?
A. No. Actually, I didn’t — I didn’t see — the only problem I had with the whole thing is when after I had dismissed Mr. Hoffman and I hired Steven Light.

[¶ 14] Steinbach’s letter clearly communicated to Hoffman concern with the timing of an application for post-conviction relief. The subsequent discussion between Hoffman and Steinbach, as evidenced by Steinbach’s deposition testimony, indicates Hoffman was operating under a misapprehension of 28 U.S.C. § 2244(d)(1), which states:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

Hoffman’s failure to read § 2244 in light of Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Supreme Court Rule 13 was negligent. The record shows Steinbach was aware of Hoffman’s plan for filing the petition for post-conviction relief. Hoffman’s calculation, while incorrect, was communicated to, and understood by, his client.

[¶ 15] Hoffman’s actions did not rise to the same egregious level as Nassifs but were more like McKechnie’s, “nothing more than an isolated instance of ordinary negligence, or error of judgment.” McKechnie, 2003 ND 22, ¶ 26, 656 N.W.2d 661. Hoffman has been licensed to practice law in North Dakota since 1986 and has never been disciplined by this Court for violating the Rules of Professional Conduct.

[¶ 16] The hearing panel’s recommendation was based, at least in part, on Hoffman’s private admonition for violating N.D.R. Prof. Conduct 1.15, safekeeping property, and N.D.R. Prof. Conduct 1.4, communication. The record does not contain details about these alleged violations, and we note they stemmed from the same representation of Steinbach and do not establish a history of rule violations by Hoffman. See McKechnie, 2003 ND 22, 656 N.W.2d 661 (attorney found to have violated N.D.R. Prof. Conduct 1.4(b) but not N.D.R. Prof. Conduct 1.1 in the same representation).

[¶ 17] The lack of detail about the admonitions is troubling because a single instance of negligence coupled with other egregious conduct can be the basis for discipline. See Nassif, 504 N.W.2d 311 (attorney’s “obliviousness to the statute of limitation,” combined with failure to communicate with client, failure to maintain an adequate file, and effort to force a continued representation sufficiently egregious for discipline). What the record reflects is the letter of admonition which does not detail the basis for the admonition. The letter of admonition does indicate the complaint was filed by John Steinbach, the father of Hoffman’s client, Mark Stein-bach. The record also contains three letters written by John Steinbach, some of which referred to Hoffman’s representation of his son and some of which pertained to other attorneys. Disciplinary counsel indicated Hoffman had no separate representation of John Steinbach so, although it implied that the letters relate to the admonition, it is unclear how the letters relate to the admonition issued by the inquiry committee. It is also unclear how the facts giving rise to the admonition relate to the erroneous negligent advice Hoffman gave to his client since it is clear from Mark Steinbach’s deposition testimony that Hoffman was communicating with his client at the time he failed to meet the deadline. The record does not demonstrate clear and convincing evidence of egregious conduct that, coupled with negligence, would warrant disciplinary action.

III.

[¶ 18] We decline to adopt the recommendation of the hearing panel and dismiss the petition for discipline.

[¶ 19] GERALD W. VANDE WALLE, C.J., JOHN C. IRBY, D.J., CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.

[¶ 20] The Honorable JOHN C. IRBY, D.J., sitting in place of MARING, J., disqualified.

[¶ 21] The Honorable DANIEL J. CROTHERS did not participate in this decision.