author: MARING, Justice. SANDSTROM, Justice,

text:
    2001 ND 191
    Kathleen M. SOMMER, Plaintiff and Appellee v. Donald H. SOMMER, Defendant and Appellant.
    No. 20010044.
    Supreme Court of North Dakota.
    Dec. 5, 2001.

      Mary Kathryn Kelsch, Bair, Bair, Garrity & Kelsch, LLP, Mandan, for defendant and appellant.
    Shari J. McPhail, McPhail Law Firm, Bismarck, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Donald Sommer appeals from a judgment dated December 26, 2000, which granted the parties a divorce, divided their marital property, and ordered Donald to pay spousal support. Donald challenges the award of spousal support. We hold the trial court’s decision to award spousal support was not clearly erroneous and affirm the judgment. We remand the case to the trial court to determine whether Kathleen should be awarded attorney fees for this appeal.

I

[¶ 2] Donald and Kathleen Sommer were married on September 11, 1971. Their marriage produced three children. Marty, who was 26 at the time of trial, was born in 1974. Jeremy, who was 23 at the time of the trial, was born in 1977. Dallas, who was 20 at the time of the trial, was born in 1980. After their marriage, Donald and Kathleen lived in Northwood, North Dakota, until 1978. They then moved to Washburn, North Dakota, when Donald began working at Great River Energy in Underwood, North Dakota.

[¶ 3] At the time of the trial, Donald was 52 years old. He is a high school graduate and received a two-year degree in mechanics from Wahpeton State School of Science in 1970. At the time of trial, he had been employed with Great River Energy for 22 years and was working full-time at $25.18 an hour. Donald’s gross income for the years 1997, 1998, and 1999 was $58,688.39, $68,400.00, and $62,368.38, respectively.

[¶ 4] Kathleen was 50 years old at the time of trial. She is a high school graduate and received a clerical certifícate from the North Dakota State School of Science in 1969. From 1969 until 1978, she worked as a clerk and secretary for a hospital in Northwood, North Dakota. From 1978 until 1983, she stayed at home with her children and provided child care in their home. Also, for about one year of this time, she worked one day a week at the McLean County Courthouse. From 1983 until 1984, Kathleen worked in medical records at the nursing home in Underwood. From 1984 to 1986, Kathleen worked as a mail carrier in Underwood for the United States Postal Service. In 1986, she was transferred into a clerking position at the post office in Washburn.

[¶ 5] Until 1997, Kathleen’s status with the Postal Service was that of a part-time employee; however, she usually carried full-time hours by working extra hours at the post office in Bismarck, North Dakota, and by setting up recycling programs for postal facilities throughout the United States. In November of 1997, Kathleen was involved in a car accident in which she injured her neck and shoulders. After the accident, she returned to work at the post office in Washburn as a part-time employee. A temporary assignment to light duty was placed on her by Dr. William D. Can-ham, a doctor who examined Kathleen at the request of the Postal Service. Kathleen testified she was not given the option to work additional hours at the post office in Bismarck after the light duty restriction was placed on her; therefore, she was no longer able to carry full-time hours as she did before the accident.

[¶ 6] At the time of the trial, Kathleen worked an average of eight hours per week for the post office at $20.25 per hour. She also earned about $300 per month working for the Council for Educational Travel USA, a foreign exchange student program. Kathleen’s gross income for the years 1997, 1998, and 1999 was $36,258.93, $11,053.93, and $15,537.63, respectively.

[¶ 7] Donald and Kathleen lived together in Washburn until March 20, 2000, when Kathleen applied for a temporary protection order against Donald. A hearing was held on March 27, 2000, and a six-month permanent protection order was entered. Also on March 27, 2000, Kathleen commenced an action for divorce. The trial court entered a judgment of divorce on December 26, 2000, that awarded Kathleen permanent spousal support of $850 per month. Donald appeals that award.

II

[¶ 8] Spousal support determinations are treated as findings of fact which will not be set aside on appeal unless clearly erroneous. See Johnson v. Johnson, 2000 ND 170, ¶ 49, 617 N.W.2d 97. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) only if it is induced by an erroneous view of the law, there is no evidence to support it, or, although some evidence supports it, based on the entire record, we are left with a definite and firm conviction a mistake has been made. See Riehl v. Riehl, 1999 ND 107, ¶ 7, 595 N.W.2d 10.

[¶ 9] Trial courts must consider the Ruff Fischer guidelines in making a determination of spousal support, both as to amount and duration. See id. at ¶ 8 & n. 1 (citing Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966)). The factors include:

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

See id. at ¶ 8 (quoting Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 14, 563 N.W.2d 377). Although a trial court need not make specific findings as to each factor, the rationale for its determination must be discernable. See id.

[¶ 10] Upon granting a divorce, a court may compel either of the parties to pay the other party spousal support “during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively.” N.D.C.C. § 14-05-24; see also Marschner v. Marschner, 2001 ND 4, ¶ 10, 621 N.W.2d 339. In considering the circumstances of the parties, a trial court must take into account “the needs of the disadvantaged spouse and the supporting spouse's needs and ability to pay.” Mar-sehner, at ¶ 10. A disadvantaged spouse is one who has “foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity.” See Riehl, 1999 ND 107, ¶ 9, 595 N.W.2d 10 (quoting Van Klootwyk, 1997 ND 88, ¶ 16, 563 N.W.2d 377). Furthermore, a valid consideration in determining whether a spouse is disadvantaged as a result of the divorce is whether there is a need to equitably balance the burdens created by the divorce where the parties cannot maintain the same standard of living apart as they enjoyed together. See Wald v. Wald, 556 N.W.2d 291, 297 (N.D.1996) (“We recognize a court must balance the burden created by a divorce when it is impossible to maintain two households at the pre-divorce standard of living.”); Wiege v.Wiege, 518 N.W.2d 708, 712 (N.D.1994) (“The trial court’s award of permanent support, combined with the rehabilitative support, equitably shares the overall reduction in the parties’ separate standards of living and is not clearly erroneous.”) (internal quotation marks omitted); Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992) (“Continuance of a standard of living is a valid consideration in spousal support determinations, e.g., Bagan v. Bagan, 382 N.W.2d 645 (N.D.1986), as is balancing the burdens created by the separation when it is impossible to maintain two households at the pre-divorce standard, e.g., Weir v. Weir, 374 N.W.2d 858 (N.D.1986).”).

[¶ 11] Donald argues that, because Kathleen was employed throughout the parties’ marriage, the trial court erred in finding Kathleen to be a disadvantaged spouse. However, a complete abandonment of work outside the home is not a prerequisite to being a disadvantaged spouse; rather, a spouse who remains out of the workforce to any degree in order to provide child care or homemaking services “has foregone opportunities and has lost advantages that accrue from work experience and employment history.” Weigel v. Weigel, 2000 ND 16, ¶ 13, 604 N.W.2d 462. In concluding that Kathleen was a disadvantaged spouse, the trial court found that she has “foregone opportunities while raising their children and she has contributed during the marriage to the defendant’s increased earning capacity by keeping the family going while he was able to devote much of his time to making a better living to be better equipped to support their family.” The evidence at trial established that Kathleen stayed at home for five years to care for the parties’ children. The trial court’s finding that she was disadvantaged is not clearly erroneous.

[¶ 12] Donald argues the trial court erred in determining the amount and duration of spousal support because the evidence did not support a finding of domestic violence on the part of Donald under the Ruff-Fiseher guidelines. The evidence at trial established that a six-month domestic violence protection order was issued against Donald on March 27, 2000. Additionally, Kathleen testified as to other incidents of domestic violence. Thus, there was evidence in the record of domestic violence on the part of Donald. The trial court’s finding of domestic violence is not clearly erroneous.

[¶ 13] Donald also argues the trial court erred because it did not consider financial misconduct on the part of Kathleen when it determined the amount and duration of spousal support. However, some of Kathleen’s financial decisions proved to be lucrative for the parties. Also, a number of the real estate transactions she entered into were for the benefit of the parties’ children. Additionally, the evidence at trial established Donald acquiesced in Kathleen’s handling of the parties’ financial affairs. Under these circumstances, it was not clearly erroneous for the trial court to decline to find financial misconduct on the part of Kathleen.

[¶ 14] Next, Donald argues that, even if the trial court’s application of the Ruff-Fischer guidelines support an award of spousal support, the trial court erred in awarding permanent rather than rehabilitative spousal support. We recognize permanent spousal support and rehabilitative spousal support as two distinct remedies. See Riehl, 1999 ND 107, ¶ 11, 595 N.W.2d 10. Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost in the course of the marriage. See id. at ¶ 18 (citing Kautzman v. Kautzman, 1998 ND 192, ¶¶ 19, 20, 585 N.W.2d 561 (“permanent spousal support appropriate where wife’s ‘earning capacity will never approach [husband’s]’ and the parties enjoyed a ‘very comfortable standard of living’ ”); Donarski v. Donarski, 1998 ND 128, ¶¶ 6, 8, 581 N.W.2d 130 (“wife’s ‘limited marketable job skills’ and ‘the substantial disparity in income between the parties’ justified award of permanent spousal support”)). Furthermore, permanent spousal support may be awarded “where the marriage has been of long duration and the dependent spouse has health problems or is of such an age that adequate rehabilitation is unlikely.” Kouba v. Kouba, 544 N.W.2d 142, 143 (N.D.1996). In contrast, rehabilitative spousal support is appropriate “when it is possible to restore an economically disadvantaged spouse to independent economic status or to equalize the burden of divorce by increasing the disadvantaged spouse’s earning capacity.” See Riehl, at ¶ 12 (citation omitted). However, even when the disadvantaged spouse is capable of rehabilitation, our Court has recognized permanent spousal support as an appropriate remedy to ensure the parties equitably share the overall reduction in their separate standards of living. See id. at ¶ 18 (citing Weir, 374 N.W.2d at 864 (“permanent support appropriate because disadvantaged spouse ‘is likely to have a much lower income producing capacity than [the other spouse], which earning capacity she aided ... in obtaining’ ”)).

