author: HUDSON, Judge.

text:
    SOO LINE RAILROAD COMPANY, d/b/a Canadian Pacific Railway, Respondent, v. BROWN’S CREW CAR OF WYOMING, Respondent, Progressive Casualty Insurance Company, an Ohio corporation, Appellant.
    No. A04-1257.
    Court of Appeals of Minnesota.
    April 5, 2005.

      Timothy K. Masterson, Spence, Ricke, Sweeney & Gernes, PA, St. Paul, MN, for Soo Line Railroad Company.
    Dawn M. Parsons, Eagan, MN, for Brown’s Crew Car of Wyoming.
    Dale M. Wagner, Bassford Remele, A Professional Association, Minneapolis, MN; and Thomas F. Segalla, pro hac vice, Goldberg Segalla, LLP, Buffalo, NY, for Progressive Casualty.
    Considered and decided by TOUSSAINT, Chief Judge; HUDSON, Judge; and PORITSKY, Judge.

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

   OPINION

HUDSON, Judge.

This case arises out of injuries suffered by two of respondent Soo Line Railroad Company’s employees while riding as passengers in a van operated by an employee of respondent Brown’s Crew Car. On appeal from a summary judgment, appellant Progressive Casualty Insurance Company argues that (a) the indemnity agreement under which Brown’s Crew Car must reimburse Soo Line Railroad Company for legal expenses incurred as a result of tort liability does not constitute an “insured contract” within the meaning of Progressive Casualty Insurance Company’s policy so as to fall within the exception to the contractual liability exclusion in the policy; and (b) the district court abused its discretion by awarding Brown’s Crew Car’s costs and attorney fees. We affirm.

FACTS

This is a declaratory-judgment action brought by a railroad against an insurance company and a motor-transportation company. The material facts are undisputed. Two employees of Soo Line Railroad Company (Soo Line) were injured while riding in a car operated by respondent Brown’s Crew Car of Wyoming, Inc. (Brown’s). Brown’s was transporting train crews for Soo Line pursuant to an agreement between Crew Transportation Services (CTS) and Brown’s under which Brown’s agreed

to indemnify and hold harmless CTS and [Soo Line] from all claims, demands, costs and expenses including attorney and court costs for any accident, injury, property damage or any other loss incurred by CTS and [Soo Line] or their employees, agents, representatives, or other using said Transportation Services regardless of the nature of the claim or the theory of recovery against CTS and [Soo Line], including claims that CTS and/or [Soo Line] was at fault, negligent, or strictly liable.

Brown’s also agreed to obtain automobile-liability insurance covering its transportation services and to include CTS and Soo Line as additional insureds.

At the time of the accident giving rise to the underlying actions, appellant Progressive Casualty Insurance Company (Progressive) insured Brown’s under a commercial automobile liability policy. Through this policy, Progressive agreed to pay all sums an “ ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The policy further stated that Progressive had “the right and duty to defend any ‘insured’ against a ‘suit’ asking for such damages,” but Progressive had no duty to defend against a suit seeking damages to which the policy did not apply.

The policy contained an exclusion' — -and therefore did not provide coverage — for “[[liability assumed under any contract or agreement.” But, the policy exempted from this exclusion — and therefore provided coverage — -for liability “[ajssumed in a contract or agreement that is an ‘insured contract’ provided the ‘bodily injury’ or ‘property damage’ occurs subsequent to the execution of the contract or agreement.” Hence, the policy extended coverage for liability assumed in an “insured contract” defined as follows:

That part of any other contract or agreement pertaining to your business ... under which you assume the tort liability of another to pay for “bodily injury” or “property damage” to a third party or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

The policy defined “bodily injury” to mean “bodily injury, sickness or disease sustained by a person including death resulting from any of these.”

In August 1997 two Soo Line employees were passengers in a Brown’s automobile when it was struck by another vehicle. The driver of the other vehicle and his passenger were killed, and the two Soo Line employees were injured. In separate personal-injury lawsuits, the injured Soo Line employees sued Brown’s, the driver’s estate, and two restaurants at which the driver had consumed alcohol prior to the accident. One of the restaurants, Apple-bee’s, impleaded Soo Line and Brown’s seeking contribution or indemnification for negligence resulting in bodily injury to the Soo Line employees. Soo Line tendered the defense of the third-party claims to Progressive under the liability policy and to Brown’s under the indemnity agreement. Both refused the tender. Soo Line defended the negligence suits and incurred legal expenses. After the personal-injury actions were settled, Soo Line brought the instant declaratory-judgment action.

Progressive argued that it had no duty to defend Soo Line or to pay the railroad’s costs of defense because the policy did not provide coverage for Soo Line. Brown’s cross-claimed against Progressive alleging that Progressive was required to defend Soo Line in the third-party actions and to defend Brown’s in the instant declaratory-judgment action.

