author: NEUMANN, Justice.

text:
    2003 ND 160
    Kathy L. RALSTON, n/k/a Kathy Pedersen, Plaintiff and Appellee, v. Robert Rex RALSTON, Defendant and Appellant.
    No. 20030104.
    Supreme Court of North Dakota.
    Oct. 23, 2003.
    Kevin J. Chapman of Chapman Law Office, Williston, for defendant and appellant; submitted on brief.
    H. Malcolm Pippin of Nilles, Hansen & Davies, Ltd, Williston, for plaintiff and ap-pellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Robert Rex Ralston appeals from orders denying his request to require Kathy Pedersen to obtain court permission before changing the residence of their minor child from North Dakota to Montana. We affirm, concluding the district court properly held N.D.C.C. § 14-09-07(2) applied. Pedersen was not required to obtain court permission because Ralston had moved to another state and resided more than .fifty miles away from Pedersen at the time she wanted to change the residence.

[¶ 2] Robert Rex Ralston and Kathy Ralston, now known as Kathy Pedersen, were married and have a child. Divorce proceedings were initiated in March 1999. Both parties resided in Williston, North Dakota, at that time. Ralston moved to Brockton, Montana, before the divorce decree was entered in January 2001. Brock-ton is approximately ninety miles from Williston. After Ralston moved to Brock-ton, the parties negotiated a settlement agreement and the divorce decree was entered on January 26, 2001. The parties agreed to joint legal custody with Peder-sen having primary physical custody and Ralston receiving liberal visitation.

[¶ 3] In January 2003, Pedersen notified Ralston of her intent to relocate to Helena, Montana with their child. Ralston moved the district court to determine whether Pedersen needed a court order or written consent under N.D.C.C. § 14-09-07 before she could change their child’s residence. In an order dated February 24, 2003, the district court determined Pedersen was not required to obtain court permission or written consent before moving the child to Montana. The district court applied N.D.C.C. § 14-09-07(2), finding Ralston had moved to another state and resided more than fifty miles away at the time Pedersen desired to change their child’s residence to Montana. Ralston moved to vacate this order. The district court reaffirmed its earlier decision in a March 6, 2003 order. Ralston appeals.

[¶ 4] Ralston argues the district court misinterpreted N.D.C.C. § 14-09-07 and, in doing so, frustrates the stated goal of the statute. Pedersen requests costs and attorney’s fees on grounds that Ralston’s appeal has no basis.

[¶ 5] Statutory interpretation is a question of law fully reviewable on appeal. McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666. The Court’s primary objective is to ascertain legislative intent, which must be sought initially from the language of the statute. Western Gas Resources v. Heitkamp, 489 N.W.2d 869, 871 (N.D.1992). In construing a statute, words are to be understood in their ordinary sense. N.D.C.C. § 1-02-02. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05; Hilton v. N.D. Educ. Ass’n, 2002 ND 209, ¶ 10, 655 N.W.2d 60.

[¶ 6] Generally, a custodial parent may not change the residence of a minor child to another state without a court order. N.D.C.C. § 14-09-07. However, an order is not required if the noncustodial parent consents to the change, or if the noncustodial parent “has moved to another state and is more than fifty miles [80.47 kilometers] from the residence of the custodial parent.” N.D.C.C. § 144)9-07(2).

[¶ 7] Ralston argues N.D.C.C. § 14-09-07 is clear and unambiguous. He contends he has not moved since the divorce decree was entered. Therefore, Ral-ston argues the exception to the statute, set forth in N.D.C.C. § 14-09-07(2), does not apply to him. When a statute is clear and unambiguous, it will not be “interpret[ed] ... as though language not present should have been added.” Bouchard v. Johnson, 555 N.W.2d 81, 83 (N.D.1996). In its order, the district court stated, “at the time that [Pedersen] desired to change the residence of the minor child ... [Ral-ston] had moved to another state and resided more than fifty miles from the custodial parent.” Ralston states he has not moved since entry of the decree and therefore should not be considered to have moved to another state within the meaning of N.D.C.C. § 14-09-67(2). According to Ralston, the district court has added additional language to the statute by including “at the time” in its order. However, it is Ralston’s argument that adds language to the statute. He argues the statute requires the custodial parent to obtain court permission unless the noncustodial parent has moved since entry of the custody order. We disagree.

[¶8] Ralston’s move prior to January 1, 2001, placed him within the ambit of N.D.C.C. § 14-09-07(2). The district court properly concluded Pedersen was not required to obtain a court order or written permission from Ralston before changing the residence of their child. The language of the statute is clear and unambiguous. The statute requires a court order unless the noncustodial parent “has moved to another state.” N.D.C.C. § 14-09-07(2). Application of the statute does not depend on the date of the noncustodial parent’s move. The statute only requires that the noncustodial parent’s change in residence must have previously occurred. Any move by the noncustodial parent is relevant if it occurred before the custodial parent’s decision to change residence of the minor child, regardless of whether the move occurred before or after the decree was entered. Ralston has moved within the meaning of N.D.C.C. § 14-09-07(2).

[¶ 9] Pedersen argues Ralston’s appeal is frivolous, therefore she is entitled to attorney’s fees and costs under N.D.R.App.P. 38. Based on this record, relief under Rule 38, N.D.R.App.P., is not warranted. Pedersen’s request is denied.

[¶ 10] We affirm the district court’s orders denying Ralston’s request to require Pedersen obtain a court order or written consent before changing the residence of their minor child.

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


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2003 ND 156
    Kuljit GREWAL, Plaintiff and Appellant, v. NORTH DAKOTA ASSOCIATION OF COUNTIES AND NORTHWEST CONTRACTING, INC., Defendants and Appellees.
    No. 20030099.
    Supreme Court of North Dakota.
    Oct. 23, 2003.

      Irvin B. Nodland, Irvin B. Nodland, Bismarck, ND, for plaintiff and appellant.
    Curtis L. Wike, Fleck, Mather & Strutz, Bismarck, ND, for defendants and appel-lees.
   SANDSTROM, Justice.

[¶ 1] Kuljit Grewal appealed from a summary judgment dismissing his negligence action against Northwest Contracting, Inc., and the North Dakota Association of Counties. We affirm the dismissal of Grewal’s action against the Association of Counties, reverse the dismissal of his action against Northwest Contracting, and remand for further proceedings.

I

[¶ 2] In 1988, Grewal purchased a tract of land in northeast Bismarck. When Gre-wal purchased his land, the lot immediately to the west of his land was vacant. The elevation of Grewal’s land was lower than the vacant lot, and on the vacant lot near the boundary with Grewal’s land, there was an elevated area that the parties have referred to as “stockpiles.” According to Grewal, the “stockpiles” formed a natural drainage barrier between the two lots and facilitated water drainage onto an adjacent Bismarck street. Between 1990 and 1998, Grewal built four apartment buildings on his land and had a concrete retaining wall built on the west edge of his land next to the vacant lot.

[¶ 3] In 1999, the Association of Counties purchased the vacant lot to the west of Grewal’s land. The Association of Counties contracted with AWBW, Inc., for architectural services to plan and design an office building on the land. The Association of Counties contracted with Northwest Contracting for construction of the office building, and Northwest Contracting subcontracted with Allan Dukart, doing business as DDR, for excavation, backfill, compaction, and landscaping for the building. During the course of the excavation and landscaping, the “stockpiles” were removed from the Association of Counties’ property. In June 2001, after the “stockpiles” had been removed and while construction of the building was ongoing, a severe rainstorm resulted in excessive water and mud runoff from the construction site onto Grewal’s land. Grewal claims the runoff destroyed the retaining wall and deposited mud on his property.

[¶ 4] Grewal sued the Association of Counties and Northwest Contracting, alleging Northwest Contracting failed to properly safeguard his property when it altered and modified the existing water drainage topography, causing excessive runoff onto his property. Grewal claimed the Association of Counties was liable for damage caused by its agents and for its own negligent acts in failing to safeguard his property from excessive runoff during the construction work, and Northwest Contracting was liable for damage caused by its negligent construction on the property.

[¶ 5] The trial court granted summary judgment dismissing Grewal’s action. The court concluded Grewal had failed to raise a genuine issue of material fact as to whether the Association of Counties retained control over the work done by Northwest Contracting. The court also concluded Grewal failed to present evidence to show Northwest Contracting retained control over DDR’s excavation work and Grewal provided no evidence that Northwest Contracting actually directed DDR in the manner, method, or operative details of the work. Grewal appealed.

[¶ 6] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Grewal’s appeal is timely under N.D.R.App.P. 4(a)(1). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 7] We review this appeal under our standards for summary judgment, which is a procedure for the prompt resolution of a controversy on the merits without a trial if the evidence demonstrates there are no disputed issues of material fact or inferences to be drawn from undisputed facts, and if the evidence shows a party is entitled to judgment as a matter of law. Bender v. Aviko, 2002 ND 13, ¶ 4, 638 N.W.2d 545. Whether a trial court properly grants summary judgment is a question of law, which we review de novo on the entire record. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. A party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding the existence of a material fact. Id. at ¶ 9. On appeal, we view the evidence in the light most favorable to the party opposing the motion. Id. at ¶ 8. A party resisting a motion for summary judgment may not simply rely on unsupported and conclusory allegations or denials in the pleadings; rather, that party must set forth specific facts, whether by affidavit or by directing the court to relevant evidence in the record demonstrating a genuine issue of material fact. Lawrence v. Roberdeau, 2003 ND 124, ¶ 7, 665 N.W.2d 719.

