text:
    TOLLEFSON DEVELOPMENT, INC., Appellant, v. CITY OF ELK RIVER, Respondent.
    No. C9-03-176.
    Court of Appeals of Minnesota.
    July 22, 2003.

      Gary A. Van Cleve, Mark D. Christo-pherson, Larkin, Hoffman, Daly & Lind-gren, Ltd., Bloomington, MN, for appellant.
    George C. Hoff, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN; and Susan M. Sager, League of Minnesota Cities, St. Paul, MN, for respondent.
    Paul D. Reuvers, Iverson Reuvers, LLC, Bloomington, MN, for amicus curiae Association of Minnesota Counties.
    Considered and decided by HUDSON, Presiding Judge, WILLIS, Judge, and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

Appellant Tollefson Development, Inc. brought this action seeking mandamus, damages, and declaratory relief against respondent City of Elk River after the city denied its application for rezoning and a preliminary plat. The district court granted summary judgment to the city and rejected Tollefson’s claim that its rezoning application was automatically approved because it was not granted or denied within 60 days as required by Minn.Stat. § 15.99 (2002).

On appeal, this court allowed the Association of Minnesota Counties (AMC) to file an amicus brief in support of the city’s position that Tollefson is not entitled to automatic approval, either because it amended its application or because it requested a continuance. Because the 60 day period runs from the date of a written application related to zoning, it must be construed in this case to run from the date of a letter from Tollefson to the city in which Tollefson confirmed that it was amending its initial application. We therefore affirm the grant of summary judgment to the city.

FACTS

In October 2001, Tollefson entered into an agreement with Gerald and Mary Becker to purchase 103 acres of farmland located in the city. The land was zoned single-family residential, but Tollefson intended to build a mixed development on the land consisting of 283 single-family and townhouse units. The purchase agreement required Tollefson to obtain city approvals for the development before closing.

Accordingly, on April 30, 2002, Tollefson submitted a written application to the city for rezoning and preliminary plat approval of the development, called Twin Lakes Crossing. The application requested that the city rezone the property from its existing “Rl” type, single-family residential designation, to Planned Unit Development (PUD) designation.

On May 8, 2002, Tollefson vice president Timothy Bohlman met with city senior planner Scott Harlicker to discuss the application. Harlicker encouraged Bohlman to amend the application to request rezoning to “R3,” a newly created townhouse zoning designation, rather than PUD. Tol-lefson agreed and sent a letter to the city, dated May 15, stating: “This letter is to confirm our request to amend our application for rezoning on the property referred to as Twin Lakes Crossing from PUD to R-3, as we discussed when we met last week.”

The rezoning was scheduled to be heard at the city council’s June 17, 2002 meeting. Prior to the meeting, Harlicker and Bohl-man spoke by telephone. According to Bohlman’s notes of the conversation, he told Harlicker that revisions to the plat were not yet completed, but requested that the rezoning request be considered “tonight to get that out of the way.” Harlicker indicated that the city council “would be reluctant to approve rezoning on a parcel for which they are not looking at the plat at the same time.” Harlicker recommended moving both the rezoning and preliminary plat applications to the council’s August meeting. Bohlman objected and explained to Harlicker that this type of delay might jeopardize the project. Har-licker told Bohlman: “I’ll see what I can do. Fax me a short letter with your request.” Bohlman’s letter, dated June 17, states:

As we are in the process of finishing up the revisions to our plans for Twin Lakes Crossing, please continue consideration of our pending requests for rezoning and preliminary plat approval to the next earliest possible date with the city council.

No one from Tollefson attended the city council’s June 17, 2002 meeting. At that meeting, Harlicker informed the council that Tollefson had requested a continuance. Harlicker did not, however, indicate that Tollefson wanted the matter heard as soon as possible. The council continued Tollefson’s rezoning request to July 15, 2002.

At the July 15 meeting, Tollefson’s attorney presented a letter to the city council stating that “his firm believes that the 60 day period has expired on the zoning application and the zoning application is approved by state statute, effective June 29, 2002.” The city council denied Tollef-son’s request to rezone from R1 to R3 based on the following findings:

1. The current zoning is consistent with the comprehensive plan land use designation of MR (Medium Residential).
2. There is no compelling reason for the rezoning request.
3. The proposed rezoning to R3 is not compatible with the adjacent R1A (Single Family Residential) zoning district.
4. The proposed rezoning to R3 allows for increased higher residential density which would result in higher generation of traffic than the existing zoning.
5. The rezoning will result in adverse impacts on the school district beyond city control. The school district’s plan is based on current zoning and the increased density allowed by the proposed rezoning will bring additional students.
6. The proposed rezoning will have an adverse impact on the environment.

On August 19, 2002, the city council considered and denied Tollefson’s application for a preliminary plat, in part because Tollefson’s request for rezoning had been denied by the council. The council also stated that the plat did not comply with the subdivision ordinance in that “it does not make adequate provision for storm drainage,” “the type and density of this development is not suitable given the extent of the wetlands, drainage surrounding properties, wooded acreage, and topography,” and “the proposed subdivision will cause substantial environmental damage in that the entire site will be clear cut and graded.”

Tollefson brought this action against the city, seeking a writ of mandamus, damages, and declaratory relief. On cross motions for summary judgment, the district court denied Tollefson’s motion and granted summary judgment to the city. In its attached memorandum, the district court noted that Tollefson “conceded at oral argument that if the property were not rezoned as it has requested, the City’s denial of the preliminary plat was proper.” The court then rejected Tollefson’s claim that its rezoning request was automatically approved because the city failed to act on it within 60 days as required by Minn.Stat. § 15.99 (2002). The court reasoned that although Tollefson requested that the property be rezoned from single family to PUD on April 30, 2002, it amended its application on May 15, 2002, when it sent a written letter to the city confirming its request that the property be rezoned to R3, rather than PUD. Under this reasoning, the 60 day period expired on July 15, 2002, the date the city council denied the rezoning request. Tollefson appeals the district court’s grant of summary judgment to the city and dismissal of its writ for mandamus.

ISSUES

1. Did the district court err in rejecting Tollefson’s claim that its request for rezoning was automatically approved by operation of Minn.Stat. § 15.99 (2002)?

2. Was the city’s denial of Tollefson’s request for preliminary plat approval arbitrary and capricious?

ANALYSIS

Summary judgment is appropriate when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. When, as here, the grant of summary judgment involves the application of a statute to undisputed facts, our review is de novo. N. States Power Co. v. City of Mendota Heights, 646 N.W.2d 919, 924 (Minn.App.2002), review denied (Minn. Sept. 25, 2002). We also apply a de novo standard of review to a “district court’s decision on a petition for a writ of mandamus that is based solely on legal determinations.” Id. (citation omitted).

I.

“[A]n agency must approve or deny within 60 days a written request relating to zoning” and “[fjailure of an agency to deny a request within 60 days is approval of the request.” Minn.Stat. § 15.99, subd. 2 (2002). “Agency” includes a city or municipality. Minn.Stat. § 15.99, subd. 1 (2002). Extensions of this 60 day period are allowed as follows:

An agency may extend the time limit * * * before the end of the initial 60 day period by providing written notice of the extension to the applicant. The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.

Minn.Stat. § 15.99, subd. 3(f) (2002).

The statute places the burden on the city to approve or deny the request within 60 days. The statute also places the burden on the city to notify an applicant in writing of any extension of the 60 day period and to provide reasons for that extension. The supreme court has construed the extension language of the statute as unambiguous and has directed that courts must give effect to its plain language. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 313 (Minn.2001). The court has further stated that the underlying purpose of the statute is to establish clear deadlines for local governments to take action on zoning applications. Id. at 312.

Here, Tollefson claims that because its rezoning application was filed with the city on April 30, 2002, the 60 day period expired on June 29. The city argues that the 60 day period began to run on May 15, the date that Tollefson amended its application to request rezoning of the property to an R3 designation, rather than the original request for PUD designation. The district court agreed that the 60 day time period should run from May 15, 2002, the date of Tollefson’s letter to the city requesting an amendment to its rezoning application.

Sixty days from May 15, 2002, was Sunday, July 14. By denying Tollefson’s application on Monday, July 15, the city met its deadline. See Gun Lake Ass’n v. County of Aitkin, 612 N.W.2d 177, 181 (Minn.App.2000) (citing Minn.Stat. § 645.15, which states that if last day of relevant period falls on Sunday, period continues to next day), review denied (Minn. Sept. 13, 2000). Although Tollefson argues that the city missed the dead-fine because it acted in 61 days, we agree that under the common and accepted practice of calculating deadlines and under the canon of statutory construction set out in Minn.Stat. § 645.15 (2002), the city met its deadline by acting on July 15. See Jorgensen v. Knutson, 662 N.W.2d 893, 899 (Minn.2003) (‘We have applied the computation statute [Minn.Stat. § 645.15] to subject areas as varied as property redemption, criminal appeals, city negligence, appointment of guardians, and employment law.”) (emphasis added) (footnote omitted). The district court therefore did not err in concluding that the 60-day period here began to run from the date Tollefson amended its rezoning request.

