author: KAPSNER, Justice. SANDSTROM, Justice,

text:
    2005 ND 41
    Marlin W. INGEBRETSON, Plaintiff and Appellant, v. Marla K. INGEBRETSON, Defendant and Appellee.
    No. 20040156.
    Supreme Court of North Dakota.
    Feb. 22, 2005.

      Douglas A. Christensen, Pearson Christensen, Grand Forks, ND, for plaintiff and appellant.
    Wayne T. Anderson, Fargo, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Marlin Ingebretson appeals from a divorce judgment awarding Marla Inge-bretson permanent spousal support of $1,500 per month, arguing the award was improper in light of Marla Ingebretson’s trial testimony. Because the district court did not adequately explain its decision in light of the testimony heard at trial, we reverse and remand for reconsideration or further explanation of the award.

I.

[¶ 2] Marlin and Marla Ingebretson were married in 1985. They have two minor children. Marlin Ingebretson was 41 years old at the time of trial and Marla Ingebretson was 40. Throughout the marriage, Marlin Ingebretson was the owner and operator of Ingebretson Air Spray, Inc., an aerial application business in May-ville. Marla Ingebretson earned a degree in elementary education at Mayville State University and held various jobs, including dental assistant, elementary teacher, Head Start- coordinator, home daycare provider, and helping ■ with Marlin • Ingebretson’s business during the summer months in the early years of the marriage. She stayed home for four years to raise their children and then returned to the workforce. At the time of trial, she was working as a kindergarten teacher with monthly income of $1,458. Marlin Ingebretson’s average monthly income for the prior five years was $6,074.

[¶ 3] The parties enjoyed a comfortable standard of living during their marriage. They lived in the home Marlin Ingebretson was raised in, accumulated assets valued at nearly $600,000, and vacationed at destinations such as Walt Disney World, Hawaii, the Bahamas, South Dakota’s Black Hills, and a resort in Minnesota. ■

[¶ 4] Marla Ingebretson’s pretrial documents requested “a reasonable amount of spousal support” and her post-trial proposed findings of fact provided for an award of permanent support of $1,800 per month. She testified on direct and cross-examination that she thought she would need spousal support of $1,800 to $2,000 for ten years. Her only explanation for the request was that she “took some advice from [her] lawyer.” Marla Ingebret-son submitted and testified to monthly expenses of $5,911, but then testified on cross-examination to monthly expenses of approximately $3,000. The trial court found Marla Ingebretson’s monthly expenses to be $4,851. The court further determined she was a disadvantaged spouse and ordered Marlin Ingebretson to pay permanent spousal support of $1,500 per month.

[¶ 5] Marlin Ingebretson filed a motion to amend the judgment. The district court entered an amended judgment following a hearing on the motion, but did not amend the spousal support obligation. Marlin In-gebretson appealed to this Court, arguing the spousal support award was not based on the evidence and the doctrines of judicial estoppel and judicial admission apply to Marla Ingebretson’s testimony about her support needs and prohibit an award of permanent support.

II.

[¶ 6] A district court’s decision on spousal support is a finding of fact that will be set aside only if it is clearly erroneous. Staley v. Staley, 2004 ND 195, ¶ 7, 688 N.W.2d 182 (citing Sommer v. Sommer, 2001 ND 191, ¶ 8, 636 N.W.2d 423). A finding is clearly erroneous when it is induced by an erroneous view of the law, there is no evidence to support it, or a review of the entire record convinces this Court a mistake has been made. Id.

[¶ 7] An award of spousal support should be based on consideration of the Ruff-Fischer guidelines. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182; see Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). Factors to consider under the guidelines include:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Staley, at ¶ 8 (quoting Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423). The district court’s decision should be rationally based, but it is not required to make specific findings on each factor. Staley, at ¶ 8.

[¶ 8] The district court found Marla In-gebretson’s monthly living expenses to be $4,851 and Marlin Ingebretson’s monthly expenses to be $3,266. The court acknowledged that teaching positions are difficult to obtain in the Mayville area and budget restraints make continued employment uncertain. The court further found:

Marla has been disadvantaged by this marriage. This is a long-term marriage and Marla contributed to the financial growth of the marital estate. Marla worked for Marlin prior to the marriage as well as during the early years of the marriage in various capacities in his business. Marla mixed chemicals; cleaned airplane windows; did the book work; set up the billing system and computer system; answered the telephone; took air-spray orders; ordered and picked up chemical; and helped rake the gravel runway before it was asphalted. Even though Marla is a teacher, her earnings will likely never come close to the earnings of Marlin.
Further, the parties enjoyed a significant standard of living during the marriage, which included extensive travel to Mexico several times; the Bahamas; Hawaii; Disney World; the Black Hills; Red Lodge; Montana skiing approximately seven (7) times; to a lake resort near Park Rapids many times; Texas; Oklahoma; and Colorado. Additionally, Marlin went hunting annually in South Dakota, traveled to Reno, Nevada several times, hunts pheasant on a game preserve in Bejeau, Minnesota annually, hunts dear [sic] annually and made several trips out of state to hunt elk.
The Court finds that Marla is in need of permanent spousal support and finds that Marlin has the ability to pay permanent spousal support in the amount of $1,500 per month.

A.

[¶ 9] Section 14-05-24.1, N.D.C.C., provides, “[t]aking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time. The court may modify its spousal support orders.” This Court has frequently stated a preference for rehabilitative support rather than permanent. See, e.g., Sommers v. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586; Fox v. Fox, 1999 ND 68, ¶ 21, 592 N.W.2d 541. However, we have acknowledged “when there is substantial disparity between the spouse’s incomes that cannot be readily adjusted by property division or rehabilitative support, it may be appropriate for the court to award indefinite permanent support to maintain the disadvantaged spouse.” Sommers, at ¶ 17. “Permanent support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.” Staley, 2004 ND 195, ¶ 16, 688 N.W.2d 182 (quoting Riehl v. Riehl, 1999 ND 107, ¶ 11, 595 N.W.2d 10). This Court has not endorsed income equalization as a measure of spousal support, but has recognized that a difference in earning power can be considered when determining spousal support. Sommers, at ¶ 17.

[¶ 10] The district court’s findings, while detailed, do not provide an adequate explanation of the decision to award permanent support when Marla In-gebretson testified she only required support for ten years. While it was not erroneous for the district court to award permanent support, it was erroneous to do so without providing sufficient explanation for its decision in light of the testimony heard at trial. We reverse and remand to the district court for detailed findings justifying the award of permanent spousal support or an amended judgment changing the award to rehabilitative support. Because “[questions of property division and spousal support cannot be considered separately or in a vacuum, but ordinarily must be examined and dealt with together,” Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586, and because the property division may have influenced the award and structure of spousal support, Fox, 1999 ND 68, ¶¶ 20-22, 592 N.W.2d 541, the district court may, if it amends spousal support, also reconsider the property distribution.

B.

[¶ 11] Marlin Ingebretson argues the district court’s finding on Marla Ingebret-son’s monthly expenses is clearly erroneous. A party’s need is a factor the district court can consider under the Ruff-Fischer guidelines. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182. Marla Ingebretson submitted monthly expenses of $5,911 at trial. She testified on direct examination that even if she delayed working towards her master’s degree, her monthly expenses would still be about $4,900. Marla Inge-bretson’s testimony on cross-examination indicated her expenses were lower than those submitted. She listed $60 for counseling and therapy, then stated neither she nor the children were currently attending. She admitted she was not currently paying a monthly life insurance premium of $60. Marla Ingebretson further testified her listed expenses for credit card bills were short-term and the bills would be paid off within a year at the listed rate. She testified other expenses were speculative, or had been listed “just in case.” When asked what her current actual expenses were, Marla Ingebretson stated, “around $3,000 ... give or take.”