III

[¶ 8] Grewal argues the trial court erred in granting summary judgment, because the Association of Counties and Northwest Contracting retained control over the construction site and were liable for any damage caused by their own negligence or the negligence of their subcontractor.

[¶ 9] Negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Gullickson v. Torkelson Bros., Inc., 1999 ND 155, ¶7, 598 N.W.2d 503. To establish a cause of action for negligence, a plaintiff must show the defendant has a duty to protect the plaintiff from injury. Pechtl v. Conoco, Inc., 1997 ND 161, ¶ 7, 567 N.W.2d 813. Whether a duty exists is generally a preliminary question of law for the court to decide. Id. If, however, the existence of a duty depends upon the resolution of factual issues, the facts must be resolved by the trier of fact. Id.

[¶ 10] Under North Dakota law, an employer of an independent contractor generally is not liable for the acts or omissions of the independent contractor. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 14, 623 N.W.2d 382. However, Restatement (Second) of Torts § 414 (1965) provides an employer may be liable for an independent contractor’s work if the employer retains control over the independent contractor’s work:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

[¶ 11] The duty created by Section 414 may arise through an express contractual provision retaining the right to control some part of the operative details of the independent contractor’s work, or through the employer’s actual exercise of retained control of the work. Rogstad, 2001 ND 54, ¶ 16, 623 N.W.2d 382. Gre-wal does not rely upon any express contractual provisions for retained control of some part of the operative details of the independent contractor’s work. Rather, he relies upon the employer’s actual exercise of control of the work and argues the retained control exception is clearly applicable to this case.

[¶ 12] In Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 448 (N.D.1994), this Court explained the degree of retained control necessary to impose a duty on an employer of an independent contractor:

The liability created by Section 414 arises only when the employer retains the right to control the method, manner, and operative detail of the work; it is not enough that the employer merely retains the right to inspect the work or to make suggestions which need not be followed. Comment c to Section 414 explains the difference:
“In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.”

A

[¶ 13] Grewal claims the Association of Counties had plans and specifications for construction of the office building prepared and those plans included removing the stockpiles. He argues his damages were caused by negligence designed into the plans provided by the Association of Counties. He also argues the Association of Counties retained control over the work-site and was hable for any damage caused by its own negligence or its subcontractor’s negligence.

[¶ 14] According to an affidavit of Mark Johnson, the executive director of the Association of Counties, the Association of Counties contracted with AWBW to design the building and with Northwest Contracting to construct the building, because the Association of Counties was not in the business of designing and constructing buildings. According to Johnson, the Association of Counties did not direct or control the method and manner of the work of either AWBW or Northwest Contracting, and the method and manner of excavation, backfill, trenching, or compaction was not directed by the Association of Counties. According to an affidavit of Jerry Splonskowski, the secretary of Northwest Contracting, the Association of Counties provided no labor or materials for the work and did not control the method or manner of the work of Northwest Contracting or any subcontractors.

[¶ 15] Grewal has not presented any competent admissible evidence by affidavit or other comparable means to raise a factual dispute as to whether the Association of Counties controlled the method, manner, and operative details for the plans and design for the building, or for the work at the construction site. A party resisting a motion for summary judgment may not simply rely upon pleadings or unsupported allegations; rather, the resisting party must present competent admissible evidence by affidavit or other comparable means raising an issue of material fact. Rogstad, 2001 ND 54, ¶ 10, 623 N.W.2d 382. We conclude Grewal failed to raise a disputed factual issue regarding his claim against the Association of Counties, and we affirm the summary judgment dismissal of that claim.

B

[¶ 16] Grewal claims the plans for the building created a condition that exposed his property to damage and Northwest Contracting had a duty to take necessary steps to prevent damage to his property. Grewal also claims Northwest Contracting retained control over the worksite and negligently supervised the manner and means by which DDR performed its work.

[¶ 17] Grewal’s complaint alleged:

In the course of construction work performed on Association of Counties’ property, Northwest Contracting failed to properly safeguard Grewal’s property when it altered and modified the existing water drainage topography and patterns in such a manner as to cause excessive run-off from rains in an amount and pattern that would not have happened had said alternation [sic] and modifications not taken place or had it taken proper steps during construction.
Defendant Northwest Contracting is hable to plaintiff for damage caused by its negligent acts in the manner in which it performed construction work on the property of Association of Counties.

[¶ 18] To the extent Grewal argues the design and plans created a condition that exposed his property to damage, he has not presented any legal or factual basis to support that claim against Northwest Contracting. Grewal’s claim regarding control of the construction site, however, requires a different analysis.

[¶ 19] According to Splonskowski, Northwest Contracting did not direct or control the means and manner of the work of DDR other than to monitor DDR’s compliance with the plans and specifications for the work. Grewal nevertheless argues the deposition testimony of Northwest Contracting’s foreman, Robert Holzer, raises a factual issue regarding the applicability of the retained control exception to Northwest Contracting:

Q. Can you give us a little bit of an idea of what your job responsibilities as a foreman entail?
A. To run the job, to make sure the subs are there, and build the building.
Q. And were you a foreman during the entire construction period?
A. Yes.
Q. Can you describe for us a little bit of what site construction — excavations— what site preparation had to go on before construction of the building could—
A. We removed some spill piles that were there, and that had to be staked, had it staked out and started digging the hole.
Q. Okay. Were you the overseer or foreman as far as the site preparation was concerned?
A. Yep.
Q. Okay. So did you have supervisory powers over DDR?
A. Yeah.
Q. You gave them instructions as to what to do?
A. Mm-hmm — yes.
Q. Did they also have the loaders — the front-end loaders, or whatever was used to load the trucks, did they also belong to DDR?
A. Yes.
Q. But you gave them instructions as to what was to be excavated and to what level it was to be excavated — that sort of thing?
A. Yes.
Q. Well, when you are acting as a foreman here, one of the considerations, is it not, is that you must be concerned about whether or not what you’re doing and how you’re directing the project might affect people who have surrounding property?
A. Yes.
Q. Did you take any steps, yourself, from the directions that you gave to D <& D[sic] or to others, that were specifically intended to assure that there was no damage to adjacent landowners?
A. No; but we also didn’t do anything to make any excessive run-off, or anything, to the properties, either.

[¶ 20] Under ordinary negligence principles, an independent contractor or subcontractor may be liable for its own negligence to all who may be foreseeably injured by the conditions at a construction site during construction. See Fettig v. Whitman, 285 N.W.2d 517, 520-21 (N.D.1979), overruled on other grounds, Shark v. Thompson, 373 N.W.2d 859, 867-69 (N.D.1985); Ruehl v. Lidgerwood Rural Tel. Co., 23 N.D. 6, 16, 135 N.W. 793, 795-96 (1912). See generally W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 104A, at pp. 722-25 (5th ed.1984); 2 Norman Landau & Edward Martin, Premises Liability § 7.04[1] (2003); 41 Am.Jur.2d, Independent Contractor § 65 (1995). In the context of this case, Northwest Contracting or DDR could be liable if they left the construction site in a condition such that it was foreseeable that a rainstorm would result in rain and mud runoff damaging Grewal’s property.

[¶ 21] In ANG, 522 N.W.2d at 448, this Court said it was not enough for the employer to have a general right to order the work stopped or resumed, to inspect its progress, or to receive reports or other rights generally reserved to employers, but the degree of control must be such a retention of the right of supervision of operative details that the independent contractor is not entirely free to do the work in his own way. Although Northwest Contracting claims Holzer’s deposition testimony was explained in a subsequent affidavit, viewed in the light most favorable to Grewal, Holzer’s testimony raises an inference that Northwest Contracting retained a right of supervision of the operative details of the construction site to the degree necessary to impose a duty on Northwest Contracting. We conclude Grewal has raised a factual dispute regarding the degree of control of the construction site sufficient to implicate the retained control exception for Northwest Contracting. We therefore reverse the summary judgment dismissal of Grewal’s claim against Northwest Contracting and remand for further proceedings.

IV

[¶ 22] We affirm the summary judgment dismissing Grewal’s action against the Association of Counties, reverse the summary judgment dismissing his action against Northwest Contracting, and remand for further proceedings.

[1123] GERALD W. VANDEWALLE, C.J., WILLIAM A. NEUMANN, CAROL RONNING KAPSNER, WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 154
    Debbie IGLEHART, as the surviving Spouse of Joseph Iglehart, Deceased, for herself and on behalf of Ariel Iglehart, the minor Daughter of Joseph Iglehart, and as Personal Representative of the Estate of Joseph Iglehart, deceased, Plaintiff and Appellant, v. James P. IGLEHART, Defendant and Appellee.
    No. 20030063.
    Supreme Court of North Dakota.
    Oct. 23, 2003.

      Steven L. Latham, Wheeler Wolf, Bismarck, ND, for plaintiff and appellant.
    Jay H. Fiedler, Pearson Christensen, Grand Forks, ND, for defendant and ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Debbie Iglehart appealed from summary judgment dismissing her negligence action arising out of Joseph Igle-hart’s death. We affirm.