[¶ 15] The evidence in the record supports the trial court’s findings, which support an award of permanent spousal support of $850 per month. Donald and Kathleen’s twenty-nine year marriage was of long duration. Kathleen’s ability to work full-time for the Postal Service is limited as a result of the automobile accident. There is a vast disparity in income and earning potential between Donald and Kathleen. In fact, Donald’s own expert witness testified that even if Kathleen were to work full-time in the private sector, she would earn approximately the same income that she currently earns working part-time for the Postal Service. Finally, the trial court considered the fact that Donald and Kathleen’s separate standards of living were reduced upon their divorce. The trial court’s award of permanent spousal support is not clearly erroneous.

Ill

[¶ 16] Donald argues the trial court erred because it did not consider the property division when it determined the amount of spousal support awarded to Kathleen. A trial court cannot “consider issues of property division and spousal support separately in a vacuum, but must examine those issues together.” Ketelsen v. Ketelsen, 1999 ND 148, ¶ 6, 598 N.W.2d 185. The trial court in this case equitably divided the property of the marital estate before it made findings of fact on the issue of spousal support. Also, in its memorandum opinion, the trial court cited the portion of Schiff v. Schiff where we said, “A relevant factor in setting the amount of support for a disadvantaged spouse is the distribution of marital property and the liquidity or income-producing nature of the property distributed to the disadvantaged spouse.” 2000 ND 113, ¶ 42, 611 N.W.2d 191. Furthermore, the trial court also cited the portion of Mellum v. Mellum where we said, “[P]roperty division and spousal support are interrelated, and often must be considered together.” 2000 ND 47, ¶ 19, 607 N.W.2d 580 (alteration in original) (quoting Lohstreter v. Lohstreter, 1998 ND 7, ¶ 16, 574 N.W.2d 790). The trial court properly considered the parties’ property distribution when it determined the spousal support award.

IV

[¶ 17] Donald argues the trial court erred by not providing for the elimination or reduction of the spousal support award upon Donald’s retirement. An award of permanent spousal support is subject to future modification. See van Oosting v. van Oosting, 521 N.W.2d 93, 100 (N.D.1994). A trial court’s power to modify an award of spousal support is statutory and is not dependent upon any express reservation of continuing jurisdiction in the divorce judgment. See Wheeler v. Wheeler, 548 N.W.2d 27, 29 (N.D.1996) (citing N.D.C.C. § 14-05-24). Therefore, in fashioning an original divorce decree, it is not necessary for a trial court to specify every contingency that would reduce spousal support. See Wiege v. Wiege, 518 N.W.2d 708, 712 (N.D.1994) (finding that the trial court did not err by failing to provide for automatic termination of spousal support upon remarriage of the supported spouse); Roen v. Roen, 438 N.W.2d 170, 173 (N.D.1989) (holding that the trial court did not err by failing to provide for termination of spousal support upon the death or remarriage of the supported spouse because the court had power to modify the spousal support award).

[¶ 18] Should Donald wish to decrease the amount of his spousal support payments upon his retirement, he may bring a motion for modification at that time. See Schmitz v. Schmitz, 2001 ND 19, ¶ 8, 622 N.W.2d 176. In order to modify an award of spousal support, the obligor spouse has the burden of showing a material change in circumstances justifying the modification. Id. “A ‘material change’ is something substantially affecting the financial abilities or needs of a party.” Id.

[¶ 19] In prior cases, we have held that the voluntary retirement of a supporting spouse is not a change in circumstances justifying a modification of spousal support. See Wheeler, 548 N.W.2d at 31; Huffman v. Huffman, 477 N.W.2d 594, 598 (N.D.1991). Thus, it could be argued that these cases would bar any future motion by Donald to modify his spousal support obligations upon his retirement. However, the parties in Wheeler and Huffman entered into stipulated agreements regarding spousal support prior to entry of the divorce judgment; therefore, the burden on the supporting spouses to show that their voluntary retirement was a material change in circumstances was much greater than it would have been had they been ordered to pay spousal support based solely on the trial court’s findings. See Wheeler, at 30 (stating that a change in circumstances is reviewed with greater scrutiny when the parties stipulate to a spousal support agreement); Huffman, at 596 (“The trial court should be more reluctant to modify an original decree which is based upon an agreement of the parties than one based upon the court’s findings.”).

[¶ 20] In contrast, when a supporting spouse has been ordered to pay spousal support based on the trial court’s findings, a voluntary change in employment by the supporting spouse that results in lower income may be a valid basis for a modification of spousal support if the change in employment was reasonable and made in good faith. See Mahoney v. Mahoney, 538 N.W.2d 189, 192-93 (N.D.1995) (affirming the trial court’s finding of a change in circumstances based on the supporting spouse’s decrease in income that occurred when he voluntarily changed employment). Likewise, voluntary retirement by a supporting spouse that results in a material change in circumstances may, under some circumstances, be a valid basis for modification of spousal support. Cf. id.; see also Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992); In re Marriage of Smith, 77 Ill.App.3d 858, 33 Ill.Dec. 332, 396 N.E.2d 859, 863-64 (1979); Smith v. Smith, 419 A.2d 1035, 1038 (Me.1980); Silvan v. Sylvan, 267 N.J.Super. 578, 632 A.2d 528, 530 (App.Div.1993); Deegan v. Deegan, 254 N.J.Super. 350, 603 A.2d 542, 545-46 (App.Div.1992). Thus, our prior holdings in Wheeler and Huffman would not bar Donald from bringing a motion for modification of spousal support based upon his voluntary retirement.

[¶ 21] Donald argues that his retirement is a known future event; therefore, the trial court is inviting unnecessary litigation by not providing for an automatic reduction of spousal support upon his retirement. However, the exact date of Donald’s retirement is not known as he testified “I suppose I’d work till retirement age, 60, 62. It all depends on my health.” Furthermore, no evidence at trial established how much Donald’s income would actually be reduced at his retirement. See Mahoney, 538 N.W.2d at 192 (quoting Mahoney v. Mahoney, 516 N.W.2d 656, 660 (N.D.Ct.App.1994) (“ ‘Because a change in employment does not necessarily result in a change in financial circumstances, the proper time for a court to determine whether a change has occurred ... is after the fact.’ ”)). Thus, it was not clearly erroneous for the trial court to decline to provide for an automatic reduction in spousal support upon Donald’s retirement.

V

[¶ 22] Kathleen requests that we award her attorney fees incurred on this appeal. “‘Although we have concurrent jurisdiction with the trial court to award attorney fees on appeal, we prefer that the trial court decide the issue.’ ” Schmitz, 2001 ND 19, ¶ 13, 622 N.W.2d 176 (quoting Conkins v. Steffan, 532 N.W.2d 59 (N.D.1995)).

VI

[¶ 23] We, therefore, affirm the judgment of the trial court and remand Kathleen’s request for attorney fees on appeal to the trial court.

[¶ 24] VANDE WALLE, C.J., and NEUMANN, and KAPSNER, JJ.,.concur.

SANDSTROM, Justice,

concurring in the result.

[¶ 25] I concur in the result.

[¶ 26] I am concerned that the majority opinion may be construed as suggesting spousal support is appropriate whenever a spouse will not be able to maintain the same standard of living after a divorce. Sadly, a reduced standard of living is often the case for both parties to a divorce.

[¶ 27] Spousal support is appropriate when a party has been disadvantaged as a result of the marriage. Weigel v. Weigel, 2000 ND 16, ¶¶ 11-14, 604 N.W.2d 462; Brown v. Brown, 1999 ND 199, ¶ 32, 600 N.W.2d 869 (“A ‘disadvantaged’ spouse is one who has ‘foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity.’ ” (quoting Riehl v. Riehl, 1999 ND 107, ¶ 9, 595 N.W.2d 10)). Certainly in the case of long-term marriages, permanent spousal support may be appropriate, but it should not be the norm when rehabilitative support can overcome the disadvantage resulting from the marriage. I am reassured by the longstanding position of this Court that rehabilitative, not permanent, spousal support is preferred. See, e.g., van Oosting v. van Oosting, 521 N.W.2d 93, 100 (N.D.1994); Welder v. Welder, 520 N.W.2d 813, 818 (N.D.1994); Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994); Roen v. Roen, 438 N.W.2d 170, 172 (N.D.1989).

[¶ 28] Dale V. Sandstrom, J.

      . Subsequent to the entry of the divorce judgment in this case, the legislature amended N.D.C.C. § 14-05-24. The language of section 14-05-24 that is pertinent to this case now appears in N.D.C.C. § 14-05-24.1. Section 14-05-24.1 provides: "Taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time. The court may modify its spousal support orders.”

      . While we find that our prior case law would not Kar Donald from bringing a motion for modification at his retirement, we leave open the secondary question of what a supporting spouse must show to actually succeed on a motion for modification based on the supporting spouse’s voluntary retirement until this issue is presented to us. Courts have relied on a number of different tests to determine when such a motion should be granted. See Lewis Becker, Spousal and Child Support and the “Voluntary Reduction of Income” Doctrine, 29 Conn. L. Rev. 647, 685-87 (1997); Colleen Marie Halloran, Comment, Petitioning a Court to Modify Alimony When a Client Retires, 28 U. Balt. L. Rev. 193, 212-29 (1998).


