author: HALBROOKS, Judge.

text:
    COUNTY OF MARTIN, et al., Respondents, v. MINNESOTA COUNTIES INSURANCE TRUST, Appellant.
    No. C2-02-1210.
    Court of Appeals of Minnesota.
    April 1, 2003.

      Thomas L. Fabel, Wallace G. Hilke, Sarah B. Stroebel, Lindquist & Vennum, P.L.L.P., St. Paul, for respondents.
    Jay T. Squires, Ratwik, Roszak & Malo-ney, P.A., Minneapolis, for appellant.
    Considered and decided by PETERSON, Presiding Judge, HARTEN, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Respondent counties (the counties) brought a breach-of-contract and declaratory-judgment action against appellant Minnesota Counties Insurance Trust, seeking a declaration that appellant was obligated to defend and indemnify respondents in a lawsuit relating to housing bonds. Appellant moved for dismissal based on lack of subject-matter jurisdiction. Appellant contends that its decision to deny coverage was a quasi-judicial decision made by an administrative body that is reviewable only through certiorari. Because the district court correctly determined that it had subject-matter jurisdiction, we affirm the district court’s denial of appellant’s motion to dismiss.

FACTS

In the early 1990s, the South Central Minnesota Multi-County Housing and Redevelopment Authority (HRA) issued bonds for the development of a multi-county housing project called the Amberfield Project. The counties entered into an operating-deficit agreement providing that the counties would exercise their “best efforts” to obtain approval for a special tax levy if revenue from the housing program was not adequate to repay the bonds. When the project generated insufficient revenue, the HRA asked the counties to approve a tax levy. Pursuant to decisions by their boards of commissioners, the counties rejected the proposal. As a result, the bonds went into default.

The Franklin High Yield Tax-Free Income Fund, which had purchased many of the bonds, sued the counties and their commissioners, alleging breach of contract and misrepresentation. The counties submitted the complaint to appellant Minnesota Counties Insurance Trust (MCIT), a joint-powers entity that provides self-insurance and risk-management services to its members, including the counties.

The claims manager for MCIT notified the counties that, because several exclusions applied, MCIT would not provide coverage. The counties appealed the decision to the MCIT board pursuant to the dispute-resolution provision in the MCIT bylaws. Following a hearing, the MCIT board affirmed the denial of coverage.

Between May 1996 and July 2000, the counties proceeded in the litigation with Franklin. The claims were ultimately settled, but resulted in legal fees to the counties in excess of $500,000. The terms of the settlement included a cash payment of $525,000 for the alleged breach of contract and fraud claims along with an agreement by the counties to approve levy requests for support of the Amberfield project through the remaining years of the bond obligations.

The counties then brought this declaratory-judgment and breach-of-contract action in district court, seeking a declaration that MCIT must provide coverage for the claims in the Franklin action. MCIT moved to dismiss, arguing that, because the challenged decision was a quasi-judicial one made by an administrative body, the counties must seek review through certio-rari. The district court denied MCIT’s motion, concluding that MCIT was not a political subdivision whose decisions were subject to certiorari review and that the court had subject-matter jurisdiction over the claims. This appeal follows.

ISSUE

Is a joint-powers board, formed under Minn.Stat. § 471.59 (2002) to provide self-insurance and risk-management services to its members, an administrative body whose quasi-judicial decisions are subject to certiorari review?

ANALYSIS

A decision by the district court denying a motion to dismiss based on subject-matter jurisdiction is reviewable de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn.2000). Courts have only limited jurisdiction over quasi-judicial decisions by executive branch bodies due to the separation-of-powers doctrine. State ex rel. Ging v. Bd. of Educ. of Duluth, 213 Minn. 550, 570-71, 7 N.W.2d 544, 556 (1942), overruled in part on other grounds, Foesch v. Indep. Sch. Dist. No. 64.6, 300 Minn. 478, 223 N.W.2d 371 (1974). Consequently, “judicial review of the quasi-judicial decisions of administrative bodies, if available, must be invoked by writ of certiorari,” absent other adequate methods of review or legal remedy. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992).

We first address the counties’ argument that certiorari review is precluded because the district court has subject-matter jurisdiction to hear claims under Minn. Stat. ch. 555 (2002), the Uniform Declaratory Judgments Act. A number of prominent cases addressing whether certiorari review was available were originally brought as declaratory-judgment actions. See, e.g., Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 673 (Minn.1990) (addressing declaratory-judgment action brought by teacher to decide continuing contract-right dispute); State v. Tokheim, 611 N.W.2d 375, 377 (Minn.App.2000) (addressing declaratory-judgment action filed by state to determine whether state troopers were entitled to defense or indemnification from state). “Allowing [a party] to maintain a declaratory judgment action to challenge the finality of’ a decision reviewable by certiorari “would thwart the policy underlying the requirement of certiorari review” for such cases. Mowry v. Young, 565 N.W.2d 717, 720 (Minn.App.1997) (addressing review of termination of a public employee), review denied (Minn. Sept. 18, 1997). Therefore, the fact that the counties brought a declaratory-judgment action does not, in itself, resolve the question of whether the decision is a quasi-judicial one by an administrative agency subject to exclusive certiorari review.

We next address the issue that the district court found dispositive — whether MCIT is a political subdivision whose decision, if quasi-judicial, is subject to certiora-ri review. The rule limiting challenges to quasi-judicial decisions through certiorari has been applied to a “broad array of executive bodies.” Dietz, 487 N.W.2d at 239 n. 3. Courts have used various terms to describe the entities whose decisions are subject to certiorari review. Some courts refer to “administrative bodies.” See, e.g., United Migrant Opportunity Servs., Inc. v. Dodge County Planning Comm’n, 636 N.W.2d 813, 814 (Minn.App.2001) (addressing decision by county board of commissioners). Other courts refer to “executive bodies.” See, e.g., Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn.1996) (referring to counties). Other decisions refer to entities as “quasi-judicial boards or agencies.” See, e.g., Press v. City of Minneapolis, 553 N.W.2d 80, 83 (Minn.App.1996) (analyzing decision by Minneapolis Housing Board of Appeals).

The district court rejected MCIT’s claim that, merely because it was formed by an agreement of a group of political subdivisions, i.e., the counties, and because it is not an insurance company licensed by the state, it constituted a political subdivision whose decisions were reviewable by certio-rari. Instead, the district court concluded that, rather than creating a new political subdivision, the member counties reached a covenant to establish insurance and risk-management services via MCIT. As a result, the court determined that MCIT was not a political subdivision and that the dispute should be resolved in district court rather than through certiorari.

In reviewing the district court’s decision, we first analyze the nature of the MCIT organization. Under the joint-powers act, two or more governmental units, including counties, may exercise jointly any power that they each have. MinmStat. § 471.59, subd. 1 (2002). They may form a joint-powers board. Id., subd. 11 (2002). Political subdivisions, including counties, may also self-insure. MinmStat. § 471.981, subd. 1 (2002); see Minn.Stat. § 471.98, subd. 2 (2002) (defining political subdivision to include counties). MCIT was formed as a joint-powers entity to provide self-insurance and risk-management services. Its members include 81 Minnesota counties, 90 soil and water conservation districts, and some private entities. Members can customize their individual insurance coverage by adding endorsements at additional cost.

If a separate legal entity is created through the joint-powers act, it is not clear “whether that entity has the attributes of a corporation or partnership, or is simply an agent acting on behalf of the principal member governmental units.” In re Greater Morrison Sanitary Landfill, 435 N.W.2d 92, 96 (Minn.App.1989) (addressing whether counties may be held individually liable for closing landfill some years after they had withdrawn from landfill board), review denied (Minn. Mar. 29, 1989).

The precise nature of any one [joint powers] entity * * * must be determined on a case by case basis upon a thorough analysis of the purpose for and responsibilities of the entity.

Id.

Several cases have touched on the issue before us. This court has held that review of a MCIT decision concerning an underin-sured-motorist claim against a county was properly reviewed by the district court. Rasmussen v. Sauer, 597 N.W.2d 328, 332 (Minn.App.1999), review denied (Minn. Sept. 14,1999). In so doing, we noted that MCIT’s coverage document resembled a typical automobile-liability insurance policy and that the coverage doctrine contemplated district court review. Id. In addressing the argument that the insureds were required first to exhaust administrative remedies, we stated in relevant part:

The cases requiring review of an administrative agency’s quasi-judicial decision by writ of certiorari simply do not apply to this claim for statutorily mandated UIM benefits. Rather, those cases have been limited to executive-branch decisions involving conditional use permits, zoning variances, or termination of public employees. Thus, we decline to limit the Rasmussens’ right to sue.