The district court determined that the language of the CTS/Brown’s agreement extended the indemnification to attorney fees and costs and, consequently, Brown’s was liable for Soo Line’s costs incurred in defending the negligence action. In a separate appeal, this court concluded that Soo Line was an insured under the Progressive policy, but a separate exclusion in Progressive’s policy applied to preclude coverage for Soo Line. See Soo Line Railroad Co. v. Brown’s Crew Car of Wyo., Inc., Nos. C1-02-1263, C4-02-1340, 2003 WL 943843, at *56 (Minn.App. Mar.11, 2003). Thus, Progressive was not directly liable to Soo Line for its costs in defending the negligence action. On remand from this first appeal, the issue before the district court was whether the CTS/Brown’s indemnity agreement constituted an “insured contract,” i.e., whether Progressive’s policy covered the CTS/Brown’s agreement such that Progressive must reimburse Brown’s for Soo Line’s costs of defending the negligence actions.

After hearing cross-motions for summary judgment, the district court concluded that the CTS/Brown’s indemnity agreement was an “insured contract” under the terms of the Progressive policy and, therefore, the contractual-liability exclusion did not apply to the claims made against Brown’s by Soo Line. Accordingly, the district court held that Brown’s was entitled to reimbursement from Progressive for the full amount Brown’s must pay to indemnify Soo Line for its legal costs and expenses incurred in defending the negligence claim. The district court also held that Brown’s was entitled to reimbursement from Progressive for its costs and fees incurred in defending the instant declaratory-judgment action. Progressive appeals from the judgment entered on this district court order.

ISSUES

I. Did the district court err by concluding that the CTS/Brown’s indemnity agreement was an “insured contract”?

II. Did the district court abuse its discretion by awarding Brown’s costs and attorney fees in the instant declaratory-judgment action?

ANALYSIS

I

When reviewing a summary judgment award, this court must determine whether there are any genuine issues of material fact and whether the district court was correct in its application of the law. St. Paul Fire & Marine Ins. Co. v. Nat’l Chiropractic Mut. Ins. Co., 496 N.W.2d 411, 415 (Minn.App.1993), review denied (Minn. Apr. 29, 1993). Under Minnesota law, on established facts, insurance-coverage issues and the construction and interpretation of a policy are questions of law. Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn.1997).

The analysis of the parties’ arguments requires that this court examine the underlying insurance policy. If a policy is unambiguous, the court must give the language its ordinary and usual meaning and not redraft the contract. Simon v. Milwaukee Auto. Mut. Ins. Co., 262 Minn. 378, 385, 115 N.W.2d 40, 45 (1962). If the court concludes the policy language is ambiguous, the ambiguity must be resolved in the insured’s favor. Columbia Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 36 (Minn.1979). The policy should be interpreted “according to what a reasonable person in the position of the insured would have understood.” Canadian Universal Ins. Co. v. Fire Watch, Inc., 258 N.W.2d 570, 572 (Minn.1977). Exclusions are narrowly interpreted against the insurer. SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 314 (Minn.1995). But, if the insurer demonstrates the applicability of an exclusion, then the insured bears the burden of proving an exception to the exclusion. Id.

At issue in this case is whether the indemnity agreement between Brown’s and CTS constitutes an “insured contract” thereby exempting the agreement from the contractual-liability exclusion and requiring Progressive to reimburse Brown’s for Soo Lines legal expenses in defending the third-party tort claims. This is an issue of first impression in Minnesota. The elements of an insured contract as defined by Progressive’s policy are as follows:

(a) That part of any other contract or agreement pertaining to your business
(b) under which you assume the tort liability of another
(c) to pay for “bodily injury” or “property damage” to a third party or organization.

A. That part of any contract under which you assume tort liability

There is no dispute that Brown’s assumed Soo Line’s tort liability in its indemnity agreement with CTS. The contract indemnified Soo Line against “any other loss incurred by ... [Soo Line] ... regardless of the nature of the claim or the theory of recovery.” Rather, Progressive argues that the insured-contract exception is not applicable because Soo Line’s complaint for declaratory relief characterized its dispute with Brown’s as a breach-of-contract claim, alleging that Brown’s had not fulfilled its obligations under the indemnity agreement. Noting that the definition of an insured contract under the policy refers to “that part of any other contract or agreement pertaining to your business ... under which you assume the tort liability,” Progressive contends that the only portion of the CTS/Brown’s indemnity agreement qualifying under the insured-contract exemption is the portion that assumed liability for damages paid pursuant to a judgment in tort. We disagree.

Progressive’s interpretation improperly focuses on the contractual nature of the declaratory-judgment action, rather than the nature of the underlying claim giving rise to the legal expenses, which was a negligence action against Soo Line. In Rausch v. Beech Aircraft Corp., 277 N.W.2d 645, 648 (Minn.1979), the supreme court held that a tort-liability exemption in a general indemnification clause precluded recovery for legal expenses incurred in defending a personal-injury suit because the legal expenses were “inextricably related” to the tortious event. Here, Brown’s obligation to pay these legal expenses arose out of a tort claim — Soo Line’s liability as a result of the automobile accident. Therefore, applying the logic in Rausch, Brown’s obligation to indemnify Soo Line for its legal expenses arose from that part of the CTS/Brown’s agreement under which Brown’s assumed Soo Line’s tort liability. Simply put: Soo Line’s defense costs and attorney fees are inseparable from the automobile accident.