[¶ 12] The district court found Marla Ingebretson’s monthly expenses did not include $1,000 for continuing education or $60 for homeowners insurance. By removing these expenses, the court concluded Marla Ingebretson’s monthly expenses were $4,851.

[¶ 13] This Court gives deference to the district court’s findings when the district court was presented with conflicting testimony. Montgomery v. Montgomery, 2003 ND 135, ¶ 11, 667 N.W.2d 611. “The trier of fact can best evaluate testimony because it observes the demean- or and credibility of the witness, and we do not substitute our judgment for that of the trier of fact when reasonable evidence supports the findings.” Id. It was not clearly erroneous for the district court to place greater credibility on Marla Ingebretson’s testimony indicating higher monthly expenses.

C.

[¶ 14] “To be awarded spousal support, the district court must find the requesting spouse to be ‘disadvantaged.’ A ‘disadvantaged spouse’ is one who has ‘foregone opportunities or lost advantages as a consequence of the marriage.’ ” Weigel v. Weigel, 2000 ND 16, ¶ 11, 604 N.W.2d 462 (internal citations omitted). Marlin Ingebretson argues Marla Ingebretson is not a disadvantaged spouse because she was employed in her chosen field throughout much of the marriage and continues to work in that field.

[¶ 15] Marla Ingebretson’s employment in her chosen field does not mean she had not made sacrifices and foregone opportunities as a result of the marriage. The district court found Marla Ingebretson was a disadvantaged spouse because she contributed to Marlin Inge-bretson’s business prior to the marriage and during the early years of the marriage when she was not employed as an educator. Marla Ingebretson also left the workforce for four years to stay home with the parties’ children, enabling Marlin Inge-bretson to continue building his business. Based on the record, the district court’s finding that Marla Ingebretson was a disadvantaged spouse is not clearly erroneous.

III.

[¶ 16] Marlin Ingebretson argues the doctrine of judicial estoppel applies to Marla Ingebretson’s testimony on her spousal support needs and prohibits an award of permanent spousal support. This Court has declined to decide whether judicial estoppel applies in North Dakota. See generally Meide v. Stenehjem, 2002 ND 128, ¶ 15, 649 N.W.2d 532; BTA Oil Producers v. MDU Resources Group, 2002 ND 55, ¶ 14, 642 N.W.2d 873.

[¶ 17] We have said the following about judicial estoppel:

Judicial estoppel prohibits a party from assuming inconsistent or contradictory positions during the course of litigation. See State v. Profit, 591 N.W.2d 451, 462 (Minn.1999); 28 Am.Jur.2d Estoppel and Waiver § 74 (2000); 31 C.J.S. Estoppel and Waiver § 139(a) (1996). The underlying rationale for the doctrine is summarized in 28 Am.Jur.2d Estoppel and Waiver § 74 (footnotes omitted):
The fundamental concept of judicial estoppel is that a party in a judicial proceeding is barred from denying or contradicting sworn statements made therein. Judicial estoppel is a judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent, conflicts with, or is contrary to one that she has previously asserted in the same or in a previous proceeding; it is designed to prevent litigants and their counsel from playing fast and loose with the courts, and to protect the integrity of the judicial process. Judicial estoppel doctrine is equitable and is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories. The purpose of the doctrine of judicial es-toppel is to reduce fraud in the legal process by forcing a modicum of consistency on the repeating litigant.
The doctrine applies only where a party’s subsequent position is totally inconsistent with its original position, and does not apply where distinct or different issues or facts are involved. Profit, 591 N.W.2d at 462; 28 Am.Jur.2d Estoppel and Waiver § 74; 31 C.J.S. Estoppel and Waiver § 139(a).

Meide, 2002 ND 128, ¶ 15, 649 N.W.2d 532 (quoting BTA Oil Producers, 2002 ND 55, ¶ 14, 642 N.W.2d 873).

[¶ 18] Assuming, without deciding, the doctrine of judicial estoppel applies in this state, we conclude the doctrine would not bar the district court’s award of permanent spousal support. Marla Inge-bretson’s position following trial, requesting permanent spousal support in her proposed findings, is not “totally inconsistent” with her trial testimony requesting support for ten years. Marla Ingebretson did not change her position on whether she needed spousal support, but simply requested a longer term. In addition, we have recognized the district court' has broad discretion in making an equitable distribution of property and allocation of spousal support to address the individual, needs of divorcing parties. Glander v. Glander, 1997 ND 192, ¶¶8, 12, 569 N.W.2d 262. The exercise of that judicial function is not limited by the specific requests of the parties so long as the basis for the decision can be discerned. We note, for example, that while Marla Inge-bretson testified she needed support for 10 years, she requested support in a greater amount. Spousal support is based upon the parties’ needs and ability to pay. Sommer, 2001 ND 191, ¶ 10, 636 N.W.2d 423. Balancing these factors, a trial court may adjust both the amount and duration. The need for spousal support and ability to pay such support may be dependent upon the amount and nature of property distributed to each former spouse, including whether such property is income-producing. Id. at ¶ 16. The doctrine of judicial estoppel would not prohibit the permanent award. But where a party appears to have requested support for a limited period, it is incumbent on the court to explain such award.

IV.

[¶ 19] “[T]estimony unfavorable to one’s own contention can be a ‘judicial admission’ if it is ‘deliberate, clear and unequivocal.’ ” Malarchick v. Pierce, 264 N.W.2d 478, 480 (N.D.1978). The majority rule, adopted in North Dakota, states the trier of fact has the responsibility of deciding the issue based on all the evidence, even when a party gives testimony that conflicts with her position. Id. Marla In-gebretson’s testimony is not a limitation on the court’s authority to structure an award of spousal support under N.D.C.C. § 14-05-24.1, provided the court articulates a valid reason for exceeding the duration requested.

V.

[¶ 20] Where the evidence in the record does not support an award of permanent spousal support because the recipient testified she needed support for ten years, and the court has not articulated a reason for exceeding the duration of her request, we conclude the award of permanent spousal support was clearly erroneous. We reverse and remand for detailed findings or an amended award.

[¶ 21] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, J., and WILLIAM F. HODNY, S.J., concur.

[¶ 22] The Honorable WILLIAM F. HODNY, S.J., sitting in place of MARING, J., disqualified.

SANDSTROM, Justice,

concurring and dissenting.

[¶ 23] I agree with many things written by the majority, but I disagree with its analysis that permanent spousal support might be appropriate when only rehabilitative spousal support had been requested.

[¶ 24] Spousal support is appropriate when a party has been disadvantaged as a result of the marriage. Weigel v. Weigel, 2000 ND 16, ¶¶ 11-14, 604 N.W.2d 462; Brown v. Brown, 1999 ND 199, ¶ 32, 600 N.W.2d 869 (quoting Riehl v. Riehl, 1999 ND 107, ¶ 9, 595 N.W.2d 10) (“A ‘disadvantaged’ spouse is one who has ‘foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity.’ ”).