Tollefson argues that the 60-day period must run from the date of the original application, regardless of any amendment to that application. Under Tollefson’s construction of the statute, when a zoning application is amended, a city would have a limited time to evaluate the amendment, particularly if it is made close to the expiration of the initial 60-day period. As a result, a city could be forced to act quickly and reject an application or risk its automatic approval; in such a case, the applicant would be forced to resubmit its application and possibly incur additional filing fees. We therefore reject Tollefson’s construction of the statute and hold that the 60-day period runs from the date a written amendment to a zoning request is submitted, not from the date of the original application.

In support of its motion for summary judgment, the city also argued that Tollef-son’s request on June 17 to continue the matter should be deemed to operate as an extension of the 60-day time limit or that Tollefson either waived or should be equitably estopped from asserting it is entitled to automatic approval under Minn.Stat. § 15.99. Because we conclude that the 60-day period runs from the date that Tollef-son amended its rezoning request, we need not address these alternative arguments raised by the city.

II.

Tollefson argues that the city’s decision to deny its preliminary plat was arbitrary and capricious because the record fails to support the city’s findings that the plat does not comply with its ordinances. The city’s decision was based, in part, on its denial of Tollefson’s request to rezone to R3. Because we affirm the district court’s determination that Minn.Stat. § 15.99 does not operate to automatically approve Tol-lefson’s rezoning request, then the city’s decision to deny Tollefson’s preliminary plat is supported by the record.

We further note that the city made a number of additional findings to support its decision, which included the plat’s noncompliance with the subdivision ordinance because (1) it fails to “make adequate provision for storm drainage”; (2) “the type and density of this development is not suitable given the extent of the wetlands, drainage [of] surrounding properties, wooded acreage, and topography”; and (3) “the proposed subdivision will cause substantial environmental damage in that the entire site will be clear cut and graded.” Tollefson argues that these findings are not supported by the record that was before the city council on August 19, 2002, when it denied the preliminary plat.

Admittedly, the record contains a letter from city engineer Terry Maurer, dated August 13, 2002, almost one week prior to the council meeting, which states that “[a]s of today’s date, we have not received any revised grading plan from the developer through his engineer” and that “we are not prepared to make a recommendation to approve the preliminary plat since we have been unable to review the grading and drainage plan.” But the record also contains a subsequent affidavit from Maurer, dated November 22, 2002, in which he states that on August 19, Tollefson submitted an engineering report to the city that revealed “overall poor soil conditions which will require substantial correction for the construction of building sites and roadways.” Maurer further states that the necessary correction of the soil will result in substantial excavation and stockpiling of materials on site, which will “greatly increase the chances of wetland degradation on the site” and the elimination of “virtually all vegetation and trees in the upland” areas.

As summarized by Maurer, the engineering report submitted by Tollefson on August 19 supports the findings made by the city council. Therefore, the city’s decision to deny the preliminary plat is not arbitrary and capricious. See VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn.1983); White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 177 (Minn.1982).

DECISION

The district court did not err in concluding that the 60 day period began to run on May 15, 2002, the date that Tollefson submitted a written request to the city to amend its initial rezoning application. We therefore affirm the district court’s grant of summary judgment to the city.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . In so holding, we recognize that only material or significant amendments to a zoning request, such as the amendment here from a PUD to an R3 designation, will operate to restart the 60-day period. Minor changes to a zoning request should not affect the running of the 60-day period.


source: Caselaw Access Project

author: HUSPENI, Judge.

license: Public Domain

text:
    STATE of Minnesota, through its DEPARTMENT OF NATURAL RESOURCES, Respondent, v. Duwayne HESS, et al., Appellants, The First National Bank of Bemidji, Defendant.
    No. C4-02-2049.
    Court of Appeals of Minnesota.
    July 29, 2003.

      Mike Hatch, Attorney General, Dulcie Brand, Assistant Attorney General, St. Paul, MN, for respondent.
    Jerry 0. Relph, St. Cloud, MN, for appellants.
    Considered and decided by WILLIS, Presiding Judge, FORSBERG, Judge,* and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

On appeal from summary judgment in this quiet-title action, appellant landowners argue that (1) the district court ignored limiting language in an 1898 deed and misread the deed to convey a fee simple determinable rather than an easement to a prior interest holder; and (2) respondent state took no rights in the property because the easement was abandoned by the time of the transfer to the state. Because we conclude that by its plain language, the 1898 deed operated to convey an easement in the subject property rather than a fee simple determinable, and that the railroad abandoned its easement in the property before the sale of its interest to the state for a public recreational trail, we reverse.

FACTS

Respondent State of Minnesota through its Department of Natural Resources (DNR) brought this quiet-title action to determine the status of title to a strip of land, formerly used by the Burlington Northern Railway Company (BNRC) as a railroad corridor and currently designated as part of the Paul Bunyan State Trail. Appellants Duwayne Hess, Brian Sand-berg, and Amelia Sandberg have claimed ownership of the property and have blockaded the trail, preventing public use of a portion of the trail. Appellants claim that a deed executed in 1898 granting a right-of-way to the railroad conveyed only an easement, rather than a fee simple determinable, and that the railroad abandoned its easement in the right-of-way before it was conveyed to the state for a public recreational trail.

On April 1, 1898, the then-owners of the property in question signed a deed conveying an interest in certain-described property located in Cass and Hubbard Counties to the Brainerd and Northern Minnesota Railway Company. The deed stated that the owners did

hereby grant, bargain, sell and convey unto the said company, its successors and assigns, a strip, belt or piece of land, one hundred feet, wide, * * *.
Provided That this Grant or Conveyance shall continue in force so long as the said strips of land shall be used for Right of Way and for Railway purposes; but to cease and terminate if the Railway is removed from the said strips.

The deed also contained language conveying the right to erect snow fences within one hundred fifty feet of the center line of the strips.

The railroad’s interest in the subject property was subsequently transferred to the BNRC, then known as the Minnesota and International Railway Company. In 1985, the BNRC received a certificate of abandonment from the Interstate Commerce Commission (ICC), allowing the company to discontinue service on the rail line between Brainerd and Bemidji, Minnesota. In its decision granting a certificate of abandonment, the ICC found that “[pjortions of the right-of-way are suitable for other public purposes.” The ICC denied, however, a request by the Minnesota Department of Transportation (MNDOT) and the City of Blackduck to declare the property suitable for public use for acquisition as part of the State Rail Bank Program. The ICC noted that a “public use” did not include keeping the track and materials intact for future rail freight use and that MNDOT had failed to submit the required information for seeking a public use condition. BNRC later attempted unsuccessfully to sell the property as a tourist line. The company removed its tracks from the right-of-way in 1986 or 1987.

In 1988, the Minnesota legislature authorized the purchase of the railway corridor by the DNR to create the Paul Bunyan State Trail for public recreation. See 1988 Minn. Laws ch. 679. Consequently, the BNRC negotiated a sale of the property for $1,526,000 and conveyed the corridor to the state by quitclaim deed in 1991. The DNR opened the recreational trail for public use in December 1991. Since it opened, the DNR has maintained the trail, which has been used for snowmobiling, walking, bicycling, and horseback riding.

Appellant Hess acquired his interest in the subject property from his parents by contract for deed in 1992 and a warranty deed in 1995, after the trail was opened for public use. Appellants Sandberg acquired their parcels by warranty deed in 1977, 1998, and 1995. All of the warranty deeds stated that they were subject to easements of record.

The DNR maintained the trail in the disputed area until 1998. In October 1998, appellants installed trail blockades, claiming ownership of part of the trail right-of-way. After unsuccessful attempts to resolve the land ownership dispute, the DNR filed this quiet-title action. In May 2002, a DNR representative, responding to a call from the public, observed that excavation work had taken place on the Sandbergs’ property and the right-of-way, removing vegetation and topsoil. The Sandbergs expressed an intention to use about one-half mile of the trail surface as part of a driveway and finish an access road leading off the trail surface.

The district court issued a temporary injunction prohibiting the Sandbergs from driving vehicles on the trail, digging in the right-of-way, and using part of the trail as a driveway. Both the state and the appellants moved for summary judgment. Appellants’ motion was denied; that of the state was granted. In granting summary judgment for the state, the court concluded that the 1898 deed conveyed a fee simple determinable, that the Marketable Title Act, Minn.Stat. § 541.023 (2002), extinguished any subsequent limitation on the conveyance, and that the state was, therefore, the fee simple owner of the property. This appeal followed.