I

[¶2] Joseph Iglehart (“decedent”) suffered severe burns and died of asphyxiation after he was buried by rotten corn inside a Harvestore silo on April 26, 1999. His wife Debbie Iglehart brought a wrongful death action against James Iglehart, decedent’s father and business partner, for herself and on behalf of the couple’s daughter. She also brought a survival action as the personal representative of decedent’s estate. Debbie Iglehart alleged decedent’s death was caused by his father’s negligence, which included but was not limited to failing to warn decedent of the dangers of the work he was performing, failing to provide a safe workplace and equipment, and negligently selecting the manner of work he was performing.

[¶ 3] Decedent began working on his father’s farm when he was five years old. His chores included cleaning out the Harvestore silos located on the farm. After he attended diesel mechanic school, he returned to the farm. Father and son formed several partnerships and joint ventures. J & J Cattle, LLP, was one of the partnerships. James Iglehart was the managing partner and all net profits and losses were allocated in proportion to each partner’s interest.

[¶ 4] James Iglehart purchased the Harvestore silo in which decedent died from Laverne Schaefer of Bobcat of Man-dan in 1972. The silo contained a warning above the approximately twenty inch by thirty inch door, which stated: “Danger. Do not enter. Not enough oxygen to support life.” The door was located about three feet above the ground. In 1998, decedent and James Iglehart began using an auger to remove corn from the silo in order to feed their cattle. The unloader in the silo was used to bring corn to the auger, and the auger was used to load it into a wagon. However, that winter the unloader quit working so they simply opened the silo door and let the corn run out. As a result, the silo developed a dent because corn began to rot and stick to the inside of the silo. Decedent discussed this problem with Schaefer, and Schaefer warned him not to enter the silo because the material might fall on him.

[¶ 5] Decedent told his brother Tom Iglehart about the dent. Tom Iglehart subsequently looked inside the silo and saw corn stuck on the sides. He stated in a deposition that what he saw “spooked [him] bad” and he warned decedent not to enter the silo. At a family wedding the weekend before decedent died, he told his brother-in-law Christopher Steckler that he was going to remove the rotten corn stuck to the side of the silo. According to Steckler’s deposition testimony, Steckler suggested alternative methods to remove the corn and he and others told him not to go into the silo.

[¶ 6] A few days before his death, decedent had a conversation regarding the silo with John Iglehart and John Iglehart’s daughter, Kathy Kovarik. In his affidavit, John Iglehart stated he told decedent it was dangerous to go into the silo. Kathy Kovarik’s affidavit stated decedent was well aware of the dangers of entering the silo. Decedent’s sister, Jean Graeber, also stated in an affidavit that he knew the dangers of entering a silo because, in the past, he had warned her not to go into a silo.

[¶ 7] Decedent died on April 26, 1999. That afternoon he intended to go to the bank, but his wife told him it was unlikely anyone at the bank would see him so late in the afternoon. Instead, he went to the farm around 3:15 p.m. He was not home by supper that evening. His body was found buried in the silage with his leg sticking out toward the door of the silo. No tools of any kind were found with him, and he had not spoken to his father that day. His father had recently purchased a “grain vac,” which could have been used to clean out the rotten corn. However, on the day decedent died, the grain vac was still located at the farm where it was purchased, approximately six miles away.

[¶ 8] Based on these facts, James Igle-hart moved for summary judgment. The district court granted his motion and dismissed the case with prejudice because there were no issues of material fact and he was entitled to judgment as a matter of law.

II

[¶ 9] Whether summary judgment was properly granted is “a question of law which we review de novo on the entire record.” Wahl v. Country Muh Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689.

Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. Issues of fact may become questions of law if reasonable persons could reach only one conclusion from the facts. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden of proof at trial.

Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 28, 655 N.W.2d 60 (citations omitted). The evidence is reviewed in a light most favorable to the party opposing the motion, and that party receives the benefit of all inferences that can reasonably be drawn from the evidence. Trinity Health v. North Central Emergency Services, 2003 ND 86, ¶ 15, 662 N.W.2d 280.

[¶ 10] This Court has stated:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (quoting Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991) (citations omitted)). Additionally, mere speculation is not enough to defeat a motion for summary judgment. BTA Oil Producers v. MDU Res. Group, Inc., 2002 ND 55, ¶ 49, 642 N.W.2d 873. A scintilla of evidence is not sufficient to support a claim, there must be enough evidence for a reasonable jury to find for the plaintiff. Wishnatsky v. Huey, 1998 ND APP 8, ¶ 5, 584 N.W.2d 859 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

[¶ 11] Actionable negligence consists of a duty, breach, and an injury that was proximately caused by the breach. Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996). Negligence actions are generally not appropriate for summary judgment because they involve issues of fact. Kimball v. Landeis, 2002 ND 162, ¶ 7, 652 N.W.2d 330. However, the existence of a duty is usually a preliminary question of law, unless it depends on facts that must be determined by the fact finder. Diegel, at 370 (citing Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 406 (N.D.1994) and Rawlings v. Fruhwirth, 455 N.W.2d 574, 577 (N.D.1990)).

Ill

[¶ 12] Debbie Iglehart asserts several theories regarding a duty James Iglehart owed to decedent. She claims he owed a duty similar to that between an employer and an employee, a lessor and a lessee, and an owner of land and an entrant. There is scant, if any, evidence of the several theories of relationships she advances. Perhaps the most logical relationship would be that of lessor-lessee. However, “[generally, the common law imposes upon landlords no liability to their tenants or other entrants for injuries due to dangerous conditions on the leased premises.” Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733, 740 (N.D.1988) (applying the common law to an agricultural lease).

Except as stated in §§ 357 and 360-362, a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or subles-see for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession.

Restatement (Second) of Torts § 355 (1965); see also Avron v. Plummer, 132 N.W.2d 198, 207 (N.D.1964) (quoting Restatement of the Law, Torts, § 355 (1948 Supp.)). Sections 360-362 deal with partial leases of land and negligent repairs by the lessor and do not appear to apply to this case. Section 357 states:

A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
(c) the lessor fails to exercise reasonable care to perform his contract.

Therefore, if James Iglehart leased the silo to the partnership or to decedent, he could, under these facts, have had a duty to repair it if he contracted to do so.

[¶ 13] However, Debbie Iglehart does not point to any evidence from which we can conclude James Iglehart owed decedent a duty as a lessor of the silo, and an examination of the record reveals no evidence he owed a duty to repair the silo. The record does not contain any lease agreement regarding the silo. There are no facts indicating he leased the silo to the partnership and covenanted to repair it. Accordingly, we conclude he owed no duty to decedent as a lessor of the silo.

IV

[¶ 14] Employers, including agricultural employers, have a duty to exercise ordinary care to furnish employees with a reasonably safe workplace and tools. Jo- hansen v. Anderson, 555 N.W.2d 588, 591-92 (N.D.1996). An employer is “[a] person who controls and directs a worker under an express or implied contract of hire and who pays the worker’s salary or wages.” Black’s Law Dictionary 544 (7th ed.1999). Debbie Iglehart’s contention that James Iglehart owed decedent a duty similar to the duty owed to an employee by an employer is without basis in the record.

[¶ 15] James Iglehart was the managing partner of the cattle partnership, had the exclusive right to manage its affairs, and had possession of the partnership books and checking account. This does not make him decedent’s employer. There is no evidence indicating decedent considered himself an employee. Nothing in the record indicates he took orders from James Iglehart or received a salary for his work. He contributed assets to the partnership, and the partnership net profits and losses were allocated in proportion to each partner’s capital account. Additionally, although James Iglehart had many powers as the managing partner, there were limitations on those powers that do not occur in an employer-employee relationship. Under these facts, James Igle-hart was not decedent’s employer. Therefore, he did not owe decedent the duties, such as providing a safe workplace and tools, that arise out of an employer-employee relationship.

V

[¶ 16] Although James Igle-hart did not owe decedent any duty as an employer or a lessor, we consider whether he owed a duty as the owner of the silo.

Under premises liability law, a property owner must have had control over the property where an injury occurred in order to find the owner owed a duty to an injured party.... Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.

Doan v. City of Bismarck, 2001 ND 152, ¶ 13, 632 N.W.2d 815 (citations omitted). This Court no longer recognizes separate duties to lawful entrants depending on their status upon the land. O’Leary v. Coenen, 251 N.W.2d 746, 751 (N.D.1977) (applying ordinary negligence principles to both licensees and invitees). However, the likelihood of the visitor’s entry is still useful to determine the “likelihood of injury to him, and the extent of the interest which must be sacrificed to avoid the risk of injury.” Id. at 752. It is clear from the record decedent was a lawful entrant on his father’s property.

[¶ 17] Debbie Iglehart argues the trial court improperly concluded decedent assumed the risk. In its order for summary judgment, the trial court concluded:

James Iglehart had no duty to warn Joseph Iglehart of dangers which were known to him. The Court further finds that Joseph Iglehart knew the risks resulting from his actions, voluntarily encountered the same, and assumed the risk thereof and, therefore, Joseph Igle-hart’s actions were the proximate cause of his own death.