Id. (internal citations omitted); see Kroschel v. City of Afton, 524 N.W.2d 719, 720-21 (Minn.1994) (without addressing jurisdictional issue, supreme court held that district court properly granted summary judgment on issue of legal fees for a joint trust entity that defended a city).

Similarly, in this case, the coverage document resembles an insurance document. For example, the document contains the following provisions, among others:

• coverage provided is for a specific “coverage period.”
• it is a “Claims Made Form” and the coverage “is limited generally to liability for only those Claims that are first made against the Covered Party and reported to the Trust while this Coverage Provision is in force.”
• it specifically notes that “[t]hese Coverage Provisions contain all the agreements between you and us concerning the coverage afforded.”
• it states that insureds should “[r]ead the Coverage Provisions carefully to determine rights, duties and what is and is not covered.”
• it states that the Insurance Trust “will pay” sums under certain circumstances.

Coverage for public officials is outlined at section I.C. as follows:

1. Coverage Agreement
a. We will pay on behalf of the Covered Party all monetary Damages which the Participant shall be legally obligated to pay for any civil Claim or Claims first made against it during the Coverage Period because of a Wrongful Act first committed on or after the Retroactive Date shown on the Declaration. ⅜ ⅜ ⅜= yge wjn have j-jght and duty to defend any Suit seeking those Damages. But:
(1) The amount we will pay for damages is limited as described in SECTION I.F. LIMITS OF LIABILITY;
(2) We may investigate and settle any Claim or Suit at our discretion; and
(3) Our right and duty to defend end when we have used up the applicable limit of coverage in the payment of judgments or settlements under Coverages A, B or C.
“Covered Parties” are defined as
[y]our elected or appointed officials, officers, directors and members of any boards or commissions, but only with respect to their duties as your officials, officers, directors, or board or commission members.

Further, section V.D. of the agreement specifically envisions district court review of disputes:

Actions Against The Trust
No person or organization has a right under these Coverage Provisions:
1. To join us as a party or otherwise bring us into a Suit asking for Damages from a Covered Party; or
2. To sue us on these Coverage Provisions unless there shall have been full compliance with all of the terms and conditions of these Coverage Provisions. A person or organization may sue us to recover on an agreed settlement or on a final judgment against a Covered Party obtained after an actual trial; but we will not be liable for Damages that are not payable under the terms of these Coverage Provisions or that are in excess of the Trust’s applicable Limit of Liability. An agreed settlement means a settlement and release of liability signed by us, the Covered Party and the claimant or the claimant’s legal representative.

(Emphasis added.)

We conclude that MCIT resembles an insurance company for purposes of this jurisdiction question. See MinmStat. § 471.982, subds. 1, 2 (2002) (providing that when self-insurance pool is formed, it is subject to approval by the Commissioner of Commerce and subject to the commissioner’s rules). MCIT is not an executive body whose quasi-judicial decision is subject to certiorari review. See Rasmussen, 597 N.W.2d at 332 (holding that certiorari review does not apply to claim for underin-sured motorist benefits against county that was self-insured through MCIT). Therefore, its decision is properly subject to district court review.

DECISION

The decision by the district court that it has subject-matter jurisdiction to review the decision by MCIT is affirmed.

Affirmed.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice. MARING, Justice, SANDSTROM, Justice,

license: Public Domain

text:
    2003 ND 41
    CITY OF GRAND FORKS, Plaintiff and Appellee, v. Darin Lee RAMSTAD, Defendant and Appellant.
    No. 20020120.
    Supreme Court of North Dakota.
    March 26, 2003.

      Gary E. Euren, City Prosecutor, Grand Forks, ND, for plaintiff and appellee.
    Steven M. Light, Larivee & Light, Grand Forks, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Darin Ramstad appealed from a judgment of conviction for driving under the influence of alcohol. We affirm.

I

[¶ 2] On February 20, 2002, Darin Ramstad was arrested for driving under the influence of alcohol. He was taken to the Grand Forks Police Department, where he consented to an intoxilyzer test. The test indicated Ramstad’s blood alcohol level was .13 percent.

[¶ 3] On February 21, 2002, Ramstad’s attorney served discovery requests upon the City. Among numerous other items, Ramstad requested that the City disclose:

d. the dates of all simulator tests (if applicable) run by the operator within twelve months prior to the date of Defendant’s tests to verify the validity of his test certification;
g. the date of [the breath analyzer’s] latest certification;
h. any repair records of the breath analyzer;
i. whether the breath analyzer has been tested for radio frequency interference (RFI) and, if so, the dates of the testing, the circumstances under which the testing was done, the person who tested the analyzer, the FRI [sic] sources to which the analyzer was subjected, and the distance each source was to the analyzer;....

[¶ 4] In response to Ramstad’s discovery requests, the City on February 28, 2002, provided some of the items which had been requested. The cover letter indicated that the enclosed items constituted the City’s “entire file” on Ramstad’s case. The requested items regarding the breath analyzer and test operator were not provided.

[¶ 5] Trial was set for May 15, 2002, with jury selection scheduled for May 14, 2002. On May 14, 2002, Ramstad served a motion to suppress evidence of the chemical test results because of the City’s failure to provide the requested discovery materials. That same day, the City faxed the requested materials to Ramstad’s attorney.

[¶ 6] On May 15, the morning of the scheduled trial, the trial court heard the suppression motion in chambers. Ram-stad’s attorney advised the court that Ramstad had retained an expert who would have testified if the breath analyzer records had been provided earlier, and Ramstad’s attorney moved for a continuance to allow the expert to review the disclosed documents. The trial court denied the motion to suppress and the motion for a continuance.

[¶ 7] The breath test results were admitted into evidence and the jury returned a guilty verdict. A judgment of conviction was entered and Ramstad appealed.

II

[¶ 8] Ramstad argues the requested information was exculpatory or could have been used to “impeach” the accuracy of the breath analyzer, and therefore the City’s failure to disclose those records violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

[¶ 9] In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment. Id. at 87; see State v. Sievers, 543 N.W.2d 491, 495 (N.D.1996). To establish a Brady violation, the burden is upon the defendant to show: “(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.” State v. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345; see also Sievers, at 496. Ramstad has faded to establish two of the elements of a Brady violation.

[¶ 10] The initial inquiry when a defendant alleges a Brady violation is whether the undisclosed material was favorable to the defendant. The United

States Supreme Court has stated that the first component of a Brady violation is that “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). As noted in 26 James Wm. Moore et al., Moore’s Federal Practice § 633.06[3] (3d ed.2002), “[i]f the evidence is not exculpatory or valuable for impeachment purposes, the evidence is not Brady material and the government has no duty to disclose it.” We have previously indicated that “by definition, Brady materials are plainly exculpatory,” and Brady does not apply where it is merely “speculative whether the evidence might have been exculpatory, or might have been inculpato-ry.” State v. Steffes, 500 N.W.2d 608, 613 (N.D.1993). If the defendant fails to demonstrate that the evidence was favorable to him, there is no Brady violation. See Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345.

[¶ 11] Ramstad has failed to present any evidence that the undisclosed materials would have been exculpatory or would have called into question the accuracy of the breath analyzer. Under these circumstances, Ramstad has failed to demonstrate a Brady violation.

[¶ 12] Ramstad argues that his expert was denied the opportunity to examine these materials before trial, and therefore could not render an opinion whether the records would have called into question the accuracy of the test results. Ramstad could have presented a post-trial affidavit from the expert, in conjunction with a motion for a new trial, if the undisclosed evidence proved to be exculpatory or impeaching. Failure to disclose Brady material is a due process violation, and may provide the basis for a new trial. See Sievers, 543 N.W.2d at 495-97; State v. Anderson, 336 N.W.2d 123, 128-29 (N.D. 1983); 26 James Wm. Moore et al., Moore’s Federal Practice § 633.03[6] (3d ed.2002). The due process clause, through Brady, is not implicated where the evidence is not “plainly” favorable to the defendant, and it is merely speculative whether the evidence might have been exculpatory or valuable for impeachment. See Steffes, 500 N.W.2d at 613. In raising a Brady challenge, it was incumbent upon Ramstad to supplement the record if necessary to establish that the undisclosed materials were in fact favorable to him.