Moreover, Progressive’s interpretation of the insured-contract exemption would result in absurdity and/or inconsistency: If Soo Line had contributed to compensating the injured parties and then brought a claim for indemnification, that claim would have been based on Brown’s assumption of tort liability and, therefore, covered under the insured-contract exemption, a fact Progressive acknowledged in its motion for summary judgment. And, because Soo Line’s legal expenses are inextricably linked to the tortious conduct, under Rausch, Progressive would have been required to reimburse Brown’s for both the tort judgment and the expenses incurred. But, according to Progressive, the insured-contract exemption is not applicable where Soo Line defends against the same tort claim and is not found negligent. Under those circumstances, Progressive argues that it is not required to reimburse Brown’s for Soo Line’s legal expenses.

We acknowledge that Progressive does have support for its interpretation from other jurisdictions. For example, in Progressive Cas. Ins. Co. v. Brown’s Crew Car of Wyo., Inc., 27 F.Supp.2d 1288, 1290-91 (D.Wyo.1998), the parties disputed, on nearly identical facts, whether the business automobile policy between the insurance company and the carrier provides coverage for the railroad’s expenses in defending the negligence suit. Specifically, the parties disputed whether a substantively similar “insured contract” exemption applied. Id. at 1293. The Wyoming district court concluded that the relevant issue was the carrier’s assumption of a contractual obligation to pay the railroad’s defense costs. Id. Because the policy limited insured contracts to agreements to assume another’s “tort liability,” and not defense costs, the insured-contract exemption was not applicable. Id.

We conclude, however, that the reasoning in United States Fidelity & Guar. Co. v. Continental Cas. Co., 353 Ark. 834, 120 S.W.3d 556 (2003) is more persuasive. In United States Fidelity, a subcontractor indemnified a general contractor for work performed at a Wal-Mart. Id. at 558. The general contractor sued Wal-Mart for breach of contract. Id. In a counterclaim, Wal-Mart sued the general contractor asserting breach of contract and negligence alleging faulty and defective work on the subcontractor’s projects. Id. The general contractor and Wal-Mart settled. Id. Shortly thereafter, the general contractor filed suit against the subcontractor alleging breach of the indemnity agreement by not holding the general contractor harmless for attorney fees and expenses incurred in the defense of the Wal-Mart claims. Id. at 558-59, 120 S.W.3d 556. A jury found that the subcontractor was liable for failing to indemnify and awarded damages. Id. at 559. The subcontractor’s insurance company then filed a declaratory-judgment action seeking a district court determination that its policy — including an identical insured-contract exemption — provided coverage for payment of the judgment. Id. The insurance company argued that summary judgment was appropriate because the underlying suit was for breach of the indemnity agreement, a matter not covered by the policy. Id.

The Arkansas Supreme Court held in United States Fidelity that the indemnification provisions of the subcontracts were insured contracts. Id. at 561. In determining whether the liability that the general contractor incurred as a result of its suit with Wal-Mart was covered by the policy, the court stated, “we must look to the basis of Wal-Marts claims against [the general contractor].” Id. The court explained that “Wal-Mart sought to recover ... based on allegations of negligence and breach of contract.” Id. Because the court could not determine based on the record whether Wal-Mart and the general contractor settled based on the tort claims (which were within the insured-contract exemption), or the contract claims (which were not within the insured-contract exemption), the court remanded the case for further development. Id. at 561-62, 120 S.W.3d 556. Analogizing to the instant matter, Brown’s contends that its liability for legal expenses incurred by its indemni-tee in defending a tort claim are likewise covered by Progressive’s policy under the insured-contract exemption.

Accordingly, we hold that a general indemnity agreement that includes an assumption of tort liability constitutes an insured contract. Consequently, Progressive is liable for all damages, including legal expenses, its insured must pay arising from a claim for tort liability. We are also convinced that this conclusion best effectuates the reasonable expectations of the parties. Brown’s reasonably assumed that the attorney fees and legal expenses incurred by its indemnitee would be covered to the same extent that its indemni-tee’s tort liability would be covered. And, Progressive is not exposed to liability for their insured’s business misjudgments because the underlying action giving rise to the legal expenses and attorney fees must be a tort claim. Thus, the district court did not err by concluding that Progressive must reimburse Browns for Soo Line’s legal expenses and attorney fees arising from the third-party tort claims.