ISSUES

I. Did the district court err in determining that limiting language in an 1898 deed conveying an interest to a railroad created a fee simple determinable interest rather than an easement?

II. Did the railroad abandon its easement in the right-of-way, following a Certificate of Abandonment issued by the Interstate Commerce Commission, and removal of tracks from the right-of-way?

ANALYSIS

I.

On an appeal from summary judgment, this court asks whether genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The reviewing court is not bound by and need not give deference to the district court on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). The question of whether the 1898 deed conveyed an easement or a fee simple determinable interest to the railroad presents a legal issue. Therefore, we review on a de novo basis.

The state argues, and the district court held, that the 1898 deed conveyed to the railroad a fee simple determinable interest, with a possibility of reverter. The district court then concluded that, pursuant to the Minnesota Marketable Title Act, absent any notice of claim to the contrary within 40 years after the 1898 deed, the state took fee title to the property with the 1991 quitclaim deed. See Minn.Stat. § 541.023 (2002). Appellants maintain, however, that the 1898 deed created only an easement and that the easement was abandoned by the railroad before the conveyance to the state. Therefore, argue appellants, the 1991 quitclaim deed failed to convey an interest to the state because the railroad had no rights to convey.

To resolve the question of whether the 1898 deed conveyed a fee simple determinable interest with a possibility of reverter or only an easement, we must examine the deed itself to determine the intent of the parties executing it. See Norton v. Duluth Transfer Ry. Co., 129 Minn. 126, 151 N.W. 907 (1915) (interpreting language of deed conveying interest in land to railway company). In examining the deed, this court examines the whole instrument, construing all of its provisions together. Id. at 130, 151 N.W. at 908.

In Norton, the Minnesota Supreme Court interpreted the following language in a deed to a railroad:

[The parties] grant, bargain sell, and convey [the described land] [t]o have and to hold * * * for and so long as the same shall be used as a right of way for tracks and side tracks and a railroad way for its railroad cars * * * and for any other uses consistent with or embraced in the purposes and general nature of the business of said grantee * * *

Id. The court in Norton concluded that the parties intended to convey only an easement, vesting in the company the right to use the land only so long as it was devoted to the stated purpose. Id. at 131, 151 N.W. at 908. Similarly, in Chicago Great W. Ry. Co. v. Zahner, 145 Minn. 312, 177 N.W. 350 (1920), also a case involving a railroad, the Minnesota Supreme Court interpreted a deed conveying an interest in certain property to plaintiff railroad company,

its successors and assigns, forever * * * to have and to hold * * * such portions of lots three and four being deemed necessary and to be used for a track contemplated and to be laid by said Chicago Great Western Railway Company on said land for commercial purposes.

Id. at 314, 177 N.W. at 350 (quotations omitted).

While noting that “[a]n easement granted to a railway is essentially different from any other[,][t]he nature of railway service requires exclusive occupancy,” id. at 316, 177 N.W. at 351 (citation omitted), the Zahner court nonetheless ruled that the deed in that case created an easement and not a fee simple determinable interest.

The state argues that in this case the 1898 deed created a fee simple determinable interest and supports its argument with decisions regarding interests in land deeded for the purposes of parks and schools. See Cons.Sch. Dist. No. 102 of Washington County v. Walter, 243 Minn. 159, 163, 66 N.W.2d 881, 884 (1954) (construing reversionary language in a deed that conveyed land in trust for use as a school site as creating a determinable fee); see also Edling v. Stanford Toumship, 381 N.W.2d 881, 885 (Minn.App.1986) (construing language in a deed, “[t]o have and to hold * * * so long as [said property was used] for park purposes” to create a fee simple determinable). But the supreme court in Walter specifically distinguished the fact situation in that case from those in Norton and Zahner, stating, “In both [.Norton and Zahner ] a railroad right of way was involved and the court properly gave effect to the unmistakable intent of the parties.” 243 Minn. at 162, 66 N.W.2d at 883.

The state also maintains that the placement of the phrase “right of way” in the limiting (habendum) clause of the deed rather than the granting clause indicates a limitation of time period rather than use, and that the use of the language “so long as” indicates an intent to create a determinable fee. But the deed in Norton, which was held to create an easement, contained the language “so long as” and referred to a right-of-way in the limiting clause as well. Norton, 129 Minn. at 130, 151 N.W. at 908. Similarly, the existence of other provisions in the 1898 deed that convey different parcels of land, or refer specifically to a different easement, does not weaken the construction of the relevant language in the deed to convey an easement.

We have found no Minnesota appellate eases in which right-of-way deeds to railroads have been construed to convey fee title. The primary purpose of such deeds has, rather, been determined to provide a right-of-way for use by the railroad during the period of time that the railway operated on the land subject to the conveyance. We therefore conclude that the limiting language in the 1898 deed,

so long as the land shall be used for Right of Way and for Railway purposes; but to cease and terminate if the Railway is removed from the said strips,

reflects the parties’ intent that the deed convey an easement, rather than a fee simple determinable, in favor of the railroad and its successors in interest.

II.

We next consider whether, on these facts, the railroad abandoned its easement in the right-of-way so that the appellants succeeded as fee owners to the property, unburdened by the easement.

A claim of abandonment can be upheld only where nonuse is accompanied by affirmative and unequivocal acts indicative of an intent to abandon and is inconsistent with the continued existence of the easement.

Richards Asphalt Co. v. Bunge Corp., 399 N.W.2d 188, 192 (Minn.App.1987) (citation omitted). The intent

need not appear by express declaration, but may be shown by acts and conduct clearly inconsistent with an intention to continue the use of the property for the purposes for which it was acquired.

Norton, 129 Minn. at 132, 151 N.W. at 909. A change in conditions that originally caused the creation of the easement is taken into account in determining intent to abandon. Simms v. William Simms Hardware, Inc., 216 Minn. 283, 292, 12 N.W.2d 783, 788 (1943).

The state, while continuing to urge that the 1898 deed conveyed a fee simple determinable interest, maintains that even if only an easement was conveyed, the railroad did not abandon that easement. The state cites as support for its non-abandonment argument State by Washington Wildlife Pres., Inc. v. State, 329 N.W.2d 543 (Minn.1983). In Washington Wildlife, plaintiffs whose property adjoined a railroad right-of-way, which was subsequently used as a public recreational trail, sought a declaration that they were the true owners of the right-of-way. The supreme court held that, assuming that the railroad acquired only an easement interest in the right-of-way, there had been no abandonment. In so holding, the court observed:

Significantly, however, none of the deeds expressly limit the easement to railroad purposes, provide that the interest conveyed terminates if use for railroad purposes ceases, or provide that the easement would exist only for so long as the right-of-way was used for railroad purposes.

Id. at 546. Thus, the supreme court noted that the property in question would still be used as a right-of-way for transportation by hikers, bikers, cross-country skiers, and horseback riders, even though it had been abandoned as a railroad right-of-way. Id. at 547.

Recreational trail use of the land is compatible and consistent with its prior use as a rail line, and imposes no greater burden on the servient estates. The use is a public use, which is consistent with the purpose for which the easement was originally acquired.

Id. The supreme court additionally concluded that an ICC certificate of abandonment did not indicate an intent to abandon because it expressly contemplated continued use of the right-of-way for a different public purpose. Id. at 548.

The state urges that the facts of this case parallel the facts in Washington Wildlife because the new public recreational trail is compatible with the prior railroad use of the right-of-way for a public purpose. But we find the facts in the two cases starkly different. While we recognize the commendable use to which the state has put the property here, we conclude that the factual distinctions between this case and Washington Wildlife make it impossible to reach a decision similar to the one reached in that case. In contrast to the deed in Washington Wildlife, the deed in this case provides specifically that the railroad’s interest would terminate “if the Railway is removed from the said strips.” Surely, we are not unsympathetic to the reuse of railway lines as public recreational trails. But the removal of the tracks in 1986 or 1987, after BNRC failed to sell its rights in the property for a tourist line, can only be construed as the removal of the railway from the right-of-way and an abandonment of the easement. See Norton, 129 Minn. at 132-33, 151 N.W. at 909 (holding that railroad’s complete removal of tracks after ten years of nonuse proved intent to abandon easement). This is especially true here when the ICC, in issuing its certificate of abandonment, specifically denied a request that the property be determined suitable for public use for acquisition as part of the State Rail Bank Program. Cf. Washington Wildlife, 329 N.W.2d at 548 (ICC certificate of abandonment expressly contemplated continued use of right-of-way for another public purpose). To hold otherwise would be to unduly restrain the adjoining landowners’ use of their property for an indefinite period of time.

The facts of this case compel a conclusion that the easement granted by the 1898 deed was abandoned by the removal of the tracks, thus fulfilling the limitation provided in the deed that the grant would cease and terminate “if the Railway is removed from the said strips.” Also notable in our conclusion of abandonment is the ICC’s denial, in issuing its certificate of abandonment, of a request that the property be determined suitable for public use for acquisition as part of the State Rail Bank Program.