[¶ 13] In addition, a defendant alleging a Brady violation must show that he could not have obtained the undisclosed evidence with reasonable diligence. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345; Sievers, 543 N.W.2d at 496. We have clearly stated that “[t]he Brady rule does not apply to evidence the defendant could have obtained with reasonable diligence.” Siev-ers, at 496; see also 25 James Wm. Moore et al., Moore’s Federal Practice § 616.06[4] (3d ed.2002). The materials sought in this case were public records, readily obtainable through the State Toxicologist’s office. Ramstad has failed to provide any reason why he could not, with reasonable diligence, have obtained these materials on his own.

[¶ 14] We conclude Ramstad has failed to demonstrate the City’s failure to disclose these materials constituted a Brady violation.

Ill

[¶ 15] Ramstad argues the City’s failure to provide the requested documents violated N.D.R.Crim.P. 16, and the trial court abused its discretion in failing to grant a remedy under N.D.R.Crim.P. 16(d)(2).

[¶ 16] Rule 16, N.D.R.Crim.P., governs discovery in criminal cases. Under N.D.R.CrimJP. 16(a)(1)(C) and (D), the prosecution must disclose certain documents and reports of scientific tests upon request by the defendant:

(C) Documents and Tangible Objects. Upon written request of a defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the prosecution, and which are material to the preparation of the defendant’s defense, or are intended for use by the prosecutor as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. Upon written request of a defendant the prosecuting attorney shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and which are material to the preparation of the defense or are intended for use by the prosecutor as evidence in chief at the trial.

Rule 16(d)(2) provides remedies for discovery violations:

(2) Failure to Comply With Request. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule, the court may order that party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, relieve the requesting party from making a disclosure required by this Rule, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

[¶ 17] Rule 16 is a discovery rule, not a constitutional mandate, and is designed to further the interests of fairness. State v. Ensminger, 542 N.W.2d 722, 723 (N.D.1996); State v. McNair, 491 N.W.2d 397, 400 (N.D.1992). Rule 16, N.D.R,Crim.P., is derived from Fed. R.Crim.P. 16. See Ensminger, at 723. When a state rule is derived from a corresponding federal rule, we will consider the federal courts’ interpretation of the federal rule as persuasive authority when construing our rule. E.g., Matrix Props. Corp. v. TAG Invs., Inc., 2002 ND 86, ¶13, 644 N.W.2d 601; City of Dickinson v. Lindstrom, 1998 ND 52, ¶ 11, 575 N.W.2d 440; Ensminger, at 723. Upon proof of a discovery violation under N.D.R.Crim.P. 16, the trial court has discretion in applying a remedy under N.D.R.Crim.P. 16(d)(2), and we will not disturb its decision absent an abuse of discretion. See Ensminger, at 723.

[¶ 18] The City does not dispute that the documents requested by Ramstad were material to the preparation of his defense and that Ramstad was entitled to copies of the documents. The City contends, however, that it had no duty to provide the documents because (1) it had already disclosed the entire contents of the prosecutor’s file; (2) the cover letter sent with the previously disclosed materials advised Ramstad to contact the prosecutor’s office if he had other questions or needed additional information; and (3) Ramstad could have obtained the documents himself from the State Toxicologist’s office.

[¶ 19] The City contends that it fully complied with N.D.R.Crim.P. 16 by providing a copy of the prosecutor’s entire file to Ramstad. We have previously cautioned that, while we may approve of an “open file” policy by prosecutors, such a policy does not automatically ensure compliance with N.D.R.Crim.P. 16. See Ensminger, 542 N.W.2d at 724 n. 1. Generally, Rule 16 requires the prosecution to also disclose requested documents in the possession of other governmental agencies which participated- in the investigation of the defendant or have otherwise cooperated with the prosecution. See United States v. Santiago, 46 F.3d 885, 893-94 (9th Cir.1995); United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir.1989); United States v. Jensen, 608 F.2d 1349, 1357 (10th Cir.1979); 25 James Wm. Moore et al., Moore’s Federal Practice § 616.05[l][e] (3d ed.2002). Limiting application of Rule 16 to materials in the actual possession of the prosecution “unfairly allows the prosecution access to documents without making them available to the defense.” Bryan, at 1036 (quoting United States v. Robertson, 634 F.Supp. 1020, 1025 (E.D.Cal.1986), aff'd, 815 F.2d 714 (9th Cir.1987)).

[¶ 20] We agree with the rationale of the court in Lawyer Disciplinary Bd. v. Hatcher, 199 W.Va. 227, 483 S.E.2d 810, 815 (1997), in which the court noted that “the existence of an ‘open file policy,’ ... is not enough, of itself, to excuse a prosecutor’s failure to disclose exculpatory evidence” under W. Va. R.Crim. P. 16. Quoting State v. Hall, 174 W.Va. 787, 329 S.E.2d 860, 863 (1985), the court concluded: “It is not enough for the prosecution to simply say that he provided the defense all evidence he chose to put in the file.” Hatcher, at 815-16.

[¶ 21] We have previously indicated that an “open file” policy “does not abrogate or dilute the requirement that prosecutors disclose evidence” requested under N.D.R.Crim.P. 16. See Ensminger, 542 N.W.2d at 724 n. 1. We conclude that the prosecution’s disclosure of its “entire file” did not abrogate its duty to provide requested documents which the prosecution had access to and which were in the possession of a state agency which provided assistance to the prosecution. There is no dispute that the State Toxicologist’s office provides assistance in the prosecution of driving under the influence cases. Nor is there any question that the prosecution had access to the requested documents; the City provided the documents to Ram-stad within hours after he moved to suppress the results of the breathalyzer test. Under these circumstances, the prosecution’s disclosure of its “entire file” did not satisfy its duty to provide discovery under N.D.R.Crim.P. 16.

[¶ 22] The City next claims it had no duty to provide the requested documents because it advised Ramstad it was providing its entire file and he could contact the prosecutor’s office if he had any other questions or needed additional information. The City contends that, if Ram-stad wanted materials beyond these contained in the disclosed prosecutor’s file, he should have contacted the prosecutor’s office long before the beginning of trial. In essence, the City is saying if a defendant really wants the material he previously requested, he must ask for it a second time. Rule 16 contains no such requirement. Nor does the Rule envision allowing the prosecution to provide some of the requested documents, but dispensing with other requests by merely advising the defendant to contact the prosecution if he wants the remaining requested materials. Ramstad made a detailed request for specific documents, and the City had a duty under N.D.R.Crim.P. 16 to disclose those documents.

[¶ 23] Finally, the City argues it had no duty to provide the requested documents because Ramstad could have obtained them on his own from the State Toxicologist’s office. The language of N.D.R.Crim.P. 16 contains no exception for documents which are otherwise available to the defendant. The prosecution’s suggestion that it had no duty to provide requested documents to the defendant if he had other means to obtain them “falls far short of compliance with” Rule 16. United States v. Long, 817 F.Supp. 79, 80 (D.Kan.1993).

[¶ 24] The City contends State v. Sievers, 543 N.W.2d 491 (N.D.1996), and State v. Thomas, 420 N.W.2d 747 (N.D.1988), support its assertion that the prosecution has no duty under N.D.R.Civ.P. 16 to provide materials which are otherwise available to the defendant. Sievers was a Brady case and did not address N.D.R.Crim.P. 16. In Thomas, the Court concluded the prosecution had violated N.D.R.Crim.P. 16 by failing to furnish requested documents relating to the chemical testing device in an “actual physical control” case. See Thomas, at 751-52. Availability of the documents to the defendant was considered relevant in determining whether the defendant had been prejudiced by the discovery violation, which may affect whether a sanction under N.D.R.Crim.P.16(d)(2) is appropriate. Thomas, at 752. Thomas does not suggest that a prosecutor has no duty to provide documents properly requested under N.D.R.Crim.P. 16 if the documents are otherwise available to the defendant, but only that availability may be relevant in determining sanctions under N.D.R.Crim.P. 16(d)(2). We conclude the City violated N.D.R.Crim.P. 16 when it failed to disclose the requested documents.