B. Bodily injury to third parties

Progressive next argues that the indemnification agreement does not fall within the insured-contract exemption because the attorney fees and legal expenses sought in the underlying actions did not constitute a claim for liability to pay for “bodily injury.” The policy definition of an insured contract requires the insured to “assume the tort liability of another to pay for bodily injury.” Citing Amos v. Campbell, 593 N.W.2d 263, 269 (Minn.App.1999), where this court defined “bodily injury” in a wrongful-act policy to mean “a physical manifestation caused by an external act,” Progressive argues that the insured-contract exemption covers — and it is therefore only liable for — the value of the physical manifestation that flows from the tort. Because Soo Line sought legal expenses and not a value attributed to an actual physical manifestation, Progressive contends that the indemnification agreement is not an insured contract.

Progressive’s interpretation is without merit, however, because it lacks support in the plain language of the policy. The definition merely requires that the insured assume liability to pay for a bodily injury. The definition does not explicitly require that Soo Line actually seek a value attributable to its employee’s injuries in order to qualify for coverage. At a minimum, the definition is ambiguous and should be interpreted in favor of the insured. See Columbia Heights Motors, 275 N.W.2d at 36. Therefore, the district court did not err in concluding that Brown’s assumed liability to pay for bodily injury inflicted upon Soo Line employees under the CTS/ Brown’s indemnification agreement.

II

Progressive also challenges the district court’s decision to award Brown’s attorney fees for defending in the instant declaratory-judgment action. A reviewing court will not reverse a district court’s award or denial of attorney fees absent an abuse of discretion. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). An insured may recover from its insurer attorney fees it has incurred in a declaratory-judgment action only if there was a breach of a contractual duty or statutory authority exists to support such recovery. SCSC Corp., 536 N.W.2d at 319 (citing Morrison v. Swenson, 274 Minn. 127, 137-38, 142 N.W.2d 640, 647 (1966)). In the insurance context, attorney fees are recoverable when an insurer breaches its duty to defend. In Re Silicone Implant Ins. Coverage Litigation, 667 N.W.2d 405, 422 (Minn.2003). Progressive contends that it did not breach its duty to defend because it defended Brown’s in the underlying action — i.e., in the third-party tort claims preceding the instant declaratory-judgment action.

Based on the record before the district court, the district court did not abuse its discretion in awarding Brown’s attorney fees because Progressive breached its duty to defend. After Progressive refused Brown’s tender of its defense in the declaratory-judgment action, Brown’s filed a cross-claim against Progressive seeking to recover costs and expenses, including fees, in defending the instant action. It is undisputed that Brown’s is an insured under Progressive’s policy. Progressive’s policy states that it has “the right and duty to defend any ‘insured’ against a ‘suit’ asking for [damages because of bodily injury].” Because, as noted above, the term damages under the policy can reasonably be interpreted to include legal expenses and fees incurred in defending a tort claim, Progressive had a duty to defend Brown’s in the instant declaratory-judgment action where Soo Line sought reimbursement for damages. Cf. Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165-66 (Minn.1986) (ruling that the duty to defend a claim against an insured arises when any part of the claim is arguably within the scope of the policy’s coverage).

DECISION

Because we hold that a general indemnity agreement including an assumption of tort liability constitutes an insured contract, the district court did not err by concluding that Progressive must reimburse Brown’s for Soo Line’s legal expenses and attorney fees arising from the third-party tort claims. In addition, the district court did not abuse its discretion by awarding Brown’s attorney fees for defending in the instant declaratory-judgment action.

Affirmed.

      . Progressive also argues that Brown's liability for Soo Line's attorney fees and legal expenses is not covered by its policy because fees and legal expenses do not constitute "damages.” Because the policy does not define damages, and the term is susceptible to several meanings, it is ambiguous. That ambiguity is resolved in favor of the insured. See Columbia Heights Motors, 275 N.W.2d at 36. Had Progressive wanted to exclude legal expenses and attorney fees from the definition of "damages,” it could have specifically defined the term as compensation for loss or injury. Moreover, the Minnesota Supreme Court has ruled that the term “damages” in an insurance policy (in this case a policy covering property damages) "can reasonably be interpreted to cover any claim asserted against the insured arising out of property damage, which requires the expenditure of money, regardless of whether the claim can be characterized as legal or equitable in nature.” Minn. Mining & Mfg. Co. v. Travelers Indem. Co., 457 N.W.2d 175, 179 (Minn.1990).


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Margaret THOMPSON, Appellant.
    No. A04-1808.
    Court of Appeals of Minnesota.
    April 5, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for respondent.
    Glenn P. Bruder, Mitchell, Bruder & Johnson, Edina, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; HALBROOKS, Judge; and PORITSKY, Judge.

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

   OPINION

HALBROOKS, Judge.