Finally, because we have concluded that the 1898 deed created only an easement, Minn.Stat. § 541.023, the Marketable Title Act, is inapplicable, and we do not address the argument raised by the state that because its interest exceeded 40 years, appellants had no reverter interest in the property. See Minn.Stat. § 541.023 (stating that if a party fails to record notice of a certain interest within the 40-year statutory period, the interest not so recorded is subject to the MTA’s conclusive presumption of abandonment).

DECISION

The specific language used in the 1898 deed reflects the intent to convey an easement consisting of a strip of land to be used for right-of-way and railroad purposes. The railroad’s subsequent receipt of a certificate of abandonment from the ICC without a designation of public use, and its subsequent removal of the railroad tracks, evidence an intent to abandon that easement. Therefore, appellant property owners remain the fee owners of the land in question.

Reversed.

       Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Although the district court had held that 13 of the 14 deeds at issue in that case conveyed fee title, the supreme court based its decision on the assumption that the railroad acquired only an easement interest. See Washington Wildlife, 329 N.W.2d at 544-45.


author: SANDSTROM, Justice.

text:
    2003 ND 105
    Gail Yvonne HOGAN, Plaintiff and Appellant, v. Wayne Thomas HOGAN, Defendant and Appellee.
    No. 20020240.
    Supreme Court of North Dakota.
    June 17, 2003.

      Benjamin E. Thomas, Wold Johnson, P.C., Fargo, for plaintiff and appellant.
    James A. Reisnour, Mackenzie & Reisn-our, Jamestown, for defendant and appel-lee.
   SANDSTROM, Justice.

[¶ 1] Gail Hogan appeals a Southeast Judicial District Court judgment granting Wayne Hogan extended visitation with their minor children and awarding him thirty percent of the property received by Gail Hogan in gifts and bequests from her parents. We affirm.

I

[¶ 2] Gail and Wayne Hogan were married on October 21, 1989, in Jamestown, and they have three minor children. Gail Hogan filed for divorce on January 2, 2001. The case was tried on December 13, 2001, and January 18, 2002. At trial, a custody investigator testified that in her opinion primary physical custody should be given to Gail Hogan. She testified she recommended that during the school year, Wayne Hogan receive visitation every other weekend, from Thursday afternoon until Monday morning, and have physical custody of the children during the summer months. The district court granted “Gail primary physical custody of the children with Wayne to have extended visitation from the first Sunday after school adjourns for the summer until the first Saturday after the completion of the first nine-week term of school in the fall.”

[¶ 3] The court distributed the property as the parties had agreed, except for three pieces of property received by Gail as gifts and bequests from her parents. The properties include an interest in the Gallagher Land Trust, established for Gail Hogan by her father seven years before her marriage, 746 shares in North Star Holding Company, Inc., inherited from her father in 1994, and a share of her mother’s estate, estimated by Gail to be worth $100,000, although its value had not been calculated by the trial date because her mother had died just the previous month. At the time of trial, none of the assets had been paid out to Gail Hogan. The district court granted Wayne Hogan thirty percent of the trust assets and thirty percent of Gail Hogan’s share of the distribution from the estates of each of her parents, to be transferred to Wayne Hogan when those property items become available to Gail Hogan.

[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. §§ 28-27-01, 28-27-02. The appeal was timely under N.D.R.App.P. 4(a).

II

[¶ 5] Gail Hogan argues the district court’s award of “defacto joint custody” to Wayne Hogan was clearly erroneous. Under the district court’s custody order, Gail Hogan was awarded custody of the children, and Wayne Hogan was awarded extended visitation. The district court did not grant defacto custody to Gail and Wayne Hogan; therefore, Gail Hogan’s argument of defacto custody is not valid.

[¶ 6] We will not reverse a trial court’s finding on visitation unless it is clearly erroneous. Love v. DeWall, 1999 ND 139, ¶ 6, 598 N.W.2d 106 (citing Lohstreter v. Lohstreter, 1998 ND 7, ¶ 10, 574 N.W.2d 790). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the evidence, this Court has a definite and firm conviction a mistake has been made. Id. We have consistently summarized our process of limited review of a trial court’s custody award under N.D.R.Civ.P. 52(a), stating, in Schmaltz v. Schmaltz:

“In a divorce proceeding, the trial court must award custody of the minor children based upon a determination of the best interests and welfare of the children. The trial court is vested with substantial discretion in matters of custody and in the determination of what is in the best interests of the children. A trial court’s custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. A trial court’s findings of fact are presumptively correct. The complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous. In reviewing findings of fact, we must view the evidence in the light most favorable to the findings. A choice between two permissible views of the evidence is not clearly erroneous. Simply because we might view the evidence differently does not entitle us to reverse the trial court. A finding of fact is clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.”

Schmaltz, 1998 ND 212, ¶ 6, 586 N.W.2d 852 (quoting Reimche v. Reimche, 1997 ND 138, ¶ 12, 566 N.W.2d 790 (citations omitted)).

[¶ 7] Section 14-09-06.2(1), N.D.C.C., sets out the guidelines for the best interests of the child:

For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence....
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶ 8] Upon considering the relevant factors for awarding custody under N.D.C.C. § 14-09-06.2, the trial court concluded it would be in the children’s best interests to award “Gail primary physical custody of the children with Wayne to have extended visitation from the first Sunday after school adjourns for the summer until the first Saturday after the completion of the first nine-week term of school in the fall.”

[¶ 9] Gail Hogan argues the trial court should have followed the advice of the custody investigator, who recommended:

• Gail to have the children for the school year and Wayne to have them for the summer.
• With weekend visitation every other weekend and one night a week on the alternate week. The weekend begins on Thursday after school and ends on Monday morning, during the school year. For the summer the [sic] Gail gets them on her weekend from Friday after work until Monday morning with one contact day during the alternate week.

[¶ 10] “By statute, the trial court is vested with the authority to award custody to the parent who will promote the best interests and welfare of the child.” Schmaltz, 1998 ND 212, ¶ 9, 586 N.W.2d 852 (citing N.D.C.C. § 14-09-06.1).

The court cannot delegate this responsibility to a guardian ad litem or other independent investigator. The weight assigned to a guardian ad litem’s testimony and recommendation is within the trial court’s discretion, and the court does not have to, nor should it, regard a guardian ad litem’s testimony and recommendation as conclusive.

Schmaltz, at ¶ 9 (quoting Schneider v. Livingston, 543 N.W.2d 228, 233 (N.D.1996) (citations omitted)).

[¶ 11] “Although it is appropriate to consider the opinion of the guardian ad litem in determining custody, it is within the trial court’s discretion to assign the weight given to such evidence.” Hurt v. Hurt, 2001 ND 13, ¶ 15, 621 N.W.2d 326. The custody investigator found both parents to have equal ability in providing for the needs of their children. She concluded, “The boys are attached to both parents and love them both very much.... Both parents have the skills to be a good parent.” She stated in her custody report that her reasons for recommending Gail Hogan be awarded physical custody are that Gail implements parenting skills “better than Wayne does” and “Gail appears to provide the most stability for the boys. They are in their own home and continuing with all their various activities.”

[¶ 12] The custody investigator’s recommendation does not give any reason why Wayne should not have extended visitation with the children. The trial court stated it had “found slightly in favor of Gail as to custody in the consideration of the appropriate factors.” However, it did not find that a custody award in complete relation to the school year was warranted. That the trial court’s decision did not follow the custody investigator’s recommendation is not convincing evidence that the court failed to adequately consider the report or erred in exercising its judgment. The trial court stated the award was based on a consideration of the best interests of the children, and we conclude there is no evidence to the contrary. The trial court was not clearly erroneous in its child.custody determination.

Ill

[¶ 13] Gail Hogan argues the court erred when it failed to determine a value for the property bequeathed and given to her by her parents and included that property in the division of the marital estate.

[¶ 14] “The trial court’s determinations regarding division of property are treated as findings of fact and will not be reversed unless they are clearly erroneous.” Mellum v. Mellum, 2000 ND 47, ¶ 14, 607 N.W.2d 580.

[¶ 15] We distinguish the present case from cases such as Urlaub v. Urlaub, in which this Court remanded for the purpose of determining a definite value of the real and personal property owned by the parties. 325 N.W.2d 234 (N.D.1982). In Urlaub, both parties submitted evidence of the net worth of the marital property, the value of which was in dispute. Id. at 235. The trial court failed to determine the property value from the evidence presented by the parties, and the record therefore reflected no foundation for the trial court to make an equitable distribution. Id. at 237. Thus, this Court was unable to determine whether the trial court’s distribution was clearly erroneous. Id.