[¶ 25] Having established a violation of N.D.R.Crim.P. 16, the next question is whether the defendant suffered substantial prejudice due to the violation. If a discovery violation is not of a constitutional magnitude, it is reversible error only upon a showing that the defendant has been denied substantial rights. State v. Ebach, 1999 ND 5, ¶21, 589 N.W.2d 566; State v. McNair, 491 N.W.2d 897, 400 (N.D.1992). No substantial rights are affected when the defendant was not significantly prejudiced by the discovery violation. Ebach, at ¶ 21; McNair, at 400.

[¶ 26] If the defendant fails to show he was significantly prejudiced by a discovery violation, a trial court’s failure to exclude evidence or impose other sanctions under N.D.R.Crim. P. 16(d)(2) does not constitute an abuse of discretion. See Ebach, 1999 ND 5, ¶¶ 21-28, 589 N.W.2d 566; State v. Ensminger, 542 N.W.2d 722, 723-24 (N.D.1996); State v. Zimmerman, 516 N.W.2d 638, 641 (N.D.1994); McNair, 491 N.W.2d at 400. We have previously noted a defendant is in a weak position to assert prejudice from the prosecution’s failure to produce requested documents or other materials under N.D.R.Crim.P. 16 when the defendant had other available means to obtain the requested material. See Ebach, at ¶ 23; McNair, at 400; Thomas, 420 N.W.2d at 752; State v. Martin, 391 N.W.2d 611, 614-15 (N.D.1986).

[¶ 27] Ramstad could have at any time readily obtained the requested documents from the State Toxicologist’s office. Furthermore, Ramstad has still failed to make any showing that the requested documents would have called into question the accuracy of the breathalyzer or the results of his chemical test. Under these circumstances, Ramstad has failed to demonstrate he was significantly prejudiced by the discovery violation, and we conclude the trial court did not abuse its discretion.

[¶ 28] While we do not believe either the prosecution or defense would place their case or client at risk to prove a point, in view of our prior caution in Ensminger that the “open file” policy is not the end of the prosecution’s obligation under N.D.R.Crim.P. 16, and in view of the ready availability of the documents in the State Toxicologist’s office to the defense, this case has all the indications of an intransigent showdown.

[¶ 29] Although we have affirmed the judgment of conviction because there is no significant prejudice, we add an additional warning to prosecutors in this state. This is not the first instance in which the prosecution has argued it has no duty to provide discovery under N.D.R.Crim.P. 16 when the requested information is otherwise available to the defendant from other sources. See State v. Fitterer, 2002 ND 170, ¶2, 652 N.W.2d 908. Our opinion in this case places all prosecutors on notice that N.D.R.Crim.P. 16 does not allow them to shift the burden of obtaining materials in the hands of other governmental agencies to the defendant. We further caution that, although a showing of prejudice is generally required before reversing a criminal conviction for a discovery violation, reversal for conduct which is merely potentially prejudicial may be warranted as a sanction for institutional noncompliance and systemic disregard of the law if the conduct is commonplace. See Zimmerman, 516 N.W.2d at 641; Madison v. North Dakota Dep’t of Transp., 503 N.W.2d 243, 246 (N.D.1993); State v. Steffes, 500 N.W.2d 608, 613-14 n. 5 (N.D.1993).

IV

[¶ 30] We conclude the City’s failure to disclose the requested documents did not violate Brady and, although the City’s conduct violated N.D.R.Crim.P. 16, the trial court did not abuse its discretion in denying Ramstad’s motions for suppression or for a continuance. We affirm the judgment of conviction.

[¶ 31] CAROL RONNING KAPSNER, and WILLIAM A. NEUMANN, JJ„ concur.

MARING, Justice,

concurring specially.

[¶ 32] I concur specially because I am of the opinion that when Rule 16, N.D.R.Crim.P., has been violated, a continuance of trial is preferred in the context of this case. See State v. McNair, 491 N.W.2d 397, 400 (N.D.1992) (stating that a trial court should use the least severe sanction that will rectify the prejudice of a discovery violation). Here, the court refused to grant a continuance. The remedy the majority proposes for Ramstad’s dilemma is for him to establish prejudice by bringing a motion for a new trial supported by an expert’s affidavit stating the evidence that was not provided is exculpatory evidence.

[¶ 33] On May 14, 2002, Ramstad served a motion to suppress the evidence because of the City’s failure to provide the discovery materials. On that same day, the City faxed’the discovery materials to Ramstad. At the conclusion of the trial on May 15, 2002, the jury returned a verdict of guilty and a judgment of conviction was entered. A motion for a new trial based on newly discovered evidence must be brought within 30 days of the discovery of the facts on which the motion is made. N.D.R.CrimJP. 33(b). Theoretically, Ram-stad had 30 days to engage his expert to review the evidence provided on May 14, 2002, to obtain an affidavit stating that it was exculpatory evidence and to bring his motion. However, N.D.R.App.P. 4(b) requires a notice of appeal to be filed within 10 days after entry of a judgment of conviction. A motion for a new trial based on newly discovered evidence will toll the time for appeal if the motion is made within 10 days after entry of the judgment of conviction. N.D.R.App.P. 4(b)(1). If the appeal is already pending when the motion is made, the Court may grant the motion only on remand of the case to the trial court. N.D.R.Crim.P. 33(b). In all practicality, Ramstad must bring his motion for a new trial within 10 days after entry of the judgment of conviction or be faced with having to file his notice of appeal and later asking our Court to remand his case back to the trial court to hear his motion for a new trial based on newly discovered evidence. Ten days is not much time to hire an expert and obtain review of the materials, to prepare a report detailing how the material is exculpatory, and to prepare and serve a motion for a new trial. The end result is potentially a needless appeal and a second trial of the issues. The more economical and sensible resolution to the situation in this case is a continuance of the trial. This would allow time for the party disadvantaged by the late compliance with discovery to prepare accordingly. I encourage serious consideration of continuances under circumstances such as these.

[¶ 34] For this reason, I concur specially.

[¶ 35] Mary Muehlen Maring

SANDSTROM, Justice,

concurring specially.

[¶ 36] I agree with the result reached by the majority and write, separately to emphasize that in this case the State Toxicologist’s office, like the Highway Patrol in State v. Fitterer, 2002 ND 170, ¶ 2, 652 N.W.2d 908, was by law and in fact closely involved in the development of the criminal case. On the other hand, the defense in this case submitted a vast discovery request containing some 146 questions and subparts, much of it bearing little relation to the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or Rule 16 of the North Dakota Rules of Criminal Procedure.

[¶ 37] Most of the provisions of our Rule 16 come from the corresponding Federal Rules of Criminal Procedure. N.D.R.Crim.P. 16, Explanatory Note. “When a procedural rule is patterned on a Federal rule, the Federal courts’ interpretation of the Federal rule is highly persuasive.” State v. Meier, 422 N.W.2d 381, 386 (N.D.1988) (citing State v. Valgren, 411 N.W.2d 390 (N.D.1987)).

[¶ 38] There is no doubt that there is a special responsibility for agencies involved in the investigation and preparation of the prosecution case. United States v. Bryant, 439 F.2d 642, 650 (D.C.Cir.1971) (The duty of disclosure affects not only the prosecutor but investigative agencies.). The opinion of the Court correctly points out that the duty to disclose cannot be limited by what the prosecutor chooses to place in the file. United States v. Scruggs, 583 F.2d 238, 242 (5th Cir.1978) (“Nor is the government excused from its obligation by the fact that the documents were in the possession of the FBI prior to trial.” (citations omitted)).