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2001 ND 182
    James Joseph DeCOTEAU, Plaintiff and Appellant v. NODAK MUTUAL INSURANCE COMPANY, Defendant and Appellee.
    No. 20010066.
    Supreme Court of North Dakota.
    Dec. 5, 2001.

      Jeffrey J. Lowe (argued), Simon, Lowe & Passanante, LLC, St. Louis, MO, H. Patrick Weir, Jr. (appeared), Lee Hagen Law Office, Ltd., Fargo, Joseph P. Danis and John J. Carey, Carey & Danis, LLC, St. Louis, MO, for plaintiff and appellant.
    Richard N. Jeffries (argued), and Aaron J. Dorrheim, Jeffries, Olson & Flom, PA, Moorhead, MN, for defendant and appel-lee.
   SANDSTROM, Justice.

[¶ 1] James Joseph DeCoteau appealed from a summary judgment awarding him $25,000 in his action against Nodak Mutual Insurance Company for underinsured motorist coverage. DeCoteau argues we should affirm the judgment, but remand the case and order the trial court to allow him discovery so he can obtain evidence to support a motion to certify a class action against Nodak. Under the circumstances, we conclude the case is moot, and we dismiss the appeal.

I

[¶ 2] On October 6, 1994, DeCoteau was injured in an automobile accident. After receiving $25,000 from the other driver’s automobile insurance company, DeCo-teau claimed he sustained damages in the accident in excess of $25,000 and sought underinsured motorist coverage under his insurance policy with Nodak. Nodak denied DeCoteau’s claim.

[¶ 3] In May 1998, DeCoteau sued No-dak for breach of contract in allegedly providing him illusory underinsured motorist coverage. He also claimed Nodak was liable under theories of breach of the duty of good faith and fair dealing, misrepresentation and omission, unjust enrichment, and promissory estoppel. DeCo-teau’s complaint alleged he was suing on behalf of himself and as class representative for all individuals who had purchased the minimum statutory required amount of underinsured motorist coverage from No-dak since 1992 and had been denied proceeds under their policies. Nodak moved for summary judgment, and DeCoteau moved under N.D.R.Civ.P. 56(f) for a stay pending further discovery on his individual claim and on class action issues. The trial court denied DeCoteau’s motion for a stay and granted Nodak’s motion for summary judgment, ruling a 1994 version of Nodak’s policy was not illusory because it provided coverage under narrow circumstances, and a 1992 version of Nodak’s policy did not raise issues about illusory coverage because the 1992 version provided broader coverage than the 1994 version. DeCoteau appealed, and in DeCoteau v. Nodak Mut. Ins. Co., 2000 ND 3, ¶ 20, 603 N.W.2d 906, this Court ruled, “[bjecause we conclude DeCoteau may be entitled to underinsured proceeds under the 1992 version of the policy, but not under the 1994 version, we conclude there is a material factual dispute about which version applies to DeCoteau’s claim, and we reverse the summary judgment and remand for a determination of which policy was in effect when the accident occurred.”

[¶ 4] In November 2000, ten months after our remand, DeCoteau served interrogatories on Nodak and requested production of documents. DeCoteau asked Nodak to provide a list of all people who had purchased an automobile insurance policy with underinsured motorist coverage of $25,000 per person and $50,000 per occurrence and which contained the same definition of an underinsured motor vehicle as contained in DeCoteau’s 1992 policy. He also sought documents or a computer database identifying similarly situated persons and a list of all persons who had filed underinsured motorist claims that were denied. Before responding to the discovery requests, Nodak filed an offer of settlement under N.D.R.Civ.P. 68, agreeing to settle DeCoteau’s individual claim and' allow judgment to be entered against it for the $25,000 policy limit on the insurance policy plus costs accrued at the time of the offer. DeCoteau did not accept the offer.

[¶ 5] On December 8, 2000, Nodak objected to DeCoteau’s discovery request, claiming it was overly broad, unduly burdensome, oppressive, harassing, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. No-dak also claimed the information sought was proprietary and confidential, and argued DeCoteau’s lawsuit was not a class action. Nodak simultaneously moved for summary judgment declaring it was liable to DeCoteau for $25,000. Nodak argued, because it was undisputed the 1992 policy applied and the maximum policy limit of $25,000 had been offered to DeCoteau, No-dak was entitled to summary judgment against itself as a matter of law. DeCo-teau requested the trial court enter judgment on his individual claim for $25,000, but opposed “entry of final judgment which would allow defendants to defeat the class claims brought by plaintiff because this would circumvent the class action rules and allow a defendant to defeat a class action merely by offering the.UIM limits of $25,000.”

[¶ 6] The trial court granted the summary judgment motion, awarding DeCo-teau $25,000 and awarding Nodak $55.50 for its allowable costs and disbursements. Neither the order nor the judgment mentions the class action allegations of DeCo-teau’s complaint, and at no time did DeCo-teau either move to compel discovery or to certify the class action.

[¶ 7] After judgment was entered, the parties tendered checks to each other for the amounts ordered by the judgment and executed a mutual satisfaction of judgment. The mutual satisfaction of judgment stated the amounts the parties paid to each other were in “full satisfaction” of the judgment, and authorized the clerk of court “to enter satisfaction of record of said judgment.” The mutual satisfaction of judgment was entered on February 2, 2001. DeCoteau appealed, and Nodak moved to dismiss the appeal.

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

II

[¶ 9] Nodak argues the appeal should be dismissed either because it is moot, or because DeCoteau waived the right to appeal by his execution and the entry of the parties’ mutual satisfaction of judgment.

[¶ 10] We will dismiss an appeal if the issues become moot or academic and no actual controversy is left to be determined. See Ashley Educ. Ass’n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D.1996). An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief. See In re E.T., 2000 ND 174, ¶ 5, 617 N.W.2d 470. Ordinarily, the parties’ mutual satisfaction of judgment, in which DeCoteau received all that he sought from Nodak with regard to the merits of his individual claim, would moot this case. “Because a satisfaction of judgment extinguishes the claim, the controversy is deemed ended, leaving the appellate court with nothing to review.” Lyon v. Ford Motor Co., 2000 ND 12, ¶ 10, 604 N.W.2d 453. See also N.D.C.C. § 28-05-10. However, special mootness rules apply to class actions, where the named plaintiff purports to represent more than his own interest.

[¶ 11] Rule 23, N.D.R.Civ.P., is similar although not identical to Rule 23, F.R.Civ.P. Three major United States Supreme Court decisions construing the federal class action rule set the backdrop for our analysis. The Supreme Court held in Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (footnote omitted), that the mootness of the named plaintiffs individual claim after a class had been duly certified did not render the action moot, because “the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by” the named plaintiff. In United States Parole Comm’n v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), the Supreme Court further ruled a trial court’s denial of a motion for certification of a class may be reviewed on appeal when the named plaintiffs personal claim becomes moot after the certification ruling because the “proposed representative retains a ‘personal stake’ in obtaining class certification” in addition to the individual claim on the merits.

[¶ 12] The third case, Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), is relied upon heavily by DeCoteau in arguing this case is not moot. In Roper, credit card holders brought a class action challenging finance charges on their cards and those of similarly situated cardholders. After the district court denied the plaintiffs’ motion for class certification, the bank tendered to each named plaintiff the maximum amount that plaintiff could have recovered. The named plaintiffs refused the offer, but made a counteroffer of judgment in which they attempted to reserve the right to appeal the adverse certification ruling. The bank did not accept the counteroffer and the district court, over the plaintiffs’ objections, entered judgment in their favor and dismissed the action as moot. The bank deposited the amount tendered with the court, and the named plaintiffs appealed the certification ruling.

[¶ 13] The Supreme Court ruled the case was not moot and the plaintiffs could appeal the adverse certification ruling. The Court reasoned the plaintiffs retained a stake in the appeal because, even after full tender of their individual damages, the plaintiffs still had a “desire to shift to successful class litigants a portion of those fees and expenses that have been incurred in this litigation and for which they assert a continuing obligation.” Roper, 445 U.S. at 334 n. 6, 100 S.Ct. 1166. The Court said:

To deny the right to appeal simply because the defendant has sought to “buy off’ the individual private claims of the named plaintiffs would be contrary to sound judicial administration. Requiring multiple plaintiffs to bring separate actions, which effectively could be “picked off’ by a defendant’s tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement. It would be in the interests of a class-action defendant to forestall any appeal of denial of class certification if that could be accomplished by tendering the individual damages claimed by the named plaintiffs.

Id. at 339, 100 S.Ct. 1166. However, the Court explicitly confined the holding of the case to its factual context: “At no time did the named plaintiffs accept the tender in settlement of the case; instead, judgment was entered in their favor by the court without their consent and the case was dismissed over their continued objections.” Id. at 332, 100 S.Ct. 1166 (footnote omitr ted). See also id. at 337, 100 S.Ct. 1166 (noting “[rjespondents have never accepted the tender or judgment as satisfaction of the substantive claims”).