We do not interpret this as an analysis of assumption of the risk. Assumption of the risk is no longer an affirmative defense in North Dakota, but is one part of the analysis in determining comparative fault. Wentz v. Deseth, 221 N.W.2d 101, 104-05 (N.D.1974); see also N.D.C.C. § 9-10-06; 1973 N.D. Sess. Laws ch. 78, § 3. Rather, the facts are more akin to a situation involving the issue of a duty to warn of known and obvious dangers. Where conditions are known and obvious, they “cannot be viewed as pitfalls, traps or snares that would make conditions dangerous for a person exercising ordinary care.” Sternberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996) (citing Restatement (Second) of Torts § 348A (1965)). Additionally, “[a] ‘duty to warn is predicated upon the understanding that individuals who have superior knowledge of dangers posed by a hazard must warn those who lack similar knowledge; when an individual is already aware of danger, a warning is not necessary.’ ” Collette v. Clausen, 2003 ND 129, ¶ 26, 667 N.W.2d 617 (quoting 65 C.J.S. Negligence § 74 (2000)); see also Gullickson v. Torkelson Bros., Inc., 1999 ND 155, ¶ 8, 598 N.W.2d 503 (stating an “employer need not, however, warn of dangers known to the employee or obvious to and fully appreciated by the employee”). Decedent was clearly aware of the danger in this case because several people had warned him not to enter the silo. Therefore, the condition of the silo was a known danger that James Iglehart had no duty to warn decedent about.

[¶ 18] We do not hold that a warning is always sufficient to absolve a landowner of liability. However, where it is clear an injured person completely understood the dangers involved and still voluntarily encountered them, we conclude a jury could not reasonably find a landowner’s negligence caused the injuries. See Wishnatsky, 1998 ND APP 8, ¶ 5, 584 N.W.2d 859 (stating summary judgment is appropriate where a reasonable jury could reach only one conclusion); see also Olstad v. Olstad, 126 N.W.2d 795, 797 (N.D.1964) (“Clearly the defendant could not be held liable for plaintiffs injury while doing the work in a dangerous manner when the plaintiff deliberately chose to do the work in the manner in which he was performing it when the accident occurred”).

VI

[¶ 19] In response to the summary judgment motion, Debbie Iglehart did not provide competent, admissible evidence establishing a duty or showing negligence by James Iglehart. She provided information regarding her husband’s childhood, alleging he was not in the silo when he was killed, claiming it could be inferred he could not comprehend the silo’s ownership manual, stating James Iglehart was aware of decedent’s plans to remove the rotten corn, and claiming James Iglehart had exclusive authority to hire someone to repair the silo. She does not explain why her husband’s childhood is relevant here. It may be true he entered the silo as a child, but how this is material or relevant to what occurred years later and after he had gone to college and become an experienced farm worker is not explained.

[¶ 20] Debbie Iglehart claims summary judgment should not have been granted because it was not clear whether decedent was inside the silo when he died. She argues his body position indicated he was not in the silo when he was killed. She does not explain, however, how this would have any effect on a duty owed by James Iglehart or how it could establish he was negligent. She contends it could be inferred decedent could not comprehend the silo’s ownership manual at the time the silo was built because he was too young. However, he was obviously aware of the dangers of working in and around silos and she did not present any evidence regarding how the ownership manual would have assisted him.

[¶ 21] Debbie Iglehart argues James Iglehart knew decedent planned to remove the corn and had the exclusive ability to hire someone to repair it. She does not explain why this would establish a duty owed by James Iglehart to decedent. The mere fact that James Iglehart knew decedent was planning to remove the rotten corn at some future date does not establish a duty or negligence. The fact decedent originally planned to go to the bank instead of fix the silo indicates the repairs were not urgent or, at the very least, did not have to be performed that day. Decedent could have asked James Iglehart to hire someone, he could have chosen not to try to fix the problem himself, or he could have used the grain vac which was located six miles away.

[¶ 22] As Debbie Iglehart contends, there is a rebuttable presumption a decedent exercised due care for his own safety and life. Quam v. Wengert, 86 N.W.2d 741, 746-47 (N.D.1957); Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323, 329 (1949). Although James Iglehart presented evidence which may have rebutted this presumption, whether it has been rebutted is irrelevant because she still has the burden to prove he was negligent, not merely that decedent exercised due care. See Haga v. Cook, 145 N.W.2d 888, 891 (N.D.1966) (stating a “defendant’s negligence never is presumed merely from proof of the accident, but must be affirmatively established”).

[¶ 23] None of Debbie Iglehart’s claims explain why, if they are true, James Igelhart would be liable for decedent’s death. It is not this Court’s responsibility to determine why facts may be relevant or material. Anderson, 2001 ND 125, ¶ 14, 630 N.W.2d 46. Whether James Iglehart owed decedent a duty is a question of law. Diegel, 546 N.W.2d at 370. Although a question of law may depend on facts that must be determined by a fact finder, this is not the case here. See id. There have been no facts presented which would allow a jury to reasonably find either James Iglehart owed decedent a duty or James Iglehart was negligent. See Clausen, 2003 ND 129, ¶ 8, 667 N.W.2d 617 (“When no pertinent evidence on an essential element is presented to the district court in resistance to a motion for summary judgment, it is presumed no such evidence exists”). Therefore, we affirm the district court’s summary judgment dismissing Debbie Iglehart’s claims with prejudice.

[¶ 24] DALE V. SANDSTROM, CAROL RONNING KAPSNER, WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.

      . Unlike an agricultural lease, landlords of residential dwelling units must ”[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” N.D.C.C. § 47-16-13.l(l)(b).


author: MAKING, Justice.

text:
    2003 ND 158
    ALERUS FINANCIAL, N.A., a corporation, Plaintiff and Appellee, v. Timothy C. LAMB and Elizabeth Fletcher Lamb, Defendants and Appellants, Community National Bank of Grand Forks, City of Grand Forks, and University Heights Town Homes Association, Inc., Defendants.
    No. 20030106.
    Supreme Court of North Dakota.
    Oct. 23, 2003.

      Timothy C. Lamb, pro se, Grand Forks, N.D., defendants and appellants.

      Patrick W. Fisher (argued) and Troy J. LeFevre, Fisher & Olson, Grand Forks, N.D., for plaintiff and appellee.
   MAKING, Justice.

[¶ 1] Timothy C. Lamb (“Lamb”) and Elizabeth J. Fletcher Lamb appeal from a judgment granting Alerus Financial (“Alerus”) foreclosure of its mortgage on a residential property owned by Lambs. We affirm.

I

[¶ 2] Timothy and Elizabeth J. Fletcher Lamb owned property in Grand Forks, North Dakota. In 1997, the Lambs obtained two loans from the United States Small Business Administration (“the SBA”), using five pieces of Grand Forks property as collateral. The SBA assigned the notes to LLP Mortgage, Ltd. in February of 2001. In March of 2002, LLP Mortgage, Ltd.’s agent, Beal Bank, assigned the notes to Alerus. The Lambs defaulted on both notes, and Alerus commenced a foreclosure proceeding. Alerus personally served the Lambs with the Complaint, Notice of Filing, and Summons on October 16, 2002. Lamb filed his answer on November 13, 2002, six (6) days late.

[¶ 3] Alerus moved for summary judgment on December 16, 2002. Lamb failed to respond to the motion within thirty (30) days. Instead, Lamb moved for a continuance on January 21, 2003, under N.D.R.Ct. 6.1, arguing he needed more time due to other cases before the court where he was a defendant. The record eontains no Affidavit of Service by mail for Alerus’ motion for summary judgment. However, the supporting documents were signed December 13, 2002, and filed December 16, 2002. In Alerus’ Return of Motion for Continuance and Brief, it states it served the motion for summary judgment by mail on December 13, 2002. Under Rule 11(b)(3), when Alerus’ attorney signed the pleading he certified the “factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” N.D.R.Civ.P. 11(b)(3). Allowing three days for service by mail pursuant to N.D.R.Civ.P. 6(e), Lamb’s response was due January 16, 2003. Further, Lamb admitted in oral argument his Motion for Continuance was untimely. The trial court denied Lamb’s motion on January 30, 2003, concluding he showed no sufficient basis for a continuance.

[¶ 4] Lamb filed a motion for a new trial under N.D.R.Civ.P. 59(b)(4) on February 11, 2003, claiming to have new evidence he did not discover before trial. The trial court granted summary judgment to Alerus on February 20, 2003, without reference to Lamb’s motion for a new trial.

[¶ 5] Lamb requested a stay of the judicial sale pending appeal, which the trial court denied. The trial court also denied Lamb’s motion for reconsideration of his motion to stay. On April 9, 2003, the trial court denied Lamb’s motion for a new trial in the judgment and stated it had mistakenly not addressed the motion for a new trial because it had not been aware Lamb had filed the motion. Nevertheless, the trial court denied the motion on the merits, concluding there was no ground for a new trial. Lamb appeals from the summary judgment.

II

[¶ 6] Lamb argues the trial court abused its discretion when it denied his motion for a continuance because his motion was timely and the denial of a continuance cut short his time for discovery. A motion for a continuance will only be granted for good cause shown. Fahlsing v. Teters, 552 N.W.2d 87, 90 (N.D.1996). Absent an abuse of discretion, this Court will not overturn a trial court’s decision regarding a motion for a continuance. Id. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Id.

[¶ 7] Lamb incorrectly moved for a continuance under N.D.R.Ct. 6.1. The substance of Lamb’s motion requested more time to respond to Alerus’ summary judgment motion. Rule 56, which governs summary judgment, states, “the adverse party shall have 30 days after service of a brief within which to serve and file an answer brief and supporting papers.” N.D.R.Civ.P. 56. Lamb should have moved for an enlargement of time under N.D.R.Civ.P. 6(b). Even so, when looking at a pleading or motion, we 'will consider the motion’s substance rather than its title to determine the proper nature of the pleading. See Stearns v. Twin Butte Public School Dist. No. 1, 185 N.W.2d 641, 645 (N.D.1971) (holding the nature of the claim and relief sought is controlling, not the name of the pleading). Therefore, we will consider Lamb’s motion a motion for enlargement of time under N.D.R.Civ.P. 6(b).