[¶ 25] In the case of long-term marriages, permanent spousal support may be appropriate, but it should not be the norm when rehabilitative support can overcome the disadvantage resulting from the marriage. In view of this Court’s longstanding position that rehabilitative, not permanent, spousal support is preferred, see, e.g., van Oosting v. van Oosting, 521 N.W.2d 93, 100 (N.D.1994); Welder v. Welder, 520 N.W.2d 813, 818 (N.D.1994); Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994); Roen v. Roen, 438 N.W.2d 170, 172 (N.D.1989), I would conclude that permanent spousal support is inappropriate when only rehabilitative spousal support has been requested.

[¶ 26] DALE V. SANDSTROM


source: Caselaw Access Project

author:
NEUMANN, Justice.
      HILDEN, District Judge,

license: Public Domain

text:
    2005 ND 43
    Sharon VOGEL, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee, and Burleigh County, Respondent.
    No. 20040173.
    Supreme Court of North Dakota.
    Feb. 23, 2005.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for appel-lee.
   NEUMANN, Justice.

[¶ 1] Sharon Vogel appealed a district court judgment, order for judgment, and order affirming a Workforce Safety and Insurance (“WSI”) order adopting a temporary administrative law judge’s recommended findings of fact, conclusions of law, and order affirming a WSI order denying disability benefits. We affirm.

I

[¶ 2] While employed as a Burleigh County Sheriffs Department detention supervisor earning $2,613 per month, Vogel poked her finger with a lancet on July 12, 2001, while helping a diabetic inmate check his blood sugar. Vogel sought workers compensation benefits and after a denial of disability benefits received a hearing before a temporary administrative law judge (“TALJ”). The TALJ recommended findings of fact stating, among other things: (1) After Vogel was diagnosed with hepatitis C, her job duties were changed to eliminate almost all contact with inmates; (2) Vogel’s salary was reduced upon modification of her job duties, but, in January 2002, she received back pay for the difference in salary between her former detention supervisor salary and the salary for her modified position; (3) Vogel suffered no wage loss through January 2002; (4) “Vogel was extremely frustrated and unhappy in her modified detention center position;” (5) Vogel “decided to apply for another position, feeling it would be the best thing for her and for Burleigh County;” (6) Vogel inquired about a Public Service Technician III (“PST III”) position involving the same duties as her modified position; (7) “The detention supervisor position Vogel held at the time of her work injury on July 12, 2001, was a grade 7, the detention officer position was a grade 6, and the PST III position was a grade 4;” (8) “Although Vogel looked at the lower level position because she thought it would be best for everyone if she were not in the detention center, she did not believe any change would include a salary reduction;” (9) ‘Vogel had no salary reduction in her modified detention center position;” (10) “If Vogel had not accepted the PST III position on January 23, 2002, Burleigh County would have continued employing Vogel in the modified detention center position;” and (11) Vogel received her first paycheck as a PST III at the end of February 2002, at a salary of $2,200 per month. The TALJ also recommended the following findings of fact:

35. Although Vogel was undeniably aware of her actual PST III salary by the end of February 2002, she did nothing to try and get her old job back on the grounds she had mistakenly assumed the new job carried no reduction in salary. Schatz-Jennings [Burleigh County’s human resources officer] was unaware Vogel had any pay or position concerns until October or November of 2002....
36. Vogel’s failure to raise any concerns about the lower pay directly with Schatz-Jennings and her failure to even inquire about the possibility of getting her modified job back because she would not have accepted the lower position had she known her salary would be reduced is not reasonable....
40. The greater weight of the evidence indicates that Vogel voluntarily limited her income when she accepted and remained in the PST III position .... Vogel’s subjective feelings that she was unfairly ostracized and underutilized do not amount to her being constructively forced out of the modified detention center position when she also testified she thought it was in the best interests of both herself and her employer that she get out of the detention center. Assuming Vogel’s initial acceptance of the PST III position could be considered voluntary only if her stated assumption that she would incur no salary reduction was in fact true, that “conditional” voluntary acceptance was valid only until she knew her assumption was not correct. The actual income limitation became voluntary when Vogel admittedly did nothing to see if she could get her old job back or to let anyone in her employment setting other than Sheriff Harvey know she was upset and concerned about the lower pay.

[¶ 3] The TALJ recommended the following conclusions of law, among others:

2. Under the provisions of N.D.C.C. § 65-05-08(7), if an employee voluntarily limits income or refuses to accept employment suitable to the employee’s capacity, the employee is entitled to disability benefits' during the time the employee limits income or refuses to accept suitable employment only if WSI determines the limitation or refusal is justified.
6. The claimant has not met her burden of proving that her loss of earning capacity effective February 1, 2002, was not a voluntary limitation of income.
7. The claimant has not met her burden of proving that her voluntary limitation of income was justified.
8. The claimant has not met her burden of proving she is entitled to disability benefits in connection with this claim.

[¶ 4] The TALJ recommended an order affirming WSI’s January 15, 2003, order denying disability benefits. On November 4, 2003, WSI adopted the TALJ’s recommended findings, conclusions, and order. Vogel appealed to the district court, which affirmed WSI’s order. Vogel appealed to this Court, raising the following issue: “Did Sharon Vogel unreasonably and voluntarily limit her income, thus losing her entitlement to partial disability benefits under N.D.C.C., Section 65-05-08?”

II

[¶ 5] Vogel has challenged only findings of fact 36 and 40, and conclusions of law 6, 7, and 8. This Court has a limited role in appeals from administrative agency decisions:

We exercise a limited review in appeals involving WSI decisions. Rush v. N.D. Workers Comp. Bureau, 2002 ND 129, ¶ 5, 649 N.W.2d 207. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
We exercise restraint in deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 9, 668 N.W.2d 290. “We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record.” Id. “Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.” Id.

Elshaug v. Workforce Safety & Ins., 2003 ND 177, ¶ 12, 671 N.W.2d 784.

[¶ 6] “ ‘The words used are by no means all that we rely on in making up our minds about the truth of a question.’” State v. Guthmiller, 2004 ND 100, ¶ 7, 680 N.W.2d 235 (quoting Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir.1952)). Like a trial court judge, an administrative law judge “hears the witnesses, sees their demeanor on the stand, and is in a position to determine the credibility of witnesses,” and is, therefore, “in a much better position to ascertain the true facts than an appellate court relying on a cold record” without “ ‘the advantage ... of the innumerable intangible indicia that are so valuable to a trial judge.’ ” Guthmiller, at ¶ 7 (quoting Doyle v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863 (1925)). Thus, “[w]e defer to the hearing officer’s opportunity to judge the credibility of witnesses.” Aamodt v. North Dakota Dep’t of Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308. See also Reynolds v. North Dakota Workmen’s Comp. Bureau, 328 N.W.2d 247, 251 (N.D.1982).

[¶ 7] Vogel testified, among other things: (1) After she learned she had hepatitis C, she was placed in a modified position; (2) While the modified position was a demotion from her preinjury position, it did not result in a salary reduction; (3) In the modified position, “I felt that I was being wasted sitting in the control room ... and they put me a room where I couldn’t talk to anybody or have any contact with anyone;” (4) She asked to do other duties “along with being in the control room and doing the visitation and filing and answering the phones;” (5) She applied for and received another job, a PST III, which involved the same duties she was performing in her modified detention position; (6) She first learned she would be receiving $2,200 a month when she got her paycheck after starting the PST III position; and (7) She “was very upset” and “spoke to the sheriff,” who “just said that that’s what it paid.”