[¶ 14] DeCoteau argues his case is not moot because Nodak, by making the unusual motion for summary judgment against itself, has attempted to do exactly what the defendant bank attempted to accomplish in Roper. However, there are two crucial factors that distinguish this case from Roper. First, unlike the named plaintiffs in Roper, who never accepted the tender or judgment as satisfaction of their substantive claims, DeCoteau accepted the $25,000 from Nodak and executed and filed with the clerk of court a mutual satisfaction of the judgment without reserving any right to appeal class action issues. Courts have held that a named plaintiffs voluntary settlement or unqualified release of claims relinquishes not only the plaintiffs interest in his individual claims but also his interest in class certification, thus mooting the plaintiffs appeal from an adverse certification ruhng. See, e.g., Toms v. Allied Bond & Collection Agency, Inc., 179 F.3d 103, 105 (4th Cir.1999); Lusardi v. Xerox Corp., 975 F.2d 964, 979-80 n. 25 (3rd Cir.1992); Shores v. Sklar, 885 F.2d 760, 763-64 (11th Cir.1989); Wadding v. Blue Cross and Blue Shield, 577 So.2d 853, 855-56 (Ala.1991).

[¶ 15] Even if we refuse to equate the mutual satisfaction of judgment with a voluntary settlement or an unqualified release of claims, another factor that distinguishes this case from Roper is the absence of an adverse certification ruhng from which DeCoteau can appeal. See also Geraghty, 445 U.S. at 404, 100 S.Ct. 1202 (class certification had been denied); Sosna, 419 U.S. at 399, 95 S.Ct. 553 (class had been certified). Indeed, DeCoteau has never moved to certify a class since commencing this action in May 1998. When a named plaintiffs individual claim becomes moot before a class has been properly certified or certification has been denied, courts generally hold dismissal of the action is required. See, e.g., Indianapolis Bd. of Sch. Comm’rs v. Jacobs, 420 U.S. 128, 129-30, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (per curiam); Sze v. I.N.S., 153 F.3d 1005, 1009 (9th Cir.1998); Egan v. Davis, 118 F.3d 1148, 1150 (7th Cir.1997); Brunet v. City of Columbus, 1 F.3d 390, 399-400 (6th Cir.1993); Banks v. Nat’l Collegiate Athletic Ass’n, 977 F.2d 1081, 1086 (7th Cir.1992); Jones v. Sullivan, 938 F.2d 801, 805 (7th Cir.1991); Magnuson v. City of Hickory Hills, 933 F.2d 562, 565 (7th Cir.1991); Rocky v. King, 900 F.2d 864, 869 (5th Cir.1990). When a named plaintiff whose individual claim becomes moot has not even moved for class certification prior to evaporation of his personal stake in the lawsuit, courts uniformly hold the plaintiff may not avail himself of the class action exception to the mootness doctrine. See, e.g., Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir.1994); Ahmed v. University of Toledo, 822 F.2d 26, 27-28 (6th Cir.1987); Trotter v. Minear, 748 F.2d 1177, 1183-85 (7th Cir.1984). Although DeCoteau argues he was unable to file a motion for class certification because of Nodak’s refusal to provide discovery on class issues, DeCoteau never asked the trial court to compel discovery. It is too late for DeCoteau to argue on appeal that Nodak frustrated his discovery efforts when the trial court was not presented with an opportunity to rule on a motion to compel. See Trotter, 748 F.2d at 1184. See also S & S Landscaping Co. v. North Dakota Workers’ Comp. Bureau, 541 N.W.2d 80, 83 (N.D.1995) (refusing to consider appellant’s argument that Bureau was slow in delivering discovery information when issue was not raised in the administrative proceedings).

[¶ 16] We conclude the class action exception to the mootness doctrine does not apply in this case. Issues characterized as moot may nonetheless be decided by this Court if the controversy is capable of repetition, yet evading review, or if the controversy is one of great public interest and involves the power and authority of public officials. See Nord v. Herrman, 1998 ND 91, ¶ 12, 577 N.W.2d 782. Neither exception applies in this case.

[¶ 17] A judgment that is paid and satisfied of record ceases to have any existence and leaves this Court with nothing to review. See Lyon, 2000 ND 12, ¶ 10, 604 N.W.2d 453. We conclude this case is moot.

Ill

[¶ 18] The appeal is dismissed.

[¶ 19] VANDE WALLE, C.J., and NEUMANN, MARING, and KAPSNER, JJ., concur.

      . Although DeCoteau actually appealed from the order for judgment, we treat this as an appeal from the subsequently entered consistent judgment. See Larson v. Norkol Mfg., Inc., 2001 ND 103, ¶ 1 n. 1, 627 N.W.2d 386.

        . This factor distinguishes the present case from our decision in Twogood v. Wentz, 2001 ND 167, ¶ 8, 634 N.W.2d 514, where we held “payment and satisfaction of a cost judgment does not bar a proceeding to reverse a summary judgment on the merits” because the costs assessed “did not go to the merits of the case.” Here, DeCoteau satisfied the cost judgment but seeks to have us affirm the judgment on his individual claim on its merits.


author: KAPSNER, Justice. SANDSTROM, Justice,

text:
    2001 ND 188
    Kyle Kenneth BELL, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20010138.
    Supreme Court of North Dakota.
    Dec. 5, 2001.

      Kyle Kenneth Bell (on brief), pro se, Florence, CO.
    Adam Wade Hamm (argued), and Mark Rainer Boening (appeared), Assistant State’s Attorneys, Fargo, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Kyle Bell appeals the summary dismissal of his application for post-conviction relief and the denial of his request for court-appointed counsel for the post-conviction proceeding. We hold the trial court did not abuse its discretion in denying Bell’s request for court-appointed counsel, and the court did not err in summarily dismissing Bell’s application for post-conviction relief. We affirm.

I

[¶ 2] In August 1999, a jury found Bell guilty of the 1993 murder of eleven-year-old Jeanna North, and the trial court sentenced Bell to life imprisonment. In March 2000, we dismissed Bell’s direct appeal from the conviction, holding that, by escaping from custody while his appeal was pending, he forfeited and abandoned his right to appeal under the “fugitive dismissal rule.” State v. Bell, 2000 ND 58, ¶ 20, 608 N.W.2d 232.

[¶ 3] Bell was recaptured while his direct appeal was pending, and he is currently incarcerated in Colorado. In March 2001, he applied for post-conviction relief under N.D.C.C. ch. 29-32.1. The trial court identified Bell’s seven post-conviction claims as: (1) the State unconstitutionally proceeded by way of an information instead of by indictment; (2) a witness at trial committed perjury; (3) the conviction was obtained through the use of allegedly unconstitutional statements and testimony of Detectives Jim LeDoux and Rollie Rust; (4) during the proceedings against him, including the trial, the media was used to convict him; (5) the conviction was obtained in violation of an alleged constitutional requirement of a corpus delicti; (6) the State improperly commented on Bell’s failure to testify; and (7) the trial court improperly denied Bell’s motion for judgment of acquittal. When Bell filed his application for post-conviction relief, he also requested court-appointed counsel and sought to bar the media from the post-conviction proceeding.

[¶ 4] The State moved to dismiss Bell’s application, arguing it was a misuse of process under N.D.C.C. § 29-32.1-12. The trial court dismissed Bell’s application for post-conviction relief, concluding claims one, three, five and seven had to be raised at trial or on direct appeal and were barred as a misuse of process. The court decided claims two, .four, and six were unsubstantiated and also should have been raised at trial or on direct appeal. The court denied Bell’s request for court-appointed counsel, concluding he was able to file his application for post-conviction relief without assistance, and reading his application in the light most favorable to him, it failed to raise any substantial issue of law or fact. The court also denied Bell’s request to be present at the post-conviction proceeding and to bar the media from the proceeding. Bell appealed and requested court-appointed counsel for the appeal. The trial court denied Bell’s request for counsel for appeal.

II

[¶ 5] On appeal, Bell argues the trial court abused its discretion in denying his application for post-conviction relief and in granting the State’s motion for summary dismissal without conducting an evidentia-ry hearing.

[¶ 6] Under N.D.C.C. § 29-32.1-09(1), a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Our review of a summary dismissal of a post-conviction proceeding is similar to our review of a summary judgment. E.g., Clark v. State, 1999 ND 78, ¶ 6, 593 N.W.2d 329. In Clark, at ¶ 5 (citations omitted), we said:

The party opposing the motion is entitled to all reasonable inferences at the preliminary stages and is entitled to an evidentiary hearing if an inference raises a genuine issue of fact. Once the moving party has established there is no genuine issue of fact, the burden shifts to the nonmoving party to show a genuine issue of fact exists. The party resisting the motion may not merely rely on the pleadings or unsupported conclu-sory allegations; rather the party must present competent admissible evidence by affidavit or other comparable means.

[¶ 7] Here, the trial court summarily dismissed several of Bell’s claims on the ground of misuse of process. Section 29-32.1-12(2), N.D.C.C., authorizes a court to deny post-conviction relief on the ground of misuse of process. Summary dismissal of a post-conviction application is appropriate if the issues raised in the application constitute a misuse of process. See Clark, 1999 ND 78, ¶ 25, 593 N.W.2d 329. In Clark, at ¶ 23 (citations omitted), we said:

misuse of process under N.D.C.C. ch. 29-32.1 occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings, and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application.

A

[¶ 8] Bell argues due process requires the State to prove his guilt beyond , a reasonable doubt, and he claims he supplied a police report and relevant transcripts to show a witness perjured herself. He essentially argues the State failed to overcome the presumption of his innocence, and he established reasonable doubt about his guilt.