[¶ 39] The defense, for its part, submitted what appear to be highly burdensome interrogatories outside the scope of Brady or Rule 16. See United States v. Haldeman, 559 F.2d 31, 75 (D.C.Cir.1976) (The “discovery motion, aptly described by the District Court as a ‘sweeping and broadly phrased’ endeavor to secure ‘a tremendous array of materials,’ ignored Rule 16(b)’s admonition of reasonableness.” (footnotes omitted)); United States v. Ross, 511 F.2d 757, 762 (5th Cir.1975) (The “ ‘measure of discovery permitted by the Rules of Criminal Procedure is not intended to be as broad as in a civil case.’ ” (citations omitted)); United States v. Marshall, 532 F.2d 1279, 1285 (9th Cir.1976) (“The requirement of materiality when seeking discovery under Rule 16(b) signifies that the pretrial disclosure of the evidence in question must enable the accused to substantially alter the quantum of proof in his favor.” (citations omitted)). To the extent that the defense’s discovery requests — including the four quoted in ¶ 3 — are questions to be answered, as opposed to documents or objects to be disclosed and made “available for inspection, copying, or photographing,” they are outside the scope of Rule 16. N.D.R.Crim.P. 16(a). Perhaps the defense achieved the strategic result it was hoping for, non-response by the prosecutor. Both the defense and prosecutor are reminded that Rule 16 provides its own remedies for non-compliance with appropriate requests and for protection from unreasonable and inappropriate requests:

(d) Regulation of Discovery.
(1) Protective and Modifying Orders. Upon a sufficient showing the court at any time may order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make the showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the party’s statement must be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
(2) Failure to Comply With Request. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule, the court may order that party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, relieve the requesting party from making a disclosure required by this Rule, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

N.D.R.Crim.P. 16.

[¶ 40] The rule does not contemplate strategic gamesmanship by either side; it requires fair and reasonable disclosure to serve the ends of justice.

[¶ 41] Dale Sandstrom

      . Justice Maring in her special concurrence urges that, where a failure to disclose requested information violates Rule 16, a continuance is the preferred remedy. Here, however, the trial court found no violation and therefore any remedy, including a continu-anee, would not have been granted. If the trial court is unsure whether the requested information is exculpatory, the better practice is to order a continuance so that the defendant may examine the materials to determine if they are exculpatory.

      . Our Court has approved an amendment to Rule 4(b)(1)(A), N.D.R.App.P., effective March 1, 2003: "In a criminal case, a defendant's notice of appeal must be filed with the clerk of district court within 30 days after the entry of the judgment or order being appealed.” This will alleviate some of my concerns about the procedure proposed by the majority, but I still favor a continuance as the appropriate remedy for the instant circumstances.


author: KAPSNER, Justice.

text:
    2003 ND 44
    Peggy A. KOEHLER, Plaintiff and Appellant. v. COUNTY OF GRAND FORKS, Grand Forks County Board of Commissioners and Gary Malm, Arvin Kvasager, William “Spud” Murphy, Constance Triplett and Robert Wood, individually, and Arlene Lucke and Mary Ann Gunderson, jointly and severally, Defendants and Appellees.
    No. 20020188.
    Supreme Court of North Dakota.
    March 26, 2003.

      Timothy P. Hill, Hill Law Office, Fargo, ND, for plaintiff and appellant.

      Margaret Moore Jackson, Pearson Christensen, Grand Forks, ND, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Peggy Koehler appealed from a summary judgment dismissing her claims against the County of Grand Forks, the Board of County Commissioners, Arlene Lucke, and Mary Ann Gunderson. We affirm, concluding Koehler failed to raise a genuine issue of material fact precluding summary judgment.

I

[¶ 2] Koehler began working in the office of the Grand Forks County Register of Deeds in February 1993. At that time Lylah Sollom was the Register of Deeds and Mary Ann Gunderson was the First Deputy. In 1995, Gunderson was elected Register of Deeds and the Second Deputy, Arlene Lucke, became First Deputy. When Gunderson retired in 1999, Lucke was elected Register of Deeds.

[¶ 8] In May 1998, Koehler suffered a heart attack and was on medical leave until October 1, 1998, when she returned to work on a part-time basis. After her heart attack, Koehler was restricted from lifting more than ten pounds and was diagnosed with congestive heart failure. She asserts she is now easily fatigued, has difficulty climbing and descending stairs, is unable to walk more than a short distance, has breathing problems, and has memory lapses.

[¶ 4] Koehler claims she was subjected to harassment and unfair treatment by Gunderson and Lucke throughout her employment in the Register’s office. Koehler alleges her workstation was placed at the rear of the office; she received less comfortable office furniture; she received a warning for insubordination; she was unable to take vacation time when she wanted; she was not invited to office social gatherings; she was not promoted to a First or Second Deputy position; an alarm clock was placed near her desk to signal breaks; Gunderson and Lucke followed her to the bathroom; and Gunderson and Lucke telephoned her and her doctor while she was on medical leave.

[f 5] In June 1999 Koehler resigned her position in the Register’s office and accepted another job with the County in the Veterans Services office. Koehler had been earning $1,811 per month at the Register’s office. Her new position paid $1,843 per month.

[¶ 6] Koehler brought this action against the County, the Board of County Commissioners, Lucke, and Gunderson, alleging disability discrimination, tortious interference with contract, and negligent supervision. The district court granted the defendants’ motion for summary judgment, concluding Koehler had failed to demonstrate a genuine issue of material fact on an essential element of each of her claims. Koehler appealed from the judgment dismissing her claims.

II

[¶ 7] Summary judgment under N.D.R.Civ.P. 56 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. Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 23, 655 N.W.2d 60. The party moving for summary judgment bears the burden of establishing there is no genuine issue of material fact and, under applicable principles of substantive law, the party is entitled to judgment as a matter of law. Moen v. Thomas, 2001 ND 110, ¶ 10, 628 N.W.2d 325. In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Id.

[¶ 8] We have outlined the duty of a party opposing a motion for summary judgment:

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)).

[¶ 9] Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of her claim and on which she will bear the burden of proof at trial. Hilton, 2002 ND 209, ¶23, 655 N.W.2d 60. When no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed no such evidence exists. Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 23, 651 N.W.2d 625.

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

Ill

[¶ 11] Koehler argues the district court erred in dismissing her disability discrimination claim under the North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4.

[¶ 12] The Human Rights Act outlines exceptions to the employment-at-will doctrine. Anderson, 2001 ND 125, ¶ 17, 630 N.W.2d 46; Hougum v. Valley Mem’l Homes, 1998 ND 24, ¶ 35, 574 N.W.2d 812. The Act’s purpose is to prevent and eliminate discrimination in employment relations, and it prohibits an employer from taking certain adverse employment actions on the basis of, among other things, physical disability. See N.D.C.C. §§ 14-02.4-01, 14-02.4-03; Anderson, at ¶ 17. The Act prohibits an employer from according adverse or unequal treatment to an employee with respect to promotions because of a physical disability. N.D.C.C. § 14-02.4-03. An employee who has been subjected to discrimination in violation of the Act may bring an action for damages. N.D.C.C. § 14-02.4-19. We have previously indicated that, when considering claims under the Act, we will look to federal interpretations of corresponding federal antidiscrimination statutes for guidance when it is “helpful and sensible to do so.” Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 12, 591 N.W.2d 101 (quoting Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D.1993)).

[¶ 13] The plaintiff in a discrimination action under the Act bears the initial burden of establishing a prima facie case. Anderson, 2001 ND 125, ¶ 18, 630 N.W.2d 46; Opp, 1999 ND 52, ¶ 14, 591 N.W.2d 101. To establish a prima facie case of discrimination under the Act, the plaintiff must prove: (1) she was a member of a protected class under the Act; (2) she was satisfactorily performing the duties of her position; (3) she suffered an adverse employment decision; and (4) others not in the protected class were treated more favorably. Anderson, at ¶ 18.

A

[¶ 14] Koehler claims she was discriminated against on the basis of her disability because she was passed over for promotion to First or Second Deputy in the Register’s office. The United States Court of Appeals for the Eighth Circuit has delineated the essential elements of a failure-to-promote case:

To establish a prima facie case in a failure-to-promote-case, a plaintiff must show: (1) that she was a member of a protected group; (2) that she was qualified and applied for a promotion to an available position; (3) that she was rejected; and (4) that a similarly qualified employee, not part of a protected group, was promoted instead.

Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1109 (8th Cir.1998).

[¶ 15] Koehler has failed to meet her burden of drawing our attention to evidence in the record raising a genuine issue of material fact on each element of a prima facie case. Rather, Koehler makes only vague, conclusory, unsupported assertions that she was passed over for a promotion because of her alleged disability. The only evidence she cites to support her assertion that “[e]ven though [she] was the most senior ... employee she was time and again overlooked for promotion to second or first deputy” was the following exchange from her deposition:

Q. What promotion do you now think you should have received?
A. Well, I think that I was, should have been moved up to the next grade when the last person, when the person left that I was in line for.
Q. And do you know which person you’re talking about?
A. I don’t know if it was Nancy or who it was or — it was before Nancy. It was before Nancy. Before Nancy that worked there, Nancy Driscoll, before, somebody that left before her.