[¶8] Vogel also testified: (1) She felt “stagnant,” and “underutilized;” (2) She wanted to do other duties for which she “brought more to the table and would be a better asset,” and she was frustrated that she was not being provided those other duties; (3) She did not talk to the sheriff about getting her old job back and did not “talk with the HR director for Burleigh County, Miss Jennings;” and (4) She does not recall raising with Jennings “a concern about the pay at all.” Vogel further testified about why she applied for a job with duties similar to those in her modified detention position:

A. Because I feel that I was a hindrance in the jail as far as I was taking up a slot that they could not have a female to perform the duties that I should have been doing, such as female being on call. And I thought it was in the best interest, bottom line, for the jail so that they could get a female up there that could do the job where I knew I would never be able to do anything again.
A. Like I said, I was — I was always tucked away so that I wouldn’t have any contact with anybody. And the fact that I was taking up a slot in the jail, especially, for better words, a female slot so that someone could actually deal with the inmates and strip-search females and that kind of thing, I thought it was the best thing for not only myself, but Burleigh County.

[¶ 9] Thus, there is evidence supporting WSI’s finding that by accepting and remaining in the PST III position, Vogel voluntarily limited her income. From our review of the record, we conclude that the challenged findings of fact are supported by a preponderance of the evidence, as a reasoning mind could reasonably find from the evidence as WSI did. We further conclude that the challenged conclusions of law are supported by. WSI’s findings of fact.

Ill

[¶ 10] The judgment and orders are affirmed.

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

[¶ 12] The Honorable RONALD L. HILDEN, D.J., sitting in place of KAPSNER, J., disqualified.

HILDEN, District Judge,

dissenting.

[¶ 13] After having reviewed the convoluted factual and procedural histories of this case, I find it impossible to concur with the temporary administrative law judge’s (TALJ) opinion that by accepting and remaining in the PST III position, Sharon Vogel voluntarily and unjustifiably limited her income. The challenged findings of fact are not supported by a preponderance of the evidence and the challenged conclusions of law cannot be supported by these erroneous findings of fact.

[¶ 14] The majority’s reasoning hinges on two often-used rules of construction. The first states “we decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record.” Barnes v. Workforce Safety and Insurance, 2003 ND 141, ¶ 9, 668 N.W.2d 290. The second states, generally, that because the TALJ hears the witnesses and sees their demeanor, it is in a better position to ascertain the true facts. See State v. Guthmiller, 2004 ND 100, ¶ 7, 680 N.W.2d 236. The Court relies upon these rules on a regular basis, however, the strict and unwavering adherence to these rules in this circumstance denies Sharon Vogel the meaningful review she deserves from this Court. The TALJ’s findings of fact and conclusions of law simply cannot be reconciled with the evidence in this case, regardless of who observes the testimony. Logic and common sense demand a different conclusion when one views Sharon Vogel’s situation as a whole; beginning from the time she originally contracted Hepatitis. For this reason, I must respectfully dissent.

[¶ 15] Clearly, Ms. Vogel was, and is, intimidated, downtrodden, and suffering from depression; and for good reason. She contracted Hepatitis while checking the blood sugar of an inmate during the regular course of her employment. She incurred medical expenses and was required to change positions due to this injury. This new position was coupled with a surprising reduction in pay. Her complaints and requests were met with staunch opposition from her employer. Although she was ultimately successful, she struggled mightily to be compensated for this life-threatening disease and for the loss of income associated with it.

[¶ 16] Ms. Vogel then requested another change due to her continued unhappiness with the modified detention center position. After everything that had transpired between Ms. Vogel, the WSI, and her employer, it is reasonable to assume she believed her position would not, again, be coupled with a decrease in pay for which she would have to go through more litigation to remedy. But to her chagrin, the job did have lower pay. She complained to her superior officer, Sheriff Harvey, about the reduction in pay. He did nothing, and recommended nothing, to remedy the situation. She did not contact the HR director, Ms. Schatz-Jennings at this point, and instead commenced these proceedings. She has been denied benefits by the North Dakota WSI and now the temporary administrative law judge has concluded that her alternative employment and decreased compensation were voluntary, unjustified and therefore, do not warrant compensation. I cannot agree.

[¶ 17] What one must remember is that Sharon Vogel was content in her original job and that she was injured while doing it, forcing her into this seemingly unending struggle for compensation. Every problem that has arisen since the injury (the changes in jobs and their accompanying reduction in pay) is directly correlated to that injury. Despite this, the TALJ concluded that this final decision to change her employment was, somehow, voluntary. Reality would show quite the contrary. If Sharon Vogel had not been injured during her employment, she would not have been forced to alter her employment in the first place. Her subsequent search for comparative, fulfilling employment was not only involuntary, but completely justified considering the circumstances.

[¶ 18] Also, it is illogical to conclude that because Sharon Vogel did not contact her HR director she had, somehow, ratified the reduction in pay and was estopped from demanding compensation. She had already complained to her superior officer, Sheriff Harvey, and was told there was nothing that could be done. Puzzling, is why the TALJ places so much credence in the advice of the HR director, while completely discounting the futile discussion Ms. Vogel had already had with her own commanding officer. Similarly perplexing, is why Sharon Vogel would be required to entertain any advice from Ms. Schatz-Jen-nings, considering the scurrilous nature of a letter written by Ms. Schatz-Jennings, in which she condemned Ms. Vogel for her association with known drug users and motorcycle riders. (Gasp!) A complaint to this person, considering the parties’ history, would have been meaningless.

[¶ 19] It is apparent from the evidence that Sharon Vogel was a person' forced from her job by an employment related injury. She has been searching, with considerable opposition, for a substitute position with comparable pay and personal satisfaction. The TALJ’s finding that Ms. Vogel “voluntarily” limited her income by seeking a change from a position she was not happy with and by not contacting the HR director when she learned of the lower pay scale, is not supported by the preponderance of the evidence. The majority’s affirmation of such a decision, based superficially upon a rule of construction, denies Sharon Vogel a meaningful review.

[¶ 20] I would reverse and remand to the agency for calculations of the benefits to which she is entitled.

[¶ 21] RONALD L. HILDEN, D.J.


author: VANDE WALLE, Chief Justice.

text:
    2005 ND 44
    Robert RINGSAKER, Claimant and Appellant, v. WORKFORCE SAFETY & INSURANCE FUND, Appellee, and Yellow Freight System, Respondent.
    No. 20040155.
    Supreme Court of North Dakota.
    Feb. 24, 2005.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Robert Ringsaker appealed from a district court judgment affirming the order of Workforce Safety and Insurance (“WSI”) dismissing his claim for benefits. We affirm, concluding WSI’s finding that Ringsaker failed to file a timely claim for benefits within one year of his work injury is supported by a preponderance of the evidence.

I

[¶ 2] Ringsaker is employed as a truck driver and loading dock worker. In late 1996, Ringsaker injured his shoulder while unloading a truck at work. When the pain in his shoulder continued he consulted Dr. Varberg, an orthopedic surgeon, on January 21, 1997. Ringsaker told Dr. Varberg that he had hurt his shoulder at work. Dr. Varberg’s medical notes indicate his diagnosis was rotator cuff syndrome, and Ring-saker was given an injection to alleviate the pain.