[¶ 9] In Bell’s application for post-conviction relief, he claimed a witness who was rollerblading with Jeanna North the night that North disappeared' committed perjury. Bell claimed the witness “was asked, and given ample opportunity to disclose anyone that she or Jeanna North had spoken to between the time they left the North house to the time they returned to the area from the Stop-N-Go. Yet, [the witness] states that the only person they spoke to was the Defendant Kyle Bell.” Bell claimed the witness told police that North also spoke to an “unknown person” and a police officer that night. We have reviewed the witness’ testimony at trial, and it does not reflect the witness was specifically asked whether North talked to any other persons on the night North disappeared. We conclude Bell’s conclusory assertions about perjury by that witness are meritless.

[¶ 10] Moreover, to the extent Bell argues the State failed to overcome the presumption of his innocence, his argument involves the sufficiency of the evidence to support the conviction, the failure of the State to produce the victim’s body or a corpus delicti, and the trial court’s denial of his motion for judgment of acquittal. Those issues were raised in the original criminal prosecution. Bell’s direct appeal from the conviction was dismissed under the “fugitive dismissal rule.” Bell, 2000 ND 58, ¶ 20, 608 N.W.2d 232. Bell forfeited and abandoned his direct appeal, and the effect of the dismissal is that Bell failed to properly perfect an appeal of his conviction. See State v. Willey, 381 N.W.2d 183, 186 (N.D.1986) (failure to take direct appeal bars post-conviction relief as to factual and legal issues that post-conviction applicant raised and litigated in original trial court proceeding and deliberately or inexcusably failed to pursue on direct appeal). Bell’s attempt to raise those issues after failing to pursue them in a properly perfected direct appeal constitutes a misuse of process, and the trial court did not err in summarily dismissing those claims.

B

[¶ 11] Bell argues the State unconstitutionally proceeded against him by way of a criminal information instead of by grand jury indictment. Bell has cited no authority requiring the State of North Dakota, rather than the federal government, to prosecute criminal actions by indictment. Under N.D. Const. Art. 1, § 10, “[u]ntil otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment.” Section 29-09-02, N.D.C.C. and N.D.R.Crim.P. 7, authorize criminal prosecutions by information, and Bell’s argument that a prosecution must be by an indictment is meritless. See State v. Williamson, 86 S.D. 485, 198 N.W.2d 518, 520 (1972) (stating neither Fifth Amendment nor due process clause of Federal constitution requires indictments in state courts). See also 41 Am.Jur.2d Indictments and Informations § 9 (1995). Moreover, Bell has cited no references to the original criminal proceeding where he raised this issue, and he has presented no explanation for his failure to raise it in that preceding. Bell’s attempt to now raise this issue after his inexcusable failure to raise it in the original criminal prosecution constitutes a misuse of process, and the trial court did not err in summarily dismissing this claim.

C

[¶ 12] Bell argues his conviction was based on the use of allegedly unconstitutional statements and testimony of Detectives Jim LeDoux and Rollie Rust. In the original criminal action, the trial court denied Bell’s motion to suppress statements he made to Detectives LeDoux and Rust. Bell’s direct appeal was dismissed because he failed to properly perfect the appeal, and his attempt to now raise this issue after failing to pursue it in a properly perfected appeal constitutes a misuse of process. See Clark, 1999 ND 78, ¶ 23, 593 N.W.2d 329; Willey, 381 N.W.2d at 186. The trial court did not err in summarily dismissing this claim.

D

[¶ 13] Bell alleges the media was used to convict him during the entire proceeding against him, including the trial. The original trial was moved from Cass County to Morton County. To the extent Bell raised this issue in the original criminal prosecution, his attempt to now raise this claim after failing to pursue it in a properly perfected appeal constitutes a misuse of process. Moreover, Bell’s con-clusory opinions about the media’s part in his conviction are insufficient to raise a substantial issue of law or fact, and the trial court did not err in summarily dismissing this claim. See Clark, 1999 ND 78, ¶ 5, 593 N.W.2d 329.

E

[¶ 14] In his post-conviction application, Bell alleged the trial court commented that “Bell has said nothing in his defense and shows no remorse by his silence,” and that, during closing argument, the prosecution improperly commented on his failure to testify. Bell has cited no references to the record to indicate he raised this issue in the original proceeding, and he has presented no explanation for his failure to raise it there. Bell’s attempt to now raise this issue after his inexcusable failure to raise it in the original prosecution constitutes a misuse of process. Moreover, Bell’s claim was prefaced with the phrase, “If my memory serves me correctly.” Bell has cited no references to the transcript to support his claims. His conelusory assertions are insufficient to raise a substantial issue of law or fact, and the trial court did not err in summarily dismissing this claim.

Ill

[¶ 15] Bell argues the trial court abused its discretion in denying his request for court-appointed counsel.

Section 29-32.1-05, N.D.C.C., provides:

1. If an applicant requests appointment of counsel and the court is satisfied that the applicant is unable to obtain adequate representation, the court shall appoint counsel to represent the applicant.
2. Costs and expenses incident to a proceeding under this chapter, including fees for appointed counsel, must be reimbursed in the same manner as are costs and expenses incurred in the defense of criminal prosecutions.

[¶ 16] In State v. McMorrow, 332 N.W.2d 232, 234-37, (N.D.1983), this Court discussed the appointment of counsel under the prior version of the Uniform Post-Conviction Procedure Act, see 1969 N.D. Sess. Laws ch. 304, which was subsequently repealed and replaced with N.D.C.C. ch. 29-32.1. See 1985 N.D. Sess. Laws ch. 366, § 16. Although our decision in McMorrow was based on the prior version of the law, in Woehlhoff v. State, 531 N.W.2d 566, 569 (N.D.1995), we said McMorrow was “still sound” under N.D.C.C. ch. 29-32.1.

[¶ 17] In McMorrow, 332 N.W.2d at 234-35 n. 2, we construed statutory language stating that expenses of legal representation “shall” be made available to indigent applicants to be directory and not mandatory, and to mean the court shall provide an indigent applicant with an attorney only when a proper case is before the court. We cited State v. Lueder, 252 N.W.2d 861, 865-66 (N.D.1977) for the proposition that trial courts should attempt to make post-conviction hearings meaningful by considering appointing counsel to represent an indigent prisoner unable to attend hearings because of confinement.' McMorrow, at 236. In discussing a similar Iowa post-conviction statute, we said in some cases an indigent applicant may be unable to file an application for post-conviction relief without assistance of counsel, and in those cases, counsel should be appointed for the purpose of assisting the applicant in preparing an application for post-conviction relief. McMorrow, at 237 (citing Hall v. State, 246 N.W.2d 276, 277 (Iowa 1976)).

[¶ 18] In McMorrow, 332 N.W.2d at 237 (citation omitted), after reviewing federal law, Iowa law, and the ABA Standards for Criminal Justice ch. 22 (1978) regarding appointment of counsel for indigent post-conviction applicants, we held:

The appointment of counsel is discretionary, but applications should be read in a light most favorable to the applicant. If a substantial issue of law or fact may exist, counsel should be appointed. Trial judges ordinarily would be well advised to appoint counsel for most indigent post-conviction review applicants.
In the instant case we are presented with the exceptional situation in which it was appropriate for the court not to appoint counsel for McMorrow. McMorrow was able to file an application without assistance. His application, read most favorably toward him, did not raise the possibility of a substantial issue of law or fact. We affirm the trial court’s order denying McMorrow’s petition for post-conviction relief and his motion requesting appointment of counsel.

[¶ 19] In Hopfauf v. State, 1998 ND 30, ¶ 3, 575 N.W.2d 646 (citations omitted), we recently discussed appointment of counsel for indigent post-conviction applicants:

“Post-conviction proceedings are not fishing expeditions, but are designed to resolve genuine factual disputes which might affect the validity of the conviction.” Nor is it the purpose of an appointment of counsel under N.D.C.C. 29-32.1-05 to attempt to dredge up an issue for appeal. Rather, when an applicant for post-conviction relief is able to file an application without assistance, and when the application, read most favorably toward the applicant, does not raise the possibility of a substantial issue of fact or law, it is proper for the trial court to deny the request for appointment of counsel.

[¶ 20] We reiterate that trial courts ordinarily would be well advised to appoint counsel for most indigent applicants seeking post-conviction relief for the first time, and only in “exceptional” situations should counsel not be appointed. McMorrow, 332 N.W.2d at 237. Appointed counsel for indigent applicants making an initial application for post-conviction relief is preferred, because the failure to raise an issue in an initial proceeding may preclude raising the issue in a later proceeding. See Clark, 1999 ND 78, ¶ 23, 593 N.W.2d 329 (discussing misuse of process). The appointment of counsel may be necessary for proper investigation of the factual basis for a claim by an incarcerated applicant, and as we indicated in Lueder, 252 N.W.2d at 865-66, trial courts should attempt to make post-conviction hearings meaningful by considering appointing counsel to represent an indigent applicant who is unable to attend the hearing because of confinement.

[¶ 21] Here, however, we are presented with the exceptional situation in which it was appropriate for the trial court not to appoint counsel for Bell. The post-conviction judge was the same judge who presided over Bell’s criminal prosecution. The court was aware of the issues that Bell had litigated in the original criminal proceeding but had not pursued in a properly perfected appeal because of the dismissal of the appeal, and the issues that Bell had not raised in the original proceeding. Bell prepared his post-conviction application without court-appointed counsel, and the application, read in the light most favorable to Bell, raised claims that were a misuse of process and did not raise the possibility of a substantial issue of law or fact. We have said a trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or in other words when the exercise of its discretion is not the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together with the purpose of achieving a reasoned and reasonable result. Matter of Conservatorship of Kinney, 495 N.W.2d 69, 71 (N.D.1993). The trial court explained that Bell was able to prepare his application without assistance, and the application, read in the light most favorable to Bell, did not raise any substantial issue of law or fact. Under these circumstances, the trial court’s decision not to appoint counsel for Bell was the product of a rational mental process by which the facts of record and law were stated and considered together to achieve a reasoned and reasonable result. The court’s decision not to appoint counsel for Bell was not arbitrary, unreasonable, or unconscionable. We therefore conclude the court’s refusal to appoint counsel for Bell was not an abuse of discretion.