[¶ 16] A trial court may grant parties a percentage of the marital or non-marital estate in a property division if, at the time of the trial, there are insufficient assets for a division or the valuation is too speculative. Zander v. Zander, 470 N.W.2d 603, 605 (N.D.1991) (the trial court awarded the wife a percentage of the husband’s retirement benefits); van Oosting v. van Oosting, 521 N.W.2d 93, 98 (N.D.1994) (the trial court should award a percentage of one spouse’s future payments from a vested credit trust, treated as inherited property, to the other spouse in a property distribution). We have cited decisions of the Supreme Court of Minnesota that prescribe “a rule for the equitable distribution of property rights which are difficult or impossible to evaluate—ordering apportionment of the future benefits only if and when such benefits are paid.” Glass v. Glass, 344 N.W.2d 677, 678 (N.D.1984) (citing Janssen v. Janssen, 331 N.W.2d 752, 756 (Minn.1983)).

[¶ 17] We have held that in certain cases, marital property “may be divided at the time of divorce by either awarding the present value of the benefits, or when there are insufficient assets for a present division or when present valuation is too speculative, by awarding a percentage of future payments.” van Oosting, 521 N.W.2d at 98 (citing Zander, 470 N.W.2d at 605). The latter of the two methods “should be used where present value determinations are unacceptably speculative or there are not enough assets to equitably split the retirement benefits at the time of the divorce.” Zander, at 606. At the time of trial, the value of Gail Hogan’s interest in the Gallagher Land Trust, the value of her shares of North Star Holding Company, and the value of her inherited share of her mother’s estate were not available to calculate and were therefore too speculative for the court to determine a definite value. At the time of trial, Gail Hogan argued the value of the property was speculative, and now faults the district court for finding the value was speculative. We conclude the district court was not clearly erroneous in awarding Wayne Hogan a percentage of Gail Hogan’s gifts and bequests without first having established a definitive value for the property, van Oosting, at 98; Zander, at 605-06.

[¶ 18] Gail Hogan argues that the inclusion of the property and the award of thirty percent to Wayne Hogan resulted in an excessive award and an inequitable distribution. It is well-settled in our case law that a property division need not be equal to be equitable, but a substantial disparity must be explained. Young v. Young, 1998 ND 83, ¶ 10, 578 N.W.2d 111; Fisher v. Fisher, 1997 ND 176, ¶ 15, 568 N.W.2d 728. “A trial court’s findings on matters of property division will not be set aside on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a), or they are induced by an erroneous view of the law.” Wald v. Wald, 556 N.W.2d 291, 294 (N.D.1996).

[¶ 19] Section 14-05-24, N.D.C.C., requires the court to distribute the parties’ real and personal property “as may seem just and proper.” There are no set rules for distributing the property of a marriage, but this Court follows established case law setting out certain guidelines, known as the Ruff-Fischer guidelines, to assist in its determination. Corbett v. Corbett, 2002 ND 103, ¶ 4 n. 1, 646 N.W.2d 677. The trial court must first establish the parties’ net worth before considering the Ruff-Fischer guidelines. Winter v. Winter, 338 N.W.2d 819, 821 (N.D.1983). The district court found “the value of the marital estate to be $140, 212.07 plus the value of the trust, and Gail’s share of the estates of her parents. The net value of the marital estate is ($140,212.07-$130,300.49) $9,911.58, plus the value of those assets.”

[¶ 20] In a divorce, the court may award the separate property of one spouse to the other when an equitable distribution so requires. Fraase v. Fraase, 315 N.W.2d 271, 274 (N.D.1982). The origin of the property is simply one factor to consider, even if the property was acquired before or inherited during the marriage. Svetenko v. Svetenko, 306 N.W.2d 607, 613 (N.D.1981).

[If 21] We have repeatedly held, “separate property, whether inherited or otherwise, must initially be included in the marital estate.” Young, 1998 ND 83, ¶ 10, 578 N.W.2d 111. “We have never held that property brought into a marriage or acquired by gift or inheritance by one spouse, be irrevocably set aside to that spouse.” Id. “As we held in Gaulrapp [v. Gaulrapp], 510 N.W.2d [620,] 621 [(N.D.1994)], the length of the marriage is relevant in the distribution of gifted property as part of the ‘equitable’ division of the marital estate. Also a lengthy marriage, in general, supports an equal division of all marital assets.” Id.

.[¶ 22] Gail Hogan argues that the couple’s previous lifestyle should not be considered in the property distribution because Wayne Hogan was underemployed during their marriage and their use of the trust fund money was not a deliberate lifestyle choice but was rather the result of Wayne’s failure to find sufficient employment.

[¶ 23] The trial court awarded Gail Hogan “the house of a value of $94,000.00 and other property of a value of $16,614.61, which total $110,614.61, and debt of $112,409.53, for a net value of -$1,794.92.” Wayne Hogan was awarded property valued at “$16,728.00, and debt of $12,890.66, for a net of $3,837.34.” The remaining assets were a joint checking account worth $9,849.46 and Gail Hogan’s three assets received as gifts and bequests. The checking account was divided, giving Wayne Hogan $2,108.60 and giving the remainder to Gail Hogan, leaving them both with an equal share of the marital estate. The trial court then awarded Wayne Hogan thirty percent of Gail Hogan’s three properties, stating it was an equitable distribution. The court stated in its findings of fact:

The Ruff-Fischer factors favor Gail in making an equitable distribution. The origin of these assets weighs in favor of distribution to Gail. The station in life of Gail and Wayne individually is that they each enjoy a lifestyle that cannot be supported by the income they each have from employment. The difference in the past has been Gail’s income from her property received from her family. The court has previously stated that this lifestyle was a decision the parties have made. This factor weighs in favor of Wayne for a partial distribution of the three assets.

[¶ 24] The record evidences the parties lived on the money received from Gail Hogan’s trust fund and the parties used the money from the trust fund to enhance their lifestyle. We conclude the trial court did not err in awarding Wayne Hogan an equitable lien in thirty percent of Gail Hogan’s share in the trust fund, the 746 shares of the holding company, and her share of inherited property from her mother’s estate.

IV

[¶ 25] We conclude the district court was not clearly erroneous in its child custody and property awards. We affirm the judgment of the district court.

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


author: NEUMANN, Justice. KAPSNER, Justice,

text:
    2003 ND 112
    Michelle VAN KLOOTWYK, Jim Wilhelm, Greg Wilhelm, as heirs and representatives of the Estate of Gladys Wilhelm, deceased; and Michelle Van Klootwyk, Jim Wilhelm, and Greg Wilhelm, as survivors of Gladys Wilhelm, deceased, Plaintiffs and Appellants, v. BAPTIST HOME, INC., a North Dakota non-profit corporation, Defendant and Appellee.
    No. 20020325.
    Supreme Court of North Dakota.
    July 16, 2003.

      Charles “Casey” L. Chapman, Chapman and Chapman, Bismarck, ND, for plaintiffs and appellants.
    Steven A. Storslee, Storslee Law Firm, P.C., Bismarck, ND, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Michelle Van Klootwyk, Jim Wilhelm, and Greg Wilhelm, as heirs and representatives of the estate of Gladys Wilhelm (collectively “Van Klootwyk”), appealed from a judgment and amended judgment dismissing, without prejudice, their wrongful death and personal injury action against Baptist Home, Inc. Because Van Klootwyk’s lawsuit is not an action against a physician, nurse, or hospital licensed by the state, we conclude N.D.C.C. § 28-01^16 does not apply and the trial court erred in dismissing the case. We reverse and remand for further proceedings.

I

[¶ 2] In June 1998, Gladys Wilhelm was admitted to the Baptist Home, which is a nursing home located in Bismarck. Wilhelm was 79 years old at the time and had been diagnosed with Parkinson’s Disease and Shy-Drager’s Syndrome. Wilhelm also suffered from chronic constipation, and her personal physician, who was the Baptist Home medical director, issued standing orders for her treatment.

[¶ 3] On November 19, 1999, the charge nurse on duty at the Baptist Home ordered two certified nurse assistants to administer a Fleet enema to Wilhelm to attempt to relieve her constipation. After administering the enema, the nurse assistants noticed blood in the toilet and contacted the charge nurse. The charge nurse discovered hard stool protruding from Wilhelm’s anus, determined digital extraction of the stool was necessary, and performed the procedure. Wilhelm was then placed into bed. A charge nurse who later came on duty discovered a fissure on Wilhelm’s anal sphincter and called Wilhelm’s physician, who prescribed medication. After Wilhelm continued to suffer rectal bleeding, she was examined by her physician on November 20, 1999, and the physician issued new orders for her care.

[¶ 4] Wilhelm was examined by another physician on November 22, 1999, and was diagnosed with gangrene infection in the rectal area. Physicians agreed Wilhelm would not survive surgery to remove the gangrene infected tissue. Wilhelm was given hospice care at the nursing home and died on November 30, 1999.