[¶ 3] Over the next few months, Ring-saker saw Dr. Varberg and Dr. Kneifel. Their notes continued to indicate Ringsaker’s pain was caused by rotator cuff problems, and he received additional injections for pain. Dr. Kneifel’s notes from a February 8, 1997, exam state Dr. KniefePs diagnosis was “[r]ight shoulder impingement syndrome with possible rotator cuff tear.” Dr. Varberg’s notes from a February 19, 1997, exam indicate Ringsaker “certainly very well may have a rotator cuff tear.” Dr. Varberg’s notes from a March 12, 1997, exam state that “[t]here is still tenderness over the rotator cuff and pain on abduction and crepitation in the area of the rotator cuff,” and indicated an MRI would be performed. Dr. Varberg’s notes from a March 14, 1997, follow-up visit indicate that the MRI showed “a very minimal amount of degenerative arthritic change in the acromioclavicular joint.” Dr. Varberg’s notes concluded: “I still think his problem mainly is with the rota-tor cuff and not with the AC joint.”

[¶ 4] Ringsaker alleges his doctors never told him his shoulder pain was related to a possible rotator cuff tear or other rotator cuff problems. He claims Dr. Var-berg told him his problems were caused by arthritis in his shoulder, and he therefore did not file a claim for workers compensation benefits because he did not believe benefits were available for arthritis.

[¶ 5] Ringsaker continued to have problems with his shoulder and went to the Mayo Clinic in October 1999. Doctors there diagnosed a pinched rotator cuff, and a second exam in January 2000 showed a possible torn rotator cuff which would require surgery. Ringsaker eventually had surgery to repair the torn rotator cuff in October 2000. Ringsaker claims he was never advised he had a possible torn rota-tor cuff until the January 2000 consultation with doctors at the Mayo Clinic. He had up to that time never missed work because of the injury and his health insurance had paid the medical bills.

[¶ 6] Ringsaker filed a claim for benefits on February 3, 2000. WSI denied his claim, and Ringsaker requested a hearing before an administrative law judge (“ALJ”). The ALJ found that Ringsaker’s injury was work related, but that Ringsaker had failed to file a timely claim for benefits within one year after he knew or should have known he had a work-related injury. WSI adopted the ALJ’s recommended findings of fact, conclusions of law, and order, and dismissed Ringsaker’s claim for benefits.

[¶ 7] Ringsaker appealed to the district court. When WSI filed its brief three days late, the court as a sanction refused to consider the tardy brief and entered judgment ordering WSI to pay benefits to Ringsaker. We reversed the judgment on appeal, concluding the district court had abused its discretion in determining the severity of the sanction imposed. See Ringsaker v. North Dakota Workers Comp. Bureau, 2003 ND 122, ¶ 14, 666 N.W.2d 448.

[¶ 8] On remand, the district court on the merits affirmed WSI’s order dismissing Ringsaker’s claim for benefits. Ring-saker has now appealed from the district court judgment, arguing WSI erred in finding that he had failed to file a timely claim for benefits.

II

[¶ 9] Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On an appeal from the district court’s ruling on an administrative appeal, this Court reviews the agency order in the same manner. N.D.C.C. § 28-32-49; Miller v. Workforce Safety and Ins., 2004 ND 155, ¶ 6, 684 N.W.2d 641; Zander v. Workforce Safety and Ins., 2003 ND 194, ¶ 6, 672 N.W.2d 668.

[¶ 10] We have clarified our scope of review in appeals from decisions of administrative agencies:

We review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. We exercise restraint in deciding whether the agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.

Paul v. Workforce Safety and Ins., 2003 ND 188, ¶ 11, 671 N.W.2d 795 (citations omitted).

Ill

[¶ 11] The sole question presented on appeal is whether WSI’s finding that Ringsaker failed to file a claim for benefits within one year from when he knew or should have known he had suffered a work-related injury is supported by a preponderance of the evidence.

[¶ 12] Filing of claims for workers compensation benefits is governed by N.D.C.C. § 65-05-01, which provides in pertinent part:

All original claims for benefits must be filed by the injured employee, or someone on the injured employee’s behalf, within one year after the injury or within two years after the death. The date of injury for purposes of this section is the first date that a reasonable person knew or should have known that the employee suffered a work-related injury and has either lost wages because of a resulting disability or received medical treatment.

The statute expressly provides that no benefits are allowed if the claimant fails to file a written claim for benefits within the specified time. N.D.C.C. § 65-05-01.

[¶ 13] Ringsaker argues he did not know his shoulder injury was work related until he was diagnosed with a torn rotator cuff at the Mayo Clinic in January 2000. He therefore claims his February 3, 2000, claim was timely.

[¶ 14] Ringsaker’s argument is premised entirely upon his assertion that his doctors did not, in 1997, advise him that his shoulder pain was caused by rotator cuff problems. Rather, he claims he was told that his shoulder problems were caused by arthritis. He contends that he did not file a claim at that time because he believed arthritis was a general condition that was not work related and that he would not be eligible for benefits.

[¶ 15] WSI rejected Ringsaker’s argument, effectively concluding that his testimony that his doctors had told him his problems were caused solely by arthritis was not credible. WSI specifically noted the “substantial medical evidence of record, that is contrary to his position.” Notwithstanding Ringsaker’s testimony that his doctors in 1997 told him his shoulder pain was caused by arthritis, all of the contemporaneous medical records indicate that the doctors consistently concluded Ringsaker’s shoulder pain was caused by a rotator cuff problem. Ringsaker did not call the doctors to testify nor provide depositions or affidavits to corroborate his assertion that the doctors never told him he had a rotator cuff problem, but only arthritis. The only mention of arthritis in the 1997 records is in Dr. Varberg’s March 14, 1997, notes, which indicated there was “a very minimal amount of degenerative arthritic change” in the AC joint. Dr. Var-berg, however, concluded in his notes that he still believed Ringsaker’s main problem was the rotator cuff, not the AC joint.

[¶ 16] Ringsaker argues that under the “reasonable person” standard of N.D.C.C. § 65-05-01, as interpreted in Klein v. North Dakota Workers Comp. Bureau, 2001 ND 170, 634 N.W.2d 530, and Anderson v. North Dakota Workers Comp. Bureau, 553 N.W.2d 496 (N.D.1996), he did not know, nor should he reasonably have known, that his shoulder injury was work related. Ringsaker relies upon the following language from Klein, at ¶ 19:

Certainly, some injuries are obviously caused by the claimant’s work and do not require a doctor to inform the claimant his injuries are work related. In these situations, the limitations period begins to run in the absence of any medical advice. Other complex, insidious injuries, however, require knowledge in medical matters because their causes and effects are not immediately apparent to the reasonable lay person, not learned in medicine.

Again, Ringsaker’s argument on this issue is premised upon his assertion that his doctors had told him his pain was caused by arthritis. We have concluded that there was sufficient evidence from which WSI could conclude Ringsaker’s testimony was not credible.

[¶ 17] This case is clearly distinguishable from Klein and Anderson. In those cases, the claimants had medical ailments which commonly occurred without a specific triggering injury, arthritis and carpal tunnel syndrome, respectively, and argued that their injuries were gradual progressions without a specific original date of injury. The Court in each case concluded that, without medical advice linking their conditions with their employment, the claimants would not know or have reason to know their injuries were work related. The Court explained in Klein, at ¶ 19, that, when the claimant has a “complex, insidious” injury or condition, the causes and effects may not be evident to a layperson and the one-year period in N.D.C.C. § 65-05-01 may not be triggered until the claimant is advised that his injury or condition is work related.

[¶ 18] By contrast, Ringsaker has at all times indicated that his shoulder problems began when he was injured while unloading a truck at work. He told his doctors when seeking treatment for his shoulder pain in early 1997 that he had injured his shoulder at work in late 1996. He has consistently indicated that he had no pain or problems with his shoulder prior to the 1996 work incident, and has had continual problems since that time. We conclude Klein and Anderson are distinguishable.