Appellant pleaded guilty to nine counts of theft by swindle over $35,000 and acknowledged that she was giving up her right to a jury determination of the presence of a factual basis for a sentencing departure. The district court found that such a basis existed and sentenced appellant to the presumptive sentence on counts 1-4 and imposed concurrent sentences of 114 months — a double durational departure from the presumptive 57-month sentences — on counts 5-9. Appellant challenges her sentence, arguing that the upward departure violates her right to a jury trial under Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Appellant also argues that the district court (1) should have considered the prosecution’s tactic of charging multiple counts and declined to impose a dura-tional departure, (2) erred in viewing appellant’s conduct as a whole rather than analyzing the conduct involved in each count in its decision to depart, and (3) erred in failing to provide written reasons for the departure. Because we conclude that appellant’s declaration did not constitute a knowing, voluntary, and intelligent waiver of her right to a jury trial under Blakely, we reverse and remand for proceedings not inconsistent with this decision. We do not reach the remaining issues.

FACTS

Appellant Margaret Thompson was employed as a finance manager from 1987 until 2003, by Rueben Lindh Family Center (RLFC), a public-service agency providing services to impoverished citizens. In August 2003, appellant was confronted by RLFC management and accused of embezzlement. Appellant then admitted that she had stolen funds from RLFC by manipulating payroll and expense-reimbursement accounts.

After being terminated by RLFC, appellant was voluntarily interviewed by a Golden Valley police officer. During this interview, appellant admitted to all or substantially all of the allegations of embezzlement. Appellant was accused of committing approximately 300 episodes of embezzlement to steal over $600,000. As a result, appellant was charged with nine counts of theft by swindle over $35,000 in violation of Minn.Stat. § 609.52, subds. 2(4), 3(1), (5) (2002). Appellant subsequently pleaded guilty to all nine counts in a “straight plea.” No negotiations were held concerning appellant’s sentence.

At the plea hearing, appellant acknowledged that she knew her rights and that she was voluntarily waiving her right to a jury trial and pleading guilty to the counts charged. Appellant admitted that she had been employed as a finance manager at RLFC and that, in the course of her job, she had control over the employee payroll. She then admitted that she “us[ed] payroll accounts for discharged employees and process[ed] payroll checks under those employee accounts but funnelled] the money into [her] own bank accounts!,]” as well as “overpaying [her]self cafeteria plan benefits!.]” Appellant was also asked about the specific incidents enumerated in the complaint.

[MR. BRUDER]: And, drawing your attention specifically to the chart beginning at the third page of the complaint and continuing on for several pages, uh, that chart itemizes the specific transactions and the amounts that are alleged in each count, is that correct?
[APPELLANT]: Yes.
Q: You have had a chance to review that, correct?
A: Yes.
Q: And you agree that this chart ... is accurate with respect to Mounts 1 through 8 of the complaint, is that correct?
A: Yes.
Q: Now, with regard to [c]ount 9 of the complaint, ... that deals with the cafeteria plan benefits, correct?
A: Yes.
Q: Now, you agree that you took ... overpayments from the cafeteria plan, is that correct?
A. Yes.

Appellant then stated that she disagreed with the total amount of the overpayment alleged in count nine, but agreed that the amount exceeded $35,000. Appellant thus admitted to approximately 300 separate incidents of embezzlement, totaling over $521,000, and occurring over a period of eight years — from 1996 to 2003.

Blakely was decided the day before appellant’s sentencing hearing. At the sentencing hearing, the potential impact of the Blakely decision was broached by the district court.

THE COURT: The first issue is a legal issue with respect to the Supreme Court decision — United States Supreme Court decision that was issued yesterday, Blakely [v.] Washington, and there the Supreme Court declared unconstitutional a sentence — a determinant sentencing system where there was an upward departure where the defendant had not acknowledged or put in a factual basis or waived jury trial rights essentially. It’s hard to summarize that decision in one sentence, but essentially what the Supreme Court decision written by Justice Scalia said is that defendants, if they wish to have a jury trial right on the question of whether there is proof beyond a reasonable doubt for a factual basis or a state’s request or — in the Blakely case or the Court’s request — ■ Court’s decision for an upward departure, they are entitled — defendant is entitled to have that matter decided by a jury. We have discussed this matter quite extensively in chambers this afternoon.
Mr. Bruder, do you wish to address that question?
MR. BRUDER: Yes, I do, Your Honor. Following our discussion in chambers, I had an opportunity to discuss the Blakely decision with Ms. Thompson. Quite frankly, I think it’s a somewhat complicated concept to explain in simple manners to — fashion to a lay person, but Ms. Thompson has — I believe that I have been able to do so, and Ms. Thompson has indicated to me that she does not wish to have a jury finding as to the elements that we discussed that she has already admitted to as part of her guilty plea and that, to the extent she needs to waive that right in this proceeding, she is willing to do so.
THE COURT: Ms. Thompson, do you have any questions about this particular issue that you discussed with your attorney?
[APPELLANT]: No, Your Honor.
THE COURT: Do you wish a jury to decide the question of whether there is a factual basis for a sentencing departure, or do you wish me to decide that question?
[APPELLANT]: I would wish you to decide it, not the jury.
THE COURT: Do you understand that you have a right for a jury to decide that proof beyond a reasonable doubt, and you are waiving that right or giving up that right, is that correct?
[APPELLANT]: Yes, that’s correct.