[¶ 8] When a motion for enlargement of time is untimely, a court, in its discretion, can grant an enlargement of time only if the failure to file timely was the result of excusable neglect. N.D.R.Civ.P. 6(b)(2). As explained in Section I, Lamb’s motion for enlargement of time was untimely. Therefore, Lamb must demonstrate excusable neglect for his failure to respond by January 15, 2003, to Alerus’ motion for summary judgment.

[¶ 9] The trial court did not abuse its discretion when it determined Lamb’s motion for an enlargement of time had no sufficient basis. Lamb’s failure to respond to Alerus’ motion for summary judgment was not the result of excusable neglect. In his motion for an enlargement of time, Lamb stated, “[d]efendant has been involved in other matters before the Court and needs additional time to make an appropriate response.” In Lamb’s Brief on Appeal, he also alludes to it being the “holiday season.” The trial court concluded Lamb had no sufficient basis for a continuance. This was not an arbitrary, unreasonable, or unconscionable decision. Therefore, the trial court did not abuse its discretion when it denied Lamb’s motion for an enlargement of time. This decision would not have been an abuse of discretion even if Lamb’s motion had been timely because under Rule 6(b)(1), a trial court may grant an enlargement of time for cause shown in its discretion. N.D.R.Civ.P. 6(b)(1).

[¶ 10] Lamb claims the trial court “cut short any time for discovery” when it denied his motion for an enlargement of time. However, we note he did not make this argument to the trial court. Further, he did not move for more time under N.D.R.Civ.P. 56(f), which would have allowed him time for discovery, if needed to effectively respond to the motion for summary judgment.

III

[¶ 11] Next, Lamb argues the trial court erred when it denied his motion for a new trial under N.D.R.Civ.P. 59(b)(4), because he presented new evidence that would preclude summary judgment. Before a court may grant a new trial on the grounds of newly discovered evidence under N.D.R.Civ.P. 59(b)(4),

it must be shown: 1) the evidence was discovered following trial; 2) the movant must have exercised due diligence in discovering the evidence; 3) the evidence must not be merely cumulative or impeaching; 4) the evidence must be material and admissible; and 5) the evidence must be such that a new trial would probably produce a different result.

Johnson v. Johnson, 2001 ND 109, ¶ 6, 627 N.W.2d 779. We have long held a party must show a manifest abuse of discretion to reverse a trial court’s ruling on a motion for a new trial based on new evidence. See, e.g., Cook v. Stenslie, 251 N.W.2d 393, 396 (N.D.1977). This standard is a stronger showing of abuse of discretion. Id.

[¶ 12] Lamb does not satisfy the standard in Johnson. The evidence, which Lamb claims precludes summary judgment, is tax statements generated by Beal Bank, LLP Mortgage, Ltd.’s agent. Lamb attempts to mislead the trial court and this Court by implying these statements show he paid the notes. The tax statements establish the loans were paid in April of 2002. If Lamb had paid the notes, he would have known this when he answered the complaint in November of 2002 and when the motion for summary judgment was filed in December of 2002. Alerus’ Reply to Defendant’s Motion for a New Trial and Brief included documents showing it paid the notes when it bought them from LLP Mortgage, Ltd. Assuming Lamb had been under the impression he paid the notes or someone paid them on his behalf, Alerus’ reply indicated otherwise.

[¶ 13] In addition, under N.D.R.Civ.P. 59(b)(4), Lamb must have been unable to discover and produce the newly discovered evidence with reasonable diligence. That is not the case here. Alerus paid the notes in April of 2002. At some point before the complaint in October of 2002, Lamb must have known he was no longer making payments or receiving bills on the notes. Further, Lamb had ample opportunity to request the loan records from Beal Bank, LLP Mortgage, Ltd’s agent, or request his own banking records prior to his answer in November of 2002, and prior to January 15, 2003, the date his response to Alerus’ motion for summary judgment was due. The tax statements were in existence and could have been discovered with due diligence. ' They are not newly discovered evidence. Therefore, the trial court did not manifestly abuse its discretion when it denied Lamb’s motion for a new trial.

IV

[¶ 14] Finally, Lamb argues the trial court erred when it granted summary judgment to Alerus and erred entering judgment of foreclosure because the action violated N.D.C.C. § 32-19-07, the anti-deficiency statute. Lamb gave Alerus a note separate from the SBA notes (non-SBA note). Lamb pledged as collateral one property he owned for both the SBA note and the non-SBA note. Alerus foreclosed the non-SBA note. Subsequently, LLP Mortgage, Ltd. assigned the SBA notes in this case to Alerus. Alerus then commenced this foreclosure on one of the five properties pledged to the SBA as collateral. The foreclosure in this case was not on the same property as in Alerus’ non-SBA foreclosure.

[¶ 15] Under N.D.C.C. § 32-19-07, a mortgagee cannot collect a deficiency judgment, except as provided in N.D.C.C. §§ 32-19-04 and 32-19-06. Section 32-19-04, N.D.C.C., provides that the plaintiff must state in the foreclosure complaint whether they have pursued a deficiency judgment or intend to pursue a deficiency judgment. Section 32-19-06, N.D.C.C., provides the exact instances when a deficiency judgment may be obtained.

[¶ 16] Lamb argues this case constituted a deficiency action because the property sold to satisfy Alerus’ non-SBA note sold for less than the amount due. He argues N.D.C.C. § 32-19-06 requires Alerus to determine the fair value of the property sold to satisfy the non-SBA note before it brings another foreclosure action, even though the present foreclosure is on different notes and different property.

[¶ 17] The anti-deficiency issue was never argued to the trial court. “We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal.” Questa Res., Inc. v. Stott, 2003 ND 51, ¶6, 658 N.W.2d 756 (quoting Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D.1991)). Therefore, Lamb may not assert this argument on appeal.

[¶ 18] Notwithstanding, Lamb’s argument also fails on the merits. A deficiency judgment is defined in N.D.C.C. § 32-19-06 as a judgment against a mortgagor personally. Lamb cited Black’s Law Dictionary’s definition of a deficiency judgment, “[a] judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due.” Black’s Law Dictionary 846 (7th ed.1999). This foreclosure action was not one against Lamb personally, but an action to foreclose notes on real property pledged as collateral to the SBA. Alerus was not attempting to collect the unpaid balance of the debt on the non-SBA note against Lamb personally.

[¶ 19] We discussed, at length, the interplay of North Dakota’s deficiency statutes in Schiele v. First Nat’l Bank of Linton, 404 N.W.2d 479 (N.D.1987). In Schiele, we stressed that another foreclosure action could not be brought until the fair value of the property in the prior foreclosure action was determined. However, that case involved one note with two properties listed as collateral. This case involves one non-SBA note and two SBA notes, all of which had the same parcel of property listed as collateral. Under North Dakota law, Alerus had the right to foreclose on property listed in both notes. Therefore, this action was not a deficiency action and Lamb’s argument fails on the merits. The trial court properly granted Alerus summary judgment and properly entered judgment of foreclosure.

VI

[¶ 20] We examined Lamb’s other arguments on appeal and find them completely without merit. We affirm the judgment of foreclosure.

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

      . Elizabeth J. Fletcher Lamb did not file an answer and is in default. In the notice of appeal, Elizabeth purports to appeal, but she did not sign the brief on appeal. In addition, the brief does not address the issue of Elizabeth J. Fletcher Lamb’s default on the complaint. We will only decide those issues which have been thoroughly briefed and argued. Olander Contracting Co. v. Gail Wackier Investments, 2002 ND 65, ¶ 32, 643 N.W.2d 29. "An issue not supported by argument in a brief will not be considered on appeal.” Murchison v. State, 1998 ND 96, ¶ 13, 578 N.W.2d 514. Accordingly, we consider only those issues briefed by Timothy Lamb.


author: KAPSNER, Justice.

text:
    2003 ND 159
    Betty RUGGLES, Plaintiff and Appellant, v. James SABE, Defendant and Appellee.
    No. 20030147.
    Supreme Court of North Dakota.
    Oct. 23, 2003.

      Michael J. Maus (argued), and Rhonda R. Ehlis (appeared), Hardy, Maus & Nord-sven, Dickinson, for plaintiff and appellant.
    Steven J. Wild, Sadowsky & Wild Law Office, Bowman, for defendant and appel-lee.
   KAPSNER, Justice.

[¶ 1] Betty Ruggles appealed from a summary judgment dismissing her conversion and waste action against James Sabe, the holder of a life estate. Ruggles owns a one-third vested remainder in property located in Bowman County, North Dakota. Sabe currently holds a life estate, based on the life of a third party from whom he purchased the life estate, and a two-thirds vested remainder in the same property. Ruggles brought an action for conversion and waste when she discovered Sabe removed an airplane hanger from the property and converted it for his own use. Sabe counterclaimed asking the court to partition the property. The district court dismissed Sabe’s counterclaim with prejudice and granted Sabe’s motion for summary judgment dismissing Ruggles’ complaint, stating a vested remainder is not a current possessory interest and Ruggles’ claim was “premature.” Ruggles appealed.