IV

[¶ 22] Bell argues the post-conviction court violated the Code of Judicial Conduct when it stated dismissal of the application was “in the best interests of both this Court and the taxpayers of this state.” The district court’s quotation is from this Court’s opinion dismissing Bell’s direct appeal. Bell, 2000 ND 58, ¶ 21, 608 N.W.2d 232. Appeals from denials of post-conviction relief are not disciplinary proceedings. Bell has failed to demonstrate any way in which his substantial rights were violated by reference to an opinion of this Court. Bell’s argument on this issue is meritless.

V

[¶ 23] We affirm the trial court’s summary dismissal of Bell’s application for post-conviction relief.

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

SANDSTROM, Justice,

concurring specially.

[¶ 25] I agree with the result reached by the majority. I write separately to note that the majority’s dicta is at best obsolete exhortation.

[¶ 26] At ¶ 20, citing State v. McMorrow, 332 N.W.2d 232, 237 (N.D.1983), the majority says, ‘We reiterate that trial courts ordinarily would be well advised to appoint counsel for most indigent applicants seeking post-conviction relief for the first time, and only in ‘exceptional’ situations should counsel not be appointed.” Of course in McMorrow, the “exceptional” situation was that the application did not raise the possibility of a substantial issue of law or fact. Even if those circumstances were the exception two decades ago, an objective review of recent years reflects that they are now the norm.

[¶ 27] Post-conviction relief is neither a substitute for appeal nor is it a second appeal. Owens v. State, 1998 ND 106, ¶ 48, 578 N.W.2d 542. Courts should appoint counsel when there is a realistic prospect of a substantial issue of law or fact that can properly be raised in the post-conviction relief proceeding. Our statutory system does not otherwise expect appointment of counsel. See N.D.C.C. § 29-32.1-05.

[¶ 28] DALE V. SANDSTROM, J.


author: KAPSNER, Justice.

text:
    2001 ND 180
    Mark CHADWICK, Petitioner and Appellant, v. North Dakota DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20010174.
    Supreme Court of North Dakota.
    Dec. 5, 2001.
    Robert W. Martin, Bismarck, ND, for petitioner and appellant.
    Reid A. Brady, Assistant Attorney General, Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Mark Chadwick appeals from the judgment of the district court affirming a North Dakota Department of Transportation decision suspending his license for 365 days for being in actual physical control of a vehicle while under the influence of intoxicating liquor. A Jamestown police officer heard Chadwick arguing with his wife. Investigating further, the police officer found Chadwick in the driver’s seat of an idling vehicle. Chadwick was turned with his feet out the door to converse with his wife. The officer detected the odor of alcohol and observed Chadwick’s eyes were glossy and bloodshot. After failing field sobriety tests, Chadwick was arrested.

[¶ 2] Chadwick concedes he was intoxicated. He argues he was not in control of the vehicle. “The key factor in determining actual physical control is whether the defendant is able to manipulate the vehicle’s controls.” City of Fargo v. Novotny, 1997 ND 73, ¶ 7, 562 N.W.2d 95. In this case, Chadwick was found conscious in the driver’s seat of his idling vehicle. The hearing officer’s findings of fact that the arresting officer had reasonable grounds to arrest Chadwick for being in actual physical control of a vehicle while under the influence of intoxicating liquor is supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision to suspend Chadwick’s license is in accordance with the law. We affirm.

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


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 189
    STATE of North Dakota, Plaintiff and Appellee, v. Raymond MARTIN, Jr., Defendant and Appellant.
    No. 20000366.
    Supreme Court of North Dakota.
    Dec. 5, 2001.
    Rehearing denied Jan. 15, 2002.

      Cynthia M. Feland, Assistant State’s Attorney, Courthouse, Bismarck, ND, for plaintiff and appellee.
    Alan J. Sheppard, Fargo, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Raymond M. Martin appealed from a Burleigh County District Court judgment of conviction by which he was convicted for a violation of North Dakota Century Code Section 12.1-20-03.1; Continuous Sexual Abuse of a Child (“Continuous Abuse”). Martin asserts the trial court erred by not granting his motion for acquittal due to insufficiency of the evidence under N.D.R.Crim.P. 29. Further, Martin asserts he was denied his Fifth Amendment protection against double jeopardy. Lastly, Martin argues Section 12.1-20-03.1 of the North Dakota Century Code is unconstitutionally vague and thus void. The decision below is affirmed.

[¶ 2] Raymond Martin lived with Cassie Walter from the fall of 1993 until May of 1995. Together Martin and Walter had a child in 1994. The couple subsequently ended the relationship and began a legal contest over the custody of their child.

[¶ 3] In June of 1995, Walter filed a report with the Department of Social Services in which she alleged Martin had sexually abused the couple’s child. The allegations of sexual abuse were reported to the Bismarck Police Department and resulted in the filing of a criminal charge against Martin for Gross Sexual Imposition. The charge, however, was dropped before a trial commenced.

[¶ 4] In 1999, Bismarck police received another report of Martin sexually abusing his child from the Department of Social Services. The State, relying on the new information which suggested two incidents of sexual abuse had occurred and the allegation from 1995, charged Martin with Continuous Sexual Abuse of a Child under N.D.C.C. § 12.1-20-03.1. Martin was convicted by a jury of the offense.

I

[¶ 5] Martin argues the State failed to establish he engaged in a combination of three or more sexual acts or sexual contacts during a period of three or more months; thus, the State did not establish he continually sexually abused a child, as the statute requires. As a result, there is insufficient evidence to support his conviction. This Court will “review a challenge to the sufficiency of the evidence by drawing all inferences in favor of the verdict.” City of Jamestown v. Neumiller, 2000 ND 11, ¶ 5, 604 N.W.2d 441. “Reversal is warranted only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” Id.

[¶ 6] Section 12.1-20-03.1, N.D.C.C., reads in relevant part: “[a]n individual in adult court is guilty of a class A felony if the individual engages in any combination of three or more sexual acts or sexual contacts with a minor under the age of fifteen year’s during a period of three or more months.” The occurrence of three or more sexual acts or contacts is an element of the offense, as is the time frame of three or more months. N.D.C.C. § 12.1-20-03.1. Accordingly, to convict an individual the State must prove three or more acts or contacts occurred over a period of not less than three months. Id. The statute does not contain a maximum time limit, however. There is no time established by the statute at which an offense must be considered separately of any other offenses. As a result, the State in this case could include the 1995 allegation with the 1999 allegations to provide the minimum of three offenses necessary to support the Continuous Abuse charge.

II

[¶ 7] Martin next asserts the trial court’s decision to allow evidence gathered in relation to the 1995 allegation to be used in the 1999 charge for Continual Abuse amounted to placing him on trial twice for the same offense in violation of the prohibitions against double jeopardy. This assertion is groundless.

[¶ 8] The Fifth Amendment of the United States Constitution, made applicable to the States by the Fourteenth Amendment, as well as Article I, Section 12 of the North Dakota Constitution, protects against “successive prosecutions and punishments for the same criminal offense,” or in other words, protecting against double jeopardy for the same offense. State v. Foley, 2000 ND 91, ¶ 6, 610 N.W.2d 49.

[¶ 9] The United States Supreme Court explained the reason for this constitutional safeguard in Serfass v. United States:

The underlying idea, one that is deeply ingrained in at least the Anglo American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

420 U.S. 377, 387-88, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)). Therefore, the State cannot repeatedly put an individual to trial for the same offense. Id.

[¶ 10] The point at which a trial begins and jeopardy attaches has been narrowly defined as the moment the defendant has been “put to trial before the trier of the facts.” Serfass, 420 U.S. at 388, 95 S.Ct. 1055. Specifically “[i]n a jury trial, jeopardy attaches when the jury is empaneled and sworn.” State v. Foley, 610 N.W.2d 49, 2000 ND 91, ¶ 6. Similarly, “in a bench trial, [jeopardy] attaches when the court begins to hear the evidence.” Id.

[¶ 11] In the case at hand, Martin was not put to trial in 1995. A tip was given to police; Martin was investigated and charged with a crime, but the charges were dismissed before trial. As a result, Martin was not placed in jeopardy in 1995; hence, there can be no double jeopardy as a result of the trial in 1999. Martin has been tried only once for his crimes.

Ill

[¶ 12] Additionally, Martin challenges the constitutionality of N.D.C.C. § 12.1-20-03.1. Martin asserts the language “during a period of three or more months” found in the statute is unconstitutionally vague.

[¶ 13] As our discussion in section I of this opinion reveals, Section 12.1-20-03.1 is not vague. Furthermore, the laws of this State are presumed to be constitutional. State v. Tweed, 491 N.W.2d 412, 418 (N.D.1992)(explaining “the scales are weighed in favor of the statute”). To overcome this presumption, the law’s challenger must show it runs afoul of our State’s or of our Nation’s Constitution. Id. One way of doing this is by establishing the law violates the void-for-vagueness doctrine. See, e.g., State v. Tweed, 491 N.W.2d 412, 418.