(Emphasis added.)

The district court subsequently imposed the presumptive sentences for counts 1-4. With respect to counts 5-9, the district court imposed sentences of 114 months — a double durational departure from the presumptive 57-month sentences. The district court ordered that all sentences be served concurrently. The court’s stated reason for the durational departure was “that the record and the proof establishes beyond a reasonable doubt that this is a major economic offense as defined by the sentencing guidelines and by Minnesota statute.” In support of this finding, the district court noted that (1) the counts for which appellant was charged involved hundreds of incidents, including many more than those necessary to aggregate the offenses beyond the $35,000 threshold, (2) the amount taken in each of the counts for which there was a departure was substantially greater than the $85,000 threshold— more than double in all but one instance, (3) appellant’s actions evinced a “high degree of sophistication and planning,” and (4) appellant’s actions violated a fiduciary relationship. This appeal follows.

ISSUE

Did appellant’s declaration constitute a knowing, voluntary, and intelligent waiver of her right to a jury trial under Blakely ?

ANALYSIS

The decision to depart from the presumptive sentence rests with the district court and will generally not be disturbed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). But the Blakely argument raises a constitutional question, which this court reviews de novo. State v. Manning, 532 N.W.2d 244, 247 (Minn.App.1995), revieiv denied (Minn. July 20,1995).

We begin by noting that the district court did an exemplary job under very difficult circumstances. The district court had only one day to examine and interpret the Blakely decision and its possible ramifications. Given the time constraint and the scope of the Blakely case, the court’s attempt to implement the Blakely decision with no additional guidance is commendable.

The state initially argues that appellant did not raise an Apprendi/Blakely claim before the district court, and thus the issue is waived. In support of this position, the state cites State v. Leja, 684 N.W.2d 442 (Minn.2004). But in that case, the supreme court refused to consider the appellant’s Apprendi/Blakely argument when the issue had not been raised before this court. Id. at 447-48 n. 2. Thus, Leja is inapposite.

It is true that we will generally not consider issues raised for the first time on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn.1996) (stating that “[tjhis court generally will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure”). But here, Blakely was raised before and addressed by the district court. Accordingly, this court appropriately considers the issue on appeal.

In Blakely, the Supreme Court held that the greatest sentence that a judge may impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 124 S.Ct. 2531, 2537 (2004) (emphasis in original). A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000).

Contrary to the state’s assertion, this court has held that Blakely applies to upward durational departures under the sentencing guidelines. State v. Conger, 687 N.W.2d 639, 644 (Minn.App.2004), review granted (Minn. Dec. 22, 2004). Moreover, this court recently held that, under Blakely, an upward durational departure may not be based on an “admission” by a defendant, unless that “admission” is accompanied by the defendant’s waiver of his or her right to a jury trial on the aggravating factor. State v. Hagen, 690 N.W.2d 155, 158-59 (Minn.App.2004). We have noted that

[t]he effect of a defendant’s admission to an aggravating factor is to waive the defendant’s constitutional right to a jury trial on the sentencing issue. The general rule is that the waiver of a constitutional right must be knowing, voluntary, and intelligent. ... [Although] [o]ther constitutional rights may be “waived” without actual knowledge of the right involved, ... [a] waiver of the right to a jury trial has been held to require a defendant have knowledge of that right.

Id. (citations omitted) (emphasis added). Such a waiver may be oral or written. Id. at 159 (citing State v. Wright, 679 N.W.2d 186, 191 (Minn.App.2004), review denied (Minn. June 29, 2004)).

The question thus becomes whether appellant knowingly, voluntarily, and intelligently waived her right to a jury trial on the aggravating factors. Pursuant to Minn. R.Crim. P. 26.01, subd. 3, a defendant must waive other fundamental rights, in addition to the right to a jury trial, before a case can be tried to the court on stipulated facts. State v. Halseth, 653 N.W.2d 782, 785 (Minn.App.2002). Rule 26.01 provides in pertinent part:

By agreement of the defendant and the prosecuting attorney, a case may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and waiver shall be in writing or orally on the record.

Minn. R.Crim. P. 26.01, subd. 3 (emphasis added). In Halseth, we noted that rule 26.01 is strictly construed. 653 N.W.2d at 784. Accordingly, we held that this rule requires that a defendant personally and explicitly waive these enumerated rights and “precludes any implied ratification of an attorney’s waiver by a defendant’s mere presence.” Id. at 785. The same standard applies when a defendant elects to stipulate at trial to an element of an offense. See Wright, 679 N.W.2d at 191 (concluding that the district court erred in accepting a stipulation to proof of an element of an offense without the defendant’s personal consent in writing or orally on the record). Because this court has previously noted that there is no basis to distinguish a stipulation to an element of the offense from a stipulation to an aggravating sentencing factor, Hagen, 690 N.W.2d at 159, we apply the same standard in this ease. See also State v. Fairbanks, 688 N.W.2d 333, 336 (Minn.App.2004), review granted (Minn. Jan. 20, 2005) (applying Blakely where the district court relied on aggravating factors that were not part of the stipulated trial facts).