[¶2] Summary judgment is a procedural device for the prompt disposition of a controversy without trial when either one of the parties is entitled to judgment as a matter of law, and “no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving the disputed facts would not alter the result.” Earnest v. Garcia, 1999 ND 196, ¶ 5, 601 N.W.2d 260 (citing Smith v. Land O’Lakes, Inc., 1998 ND 219, ¶ 9, 587 N.W.2d 173). This Court reviews the evidence in the light most favorable to the nonmoving party. Earnest, at ¶ 5 (citing Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 15, 590 N.W.2d 454).

[¶ 3] We conclude the district court erred as a matter of law when it granted summary judgment dismissal in favor of Sabe. We reverse and remand for reconsideration in compliance with N.D.C.C. § 47-04-22. The applicable statute provides:

A person having an estate in fee, in remainder, or reversion may maintain an action for an injury done to the inheritance, notwithstanding an intervening estate for life or years and although after its commission the person’s estate is transferred and the person has no interest in the property at the commencement of the action.

N.D.C.C. § 47-04-22. This statute provides a vested remainderman with a remedy against a life tenant who commits waste. Accordingly, Ruggles has a legal remedy against Sabe for any decrease in value of her interest sustained as a result of the building’s removal. Further, N.D.C.C. § 47-02-33 specifically states, “[t]he owner of a life estate may use the land in the same manner as the owner of a fee simple, except that the owner of a life estate must do no act to the injury of the inheritance.”

[¶ 4] The district court erred as a matter of law when it held a vested remainder-man does not have an action for waste against the life tenant for the destruction of a budding upon the property.

[¶ 5] The issue of whether a life tenant may remove structures in such a way as to diminish the value of the property is addressed in the Restatement, which provides:

Subject to exceptions ... the owner of an estate for life in possession or in reversion has a duty not to act upon the land in which his estate for life exists so that his conduct causes the market value of the interests limited after his estate for life to be diminished.

Restatement (First) of Real Property § 138 (1936). In the comments, the Restatement further explains, subject to certain exceptions, “the owner of an estate for life has a duty not to destroy or to remove structures which are located upon, and which add to the value of the land in which the estate for life exists.” Restatement (First) of Real Property § 138 cmt. e (1936).

[¶ 6] Sabe removed the hanger from the property in which he holds a life estate and a two-thirds vested remainder. As a holder of a remainder interest, Ruggles protested the removal of the hanger. As the holder of the life estate, Sabe owed a duty to Ruggles, a remainderman. If removal of the hanger resulted in a diminishment of the remainder interest, then the remainderman is entitled to damages for waste. We make no determination of whether damages occurred; we hold only that on this record Ruggles has stated a cause of action under N.D.C.C. § 47-04-22.

[¶ 7] We reverse the summary judgment of dismissal and remand for further proceedings.

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


author: JOHNSON, Circuit Judge.

text:
    2003 SD 115
    CITY OF SIOUX FALLS, a Municipality charted under the Constitution of the State of South Dakota, Plaintiff and Appellant, v. Douglas L. JOHNSON and Sherry D. Johnson, Defendants and Appellees.
    No. 22395.
    Supreme Court of South Dakota.
    Argued Feb. 11, 2003.
    Decided Sept. 17, 2003.

      R. Shawn Tornow of Sioux Falls City Attorney’s Office, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Mark V. Meierhenry of Danforth, Meier-henry & Meierhenry, Sioux Falls, South Dakota, Attorneys for defendant and ap-pellee.
   JOHNSON, Circuit Judge.

[¶ 1.] This case involves a challenge to an award of attorney fees and prejudgment interest in favor of Doug and Sherry Johnson (Johnsons) and against the City of Sioux Falls (City). By notice of review, Johnsons seek to challenge the constitutionality of the statutory prejudgment interest rate. We affirm the attorney fee award and remand for recalculation of prejudgment interest. We do not reach the constitutional question raised by Johnsons.

FACTS AND PROCEDURE

[¶2.] This case is before us for the third time. City commenced this action in 1995, seeking condemnation of a residence and land owned by Johnsons for highway and other public uses. The first jury awarded Johnsons damages of $1.2 million and the trial court awarded attorney fees and costs of $130,000. City appealed. In City of Sioux Falls v. Johnson, 1999 SD 16, 588 N.W.2d 904 (Johnson I), we reversed the judgment on evidentiary grounds and ordered a new trial. Upon retrial, the second jury awarded Johnsons damages of $1.1 million and the Honorable Judge Richard Bogue awarded attorney fees and costs of $175,000.

[¶ 3.] City again appealed the awards to Johnsons. In City of Sioux Falls v. Johnson, 2001 SD 108, 632 N.W.2d 849 (Johnson II), we affirmed the verdict but reversed the judgment and remanded the case to circuit court for a redetermination of attorney fees, costs, and prejudgment interest. Johnson II, 2001 SD 108 ¶ 11, 632 N.W.2d at 855. We reversed the award of attorney fees because we were unable to conduct meaningful appellate review and remanded the issue to the circuit court to conduct an evidentiary hearing on appellate attorney fees, costs and prejudgment interest. On remand, the Honorable Judge William J. Srtska, Jr., after conducting a series of hearings, awarded Johnsons attorney fees of $174,900 and prejudgment interest of $86,785.09.

[¶ 4.] City now appeals claiming Judge Srtska abused his discretion in the award of attorney fees and that he erroneously calculated the prejudgment interest owing. Johnsons filed a notice of review, challenging the constitutionality of the statutory prejudgment interest rate.

ISSUE ONE

[¶ 5.] Whether the award of attorney fees to Johnsons was an abuse of discretion.

[¶ 6.] Attorney fee awards are reviewed under an abuse of discretion standard. Johnson II, 2001 SD 108, ¶ 8, 632 N.W.2d at 852. “We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.” Action Mechanical, Inc. v. Deadwood Historic Preservation Com’n, 2002 SD 121, ¶ 14, 652 N.W.2d 742, 748 (internal quotations omitted).

[¶ 7.] SDCL 21-35-23 provides that if the verdict in favor of the landowner exceeds seven hundred dollars and is twenty percent greater than the condemning authority’s prior offer, the trial court shall allow reasonable attorney fees, together with taxable costs and compensation for not more than two expert witnesses. The verdict in this case exceeded City’s final offer of $547,955.98 by 101 percent; therefore, pursuant to SDCL 21-35-23, City is required to pay Johnsons reasonable attorney fees.

[¶ 8.] On remand, we directed the trial court to conduct a review of the attorney fees claimed in light of the following factors previously set forth in City of Sioux Falls v. Kelley, 513 N.W.2d 97, 111 (S.D. 1994) (quoting Model Rules of Professional Conduct, Rule 1.5):

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

On remand, the court held three evidentia-ry hearings and then entered findings of fact and conclusions of law applying the Kelley factors. Specifically, the court found:

1) The law firm expended approximately 380 hours of time for trial time for the second case. The City made a general objection to the amount of attorney fees requested by the landowners and urged the court to award approximately $81,500 in attorney fees.
2) As to the second factor, this case would have only prevented the employment by defendants’ counsel of the City of Sioux Falls and the City of Sioux Falls has not been and is not a normal client and the court places no weight on this factor.
3) The fee customarily charged in the locality is a contingent fee. No evidence indicates that the usual private arrangement is hourly but always contingent. The normal reasonable rate of contingent fees is between 50% to a low of 38% of the lift or the original amount offered by the government before litigation begins. The fee requested by the landowner is the low end of the range of reasonable fees as charged between landowners and clients.
4) As to the fourth factor, the court finds that the amounts are very substantial and the results were excellent in both trials. Two different juries with somewhat different facts for consideration as to the values, awarded $1.2 million and $1.1 million. The landowner received 260% more than the original deposit.
5) There were no time limitations involved by the clients and the only limitation was to get the case tried as quickly as possible.
6) There was not a lengthy relationship between the defendants and counsel but it has continued during the duration of this case, which now exceeds six years.
7) Defendants’ counsel has shown the experience, the skill, and the ability to perform properly this particular form of litigation.
8) The fee arrangement in this case was a contingent fee based on a percentage of the amount over the initial deposit of the City of $423,000. The contingent fee agreement provided for one-third of the first $600,000 of lift and 22% thereafter above the deposit of $423,000. The landowner has paid fees over $243,005.00 and requested $165,000 plus 6% tax.

[¶ 9.] While City generally objected to all of the findings of fact, it is unable to point to any finding or findings that are clearly erroneous. Instead, City asserts that a contingent fee was not reasonable in this case. As support for that proposition City cites Johnson II where this Court stated: “[Wjhile such contingent fee arrangements may be perfectly valid and proper as between an attorney and his client, it does not necessarily follow that such fee is a reasonable fee to be taxed against the party taking private property for a public use, as permitted under [SDCL 21-35-23].” Johnson II, 2001 SD 108 at ¶21, 632 N.W.2d at 855 (quoting Kelley, 513 N.W.2d at 111 (citation omitted)). Utilizing this language, City maintains that while a contingent fee agreement may be reasonable between a landowner and his counsel, only an hourly rate of compensation is reasonable as between condemner and landowner. However, the remand court refused to place such a dominant significance on this single Kelley factor to the exclusion of the others.