[¶ 5] In November 2000, Wilhelm’s surviving children commenced this action against the Baptist Home for wrongful death and personal injury. Van Klootwyk alleged:

V.
Employees and/or agents of the Defendant Baptist Home, Inc. failed to fully follow the procedures of the Defendant Baptist Home, Inc. in dealing with the constipation problem of Gladys Wilhelm.
VI.
In addition, one or more of the employees and/or agents of the Defendant Baptist Home, Ine., in attempting to physically remedy the constipation problem of Gladys Wilhelm, breached the applicable standard of care and negligently caused injury to Gladys Wilhelm.
VII.
Following injury to Gladys Wilhelm, the employees and/or agents of Defendant Baptist Home, Inc. failed to adequately care for the injury, thereby exacerbating the effect of the injury.
VIII.
As a result of the actions and inac-tions of the Defendant Baptist Home, Inc. acting by and through its employees and/or agents, Gladys Wilhelm contracted gangrene and died.
IX.
The failure of the employees and/or agents of the Defendant Baptist Home, Inc. to satisfy applicable standards of care in the events leading to the death of Gladys Wilhelm constitute negligence.

[¶ 6] In May 2002, the Baptist Home moved for summary judgment of dismissal. The Baptist Home argued Van Klootwyk had failed to comply with the three-month limit for obtaining an admissible supporting expert opinion under N.D.C.C. § 28-01-46, and alternatively, had failed to produce an expert opinion to establish a prima facie case of medical malpractice. Van Klootwyk responded with an affidavit from a Texas physician who opined that “the Baptist Home staff was negligent in causing Mrs. Wilhelm’s sphincter tear,” “the Baptist Home staff was negligent in its failure to fully and adequately report the nature of that injury to the attending physician,” and “the negligence of the Baptist Home staff, in its failure to provide appropriate care to Gladys Wilhelm, led to the gangrene infection, which eventually caused her death.” The trial court ruled N.D.C.C. § 28 — 01—46 applied to Van Klo-otwyk’s action, and because no admissible expert opinion to support the allegations of professional negligence was provided within three months of the commencement of the litigation and Van Klootwyk had not moved to extend the time for obtaining an expert opinion, the court dismissed the action without prejudice. The trial court did not rule on the Baptist Home’s alternative theory that Van Klootwyk had failed to produce an expert opinion to establish a prima facie ease of medical malpractice.

[¶ 7] Van Klootwyk appealed from a judgment and amended judgment dismissing the action without prejudice. Although the action was dismissed without prejudice, because the statute of limitations has run on Van Klootwyk’s claims, the dismissal effectively forecloses further litigation of the claims in this state, and therefore, the judgment and amended judgment are appealable. See Haugenoe v. Bambrick, 2003 ND 92, ¶ 2, 663 N.W.2d 175; Jaskoviak v. Gruver, 2002 ND 1, 638 N.W.2d 1.

II

[¶ 8] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after reviewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Kondrad ex rel. McPhail v. Bismarck Park Dist., 2003 ND 4, ¶ 4, 655 N.W.2d 411. The interpretation of a statute is a question of law. Dennison v. North Dakota Dep’t of Human Services, 2002 ND 39, ¶ 6, 640 N.W.2d 447. Whether the trial court properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, ¶ 6, 615 N.W.2d 160.

[¶ 9] In dismissing Van Klootwyk’s lawsuit, the trial court relied upon N.D.C.C. § 28-01-46, which provides:

Any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence must be dismissed without prejudice on motion unless the claimant has obtained an admissible expert opinion to support the allegation of professional negligence within three months of the commencement of the action or at such later date as set by the court for good cause shown by the plaintiff. The expert’s affidavit must identify the name and business address of the expert, indicate the expert’s field of expertise, and contain a brief summary of the basis for the expert’s opinion. This section does not apply to alleged lack of informed consent, unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient’s body, or other obvious occurrence.

[¶ 10] The statute “attempts to minimize frivolous claims by requiring the plaintiff to produce an expert opinion to support the allegations of negligence in the early stages of litigation.” Haugenoe, 2003 ND 92, ¶ 10, 663 N.W.2d 175. The statute provides for preliminary screening of totally unsupported claims and seeks to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim. Jaskoviak, 2002 ND 1, ¶ 2, 638 N.W.2d 1. It was enacted to prevent the necessity of an actual trial in those cases. Greenwood v. Paracelsus Health Care Corp., 2001 ND 28, ¶ 8, 622 N.W.2d 195. The statute does not require the plaintiff to complete discovery or to establish a prima facie case during the accelerated three-month time frame, but merely requires the plaintiff to come forward with an expert opinion to support the allegations of malpractice. Ellefson v. Earnshaw, 499 N.W.2d 112, 114 (N.D.1993).

[¶ 11] Van Klootwyk argues the trial court erred in dismissing the action because she has not sued a “physician, nurse, or hospital licensed by the state,” the three categories covered by N.D.C.C. § 28-01-46. We agree.

[¶ 12] We summarized the rules of statutory construction in Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶¶ 20-21, 663 N.W.2d 186:

[0]ur duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. §§ 1-02-02 and 1-02-03. If statutory language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit, because the Legislature’s intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05. If statutory language is ambiguous, a court may resort to extrinsic aids, including legislative history, to interpret the statute. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to meanings that are different, but rational. Shiek v. North Dakota Workers Comp. Bureau, 2002 ND 85, ¶ 12, 643 N.W.2d 721.
Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence. Meljie v. North Dakota Workers Comp. Bu reau, 2002 ND 174, ¶ 15, 653 N.W.2d 62; Doyle ex rel. Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 10, 621 N.W.2d 353. We presume the Legislature did not intend an absurd or ludicrous result or unjust consequences. McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666. We construe statutes in a practical manner and give consideration to the context of the statutes and the purposes for which they were enacted. Grey Bear v. North Dakota Dep’t of Human Servs., 2002 ND 139, ¶ 7, 651 N.W.2d 611.

Because the mention of one thing in a statute implies the exclusion of another, Bigwood v. City of Wahpeton, 1997 ND 124, ¶ 15, 565 N.W.2d 498, we "will not broadly interpret the categories listed in N.D.C.C. § 28-01^46 to include health care providers not specifically mentioned in the statute. See Heimer v. Privratsky, 434 N.W.2d 357, 359 (N.D.1989) (holding although an optometrist is a professional health care provider, an optometrist is not a physician and N.D.C.C. § 28-01-46 is inapplicable in an action against an optometrist for professional negligence).

[¶ 13] The three-month time period for providing an admissible expert opinion under N.D.C.C. § 28-01^46 applies to “[a]ny action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence.” The Baptist Home does not argue that a nursing home is a “hospital” within the meaning of the statute. North Dakota law currently differentiates between hospitals and nursing homes. Compare, for exam-pie, N.D.C.C. § 23-30-01(1) (defining “Hospital” as “an institution with an organized medical staff, permanent facilities including inpatient beds, medical services including physician services and continuous nursing services, to provide diagnosis and treatment, for medical conditions, both surgical and nonsurgical, and services including rehabilitation services”) with N.D.C.C. § 23-30-01(4) (defining “Nursing home” as “an institution in which nursing care is rendered for compensation to two. or more persons not related to the operator by blood or marriage, serving persons suffering from a prolonged physical or mental illness or defect, or persons recovering from some injury or disease. Care provided must include: administration of medicines, preparation of special diets, giving of bedside care, application of dressings and bandages, and carrying out treatments prescribed by duly licensed practitioners of the healing arts”). See also N.D. Admin. Code § 45-06-07-03(13) (defining “Hospital” as “a duly licensed institution that provides general and specialized inpatient medical care. The term ‘hospital’ does not include a convalescent facility, nursing home, or any institution or part of an institution which is used principally as a convalescent facility, nursing facility, or facility for the aged”).

[¶ 14] Rather, the Baptist Home argues, and the trial court ruled, N.D.C.C. § 28-01-46 is applicable in this case because Van Klootwyk’s allegations of negligence on the part of the Baptist Home center upon the Baptist Home’s vicarious liability for acts performed by, or under the supervision of, its licensed nurse employees, which are specifically listed in the statute. The Baptist Home contends that Van Klootwyk’s interpretation of the statute would lead to an absurd result because a plaintiff could control the applicability of the statute simply by naming as a defendant in the lawsuit only the vicariously liable corporate employer of the nurses, rather than the individual nurses themselves, which would frustrate and circumvent the legislative intent and purpose of the law.