[¶ 16] We have previously clarified that, in opposing a motion for summary judgment, a plaintiff in a failure-to-promote case must present evidence that she was a member of the protected class and the person promoted was not a member of the protected class. Anderson, 2001 ND 125, ¶ 9, 630 N.W.2d 46. In this case, Koehler has not identified the person who received the promotion she now complains about, let alone whether that person was not a member of the protected class. Furthermore, it is unclear whether the challenged promotion occurred before or after Koehler allegedly became disabled. A failure to promote violates the Act only if it was causally related to the physical disability. See N.D.C.C. § 14-02.4-03.

[¶ 17] In addition, Koehler concedes she never applied for any promotion and did not otherwise indicate to her supervisors she was interested in a promotion to First or Second Deputy. To establish a prima facie case for failure to promote, the plaintiff must ordinarily show she applied for the position at issue, or made every reasonable attempt to convey her interest in the position to the employer. See, e.g., Lockridge v. Board of Trs. of Univ. of Arkansas, 315 F.3d 1005, 1010-11 (8th Cir.2003); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1238 (10th Cir.2002); Anderson v. Richardson, 145 F.Supp.2d 1131, 1139 (D.N.D.2001).

[¶ 18] We conclude Koehler failed to present evidence creating a genuine issue of material fact on essential elements of her failure-to-promote claim.

B

[¶ 19] Koehler also raises a claim of hostile environment discrimination based upon physical disability, alleging Lucke and Gunderson engaged in harassing and demeaning conduct toward her. This Court has not previously recognized a claim for hostile environment discrimination based upon a physical disability under the Human Rights Act.

[¶ 20] We find it unnecessary to decide whether such a cause of action exists under the Act because, assuming it does, Koehler has failed to draw our attention to evidence in the record raising genuine issues of material fact on essential elements of the claim. To establish a pri-ma facie case of hostile environment discrimination under the Act a plaintiff would have to prove: (1) the employee belongs to a protected class; (2) the employee was subject to unwelcome harassment; (3) the harassment was based on her disability; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. See Opp, 1999 ND 52, ¶ 14, 591 N.W.2d 101.

[¶ 21] Koehler has failed to draw our attention to any evidence in the record showing the alleged harassment was based on, or “because of,” her disability. See N.D.C.C. § 14-02.4-03. Koehler argues she was continually subjected to harassing and demeaning conduct by Lucke and Gunderson throughout her term of employment with the Register’s office. While she argues on appeal that the harassment became more vigorous after her heart attack and medical leave, she cites to no evidence in the record which supports that conclusory and vague assertion. In fact, most of the specific incidents of harassment which Koehler relies on occurred before her 1998 heart attack, and before she could be considered disabled under the Act.

[¶ 22] It is clear there was a long-standing personality conflict between Koehler and Lucke and Gunderson. However, as noted by the United States Court of Appeals for the Seventh Circuit in a similar case under the Americans with Disabilities Act, “[a] personality conflict doesn’t ripen into an ADA claim simply because one of the parties has a disability.” Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir.1997). In order to prevail on a hostile work environment claim, the plaintiff must show the harassment occurred “because of’ her disability. Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 726 (8th Cir.1999); see N.D.C.C. § 14-02.4-03. We have noted antidiscrimi-nation statutes cannot be “a general civility code, and ‘ordinary tribulations of the workplace, such as the sporadic use of abusive language ... and occasional teasing’ will generally not rise to the level of actionable harassment.” Opp, 1999 ND 52, ¶ 19, 591 N.W.2d 101 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); see also Cannice, at 726. Insensitivity alone does not constitute harassment. Cannice, at 726.

[¶23] The record in this case shows any alleged harassing conduct toward Koehler began before her alleged disability. Koehler has not drawn our attention to evidence showing the intensity or tenor of the alleged harassment worsened after her disability. An ongoing personality conflict does not transform into an actionable disability claim merely because one party becomes disabled. See Uhl, 121 F.3d at 1137. Accordingly, because Koeh-ler was required to demonstrate the alleged harassment was based on or because of her disability, we conclude Koehler failed to present evidence raising a genuine issue of material fact on an essential element of her hostile environment claim.

IV

[¶ 24] Koehler argues the district court erred in dismissing her claim against Lucke and Gunderson for tortious interference with contract.

[¶ 25] Tortious interference with contract ordinarily arises when the defendant intentionally induces a third party to breach its contract with the plaintiff. See 45 Am.Jur.2d Interference § 6 (1999); 86 C.J.S. Torts § 59 (1997). In this case, however, Koehler argues she should be entitled to damages because Lucke and Gunderson’s alleged harassing conduct caused her to terminate her employment in the Register’s office and transfer to another department. Although Koehler cites no supporting authority for this novel theory, we note Restatement (Second) of Torts § 766A recognizes a cause of action for intentionally interfering with another’s performance of his own contract:

§ 766A. Intentional Interference with Another’s Performance of His Own Contract
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.

Liability under § 766A has been questioned, however, and has not been universally accepted. See 2 Dan B. Dobbs, Law of Torts § 448 (2001); Windsor Sec., Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 659-63 (3d Cir.1993); Price v. Sorrell, 784 P.2d 614, 615-16 (Wyo.1989).

[¶ 26] Even assuming we would adopt § 766A and apply it in a case such as this, where the plaintiff was an at-will employee who transferred to another department with the same employer due to harassment from co-workers, Koehler has failed to raise a genuine issue of material fact on an essential element of this claim. Under § 766A, a plaintiff may only recover pecuniary loss resulting from the interference with contract. Koehler has failed to demonstrate any pecuniary loss caused by the “induced breach” of her employment contract with the County. The record demonstrates Koehler transferred to another County department at an increase in pay. Koehler failed to raise a genuine issue of material fact on an essential element of her tortious interference with contract claim, and summary judgment was therefore appropriate.

V

[¶ 27] Koehler argues the district court erred in dismissing her claims against the County and the County Commissioners for negligent supervision.

[¶ 28] In addition to vicarious liability for an employee’s conduct, an employer may be directly liable for the employer’s own acts in negligently supervising an employee. Nelson v. Gillette, 1997 ND 205, ¶ 39, 571 N.W.2d 332. A claim for negligent supervision may arise when an employer fails to exercise ordinary care in supervising the employment relationship to prevent the foreseeable misconduct of an employee from causing harm to other employees or third persons. Id. Because the claim is based on negligence principles, the plaintiff has the burden of demonstrating a duty, breach of that duty, causation, and damages. Id.

[¶ 29] Koehler’s negligent supervision claim is based on her assertion she talked to the County’s Human Resource Manager, Ed Nierode, about her problems at work and he failed to investigate the matter or take other appropriate action. The district court concluded Koehler had failed to draw its attention to any evidence of damages from the County’s alleged negligent supervision and accordingly dismissed the claims.

[¶ 30] Damages are an essential element of a negligent supervision claim and, as the party opposing summary judgment, Koehler was required to draw to the attention of the district court evidence raising a genuine issue of material fact on damages. Koehler failed to address damages in her brief opposing summary judgment in the district court. In her appellate brief, Koehler now argues the damages element is satisfied by evidence she was overlooked for promotions to First or Second Deputy.

[¶ 31] As previously noted, Koehler concedes she never applied for any promotion and she never otherwise indicated to her supervisors she was interested in a promotion to First or Second Deputy. When asked in her deposition what promotion she felt she should have received, she failed to identify a specific instance or the person who received the promotion in question. Nor is there any evidence Koeh-ler told Nierode she felt she had been improperly passed over for a promotion.

[¶ 32] Under these circumstances, we conclude the district court did not err in concluding Koehler had failed to raise a genuine issue of material fact on damages. Summary judgment dismissal of the negligent supervision claims was therefore appropriate.

VI

[¶ 33] We have considered the remaining issues raised by Koehler and find them to be without merit. The summary judgment dismissing Koehler’s claims is affirmed.