Here, appellant did orally waive her right to a jury trial. But she did not explicitly acknowledge and waive her right to testify, to have prosecution witnesses testify, to question the prosecution witnesses, and to require favorable witnesses to testify in her defense. As a result, the record is not sufficient to demonstrate that appellant knowingly, voluntarily, and intelligently waived these rights. Because appellant’s sentence violated her right to a jury trial under Blakely, the sentence must be reversed and remanded.

As we noted in Hagen, “in Blakely, the Court did not remand for imposition of a sentence within the ‘standard range’ under Washington law, but instead remanded ‘for further proceedings not inconsistent with this opinion.’” 690 N.W.2d at 160 (quoting Blakely, 124 S.Ct. at 2543). Thus, appellant is not automatically entitled on remand to a reduction of her sentence to the presumptive sentence. Because the appropriate remedy, including the possible impaneling of a jury to determine the sentencing issues, has not been fully litigated, it “must be determined in the first instance by the district court.” Id.

The Blakely issue is dispositive. Accordingly, we do not reach the remaining issues.

DECISION

Because appellant did not validly waive her right to a jury determination of the existence of aggravating factors, under Blakely, the district court erred in sentencing appellant to more than the presumptive maximum sentence under the sentencing guidelines. We remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . The prosecutor segregated the thefts into time blocks to yield nine separate counts. Appellant concedes that such action was within the prosecutor’s authority.

      . Because the violations occurred over a number of years, appellant was charged with violations of the 1995, 1999, 2000, 2001, and 2002 versions of the statute. The relevant elements of the statute are the same in all versions.

      . Count nine alleged overpayments of $75,538.64. Appellant suggested that the amount was approximately $38,000.

      . The amount alleged to have been taken in counts 1-8 is as follows: Count 1— $37,011.49; Count 2 — $47,263.59; Count 3— $72,944.38; Count 4 — $78,383.10; Count 5— $65,950.92; Count 6 — $71,945.76; Count 7— $77,941.24; Count 8 — $70,405.14.

      . The supreme court granted review in Conger, but stayed additional proceeding of that matter, pending a final decision in State v. Shattuck, No. C6-03-362 (Minn, argued Nov. 30, 2004). By order filed in Shattuck just a few days earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury is a violation of the defendant’s rights as articulated in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). State v. Shattuck, 689 N.W.2d 785, 786 (Minn. Dec. 16, 2004) (per curiam). The supreme court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy. Id.


author: MARING, Justice.

text:
    2005 ND 69
    In Regard to the GUARDIANSHIP/CONSERVATORSHIP OF Bruce M. VAN SICKLE Craig B. Van Sickle, Susan Cooper, and John Van Sickle, Petitioners and Appellees, v. Bruce M. Van Sickle, Respondent, and David Van Sickle, Appellant, Guardian and Protective Services, Appellee. In Regard to the Guardianship/Conservatorship of Bruce M. Van Sickle Craig B. Van Sickle, Susan Cooper, and John Van Sickle, Petitioners and Appellees, v. Bruce M. Van Sickle, Respondent and Appellant, Guardian and Protective Services, Appellee.
    Nos. 20040195, 20040224.
    Supreme Court of North Dakota.
    April 4, 2005.
    Rehearing Denied April 29, 2005.

      Melvin L. Webster, Webster & Engel, Bismarck, N.D., for petitioners and appel-lees.
    Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for David Van Sickle.
    David Boeck, Protection & Advocacy Project, Bismarck, N.D., for Bruce M. Van Sickle.
    LaRoy Baird III, Bismarck, N.D., for Guardian and Protective Services.
    Gary R. Wolberg, Fleck, Mather & Strutz, Bismarck, N.D., and Dorothy Siem-on, AARP Foundation Litigation, Washington, DC, for amicus curiae AARP; submitted on brief.
   MARING, Justice.

[¶ 1] David Van Sickle appealed from a July 30, 2003, order appointing a guardian and conservator for his father, Bruce Van Sickle (“ward”); a December 15, 2003, order dismissing an application for an order to show cause why a residential decision made for the ward by the guardian, Guardian and Protective Services, Inc. (“GPS”), should not be set aside and why GPS should not be removed as guardian; and a July 8, 2004, order denying David’s motion for a new trial. The Protection & Advocacy Project (“P & A”) also appealed from the December 15, 2003, and July 8, 2004, orders of the court. We conclude we lack jurisdiction to consider David’s appeal from the July 30, 2003, order appointing a guardian and conservator, but we decline to dismiss the appeals from the other two orders as moot because the issues are capable of repetition, yet evading review. We further conclude the district court did not err in its December 15, 2003, order dismissing the application for an order to show cause or in its July 8, 2004, order denying the motion for a new trial. We dismiss in part and affirm in part.