[¶ 15] In support of its argument, the Baptist Home relies upon State v. Nieto, 993 P.2d 493 (Colo.2000). In Nieto, the plaintiff sued the State of Colorado for damages based on the alleged nursing malpractice of one of its employees. Colorado had a certificate of review statute, Colo. Rev. State. § 13-20-602, which at the relevant time provided in part:

(1) In every action for damages or indemnity based upon the alleged professional negligence of a licensed professional, the plaintiffs or complainant’s attorney shall file with the court a certificate of review, for each licensed professional named as a party, as specified in subsection (3) of this section, within sixty days after the service of the complaint, counterclaim, or cross claim against such licensed professional unless the court determines that a longer period is necessary for good cause shown.
(4) The failure to file a certificate of review in accordance with this section shall result in the dismissal of the complaint, counterclaim, or cross claim.

Nieto, at 501-02. The Colorado Court of Appeals held a certificate of review was not required because the State was not a licensed professional named as a party. The Colorado Supreme Court reversed that ruling. The court found the statute to be ambiguous, and after considering the legislative history, concluded:

[T]he General Assembly sought to eliminate any situations in which a claimant could avoid the certificate requirement. Based on our review of the legislative history, it is clear that the certificate requirement was not only to apply to actions in which licensed professionals are named as a party, but also to claims based-on the negligence of licensed professional[s].
Thus, while the court of appeals is correct in stating that neither the State nor the DOC can be characterized as a licensed professional, Nieto’s claim for nursing malpractice falls squarely within the class of claims covered by section 13-20-602.

Nieto, at 504.

[¶ 16] The Nieto court’s reasoning might be persuasive if the relevant language of the Colorado statute was similar to N.D.C.C. § 28-01-46. The Colorado statute, which applies to “every action for damages or indemnity based upon the alleged professional negligence of a licensed professional,” is, like the laws of numerous other jurisdictions, much broader in scope than N.D.C.C. § 28-01-46. See Annot, Medical Malpractice: Who are “health care providers, or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1 (1993). Section 28-01-46, N.D.C.C., does not provide that the three-month time period applies to any allegation of professional negligence against a physician, nurse, or hospital licensed by this state. Rather, N.D.C.C. § 28-01-46 applies only to “[a]ny action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence.” (Emphasis added). An “allegation” is not synonymous with an “action.” The plain and commonly understood meaning of an “action” is “an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” N.D.C.C. § 32-01-02. See also Guthmiller v. North Dakota Dep’t of Human Services, 421 N.W.2d 469, 471 (N.D.1988); Lucke v. Lucke, 300 N.W.2d 231, 235 (N.D.1980); Greenleaf v. Minneapolis St. Paul Sault Ste. Marie Ry. Co., 30 N.D. 112, 119, 151 N.W. 879, 881 (1915). An action “in its usual legal sense means a lawsuit brought in a court.” Black’s Law Dictionary 28 (6th ed.1990). The commonly understood meaning of an “allegation” is the “assertion, claim, declaration, or statement of a party to an action, made in a pleading, setting out what he expects to prove.” Id. at 74, 151 N.W. 879. Consequently, under the plain meaning of the statute, the three-month time period for providing an admissible expert opinion applies only when a lawsuit based upon professional negligence is brought against a physician, nurse, or hospital.

[¶ 17] The Baptist Home argues our caselaw supports its construction of the statute because this Court has dismissed in their entirety under N.D.C.C. § 28-01-46 lawsuits in which clinics, which are not specifically named in the statute, have been sued along with physicians. See Larson v. Hetland, 1999 ND 98, 593 N.W.2d 785; Larsen v. Zarrett, 498 N.W.2d 191 (N.D.1993). However, the Baptist Home’s reliance on Hetland and Zarrett is misplaced because the issue was neither raised by the parties nor addressed by this Court. See Western Nat. Mut. Ins. Co. v. University of North Dakota, 2002 ND 63, ¶ 21, 643 N.W.2d 4.

[¶ 18] We reject the Baptist Home’s assertion that Van Klootwyk’s construction of the statute leads to an absurd result. The Legislature certainly could have said the three-month time limit applies to any action for malpractice. See, e.g., N.D.C.C. § 28-01-18(3) (stating two year statute of limitations applies to “[a]n action for the recovery of damages resulting from malpractice”). The Legislature instead limited the application of N.D.C.C. § 28-01416 to professional negligence actions against a physician, nurse, or hospital: The Legislature could have determined that these three categories constitute the most likely categories in which a medical malpractice case would arise. If the Legislature had intended to include within the :ambit of N.D.C.C. § 28-01-46 situations in which an employer is vicariously liable and a physician or nurse are not named parties to the lawsuit, it would have been unnecessary for the Legislature to include a “hospital” as one of the three categories of health care providers to which the limitation period applies.

[¶ 19] “[W]e will not correct an alleged legislative ‘oversight’ by rewriting unambiguous statutes to cover the situation at hand.” Wimbledon Grain Co., 2003 ND 104, ¶ 28, 663 N.W.2d 186 (footnote omitted) (quoting Selzler v. Selzler, 2001 ND 138, ¶ 18, 631 N.W.2d 564). We conclude the trial court erred in dismissing Van Klootwyk’s lawsuit because it is not an action against a physician, nurse, or hospital within the meaning of N.D.C.C. § 28-01-46.

III

[¶ 20] Because the trial court ruled N.D.C.C. § 28-01-46 applied in this case and Van Klootwyk failed to comply with the three-month time limit for obtaining an admissible expert opinion, the court did not address the Baptist Home’s alternative argument that summary judgment was nevertheless appropriate because Van Klootwyk failed to produce an expert opinion to establish a prima facie case of medical malpractice. Although the three-month time limit under N.D.C.C. § 28-01-46 is not applicable to this action, expert testimony is still required to support a prima facie claim of medical malpractice, unless the breach of duty is so egregious that a layman is capable of comprehending its enormity. Zarrett, 498 N.W.2d at 192. A prima facie case consists of expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of. Id. Summary judgment of dismissal is appropriate if the plaintiff fails to present expert evidence establishing a prima facie case. See Winkjer v. Herr, 277 N.W.2d 579, 589 (N.D.1979). Consequently, we remand the case to the trial court to consider the Baptist Home’s alternative ground for summary judgment of dismissal.

IV

[¶ 21] Our resolution of this appeal renders it unnecessary to address the other issues raised by the parties. We reverse the judgment and amended judgment and remand for further proceedings.

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

KAPSNER, Justice,

concurring.

[¶ 23] I reluctantly concur.

[¶ 24] The concessions made by appellant at oral argument demonstrate the validity of the Baptist Home’s argument that a plaintiff can sometimes control the applicability of the statute by naming a defendant who is not within the categories specified in N.D.C.C. § 28 — 01—46. This is so even when the potential for liability is based solely upon the vicarious liability of the employer, the named defendant, for acts of employees who are within the categories of persons to whom the statute applies.

[¶ 25] Counsel for appellant conceded at oral argument that this lawsuit was only directed at members of the staff of Baptist Home who either were nurses or were acting at the direction of a nurse. This case is about allegations of nursing malpractice. The result foregoes the benefit envisioned by N.D.C.C. § 28-01-46, of having an expert opinion early in the litigation indicating that the claims have been evaluated and can be supported, in an action focused on claims of nursing negligence but naming only the employer. However, applying ordinary principles of statutory interpretation, that is the required result. The legislature will have to address expansion of the categories to whom N.D.C.C. § 28-01-46 applies, if this result does not accord with legislative intent.

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

      . In St. Vincent’s Nursing Home v. Department of Labor, 169 N.W.2d 456, 458 (N.D.1969), this Court held a nursing home qualified as a ''hospital” for purposes of the exemption provisions of the Labor Management Relations Act, N.D.C.C. ch. 34 — 12. The Court in St. Vincent’s Nursing Home, at 457, pointed out, however, that the nursing home had been licensed by the State Department of Health "as a hospital” under N.D.C.C. § 23-16-01, which requires licensure of any "person, -partnership, association, corporation, limited liability company, county or municipal corporation, or agency thereof, which maintains and operates organized facilities for the diagnosis, treatment, or care of two or more nonrelated persons suffering from illness, injury, or deformity or where obstetrical or other care is rendered over a period exceeding twenty-four hours.”

      . Vicarious liability, or the doctrine of respon-deat superior, means an employer is liable for tortious acts of its employees committed while they are acting within the scope of employment. Nelson v. Gillette, 1997 ND 205, ¶ 10, 571 N.W.2d 332. An employer who is held vicariously liable for an employee’s actions can obtain indemnification from the employee. Id. at ¶ 26. To avoid an insoluble "indemnity cycle,” this Court has held the release of a servant or employee also releases the master or employer from liability. Horejsi v. Anderson, 353 N.W.2d 316, 320 (N.D.1984).


author: KAPSNER, Justice.

text:
    2003 ND 116
    STATE of North Dakota, Plaintiff and Appellee, v. Duane F. STEEN, Defendant and Appellant.
    Nos. 20020355-20020360.
    Supreme Court of North Dakota.
    July 16, 2003.
    Rehearing Denied Aug. 20, 2003.
    Linda L. Hickman, State’s Attorney, Williston, ND, for plaintiff and appellee.
    LeRoy P. Anseth, Williston, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Duane F. Steen (“Steen”) appeals from a district court order vacating a Rule 35(b), N.D.R.Crim.P., reduction in sentence. We conclude the district court acted beyond the 120-day period permitted by Rule 35(b); therefore, the district court did not have the power to reduce Steen’s criminal sentence. The district court order vacating Steen’s sentence reduction is affirmed.