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

      . Koehler actually appealed from the order for judgment. Although that order is not appealable, an attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists. Schuck v. Montefiore Pub. Sch. Dist. No. 1, 2001 ND 93, ¶ 1 n. 1, 626 N.W.2d 698. We therefore treat this as an appeal from the judgment dismissing her claims. See DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, HI n. 1, 636 N.W.2d 432; Schuck, at ¶ 1 n. 1.


author: NEUMANN, Justice.

text:
    2003 ND 52
    Kathryn SKJERVEM, Plaintiff and Appellant, v. MINOT STATE UNIVERSITY, Defendant and Appellee.
    No. 20020236.
    Supreme Court of North Dakota.
    March 31, 2003.

    Rehearing Denied April 21, 2003.

      James E. Nostdahl, Pringle & Herig-stad, P.C., Minot, ND, for plaintiff and appellant.
    Jean R. Mullen, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Kathryn Skjervem appeals from a summary judgment dismissing her personal injury claim against Minot State University. We affirm, concluding Skjervem failed to raise a genuine issue of material fact precluding summary judgment.

I

[¶ 2] Kathryn Skjervem was a student at Minot State University (“MSU”) in the fall of 1998. She lived in an apartment building owned by, and located on the campus of, MSU. On November 19, 1998, Skjervem injured her back when she fell on ice which had accumulated on the sidewalk outside the apartment building.

[¶ 3] Skjervem commenced this action against MSU on June 16, 2000, alleging MSU had caused her injuries by failing to properly maintain its property and allowing ice to accumulate on the sidewalk. The district court granted MSU’s motion for summary judgment, holding that MSU had immunity for any design defect on its property under N.D.C.C. § 32-12.2-02(3)(b) and that there was no evidence MSU had been negligent in maintaining the sidewalk. Skjervem has appealed from the summary judgment dismissing her claim against MSU.

II

[¶ 4] Summary judgment under N.D.R.Civ.P. 56 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. Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 23, 655 N.W.2d 60. The party moving for summary judgment bears the burden of establishing that there is no genuine issue of material fact and that, under applicable principles of substantive law, he is entitled to judgment as a matter of law. Moen v. Thomas, 2001 ND 110, ¶ 10, 628 N.W.2d 325. In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Id.

[¶ 5] We have outlined the duty of a party opposing a motion for summary judgment:

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)).

[¶ 6] Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of her claim and on which she will bear the burden of proof at trial. Hilton, 2002 ND 209, ¶23, 655 N.W.2d 60. When no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed no such evidence exists. Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 23, 651 N.W.2d 625.

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

Ill

[¶ 8] Before addressing Skjervem’s arguments on appeal, it is helpful to delineate what Skjervem is not arguing on appeal.

[¶ 9] Skjervem does not rely upon N.D.C.C. § 32 — 12.2—02(3)(f), which provides that the State is immune from:

A claim resulting from snow or ice conditions, water, or debris on a highway or on a public sidewalk that does not abut a state-owned building or parking lot, except when the condition is affirmatively caused by the negligent act of a state employee.

Skjervem does not argue the icy condition was affirmatively caused by a state employee’s negligence under this statute, nor does she argue that the statute by implication creates liability for the State for icy conditions upon a sidewalk which does abut a state-owned building or parking lot. Skjervem expressly disclaims any reliance upon N.D.C.C. § 32 — 12.2—02(3)(f), and accordingly we will not address it.

[¶ 10] The district court concluded MSU was not negligent as a matter of law for failing to clear ice and snow from the sidewalk before Skjervem’s fall. The record shows Minot had received ten inches of snow on November 18, 1998, the day before her fall. Skjervem concedes MSU had cleared the snow from the sidewalk, and the sidewalk was clear and not slippery when Skjervem returned to her apartment from class at 3:00 P.M. on November 19. Skjervem’s fall occurred at approximately 4:45 P.M. as she was leaving to pick up her daughter from daycare. The district court concluded as a matter of law that MSU’s failure to clear any ice or snow which had accumulated in the one-hour-and-forty-five-minute interval was not negligence. Skjervem does not challenge that conclusion, and expressly indicates that she has never argued for liability based upon MSU’s failure to clear the sidewalk.

IV

[¶ 11] Skjervem argues MSU was negligent in maintaining its sidewalk because it did not attempt to correct a known hazardous condition.

[¶ 12] MSU is part of the state higher education system. N.D. Const, art. VIII, § 6; N.D.C.C. §§ 15-10-01, 15-13-01. As such, MSU is an arm of the State and any claim against it is governed by N.D.C.C. ch. 32-12.2. See Cooke v. University of North Dakota, 1999 ND 238, ¶¶ 7-9, 603 N.W.2d 504; Olson v. University of North Dakota, 488 N.W.2d 386, 387 (N.D.1992); Leadbetter v. Rose, 467 N.W.2d 431, 434 (N.D.1991), overruled on other grounds by Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D.1994). Under N.D.C.C. § 32-12.2-02(1), “[t]he state may only be held hable for ... an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant.” This general liability for conditions upon property is limited by N.D.C.C. § 32-12.2-02(3)(b), which provides:

3. Neither the state nor a state employee may be held liable under this chapter for any of the following claims:
b. A claim based upon a decision to exercise or perform or a failure to exercise or perform a discretionary function or duty on the part of the state or its employees.... Discretionary acts include acts, errors, or omissions in the design of any public project but do not include the drafting of plans and specifications that are provided to a contractor to construct a public project.

The district court concluded that it was the design of the building and surrounding landscaping which caused water to melt from the roof of the building, flow along the landscaping, and pool and freeze on the sidewalk. The court concluded this was a design defect under the statute and that MSU was therefore immune from liability.

[¶ 13] Skjervem argues that, although it was the design of the building and landscaping which caused the water to pool and freeze on the sidewalk, she is not alleging liability based upon MSU’s original design and construction of the building. Rather, she argues that MSU was negligent in maintaining its property when it had knowledge of the hazardous condition and did not correct it.

[¶ 14] Courts in other jurisdictions faced with similar circumstances have generally concluded that the state’s immunity for design defects does not insulate the state in perpetuity, but the state may be liable if it has knowledge that it has created a hazardous condition and does not take reasonable measures to alleviate the danger. See Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121, 1127, 1130-31 (1972); City of St. Petersburg v. Collom, 419 So.2d 1082, 1086 (Fla.1982); Dunn v. Unified Sch. Dist. No. S67, 40 P.3d 315, 325 (Kan.Ct.App.2002); Archon v. Union Pac. R.R., 657 So.2d 987, 995-96 (La.1995); Wooten v. South Carolina Dep’t of Transp., 326 S.C. 516, 485 S.E.2d 119, 123 (1997); 18 Eugene McQuillin, Law of Municipal Corporations § 53.04.20 (2003). But see Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111, 123 (1983); Manna v. State, 129 N.J. 341, 609 A.2d 757, 762-64 (1992).

[¶ 15] The general rule is outlined in 57 Am.Jur.2d Municipal, County, School, and State Tort Liability § 299 (2001):

The immunity afforded to a public entity by a statute regarding the design of public improvements is not perpetual. On the contrary, if the defendant public entity has actual or constructive notice that the original plan or design had changed and, as a result of such change, produced a dangerous condition of the entity’s property, the entity must then take reasonable action to correct the condition.

In a seminal case addressing the issue, the Supreme Court of California stated:

The crucial question confronting us, therefore, is whether the immunity granted by section 830.6 continues to shield a public entity from liability even where, as here, the actual operation of the plan or design over a period of time and under changed circumstances discloses that the design has created a dangerous condition of which the entity has notice.
Essentially we must inquire as to whether the Legislature, in providing that design could give birth to immunity, intended that it could also endow immunity with perpetual life....
The clear teaching of Weiss [v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960) ] is that design immunity persists only so long as conditions have not changed. Having approved the plan or design, the governmental entity may not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual operation of the plan. Once the entity has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard. Since the Legislature explicitly adopted the rule of Weiss, we conclude that it did not intend that the design immunity provided by section 830.6 would be perpetual.

Baldwin, 99 Cal.Rptr. 145, 491 P.2d at 1125-27 (citation and footnote omitted). The court concluded:

To recapitulate, we hold that where a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operation under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain the statutory immunity from liability conferred on it by section 830.6.

Baldwin, at 1130-31.