[¶ 19] We recognize that this Court has indicated “[a] person who experiences minor pain or other symptoms while working does not know, or have reason to know, of a significant work-related injury.” Anderson, 553 N.W.2d at 500; see also Klein, 2001 ND 170, ¶ 17, 634 N.W.2d 530. The facts in this case demonstrate Ring-saker’s injury involved much more than “minor pain.” He saw his doctors on at least five occasions in the months following his injury, including one visit to the emergency room, and was given numerous injections in an attempt to alleviate the pain. He also was prescribed medication for his pain. This medical history, the 1997 medical records, and Ringsaker’s contemporaneous acknowledgment that his shoulder problems were caused by the 1996 work incident indicate that this was not “minor pain or symptoms” from which a layperson would be unaware that the injury was work related.

[¶20] On the record in this case, a reasoning mind reasonably could conclude that WSI’s finding of fact that Ringsaker knew or should have known by early 1997 that he had suffered a work-related injury was proven by the weight of the evidence. Ringsaker did not file a claim for benefits until February 3, 2000, some three years later. Accordingly, we conclude WSI’s finding that Ringsaker failed to file a timely claim within one year of his work injury is supported by a preponderance of the evidence.

IV

[¶ 21] The district court judgment affirming WSI’s order dismissing Ringsaker’s claim for benefits is affirmed.

[¶ 22] DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., WADE L. WEBB, D.J., concur.

[¶ 23] The Honorable WADE L. WEBB, D.J., sitting in place of KAPSNER, J., disqualified.


author: PER CURIAM.

text:
    2005 ND 45
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Thomas K. SCHOPPERT, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Thomas K. Schoppert, Respondent.
    No. 20050058.
    Supreme Court of North Dakota.
    Feb. 28, 2005.
   DISBARMENT ORDERED

PER CURIAM.

[¶ 1] Thomas K. Schoppert was admitted to practice as an attorney at law in the courts of North Dakota on July 19, 1972, and his name has appeared on the roll of attorneys since that date. On April 2, 2003, Schoppert was placed on interim suspension under N.D.R. Lawyer Discipl. 4.1D for conviction of a serious crime, namely four counts of attempt to evade or defeat tax in violation of 26 U.S.C. § 7201. See, Disciplinary Board v. Schoppert, 2003 ND 54, 658 N.W.2d 767. The interim suspension was to remain in effect pending final disposition of the disciplinary proceeding predicated upon the conviction.

[¶ 2] On April 14, 2003, Schoppert admitted service of a Summons and Petition for Discipline. The Petition asserts that Schoppert’s conviction of four counts of attempt to evade or defeat tax in violation of 26 U.S.C. § 7201 violates N.D.R. Lawyer Discipl. 1.2 and is grounds for discipline.

[¶ 3] On February 1, 2005, Schoppert signed a Stipulation and Consent to Discipline, acknowledging the material facts are true and cannot be successfully defended. Schoppert admits that the stipulation is given freely and voluntarily and without coercion or duress. Schoppert further agrees to discipline in the form of disbarment and the payment of costs in the amount $250.

[¶ 4] This matter was submitted to a Hearing Panel of the Disciplinary Board under N.D.R. Lawyer Discipl. 4.2. The Report of the Hearing Panel was filed February 16, 2005. The Hearing Panel found that Schoppert was convicted of four counts of attempt to evade or defeat tax in violation of 26 U.S.C. § 7201 for which he received a sentence that included imprisonment for a term of twenty-four months. The Hearing Panel concluded that Schop-pert’s conviction of a serious crime within the meaning of N.D.R. Lawyer Discipl. 4.1 is a violation of N.D.R. Lawyer Discipl. 1.2 which provides that a lawyer may be disciplined for committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. The Hearing Panel recommended Schop-pert be disbarred and pay costs of $250.

[¶ 5] The Report of the Hearing Panel was referred to the Supreme Court under N.D.R. Lawyer Discipl. 3.1F(2). The Court considered the matter, and

[¶ 6] ORDERED, the Report of the Hearing Panel and the Stipulation and Consent to Discipline are accepted, and Thomas K. Schoppert is DISBARRED from the practice of law.

[¶ 7] FURTHER ORDERED, Thomas K. Schoppert pay the costs and expenses of these disciplinary proceedings in the amount of $250, payable to the Secretary of the Disciplinary Board.

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


author: NEUMANN, Justice. MARING, Justice, VANDE WALLE,

text:
    2005 ND 48
    Michael GAMBOA, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20040128.
    Supreme Court of North Dakota.
    March 4, 2005.
    Rehearing Denied May 17, 2005.

      Ruth A. Jenny, Grand Forks, N.D., for petitioner and appellant; submitted on brief.
    Thomas H. Falck, Jr., Assistant State’s Attorney, Grand Forks, N.D., for respondent and appellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Michael Gamboa appeals from the district court’s denial of his motion for default summary judgment and dismissal of his application for post-conviction relief without a hearing. We affirm.

I

[¶ 2] In October 1996, Gamboa was convicted of Delivery of Marijuana, a class B felony, under a plea agreement. In February 2000, Gamboa admitted to parole violations at a revocation hearing and was sentenced to sixty days. On March 24, 2003, Gamboa applied for post-conviction relief, arguing ineffective assistance of counsel regarding the 1996 conviction and requesting withdrawal of his guilty plea. Gamboa relied on the clerk of court to serve the State. The application was served on the State on July 1, 2003. The State responded on July 15, 2003. Gam-boa moved for default summary judgment, arguing the State failed to timely respond to his application. The district court denied Gamboa’s motion finding the State’s response was timely. The court noted the delays were a result of a processing error in the clerk’s office.

[¶ 3] In his post-conviction relief application, Gamboa argued ineffective assistance of counsel during his 1996 plea agreement, and requested an evidentiary hearing. Gamboa argued he failed to understand the proceedings, and his attorney had a conflict of interest due to involvement with the Federal Bureau of Investigation. The district court reviewed transcripts of Gamboa’s bail hearing and subsequent hearings involving his 1996 plea and sentencing. The district court denied his request for an evidentia-ry hearing, finding he voluntarily pled guilty and understood the proceedings. The district court summarily dismissed his application for post-conviction relief. Gamboa appealed.

II

[¶ 4] Gamboa argues the district court abused its discretion in denying his motion for default summary judgment.

[¶ 5] Gamboa relies on the State’s alleged failure to comply with N.D.C.C. § 29-32.1-06(1), which provides: “Within thirty days after the docketing of an application or within any further time the court may allow, the state shall respond by answer or motion.” Id. (emphasis added). This Court has stated, “Clearly, the statute gives the court discretion to allow more than thirty days for the State to respond.” Bell v. State, 1998 ND 85, ¶ 23, 575 N.W.2d 211. The thirty-day time limit is not mandatory, but discretionary with the district court. Id. at ¶ 26.

[¶ 6] A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 17, 689 N.W.2d 366. Absent proof a petitioner was prejudiced by the delay in proceedings, refusal to grant default judgment is not an abuse of discretion. Bell, 1998 ND 35, ¶ 30, 575 N.W.2d 211.