[¶ 10.] The remand court carefully considered all of the Kelley factors, finding that some were more applicable than others. In reaching its determination, the remand court used an hourly rate as one reference point and the actual fees paid by landowner as another. Clearly, the purpose of SDCL 21-35-23 is not to compensate landowner’s counsel, but to reasonably reimburse landowner for legal fees. Johnsons paid total compensation to their attorney of over $243,005 pursuant to a contingency fee agreement. They were awarded $174,900 by the remand court. Johnsons’ reimbursement in this case was twenty-eight percent less than what they paid their counsel, an amount which even City’s experts agreed was customary and reasonable in condemnation cases. Given these facts, we are unable to say that the trial court abused its discretion by awarding attorney fees in an amount that is midway between the award proposed by City and the actual fees paid to counsel by Johnsons.

[¶ 11.] City also argues the trial court erroneously allowed compensation for previous appellate work performed by John-sons’ attorney. City is incorrect. At the December 17, 2001, hearing Judge Srtska stated: “I’m not granting anything on the appeal. I’m not granting anything since the appeal. I’m not-I’m just granting it on your application that you filed pursuant to 15-6-54(d).” There is nothing in the trial court’s written findings of fact that suggests that Johnsons, as landowner, are being reimbursed for appellate attorney fees and City’s assertions to the contrary are unsupported by the record.

[¶ 12.] Furthermore, City asserts error in the award because the award to Johnsons was specified by the court as constituting $165,000 for attorney fees and $9,900 for sales tax. Though City objected to the court’s allowance of sales tax, City failed to mention this issue in its docketing statement and furthermore failed to brief this issue on appeal. Therefore, we deem the objection to the award of sales tax waived.

[¶ 13.] Finally, both parties assert that the other has not complied with the provisions for disbursements under SDCL 15-6 — 54(d). Johnsons argue City did not file written objections to their application for disbursements within ten days of service of Johnsons’ application. Whereas, City argues Johnsons’ application for fees was improper from the beginning because the required affidavit included with the application was not notarized. In addressing City’s contention, it is noteworthy that the trial court did not actually rely upon this affidavit in making its findings; rather, the trial court merely utilized it to question witnesses concerning the request for fees and the representations being made to the court. In fact, as it was used by the court, the affidavit was only a demonstrative aid. A review of the record reveals that both parties failed to satisfy the formal requirements of SDCL 15-6-54(d).

[¶ 14.] As this is the third time this case is before this Court, we believe it appropriate to exercise our power pursuant to SDCL 15-26A-12, and direct the trial court to accept a new notarized affidavit from Johnsons’ attorney, precisely the same as the previously utilized demonstrative aid, and then enter the same judgment as to attorney fees and sales tax upon that basis. In addition, having considered City’s objections to that award here, despite the failure to comply with the time limitations of SDCL 15 — 6—54(d), we deem it unnecessary for City to file further objections as this issue has been addressed and determined.

[¶ 15.] We affirm the trial court’s award of attorney fees and disbursements.

ISSUE TWO

[¶ 16.] Whether the remand court erroneously computed prejudgment interest.

[¶ 17.] City’s initial deposit was made on November 3, 1995. City made a second deposit on October 1, 1996, of $124,995.98 for a total deposit of $547,955.58. The jury ultimately determined just compensation to be $1.1 million as of November 1, 1995. The remand court calculated the prejudgment interest as follows:

The city deposited and the defendants received the two different sums at two different times prior to judgment and the calculations for prejudgment interest at a rate of 4½% are:
On the sum of $677,000 from November 3, 1995 to October 1, 1996 is $83.47 per day for 333 days to equal $27,794.10.
City is given credit for $124,955.98 on October 1, 1996; credited to interest of $27,794.10 first and then $101,366.91 to principal.
From October 1, 1996 to January 28, 2000 at 4½% on $579,838.12 interest is $86,785.09.
The total amount of prejudgment interest is $86,785.09 together with judgment of $579,838.02 to total $666,623.21.

[¶ 18.] The method used by the remand court was first presented to us by John-sons on appeal in Johnson IP. We held that Johnsons waived consideration of the issue by failing to file a notice of review. Johnson II , 2001 SD 108, ¶ 26, 632 N.W.2d at 855. Despite our finding of waiver in Johnson II, Johnsons successfully proposed this alternative method in calculating prejudgment interest to the remand court and it was utilized in making the determination. However, we find that this method, by which partial payments are applied first to interest, improperly charges interest on interest and therefore we expressly reject it.

[¶ 19.] Prejudgment interest in condemnation cases is governed by SDCL 31-19-33, which provides:

After the right to compensation has vested pursuant to § 31-19-24, the condemnation action in which the declaration of taking has been filed shall go to trial and just compensation shall be ascertained and awarded in the proceeding and be established by judgment. The judgment shall include interest at the Category A rate of interest as established in § 54-3-16 on the amount finally awarded as the value of the property as of the date of the court deposit. Interest shall accumulate from that date to the date of payment, but interest may not be allowed on money which has been paid into the court.

[¶ 20.] ■ According to this statute, prejudgment interest is determined at the time of judgment and the sum is then included in the judgment. Johnsons, however, were not entitled to receive the interest until just compensation had been determined and the amount of accumulated interest had been calculated. Prepayment of accumulated interest was improper because at the time of the second deposit it was not yet payable. As a result, the remand court should have applied the entire second payment to the outstanding principal balance of $677,000 which would have reduced the principal balance to $552,000. Prejudgment interest would then properly be calculated on $677,000 from November 3, 1995 to October 1, 1996. Prejudgment interest should also have been calculated on $552,000 from October 1, 1996 to the date of judgment. Given the method employed below, the remand court’s computation resulted in the improper charging of interest on interest. The remand court should have instead calculated prejudgment interest in the same manner as the trial court in Johnson II, except at the 4.5 percent rate rather than the 10 percent rate. Therefore, we remand this issue to circuit court for correction, and direct that it enter an award of prejudgment interest in the sum of $ 82,625.11.

ISSUE THREE

[¶ 21.] Whether SDCL 31-19-33 and 54-3-16 violate the separation of powers doctrine of the state and federal Constitutions.

[¶ 22.] Johnsons, by notice of review, argue SDCL 31-19-33 and SDCL 54-3-16 are unconstitutional as applied in the present case. Specifically, Johnsons argue that the separation of powers doctrine of both the state and federal Constitutions prohibit the legislature from setting a fixed rate of 4.5 percent for prejudgment interest in condemnation cases, a rate which is claimed to be below fair market value. Johnsons argue that by doing so, the legislature has impermis-sibly usurped the judicial function of determining just compensation.

[¶ 23.] It is significant that Johnson raised this constitutional challenge for the first time on remand by way of motion to the circuit court dated August 20, 2001, six days after our decision in Johnson II. The record is devoid of any mention of this issue prior to that time. Yet, the issue in Johnson II was “whether SDCL 31-19-33 applies to the case.” Id. ¶ 13. This was abundantly clear to both City and Johnson. Equally clear was that SDCL 31-19-33 requires prejudgment “ ‘interest to be paid at the Category A rate of interest as established in § 54 — 3—16[.]’ ” Id. (quoting SDCL 31-19-33). It cannot be disputed that this Court was considering the propriety of the 4.5 percent prejudgment interest rate in Johnson II and the parties had an opportunity to address this issue at that time.

[¶24.] Finding SDCL 31-19-33 applicable to the case, we specifically directed the remand court to “calculate interest at the rate of 4.5 percent[.]” Id. ¶ 15. The scope of the remand in Johnson II was narrow and specifically limited to calculating attorney fees and prejudgment interest at the 4.5 percent rate. If Johnsons had constitutional concerns, they should have raised them prior to our decision in Johnson II. We do not consider them now.

[¶ 25.] We conclude Johnsons are precluded by the law of the case from challenging the constitutionality of SDCL 31-19-33.

[¶ 26.] We affirm the remand court on the award of attorney fees and reverse and remand for recalculation of prejudgment interest consistent with this opinion.

[¶ 27.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, concur.

[¶ 28.] JOHNSON, Circuit Judge, for MEIERHENRY, Justice, disqualified.

      . City improperly mentioned the sales tax issue for the first time in its reply brief thereby precluding Johnson from responding. Moreover, the City merely mentioned the fact that it had objected to the addition of sales tax to the trial court. However, City provided no authority supporting its position. Therefore, the objection was waived.

      . SDCL 19-4-1 provides: "An affidavit may be made in or out of this state before any person authorized to administer an oath.”

      .SDCL 15-26A-12 provides: “By its judgment, the Supreme Court may reverse, affirm, or modify the judgment or order appealed from, and may either direct a new trial or the entry by the trial court of such judgment as the Supreme Court deems is required under the record.”

      . The trial court in Johnson II did not apply the second deposit of $124,955.98 to interest first and then to principal; rather, the trial court calculated the interest accrued prior to the second deposit, based on $677,000 still owing, and then calculated the interest accrued after the second deposit, based on $552,044.02 and totaled the two sums.


author: SABERS, Justice.

text:
    2003 SD 119
    In the Matter of Raymond KLEIN, Appraiser.
    No. 22694.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Sept. 24, 2003.
    Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
    Joseph E. Ellingson, Spearfish, South Dakota, Attorney for appellant Klein.
   SABERS, Justice.

[¶ 1.] The Department of Commerce and Regulation (Department) found that appraiser Raymond Klein violated the Uniform Standards of Professional Appraisal Practice (USPAP) and imposed sanctions. Klein’s state-certified General Appraiser Certificate was suspended for 120 days, a penalty of $1000 was assessed and he was ordered to have his non-residential appraisals reviewed at his expense for six months. Klein appealed to the circuit court and the circuit court affirmed. Klein appeals. We affirm.