[¶ 16] The Supreme Court of Florida explained the rationale for the rule in Col-lom, 419 So.2d at 1086 (citation and footnote omitted):

[O]nce a governmental entity creates a known dangerous condition which may not be readily apparent to one who could be injured by the condition, and the governmental entity has knowledge of the presence of people likely to be injured, then the governmental entity must take steps to avert the danger or properly warn persons who may be injured by that danger. The failure of government to act in this type of circumstance is, in our view, a failure at the operational level. We find that a governmental entity may not create a known hazard or trap and then claim immunity from suit for injuries resulting from that hazard on the grounds that it arose from a judgmental, planning-level decision. When such a condition is knowingly created by a governmental entity, then it reasonably follows that the governmental entity has the responsibility to protect the pubhc from that condition, and the failure to so protect cannot logically be labeled a judgmental, planning-level decision. We find it unreasonable to presume that a governmental entity, as a matter of policy in making a judgmental, planning-level decision, would knowingly create a trap or a dangerous condition and intentionally fail to warn or protect the users of that improvement from the risk. In our opinion, it is only logical and reasonable to treat the failure to warn or correct a known danger created by government as negligence at the operational level.

[¶ 17] We find it unnecessary to decide whether we would follow these cases and hold the State hable for known dangerous conditions because we conclude that, even if we were to adopt the rule, Skjervem has failed to raise a genuine issue of material fact on an essential element of her claim under the rule. The cases holding that design defect immunity is not perpetual clearly require that the State may only be held hable for known hazardous conditions upon its property. In her brief and in response to questions at oral argument, the only evidence cited by Skjervem to support her assertion that MSU had knowledge of the alleged dangerous condition was evidence that the apartment building had been there for a long time. There was also evidence that subsequent to Skjervem’s fall she and her fiancé noticed ice on the sidewalk on other occasions.

[¶ 18] These bare, conclusory allegations are insufficient to raise a genuine issue of material fact. Allegations that the condition recurred after the date of Skjer-vem’s injury is not evidence that it had been regularly occurring prior to Skjer-vem’s injury. Nor does the mere fact that the building had been in existence for a number of years support an inference that water had pooled and frozen on the sidewalk on prior occasions. Erosion, changed soil conditions, shifting or sinking of the sidewalk, or variation of the landscaping could have caused water to pool and freeze where it had not done so before. Skjer-vem has failed to draw our attention to competent, admissible evidence in the record raising an inference that MSU had prior knowledge that water was pooling and freezing on the sidewalk, causing a hazardous condition. When no pertinent evidence on an essential element of a party’s claim is presented in resistance to a motion for summary judgment, it must be presumed no such evidence exists. Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 23, 651 N.W.2d 625.

[¶ 19] We conclude Skjervem has failed to raise a genuine issue of material fact precluding summary judgment. We therefore affirm the summary judgment dismissing Skjervem’s claim.

[¶ 20] GERALD W. VANDEWALLE, C.J., DONOVAN J. FOUGHTY, D.J., MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ.

[¶ 21] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of SANDSTROM, J„ disqualified.


text:
    2003 ND 51
    QUESTA RESOURCES, INC., dba Questa Mortgage; First National Acceptance Company of North America, Plaintiffs and Appellees, v. Clark B. STOTT; Valley Honey Company, L.L.C.; Rebecca Graves; Larry Young; H. Austin Belnap; Crouse 05-27K; Ray Knoefler; Advanced Technology Feasibility Group, LLC; Iva Nette Knoefler; Albert G. Knoefler; Harold R. Knoefler, Knoefler Honey Farms; Valley Honey, LLC; Clark Stott dba Stott Apiaries; Carlson Systems; Cms Gilbreth Packing Systems, Inc.; Gregory Shephard dba Golden Honey; Drummond American Corporation; Harold Knoefler dba Golden Honey Inc.; Douglas J. Magnus; Ram-rom Business, Inc.; Sales Force Companies, Inc.; Harold Knoefler dba Golden Honey Co.; Smithway Motor Xpress, Inc.; Centra, Inc. dba Central Transport, Inc.; Mack & Associates, Inc.; The United States of America through the Internal Revenue Service; Joan P. Knoefler; Maxine E. Knoefler; Golden Equipment Co.; Bay View Funding; and any person in possession; and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Amended Complaint, Defendants, Larry Young, Defendant and Appellant.
    No. 20020267.
    Supreme Court of North Dakota.
    March 31, 2003.

      Randall N. Sickler, Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, ND, for plaintiffs and appellees.
    Larry Young, pro se, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Larry Young (“Young”) appealed a summary judgment foreclosing a mortgage on property located in Burleigh County, North Dakota. We conclude the trial court did not err in granting summary judgment to Questa Resources, Inc., d/b/a Questa Mortgage, and First National Acceptance Company of North America (collectively referred to as “Questa”). We affirm the judgment of the trial court, and we award costs, including reasonable attorney fees, in favor of Questa and against Young in the amount of $1500 under Rule 38, N.D.RApp.P.

I

[¶ 2] In July 1998, Valley Honey Company and Clark Stott executed and delivered a promissory note to Questa for $175,000. To secure payment of the promissory note, Valley Honey and Stott executed and delivered to Questa a mortgage on the property. The mortgage was recorded on November 4, 1999. In January 2001, the interest in the mortgage was assigned by Questa to First National Acceptance Company of North Dakota.

[¶ 3] The mortgage contains a power of sale which, upon default of any of the terms and conditions, permits the holder of the mortgage to foreclose its interest in the mortgaged property to satisfy the debt. Valley Honey Company and Clark Stott defaulted under the terms of the promissory note and mortgage by failing to pay principal and interest owing and by failing to pay taxes, assessments, and insurance premiums. Questa began proceedings in the trial court to foreclose the mortgage. Questa moved for summary judgment, asserting there is no genuine issue of material fact and Questa’s mortgage is superior to all other claimed interests in the mortgaged property. The trial court granted Questa’s motion for summary judgment. Judgment was entered and the property was sold. Larry Young appeals the summary judgment foreclosing the mortgage on the property. Young claims an interest in the mortgaged property by virtue of several quitclaim deeds.

II

[¶ 4] Young argues the trial court erred in granting Questa’s motion for summary judgment because Questa has not complied with the requirement of N.D.C.C. § 10-19.1-142(1), which specifies that “[a] foreign corporation transacting business in this state may not maintain any claim, action, suit, or proceeding in any court of this state until it possesses a certificate of authority.” However, N.D.C.C. § 10-19.1-143 further explains N.D.C.C. § 10-19.1-142, and provides:

1. The following activities of a foreign corporation, among others, do not constitute transacting business within the meaning of this chapter:
g. Creating or acquiring indebtedness, mortgages, and security interest in real or personal property;
h. Securing or collecting debts or enforcing mortgages and security interests in property securing the debts; ...

[¶ 5] We conclude Questa was not required to obtain a certifícate of authority before commencing an action in the trial court to foreclose the mortgage. Section 10-19.1-143, N.D.C.C., specifically provides that the creation and enforcement of a security by way of a mortgage is not transacting business in this state for purposes of N.D.C.C. ch. 10-19.1.

III

[¶ 6] Young also contends Questa lacked legal capacity to commence a trial court action because it was not licensed to do business as a debt collection agency. Young did not raise this issue in the trial court. “We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal.” Wen-zel v. Wenzel, 469 N.W.2d 156, 158 (N.D. 1991). We refuse to consider this issue.

IV

[¶ 7] Questa asserts this appeal is frivolous and requests costs and attorney fees under N.D.R.App.P. 38. Rule 38, N.D.R.App.P., provides: “[i]f the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney’s fees.” An appeal is frivolous under Rule 38, N.D.R.App.P., “if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.” Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D.1984).

[¶ 8] We conclude Young’s arguments were so factually and legally devoid of merit that he should have been aware of the impossibility of .success on appeal. Questa submitted an affidavit outlining its costs, including attorney fees, which have been incurred in this appeal. Young’s appeal is frivolous and we award Questa costs, including reasonable attorney fees, in the amount of $1500.

V

[¶ 9] We conclude Questa was not required to obtain a certificate of authority prior to commencing proceedings in the trial court to foreclose the mortgage. We affirm the judgment of the trial court and under Rule 38, N.D.R.App. P., we award Questa costs, including reasonable attorney fees, in the amount of $1500.

[¶ 10] GERALD W. VandeWALLE, C.J., GEORGIA DAWSON, D.J., DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.

[¶ 11] The Honorable GEORGIA DAWSON, D.J., sitting in place of MARING, J., disqualified.