[¶ 7] The facts in Bell are similar to this case. In Bell, the clerk’s office failed to promptly forward the application to the State’s Attorney’s office. Id. at ¶25. The State failed to respond within the statutorily prescribed thirty days and failed to timely respond to an extension granted by the court. Id. at ¶ 23. Bell moved for default judgment, which the trial court denied. Id. at ¶ 22. Like Gam-boa, Bell asserted he was prejudiced by this delay because he remained incarcerated. Id. at ¶ 29. The Court found that because Bell’s claim failed on the merits, he could not claim prejudice. Id. , In Gamboa’s case, the district court reviewed all of the transcripts from his prior proceedings involving his guilty plea and found no merit to his application.- Likewise, Gamboa failed to show he suffered any prejudice by the State’s failure to timely respond. We conclude it was not an abuse of discretion for the district court to deny Gamboa’s request for default judgment.

Ill

[¶ 8] Gamboa argues his 1996 guilty plea was involuntary because of ineffective assistance of counsel and counsel’s conflict of interest. .The State argues Gamboa’s application was- properly denied because he knowingly and voluntarily pled guilty, he failed to establish his attorney’s alleged conflict of interest, and his application was untimely.

[¶ 9] An application' under the Post Conviction Procedure Act seeking to withdraw a guilty plea is generally treated as one made under Rule 32(d), N.D.R.Crim.P. Greywind v. State, 2004 ND 213, ¶ 7, 689 N.W.2d 390. Rule 32(d), N.D.R.Crim.P., requires a timely motion for withdrawal of a guilty plea. We have not previously addressed the issue of whether a request to withdraw a guilty plea in a post-conviction relief proceeding is timely.

[¶ 10] Rule 32(d), N.D.R.Crim.P., governing the withdrawal of guilty pleas states:

(1) The court must allow the defendant to withdraw a plea of guilty whenever the defendant, on a timely motion for withdrawal, proves withdrawal is necessary to correct a manifest injustice.
(2) A motion for .withdrawal is timely if made with due diligence, considering the nature of the allegations, and is not necessarily barred because made subsequent to judgment or sentence. (Emphasis added.)

[¶ 11] Minnesota’s post-conviction statutes and rules governing withdrawal of a guilty plea are similar to North Dakota’s. Minnesota courts have analyzed the issue of untimely requests to withdraw guilty pleas in post-conviction relief proceedings.

[¶ 12] The relevant portion of the corresponding Minnesota rule, M.N.R.Crim.P. 15.05 subd. 1, is similar to Rule 32(d), N.D.R.Crim.P.:

To Correct Manifest Injustice. The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Such a motion is not barred solely because it is made after sentence. (Emphasis added.)

[¶ 13] Considering a request to withdraw a guilty plea, the Minnesota Supreme Court stated, “Criminal defendants do not have an absolute right to withdraw a guilty plea, but may withdraw a guilty plea after sentencing upon a timely motion and proof to the satisfaction of the court that withdrawal of the plea is necessary to correct a manifest injustice.” Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998) (citations omitted). Like North Dakota’s post-conviction statutes, timeliness is not required by the Minnesota post-conviction statutes but, “it is a factor to be considered when determining whether relief should be granted.” Sykes v. State, 578 N.W.2d 807, 814 (Minn.Ct.App.1998). See, e.g., Winding v. State, No. C6-01-1944, 2002 WL 768482, at * 2, 2002 Minn.App. LEXIS 454, at *5 (Minn.Ct.App. April 30, 2002) (denying relief as untimely when defendant waited six years, without excuse, to petition for post-conviction relief); Spike v. State, No. Cl-01-1737, 2002 WL 1163578, at * 2, 2002 MinmApp. LEXIS 630, at *7 (Minn.Ct.App. June 4, 2002) (denying relief as untimely when defendant waited for three years); Wilson v. State, No. C0-02-346, 2002 WL 31056960, at * 3, 2002 Minn. App. LEXIS 1047, at *10 (Minn.Ct.App. Sept.17, 2002) (denying relief as untimely when defendant waited for nine years); State v. Lopez, 379 N.W.2d 633, 636 (Minn.Ct.App.1986) (denying request to withdraw guilty plea as untimely eleven months after sentencing).

[¶ 14] Failure to timely bring a motion to withdraw a guilty plea “raises questions about the motion’s legitimacy.” Spike, 2002 WL 1163578, at * 2, 2002 Minn.App. LEXIS 630, at *6-7. The doubt is intensified when the petitioner does not challenge the guilty plea until the sentence is executed after a probation violation. Id.

[¶ 15] Gamboa did not challenge the voluntary nature of his guilty plea even after his sentence was executed following a probation violation in February 2000. He failed to file either a direct appeal or a petition for post-conviction relief for more than six years after his guilty plea, until he was sentenced by a federal court to a term in excess of life. Gamboa’s request to withdraw his guilty plea is untimely under Rule 32(d) N.D.R.Crim.P. Accordingly, we affirm the dismissal of Gamboa’s application for post-conviction relief.

[¶ 16] DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ., concur.

MARING, Justice,

concurring in the result.

[¶ 17] I respectfully concur in the affir-mance of the dismissal of Gamboa’s application for post-conviction relief. I, however, would affirm based on the reasoning of the trial court that Gamboa failed to establish any facts from which any inference of ineffective assistance of counsel could be drawn, and not based on the untimeliness of Gamboa’s request to withdraw his guilty plea in this post-conviction relief proceeding.

[¶ 18] Although timeliness was an issue raised by the State, it was raised only in a conclusory manner without adequate briefing. I would prefer to address the issue of dismissal of post-conviction relief based on untimeliness where the issue had been squarely raised and fully briefed by the State and the defendant.

[¶ 19] The American Bar Association recently published a report based on research and testimony gathered from 22 states about the delivery of legal representation to indigent defendants in their respective jurisdictions. Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, American Bar Association Standing Committee on Legal Aid and Indigent Defendants (December 2004). The report states, “[a]ll too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring.” The report notes that as of December 2004, the Innocence Project lists 154 people, convicted in 31 different states and the District of Columbia, who served a total of 1,800 years in prison for crimes they did not commit. DNA- evidence exonerated each of these individuals between 1989 and 2004. The report also cites the problem of “meet’em and plead’em lawyers,” where lawyers in some states often negotiate a plea agreement the first day they meet their clients.

[¶ 20] Because of the fact the legislature has not provided a time limit on application for post-conviction relief, consideration of this recent study, the lack of adequate briefing, and the dearth of other jurisdictions moving in the direction the majority wants to take our Court, I concur in the result only.

[¶ 21] MARY MUEHLEN MARING

VANDE WALLE,

Chief Justice, concurring specially.

[¶ 22] I understand Justice Maring’s concern over the issue of timeliness and join in that concern insofar as it involves general post-conviction proceedings. However, in the instance of a motion to withdraw a plea of guilty, we have, as the majority notes, generally treated it as one made under Rule 82(d), N.D.R.Crim.P. Greywind v. State, 2004 ND 213, ¶ 7, 689 N.W.2d 390. Because Rule 32 has a timeliness requirement I agree with the majority opinion that we can consider timeliness although, as Justice Maring notes, I would have preferred that the issue had been adequately briefed and argued.

[¶ 23] I am more concerned that the majority opinion will be used as precedent for applying a timeliness requirement to other post-conviction proceedings for which there is no timeliness requirement. As Justice Maring also notes, there is no timeliness requirement in N.D.C.C. ch. 29-32.1. Significantly, in McGuire v. Warden of State Farm, 229 N.W.2d 211, 215 (N.D.1975), in responding to an argument attacking the constitutionality of the post-conviction act as a restriction on the right to habeas corpus, this Court concluded the statutes are not less favorable to the accused than the habeas corpus provisions:

If the provisions of the Uniform Post-Conviction Procedure Act were less favorable to the accused than the constitutional right of habeas corpus, we would necessarily have to hold the Uniform Post-Conviction Procedure Act to that extent unconstitutional, in view of the peremptory mandate of the Constitution of North Dakota, Section 5, that:
“The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require.”