[¶ 14] The void-for-vagueness doctrine requires “ ‘a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” Id. (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)); see also Papachnstou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). We have recognized this doctrine and its requirements. See, e.g., State v.Tweed, 491 N.W.2d 412, 418.

[¶ 15] Finally, we note Martin did not raise the constitutional issue before the trial court, and “ ‘[generally, issues not raised in the trial court, even constitutional issues, will not be addressed on appeal.’ ” State v. Tweed, 491 N.W.2d 412, 417 (quoting State v. Miller, 388 N.W.2d 522 (N.D.1986)). The exception to this principle arises when the record reveals an “obvious error” in the action of the trial court. State v. Tweed, 491 N.W.2d 412, 418; N.D.R.Crim.P. 52(b). Of course, if there is no error, there can be no obvious error.

[¶ 16] For the foregoing reasons we affirm the judgment of the district court.

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


author: AMUNDSON, Justice.

text:
    2001 SD 130
    STATE of South Dakota, Plaintiff and Appellee, v. Donald D. SHEEHY, Defendant and Appellant.
    No. 21784.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Oct. 31, 2001.
    Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    John M. Grossenburg, Winner, South Dakota, Attorney for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] Donald Sheehy (Sheehy) was convicted of one count of exceeding the possession limit of walleye fish pursuant to SDCL 41-14-32. We affirm.

FACTS

[¶ 2.] On November 7, 1999, conservation officer, Jack Freidel, received an anonymous tip that Sheehy had more fish than he could lawfully possess. The caller provided that Sheehy was at the Cedar Shore Resort, in Lyman County, South Dakota, and also gave Sheehy’s license number of his vehicle.

[¶ 3.] Officer Freidel drove to Cedar Shore Resort where he located a vehicle registered to Sheehy parked in the parking lot. Soon thereafter, Officer Freidel observed a man place some items into Sheehy’s vehicle. Officer Freidel approached the man and learned that the man was, in fact, Sheehy. He asked Sheehy if he could look at Sheehy’s game. Sheehy replied that his game was located in coolers inside a freezer in ti^e resort’s restaurant.

[¶ 4.] Officer Freidel followed Sheehy to the restaurant and they entered the restaurant’s freezer. Upon Sheehy identifying two of his coolers as containing game, Officer Freidel asked to look inside. Sheehy did not object to Officer Freidel’s request. Inside the coolers, Officer Frei-del found sixteen walleyes, eight more than that allowed under SDCL 41-14-32.

[¶ 5.] Sheehy filed a motion to suppress the search of his coolers. The trial court denied Sheehy’s motion, ruling that the search of the two coolers did not violate Sheehy’s Fourth Amendment rights. Sheehy appeals raising this sole issue:

Whether the trial court, in denying Sheehy’s motion to suppress, erred because the anonymous tip received by Officer Friedel lacked indicia of reliability-

STANDARD OF REVIEW

[¶ 6.] Our review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo. See State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603; Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) (standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993). We review findings of fact under the clearly erroneous standard. See State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610.

DECISION

[¶ 7.] Sheehy’s basic argument is that the anonymous tip received by Officer Friedel was insufficient to legally justify a Fourth Amendment search and seizure. Sheehy contends that the questioning by Officer Freidel in the resort parking lot was an impermissible stop because the anonymous tip was not reliable. He also contends that the subsequent search of his coolers was fruit of the poisonous tree.

[¶ 8.] First, the initial questioning of Sheehy by Officer Freidel was not a seizure within the purview of the Fourth Amendment. It is uncontroverted that Officer Freidel approached Sheehy and asked him a couple of questions regarding Sheehy’s “luck” fishing. After Sheehy responded in the affirmative, Officer Freidel then asked to see his game. To make an inquiry such as this does not implicate the Fourth Amendment. Sheehy was never told that he was not free to leave, nor did Officer Friedel frisk or “pat-down” Sheehy at any time prior to arrest. Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding that a pat-down search is not unconstitutional if justified by reasonable suspicion).

[¶ 9.] Sheehy argues that the case of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) supports his position that the “seizure” in the parking lot violated his Fourth Amendment rights. In J.L., the defendant was frisked based on an anonymous tip. Id. 529 U.S. at 268, 120 S.Ct. at 1377, 146 L.Ed.2d 254. The United States Supreme Court held that such a Terry frisk required “reasonable suspicion” and an anonymous tip by itself is insufficient to satisfy the requisite legal justification. Id. 529 U.S. at 271, 120 S.Ct. at 1379, 146 L.Ed.2d 254. In the case before us, there was no search of Sheehy’s person. It is imperative for police to conduct routine police investigation and question persons in public areas. While an ordinary citizen has the right to walk away, investigative questions by police, without a threat of police detention, does not translate into a constitutional infringement to those citizens who decide to answer. See e.g., Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (holding random searches of consenting bus passengers were not unconstitutional); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (holding police could temporarily detain a suspicious-looking man who was attempting to purchase an airplane ticket, but could not take his plane ticket, driver’s license or prevent him from leaving). In Bostick, the United States Supreme Court stated:

Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19, n.16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, n.16 (1968): “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

501 U.S. at 433, 111 S.Ct. at 2385, 115 L.Ed.2d at 398 (internal citations omitted). Sheehy’s argument that a finding of unreliability regarding the anonymous tip, however, misses the point. The anonymous tip did not lead to an involuntary detention of Sheehy. This Court fails to see any material similarities between J.L. and this case.

[¶ 10.] Second, the search of Sheehy’s coolers did not violate his Fourth Amendment rights. The facts are clear: Sheehy showed Officer Friedel his coolers; Officer Friedel opened the coolers in Sheehy’s presence; and Sheehy did not object to Officer Friedel’s search of the coolers.

[¶ 11.] It has been said that consent to conduct a search satisfies the Fourth Amendment, thereby removing the need for a warrant or even probable cause. State v. Fountain, 534 N.W.2d 859, 864 (S.D.1995) (citing State v. Zachodni, 466 N.W.2d 624, 628 (S.D.1991)) (other citations omitted). To determine whether consent to a search is valid, “the totality of the circumstances must indicate that it was voluntarily given.” Almond, 511 N.W.2d at 573 (citations omitted). While “the state bears the burden of demonstrating consent ... [t]he presence or absence of consent is a question of fact” to be determined by the trial court. Id.

[¶ 12.] The trial court found that “with [Sheehy’s] assistance and consent, the evidence was discovered in the freezer of the Cedar Shores [sic] Resort.” The trial court’s finding of consent is supported in the record. It is uncontroverted that Officer Freidel did not threaten or coerce Sheehy into giving his consent. Officer Freidel asked to see Sheehy’s game, and then followed him to the freezer. It is also undisputed that when told the coolers were to be inspected, Sheehy “failed to object.” In fact, Sheehy does not argue that his consent was coerced or tainted in any way. Rather, he merely argues the subsequent search of the coolers was “fruit of the poisonous tree” stemming from the initial “seizure” in the parking lot. As previously mentioned, that argument is without merit. Regardless, the record supports a finding of consent.

[¶ 13.] We affirm.

[¶ 14.] SABERS, Acting Chief Justice, and KONENKAMP, and GILBERTSON, Justices, concur.

[¶ 15.] MILLER, Retired Chief Justice, was a member of the Court at the time this action was submitted, but was disqualified and did not participate.

       It is important to note that it is not the burden of the state to "affirmatively prove that the subject of the search knew that he had the right to refuse consent.” Schnecldoth v. Bustamante, 412 U.S. 218, 229, 93 S.Ct. 2041, 2049, 36 L.Ed.2d 854, 864 (1973). Rather, the key inquiry rests upon “whether in fact it was voluntary or coerced.” Id., 412 U.S. at 233, 93 S.Ct. at 2050, 36 L.Ed.2d at 866. As the trial court found Sheehy’s consent to be free and voluntary, we will not disturb such finding unless clearly erroneous.


author: SABERS, Justice.

text:
    2001 SD 133
    FIRST WESTERN FEDERAL SAVINGS BANK, Appellant, v. The FIRST WESTERN BANK STURGIS, Sturgis, South Dakota, and the First Western Bank Wall, Wall, South Dakota, Appellees.
    Nos. 21847, 21848.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2001.
    Decided Nov. 7, 2001.

      Curtis S. Jensen of DeMersseman, Jensen, LLP, Rapid City, for appellant.
    George N. Manolis of Churchill, Manolis, Freeman, Kludt, Shelton & Burns, Huron, for appellees.
   SABERS, Justice.

[¶ 1.] First Western Bank Sturgis (FWB Sturgis) and First Western Bank Wall (FWB Wall) sought to establish branch locations in Rapid City, South Dakota. First Western Federal Savings Bank of Rapid City (FW Fed Sav RC) objected to the applications because it believed the similarity in the banks’ names would create confusion in the banking community. The South Dakota Banking Commission (Commission) approved the branch applications of both banks and entered findings of fact and conclusions of law consistent with its decision. FW Fed Sav RC appealed the Commission’s decision to the Sixth Judicial Circuit, which affirmed. FW Fed Sav RC appeals and we affirm.

FACTS

[¶ 2.] FWB Sturgis and FWB Wall submitted applications to the Commission under SDCL 51A-2-16 to open branch banks in Rapid City. FW Fed Sav RC opposed the branch applications on the basis that the similarity in the names of the banking institutions would cause public confusion in the Rapid City community.