I

[¶ 2] Steen pled guilty to three charges of possession of a controlled substance, class C felonies; simple assault, a class C felony; delivery of a controlled substance (methamphetamine), a class AA felony; and attempt (manufacturing a controlled substance-methamphetamine), a class B felony. On June 27, 2002, criminal judgments were entered for each of the six cases and Steen was sentenced. On July 12, 2002, the court amended five of the six judgments, specifying the number of days of credit for time served Steen was to receive for each case; the court did not address the judgment pertaining to the class AA felony, delivery of a controlled substance.

[¶ 3] On October 10, 2002, Steen moved under Rule 35(b), N.D.R.Crim.P., for a sentence reduction. On November 12, 2002, the court granted the motion in part, reducing Steen’s sentence for the class AA felony from 20 years incarceration with 10 years suspended to 20 years incarceration with 18 years suspended for five years from the date of release on the class C felonies. The sentences in the other convictions were to remain as previously ordered.

[¶ 4] On November 26, 2002, the State moved to vacate the November 12, 2002, order, arguing the court was without jurisdiction to reduce Steen’s sentence because the order was entered after the 120-day period mandated by Rule 35(b), N.D.R.Crim.P. On December 11, 2002, the court vacated its November 12, 2002, order and denied Steen’s motion for a sentence reduction. Steen appeals.

II

[¶ 5] ‘The right of appeal in this state is statutory and is a jurisdictional matter.’ ” State v. Owens, 1997 ND 212, ¶ 6, 570 N.W.2d 217 (quoting Bland v. Comm’n on Med. Competency, 557 N.W.2d 379, 384 (N.D.1996)). In criminal eases, the right to appeal is governed by N.D.C.C. ch. 29-28. Id. Under N.D.C.C. § 29-28-06(5), a defendant may appeal from “[a]n order made after judgment affecting any substantial right of the party.”

[¶ 6] In this case, the State moved to vacate the district court order reducing Steen’s sentence, asserting the court was without jurisdiction to reduce Steen’s sentence. The State’s motion to vacate the district court order was in the nature of a N.D.R.Crim.P. 35(a) motion to correct an illegal sentence. This Court has concluded correction of an. illegal sentence under N.D.R.Crim.P. 35(a) involves a substantial right and is appealable. See State v. Nace, 371 N.W.2d 129, 131 (N.D.1985); see also Owens, at ¶ 8 n. 3 (stating “[t]he holding in Nace has been superceded in part by legislation, see NDCC 12.1-32-06.1, but its holding about challenging an illegal sentence is still sound. DeCoteau v. State, 504 N.W.2d 552, 556 (ND 1993)”). The district court ordered Steen’s sentence reduction vacated after the State filed a motion, characterized as a Rule 35(a), N.D.R.Crim.P., motion, to correct a sentence issued without jurisdiction; therefore, Steen has a right to appeal the order issued under Rule 35(a), N.D.R.Crim.P. See Owens, at ¶ 8 (stating an order made by the district court following a motion brought under N.D.R.Crim.P. 35(a) is ap-pealable by a criminal defendant).

Ill

[¶ 7] Steen argues the district court order reducing his sentence was issued within the prescribed period of time set out in Rule 35(b), N.D.R.Crim.P. Steen asserts the calculation for the 120-day period under Rule 35(b), N.D.R.Crim.P., should begin on July 12, 2002, the date of the order amending most of the judgments.

[¶ 8] Rule 35(b), N.D.R.Crim.P., provides:

(b) Reduction of sentence. The sentencing court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by that court of a mandate issued upon affir-mance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation constitutes a permissible reduction of sentence under this subdivision. Relief under this rule may be granted by the court only upon motion of a party or its own motion and notice to the parties. If the sentencing court grants relief under this rule, it ■shall state its reasons therefor in writing.

The explanatory notes to Rule 35(b), N.D.R.Crim.P., state: “the period is not defined as the time in which the motion may be made, but is rather the time in which the court may act. Technically, this permits the court’s failure to act upon a motion, to preclude relief. (8A Moore’s, supra, ¶ 35.02(2), pp. 35-5 and 35-6.)”

[¶ 9] In State v. Hanson, 452 N.W.2d 329, 330 (N.D.1990), this Court noted “[t]he plain language of NDRCrimP 35(b), emphasized in its explanatory note, means that the failure of a sentencing court to act within 120 days forecloses its power to reduce a criminal sentence.” This Court further suggested that although the district court did not have power to reduce a defendant’s sentence after 120 days, a defendant may apply to the parole board at any time to shorten the term of imprisonment. Id.

[¶ 10] In this case, the district court reduced Steen’s sentence for the class AA felony, delivery of a controlled substance. The criminal judgment for this charge was entered on June 27, 2002, and was not referenced in the July 12, 2002, order amending the other judgments. One hundred and thirty-eight days passed from June 27, 2002, to November 12, 2002, the date the district court acted on Steen’s Rule 35(b) motion. Because the district court did not act on Steen’s Rule 35(b) motion within 120 days, the court did not have the power to reduce Steen’s criminal sentence. N.D.R.Crim.P. 35(b); Hanson, at 330.

[¶ 11] Steen argues the district court acted on his Rule 35(b), N.D.R.Crim. P., motion within the time period allowed by the rule because the 120-day period should begin on July 12, 2002, and three days for mailing should be added to the 120-day period. Although Rule 45(e), N.D.R.Crim.P., provides for additional time for mailing, this argument is not helpful to Steen because the 120-day period set under Rule 35(b), N.D.R.Crim.P., is the time within which the court can act. Rule 45(e) provides: “[w]henever a party has the right or is required to do an act within a prescribed period” and the party receives notice by mail, three days should be added to the prescribed period. N.D.R.Crim.P. 45(e) (Emphasis added). N.D.R.Crim.P. 45(e) does not apply to the time within which the court can act. Even if we assume, without deciding, the period of time commencing the 120-day period set out in N.D.R.Crim.P. 35(b) began on July 12, 2002, the court still acted too late because 123 days had passed. See N.D.R.Crim.P. 35(b); Hanson, at 330.

[¶ 12] Steen argues, even if the court acted beyond the 120-day period, equity permits an extension of the 120-day period prescribed in Rule 35(b), N.D.R.Crim.P. Rule 45(b), N.D.R.Crim.P., permits a court, in some circumstances, to enlarge a period of time specified by the rules:

(b) Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if a request for enlargement is made before expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after expiration of the specified period permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time for taking any action under Rules 29, S3, 35, and 37, except to the extent and under the conditions stated in them.

(Emphasis added). Steen filed his motion to reduce his sentence under N.D.R.Crim.P. 35(b); therefore, N.D.R.Crim.P. 45(b) specifies that the court may not increase the 120-day period mandated by Rule 35(b), N.D.R.Crim.P.

IV

[¶ 13] Steen argues, because the State failed to raise the issue of jurisdiction until after the district court issued its order, it should be barred from asserting the claim.

[¶ 14] Whether a court has subject matter jurisdiction is a question which can be raised at any time, even of a court’s own accord. City of Grand Forks v. Thong, 2002 ND 48, ¶ 9, 640 N.W.2d 721. “A judgment or order entered without the requisite jurisdiction is void.” Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 11, 580 N.W.2d 583. The district court reduced Steen’s sentence more than 120 days after Steen’s sentence was imposed and it did not have the power at that time to reduce a criminal sentence. State v. Hanson, 452 N.W.2d 329, 330 (N.D.1990). The district court was without jurisdiction to act on Steen’s Rule 35(b), N.D.R.Crim. P., motion after 120 days and properly vacated its order.

V

[¶ 15] We conclude the district court acted beyond the 120-day period permitted by N.D.R.Crim.P. 35(b); therefore, the district court did not have the power to reduce Steen’s criminal sentence. The district court order vacating Steen’s sentence reduction is affirmed.

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

      . Steen’s motion listed five criminal case numbers and did not include the case number for the class AA felony, delivery of a controlled substance. The State’s response to the motion referenced all six case numbers as did the district court’s order reducing Steen’s sentence on the class AA felony. The State conceded at oral argument there was no question which cases were at issue and considered the omission a clerical mistake. Under N.D.R.Crim.P. 36, "[clerical mistakes in judgments, orders, or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.”