[¶ 24] The Constitution has since been amended and the provision relied upon in McGuire is now found in Article I, Section 14. See also Jensen v. State, 373 N.W.2d 894 (N.D.1985) (concluding post-conviction procedure act was never intended to wholly replace habeas corpus.) Thus the Legislature and this Court necessarily must exercise caution in limiting the rights of defendants to bring post-conviction proceedings lest those restrictions create issues concerning the constitutionality of the post-conviction process.

[¶ 25] GERALD W. VANDE WALLE, C.J.


author: SANDSTROM, Justice.

text:
    2005 ND 49
    Gregory Clifford KAISER, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20040135.
    Supreme Court of North Dakota.
    March 4, 2005.
    Monty Grant Mertz, Fargo, N.D., for petitioner and appellant.

      Birch Peterson Burdick, State’s Attorney, Fargo, N.D., for respondent and ap-pellee.
   SANDSTROM, Justice.

[¶ 1] Gregory Clifford Kaiser appealed from a judgment dismissing his application for post-conviction relief. We conclude Kaiser should have been afforded an opportunity to respond to the State’s motions, and we reverse and remand.

I

[¶ 2] Kaiser and the two attorneys representing him in two criminal cases signed a plea agreement providing, in part, that Kaiser “will voluntarily plead guilty because he is in fact guilty” of attempted murder and burglary and admits “there is a factual basis in that [he] did commit the stated erime(s).” The plea agreement states that Kaiser and his attorneys agree that Kaiser’s “plea of guilty to the charges in Paragraph 1 above is voluntary,” and that Kaiser “is satisfied with the representation of his attorneys.” The plea agreement also contains the following paragraph:

15. Defendant is aware of the right to appeal under North Dakota law. Defendant hereby knowingly and voluntarily waives any right to appeal, including any right to appeal the court’s entry of judgment against him and defendant waives any right to appeal the imposition of sentence upon him by the court. Defendant further knowingly and voluntarily waives all rights to contest the conviction or sentence in any post-conviction proceeding under North Dakota law. Therefore, defendant understands that any appeal or other post-conviction relief that he might seek should be summarily dismissed by the court in which it is filed.

[¶ 3] On February 6, 2004, Kaiser applied for post-conviction relief, asserting the conviction was obtained under an unconstitutional statute or his conduct was constitutionally protected, and the court lacked jurisdiction. Kaiser further asserted he was denied effective assistance of counsel, his guilty plea was unlawfully induced or not voluntary, the conviction was obtained by use of a coerced confession, and the conviction was obtained by the prosecution’s unconstitutional failure to disclose favorable evidence. On March 8, 2004, the State moved (1) for dismissal under N.D.C.C. § 29-32.1-06; (2) for summary disposition under N.D.C.C. § 29-32.1-09; (3) to supplement the record; and (4) for specific performance of Paragraph 15 of the written plea agreement. Without waiting for Kaiser to respond to the State’s motions, the district court issued a memorandum opinion and order dismissing Kaiser’s application for post-conviction relief, granting the State’s motion for dismissal, granting the State’s motion to supplement the record, and ordering “paragraph 15 of the Rule 11 Plea Agreement is active and in effect.” A judgment in accordance with that memorandum opinion and order was entered on March 17, 2004.

[¶ 4] Kaiser appealed, contending the district court erred in dismissing his application, asserting he should have been given 30 days to respond to the State’s motions and he should have been afforded an evidentiary hearing.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 29-32.1-03. The appeal was timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 6] Section 29-32.1-06(2), N.D.C.C., provides:

The state may move to dismiss an application on the ground that it is evident from the application that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings. In considering the motion, the court shall take account of substance regardless of defects of form.

Section 29-32.1-09, N.D.C.C., provides:

1. The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.
2. If an evidentiary hearing is necessary, the court may determine which issues of material fact are in controversy and appropriately restrict the hearing.

[¶ 7] “The explicit purpose of the Uniform Posi>-Convietion Procedure Act is to provide a method to develop a complete record to challenge a criminal conviction.” Eagleman v. State, 2004 ND 6, ¶4, 673 N.W.2d 241. “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” State v. Steen, 2004 ND 228, ¶ 8, 690 N.W.2d 239. “We ordinarily review an appeal from a summary denial of post-conviction relief in the same way that we review appeals from summary judgment.” Johnson v. State, 2004 ND 130, ¶ 5, 681 N.W.2d 769.

[¶ 8] A court may not dismiss an application for post-conviction relief under N.D.C.C. § 29-32.1-09(1) without affording the applicant 30 days after service of the State’s brief within which to respond to the State’s motion for summary disposition. Johnson, 2004 ND 130, ¶¶ 5-6, 681 N.W.2d 769. In Johnson, the appellant applied for post-conviction relief, the State filed a responsive brief, and the trial court denied the application without waiting for a response from the applicant. Johnson, at ¶ 6. On appeal, we held:

Because post-conviction relief proceedings are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties, see Vandeberg v. State, 2003 ND 71, ¶5, 660 N.W.2d 568, Johnson, under N.D.R.Civ.P. 56(c), should have been afforded 30 days after service of the State’s brief within which to serve and file an answer brief and supporting papers in opposition to the request for summary disposition.

Johnson, at ¶ 6. A dismissal of an application for post-conviction relief without a hearing is a summary denial, whether based on N.D.C.C. § 29-32.1-06(2) or N.D.C.C. § 29-32.1-09. The State has not advanced any persuasive reason why a dismissal under N.D.C.C. § 29-32.1-06(2) should, on appeal, be treated differently from a dismissal under N.D.C.C. § 29-32.1-09.

[¶ 9] In Johnson, 2004 ND 130, ¶ 6, 681 N.W.2d 769, we “treat[ed] the district court’s decision -as a dismissal of the application on the pleadings under N.D.R.Civ.P. 12(b)(vi).” We cannot do that in this case, because the State submitted, and the district court relied on, matters in addition to the application. Here, the State submitted with its motions a brief, a copy of the plea agreement, a partial transcript of the proceeding in which Kaiser appeared with his attorneys and pleaded guilty, and affidavits of the two attorneys who had represented Kaiser in the criminal proceedings. Rule 12(b), N.D.R.Civ.P., provides, in part:

If, on a motion asserting defense numbered (vi), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties must be given reasonable opportunity to present all material made pertinent to the motion by Rule 56.

Under N.D.R.Civ.P. 56(c), a motion for summary judgment “and supporting papers must be served at least 34 days before the motion may be heard” and “[t]he adverse party shall have 30 days after service of a brief within which to serve and file an answer brief and supporting papers.” Thus, we conclude that Kaiser, “under N.D.R.Civ.P. 56(c), should have been afforded 30 days after service of the State’s brief within which to serve and file an answer brief and supporting papers.” Johnson, at ¶ 6.

[¶ 10] In light of our conclusion that the trial court should have afforded Kaiser 30 days within which to respond to the State’s motions and brief, we need not address other matters the parties have raised.

Ill

[¶ 11] The judgment is reversed, and the matter is remanded for further proceedings in accordance with this opinion.

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