FACTS

[¶ 2.] In May 2000, Black Hills Power and Light (BHP) commenced condemnation proceedings against Bailey Associates for an easement to erect power lines. Bailey owned approximately 160 acres of land and the strip BHP was condemning was approximately 6.5 acres. Bailey hired Klein to appraise the property to determine appropriate compensation for the condemned property. Bailey was unaware that this was Klein’s first condemnation appraisal.

[¶ 3.] Klein completed his appraisal on May 8, 2000 and the jury trial to determine compensation was held on May 12, 2000. Klein testified and Bailey used his appraisal to support its assertions regarding appropriate compensation. John Wid-doss appraised the property for BHP and also testified at trial.

[¶ 4.] After the trial, Widdoss filed a complaint with the Appraiser Certification Program at Department. Widdoss asserted that Klein’s appraisal was incompetent because, among other things, it failed to use proper appraisal methods. The Department forwarded the Complaint, Klein’s response and supporting documents, and the appraisals to two examiners for review. The examiners independently determined that Klein had committed numerous, significant violations of the USPAP. The examiners both concluded that the appraisal was “not done competently.” The examiners jointly compiled a list of the violations they agreed upon and submitted the list to the Department. Based on the violations found by the examiners, the Department recommended that:

1.Klein’s state-certified General Appraiser Certificate be suspended for 120 days;
2. Klein pay an “unprofessional conduct penalty fee” of $750; and
3. Klein’s non-residential appraisals be reviewed at his expense for six months.

[¶ 5.] Klein requested a hearing and it was held on May 29, 2001. The Secretary accepted the hearing officer’s findings and conclusions, and based on the numerous violations, the Secretary imposed sanctions. Klein appealed to the circuit court and after briefing and oral argument, the circuit court affirmed the Department’s decision. Klein appeals raising several issues which we consolidate as:

Whether there was sufficient evidence to support the determination that Klein’s appraisal was incompetent.

We affirm.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for an administrative appeal is well settled. SDCL 1-26-36 requires us to give great weight to findings and factual inferences drawn by the agency. Sopko v. C R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (additional citations omitted). “Agency findings are examined ‘in the same manner as the circuit court to decide whether they were clearly erroneous in light of all the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse.’ ” Western Wireless Corp. v. Dept. of Revenue, 2003 SD 68, ¶ 5, 665 N.W.2d 73, 75 (quoting Sopko, 1998 SD 8 at ¶ 6, 575 N.W.2d at 228). An agency’s conclusions of law are fully reviewable. Id. In matters concerning the revocation of a professional license, the agency’s burden of proof is clear and convincing. In Re Setlijf, 2002 SD 58 ¶ 13, 645 N.W.2d 601, 605.

[¶ 7.] WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE DETERMINATION THAT KLEINS APPRAISAL WAS INCOMPETENT.

[¶ 8.] The administrative rules governing appraisers require that appraisals conform to the USPAP. ARSD 20:14:06:01; ARSD 20:69:10:03. The US-PAP requires appraisers to comply with the competency rules and standards set out in its provisions. The competency rule provides:

Prior to accepting an assignment or entering into an agreement to perform any assignment, an appraiser must properly identify the problem to be addressed and have the knowledge and experience to complete the assignment competently, or alternatively:
1. Disclose the lack of knowledge and/or experience to the client before accepting the assignment; and
2. Take all steps necessary or appropriate to complete the assignment competently; and
3. Describe the lack of knowledge and/or experience and the steps taken to complete the assignment competently in the report.

Uniform Standards of Professional Appraisal Practice, 5 (Appraisal Standards Board 2000). The Secretary found that Klein violated this rule and that “[u]nder the circumstances, disciplinary action by the Department is more than warranted, it is a necessity.” Klein attacks this finding on several fronts alleging first that he used the proper method of appraisal.

[¶ 9.] The Secretary’s final conclusions of law provide in part that “Klein’s failure to use the ‘before and after’ approach in the subject appraisal is a violation of the requirement of the USPAP Standards Rule l-l(a). ” Klein appears to concede that the before and after method is the appropriate method in cases which involve a partial taking and that this case involved a partial taking. He argues however, that a letter from the judge in the condemnation proceeding indicated the judge’s belief that this was not a partial taking. The judge wrote “[t]he taking of an easement in that part of the strip which is not physically occupied by the poles and towers is deemed tantamount to a taking in fee.” The judge then cited to several South Dakota Supreme Court condemnation eases to support his opinion regarding determination of just compensation.

[¶ 10.] Klein argues that he agreed with the court and that the opinions cited by the court indicated Klein was not required to use the before and after method. Klein misses the point with this argument. First, Klein fails to understand that the “taking in fee” in this case was a partial taking and the judge’s letter did not indicate otherwise. Testimony at the hearing, which the Secretary found “persuasive,” indicated that the before and after approach was “text book” in cases of partial taking. Standards Rule 1-1 requires that the appraiser must “be aware of, understand, and correctly employ those recognized methods and techniques that are necessary to produce a credible appraisal.” The evidence at the hearing indicated that the before and after method is always used in partial taking cases and that Klein’s failure to use it in this case led to errors that “substantially affected the credibility of his appraisal.” Second, the judge’s opinions and this Court’s opinion regarding determination of just compensation are irrelevant to the question whether Klein violated USPAP standards. The Secretary did not err in rejecting Klein’s argument that the trial court’s statement obviated the requirement to use the before and after method.

[¶ 11.] Klein’s next argument is that the Department erred in finding that he was incompetent to provide an appraisal. Klein notes his years of experience as an appraiser and argues the fact that he had never done a condemnation appraisal was insufficient criteria to find him incompetent. This argument fails on two levels. First, the Department’s finding was not that Klein was incompetent, but that the appraisal was incompetent. Second, there was sufficient evidence to support the finding that the appraisal was incompetent.

[¶ 12.] Ken Simpson, the Department’s expert witness, was asked to identify some of the alleged violations by Klein. It is noteworthy that Simpson was not asked to identify all of the violations but only to “identify a couple.” The hearing examiner found those violations “more than sufficient to provide a basis for Departmental sanctions.” The violations included, but are not limited to the following:

1. Violation of the competency rule: Simpson testified that Klein’s appraisal was “fundamentally flawed” and that Klein did not have the expertise to competently perform a condemnation appraisal.
2. Klein failed to prominently state in the appraisal which of the standard report options he used, a violation of USPAP Standards Rule 2-2.
8. Klein failed to use the proper method of appraisal, a violation of US-PAP Standards Rule 1-1.
4. Klein failed to analyze a previous sale of the property, a violation of USPAP Standards Rule 1 — 5(b).
5. Klein failed to indicate the intended use and users of the appraisal report violating Standards Rule 1-2.
6. Klein improperly used the “highest and best use” method of appraisal. Simpson testified that Klein’s “highest and best use” analysis was “totally flawed and incorrect, everything that follows it in the valuation is similarly flawed.” This inadequate and improper analysis violated Standards Rule 1-8.
7. Simpson testified that when a particular approach is eliminated from an appraisal, the appraiser is required to insert a statement to indicate why the approach was not used or included in the report. Klein eliminated the income approach from the report but failed to put the mandatory statement in the report.
8. Because Klein failed to use the proper method of appraisal, his report was found to be misleading. This is a violation of Standards Rule 2 which requires that the results of an appraisal be communicated “in a manner that is not misleading.”

Simpson’s testimony and the examiners’ reports provided sufficient evidence for the Department to find the appraisal incompetent.

[¶ 13.] Klein asserts here, as he did below, that the alleged violations of the USPAP were “mere technical violations which had no impact on the appraisal.” He argues that because they are simple technical violations, imposition of sanctions was arbitrary and capricious. Based on the expert testimony, the Department came to the conclusion that the cumulative effect of the many errors resulted in an incompetent appraisal. ARSD 20:14:06:01 requires appraisals to conform to the US-PAP, and Klein’s certification is subject to review by the Department under SDCL ch. 36-21B. Klein is subject to discipline by the Department under ARSD 20:14:11:02 and 20:14:11:03(10) and (13). The hearing examiner rejected Klein’s assertion that his appraisal was competent and found Simpson’s testimony persuasive. Giving due regard to the hearing examiner’s findings of fact and opportunity to judge the credibility of the witnesses, we find no error in the determination that the violations cumulatively amounted to an incompetent appraisal.

[¶ 14.] Klein does not address the question whether the sanctions imposed are too severe assuming the violations are upheld. He merely argues that his violations are not significant enough to warrant discipline. Regardless, the Department is entitled under SDCL 36-21B-7 to impose a fine up to $1000 and require additional educational course requirements upon a finding that the appraiser acted unprofessionally according to the USPAP standards. The Department is also entitled to suspend an appraiser’s State Certified General Appraiser Certificate pursuant to ARSD 20:14:11:02. Klein has failed to show that the Department acted in an arbitrary and capricious manner by imposing these sanctions. Affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . The “before and after” method of appraisal requires the appraiser to value the entire parcel before the taking and after the taking. The difference between the two values is used to determine the compensation due to the owner.

      . Klein argues on appeal that the trial judge indicated that he did not want the jury to hear about the income approach. Because of his fear of judges (his father was a judge), Klein asserts he felt incapable of even addressing the issue in his report. The fact remains that the USPAP requires inclusion of a statement indicating why the approach is omitted. His failure to provide the statement is a violation regardless of the reason for the failure.