[¶ 3.] FWB Sturgis proposed to offer general banking services to the Rapid City community. It has branches in Spearfish, Belle Fourche and Deadwood. The bank’s total deposits are approximately $200 million. The city of Sturgis is located approximately 39.5 miles from Rapid City. It has a significant customer base in Rapid City. Its proposed branch office building is on the Sturgis side of Rapid City.

[¶ 4.] FWB Wall proposed to offer general banking services to the Rapid City community. It operates branches in New Underwood, Hot Springs and Edgemont. Its application estimates total deposits of $80 million. The city of Wall is located approximately 56 miles from Rapid City. It also has a significant customer base in Rapid City. Its proposed branch office building is in downtown Rapid City.

[¶ 5.] FWB Sturgis and FWB Wall are owned by the holding company of First Western Bancorp, Inc., (FW Bancorp) which has operated under the name The First Western Bank since its inception in 1963. FW Bancorp, Inc., is the second largest provider of commercial banking services in the Black Hills area. Of the five largest commercial banks in the Black Hills, it is the only one without a Rapid City location. FW Bancorp has approximately 18.8% of the Black Hills’ market share of banking services.

[¶ 6.] FW Fed Sav RC was established as First Western Federal Savings and Loan in 1979. It began operating under its current name in 1985. While offering a variety of general banking services, it is primarily engaged in the business of real estate lending, like a federal savings and loan. It has approximately $25 million in total assets.

[¶ 7.] Upon review of the branch applications, the Director of the Division of Banking submitted a report to the Commission recommending that the applications of both FWB Sturgis and FWB Wall be approved. The Commission held an administrative hearing in Pierre on July 10, 2000. Based on the evidence at the hearing, the Commission approved both applications.

[¶ 8.] In its findings of fact and conclusions of law, the Commission concluded that there was a need for a branch bank to be located in Rapid City. The Commission concluded that the Rapid City community and trade area had the ability to support the branch banks in question. The Commission also concluded that “First Western Federal Savings Bank did not have prior trade, trademark, service mark, or trade identity rights to the trade area involved in the branch bank application.” Finally, the Commission concluded that the names of FWB Sturgis and FWB Wall “are not likely to create any meaningful confusion.”

STANDARD OF REVIEW

[¶ 9.] This Court clarified the standard of review for administrative appeals in Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶¶ 6-7, 575 N.W.2d 225, 228-29. SDCL 1-26-36 “requires us to give great weight to the findings and inferences made by the [agency] on factual questions.” Id. at ¶ 6, 575 N.W.2d at 228. 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.” Id. An agency’s conclusions of law, however, are fully reviewable. Id.

[¶ 10.] WHETHER THE COMMISSION ERRED IN FINDING THAT THERE WAS NO LIKELIHOOD OF PUBLIC CONFUSION BETWEEN THE NAMES OF APPLICANTS FIRST WESTERN BANK WALL AND STURGIS AND FIRST WESTERN FEDERAL SAVINGS BANK OF RAPID CITY.

[¶ 11.] FW Fed Sav RC argues that the Commission failed to take into account SDCL 51A-7-28 when examining the branch applications of FWB Sturgis and FWB Wall. FW Fed Sav RC asserts that this statute prohibits the approval of the branch applications. SDCL 51A-7-28 provides:

No provision of this chapter permits any person, partnership, association or corporation to identify a newly formed bank, to rename an existing bank, or to open a branch of a newly formed or existing bank, if the effect of such formation, opening or renaming would be likely to create confusion between the trade name, trademark, service mark, or trade identity of such bank or branch and an existing bank or branch having prior trade name, trademark, service mark, or trade identity rights in the trade area sought to be entered by such neioly formed or renamed bank or branch.

(emphasis added).

[¶ 12.] FW Fed Sav RC argues that allowing FWB Sturgis and FWB Wall to open branch banks in Rapid City will create public confusion as to the services offered by the banks. It “bears the burden of proving that [First Western Bank Stur-gis and First Western Bank Wall’s] use of [their] full legal name[s] would create a likelihood of confusion, deception, or mistake among an appreciable number of ordinary consumers as to the source of or association between the banks’ services.” First Nat’l Bank in Sioux Falls v. First Nat’l Bank, South Dakota, 153 F.3d 885, 888 (8th Cir.1996). “ ‘Whether there may be a likelihood of confusion among consumers is a factual question’ to be resolved by considering various factors related to the case at hand.” Phipps Bros. v. Nelson’s Oil and Gas, 508 N.W.2d 885, 887 (S.D.1993) (quoting Time Out, Inc. v. Karras, 392 N.W.2d 434, 438 (S.D.1986)).

[¶ 13.] When determining whether there is a likelihood of confusion, the trial court should examine: “the strength of the plaintiffs service or trademark; the competitive proximity of the parties’ marks, the alleged infringer’s intent to confuse; the degree of care reasonably expected of potential customers; the similarity between the parties’ marks; and evidence of actual confusion.” First Nat’l Bank in Sioux Falls, 153 F.3d at 888. “Proof of likelihood of confusion in trademark infringement cases does not require actual confusion; however, a mere possibility is not enough. There must be a ‘substantial likelihood that the public will be confused.’ ” Phipps Bros., 508 N.W.2d at 888 (quoting Vitek Sys., Inc. v. Abbot Labs., 675 F.2d 190, 192 (8th Cir.1982)).

[¶ 14.] In First National Bank of Sioux Falls, the district court upheld an injunction preventing First National Bank of South Dakota from using a shortened form of its name, such as First National or First National Bank, but refused to grant an injunction preventing First National Bank of South Dakota from using its full legal name. First Nat’l Bank in Sioux Falls, 153 F.3d at 886. The district court concluded that First National Bank of Sioux Falls had failed to show by “a preponderance of the evidence that the use of the full legal name First National Bank South Dakota would create a likelihood of confusion, ‘particularly if defendant uses its full legal name in conjunction with its ‘circle-1’ logo in graphic presentation.’ ” Id. at 889.

[¶ 15.] Furthermore, in First National Bank in Sioux Falls, the district court held:

that consumers tend to exercise a relatively high degree of care in selecting banking services. As a result, customers are more likely to notice what, in other contexts, may be relatively minor differences in names. We recognize that other courts have determined there to be minimal or no likelihood of confusion even where the names of financial institutions share the same dominant terms.

Id. at 889-90. See also First Savings Bank, F.S.B. v. First Bank Sys., Inc., 101 F.3d 645, 653 (10th Cir.1996) (holding there was no likelihood of confusion between “First Bank” and “First Bank System”); First Bank v. First Bank Sys., Inc., 909 F.Supp. 657, 661 (S.D.Iowa 1995) (holding confusion between names “First Bank” and “First Bank Iowa” is manageable), aff'd, 84 F.3d 1040 (8th Cir.1996). Similarly, FW Fed Sav RC has failed to show that the use of FWB Sturgis or FWB Wall’s full legal name would create a likelihood of confusion.

[¶ 16.] The Commission also found that FW Fed Sav RC “has not established, nor does it have as a matter of fact, prior trade name, trademark, service mark, or trade identity rights to the trade area which is involved in the applicants’ branch bank applications .... ” Accordingly, the Commission concluded that “[t]he names of applicant and the opponent have not and are not likely to create any meaningful confusion.” These findings are supported by the evidence and are not clearly erroneous.

[¶ 17.] There is no likelihood of confusion with respect to the principal services offered by the banks. Evidence presented at the Commission hearing established that FW Fed Sav RC is primarily a real estate lending operation, a federal savings and loan. This area of banking specialty comprises only a small portion of either FWB Sturgis or FWB Wall’s banking business. FWB Sturgis and FWB Wall offer more generalized banking services.

[¶ 18.] Even the testimony of the president of FW Fed Sav RC, Jeffrey Fullerton, fails to establish confusion in the use of the names. Fullerton testified that, while there have been instances of confusion between the names of his bank and FWB Sturgis, “[his bank does not] get much confusion that I am aware of with [The First Western Bank] Wall.” Fullerton further testified that any competition from FWB Sturgis and FWB Wall did not concern him because he believes FW Fed Sav RC is “unique.” He stated that at the time FW Fed Sav RC selected its present name in 1985, it was aware that FWB Wall had been operating under the name The First Western Bank since 1963. Fullerton also admitted that his bank had always been able to handle any instances of name confusion in the past and had never believed any action was necessary to remedy any problems. The president of FWB Wall, Norbert Sebade, testified that no customer of FW Fed Sav RC or his bank has ever spoken with him about any confusion regarding the names of the two banks. The president of FWB Sturgis, John Johnson, testified that he does not believe that the names of his bank and FW Fed Sav RC are similar. He further testified that he considers Rapid City to be within his bank’s trade area.

[¶ 19.] FW Fed Sav RC has failed to establish that it has exclusive trade rights to the Rapid City trade area. The Commission concluded that Rapid City was within the trade area of both FWB Sturgis and FWB Wall. The Commission further concluded that FW Fed Sav RC and FWB Sturgis have conducted business in the Rapid City trade area since 1986 and that FWB Wall has conducted business in the area since 1963. FW Fed Sav RC has established no trade rights in the Rapid City area to the exclusion of FWB Sturgis and FWB Wall.

[¶ 20.] FW Fed Sav RC has failed to demonstrate that the Commission’s findings, are clearly erroneous. Therefore, we affirm.

[¶ 21.] GILBERTSON, Chief Justice, AMUNDSON and KONENKAMP, Justices, and GORS, Circuit Judge, Acting Supreme Court Justice, concur.