I

[¶2] The ward is currently 88 years old and has been diagnosed with Alzheimer’s disease. In March 2003, after learning that his spouse planned to place him in a residential care center, the ward left the marital home and began residing in the Bismarck home of his friend and former secretary, Helen Monteith, who is also in her mid 80s. In April 2003, two of the ward’s children, Craig Van Sickle and Susan Cooper, filed a petition seeking appointment as guardian and conservator for their father. A guardian ad litem was appointed for the ward, and the ward retained his own attorney for representation. The court appointed a visitor and a neu-ropsychologist to examine the ward. The court also granted the guardian ad litem’s request that access to the court file be restricted to the ward, his immediate family members, the visitor, psychologists, and others who required access. After the court granted a continuance to the ward’s attorney, another of the ward’s sons, David Van Sickle, filed an answer denying that the ward was incapacitated and counter-petitioned requesting that he be appointed guardian and conservator for his father. David, who is an attorney, represented himself.

[¶ 3] The ward was not present at the July 30, 2003, guardianship and conserva-torship hearing. His retained attorney explained to the court that the ward preferred not to be present. The neuropsy-chologist concluded the ward’s Alzheimer’s disease was “moderate to severe.” The guardian ad litem reported that the ward needed a guardian. The court-appointed visitor recommended that “a neutral third party guardian and conservator be appointed.” Craig and Susan provided the court with a stipulation signed by their attorney, the guardian ad litem, and the ward’s attorney agreeing that GPS should be appointed guardian and conservator for the ward. David did not sign the stipulation. When asked to respond to the stipulation, David said he agreed “it’s probably appropriate to have an institution handling the ... eonservatorship[,][b]ut as far as my father’s personal well-being goes, I feel very strongly that a family member ought to be involved in that and that’s why I filed my petition for appointment as a co-guardian.” The court accepted the stipulation and appointed GPS the guardian and conservator. Before adjourning, the court also granted, without objection, the request of the ward’s attorney that the case file remain sealed. Notice of entry of the findings and order appointing the guardian and conservator was given by mail to several persons, including David, on July 31, 2003.

[¶ 4] The ward continued to reside with Monteith. In September 2003, Monteith fell and fractured her pelvis, requiring that a home health care provider render assistance while she convalesced. The neurop-sychologist re-evaluated the ward in October 2003 and concluded his Alzheimer’s disease was in the “severe” category. GPS became concerned about Monteith’s ability to continue to provide care for the ward and informed the parties of its intention to move the ward into a basic care facility. On November 3, 2003, GPS moved the ward from Monteith’s home into the Family Living Center at Edge-wood Vista, a basic care facility in Bismarck that accommodates persons with Alzheimer’s disease.

[¶ 5] On November 18, 2003, P & A entered an appearance in the proceedings on behalf of the ward and was permitted access to the court file. P & A commenced an order to show cause proceeding against GPS, demanding that GPS be removed as guardian and conservator and that its decision to place the ward “in a locked, dementia unit of a nursing home” be set aside. A hearing was held on November 20, 2003, to determine whether the ward should be removed from Edgewood Vista immediately. Following the receipt of the visitor’s report and further testimony, the court denied P & A’s request for an interim order for the removal of the ward from Edgewood Vista and set the hearing on the order to show cause for December 9, 2003.

[¶ 6] At the December 9, 2003, hearing, P & A’s attorney submitted a letter from David in which he stated he could not be present because a winter storm had impeded travel and requested that he be allowed to testify by telephone. The court refused to allow David to testify by telephone. After receiving testimony and exhibits, the court found that Edgewood Vista was the least restrictive alternative for placement of the ward and denied P & A’s request to remove GPS as guardian in an order dated December 15, 2003.

[¶ 7] On February 23, 2004, David submitted a pro se “Brief and Motion for a New Trial” under N.D.R.Civ.P. 59(b)(6), alleging the court’s December 2003 decision “is against the law.” David argued the court abused its discretion in denying him an opportunity to testify by telephone and the court’s “findings are inconsistent with the evidence.” David later moved for an extension of time to file a brief in support of the motion, which was granted by the court. David retained an attorney who filed a 119-page brief on his behalf raising numerous issues. Following oral argument, the district court denied the motion for new trial on July 8, 2004. David and P & A filed separate notices of appeal.

II

[¶ 8] David has attempted to appeal from the district court’s July 30, 2003, order appointing GPS as the guardian and conservator.

[¶ 9] This Court must have jurisdiction to consider the merits of an appeal. Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110. The right of appeal is governed solely by statute, and without any statutory basis to hear an appeal, we must dismiss the appeal. State v. Gohl, 477 N.W.2d 205, 207 (N.D.1991). In addition, “to call upon our power of appellate review, a timely notice of appeal must be filed.” Morley v. Morley, 440 N.W.2d 493, 494 (N.D.1989). Under N.D.R.App.P. 4(a), a notice of appeal must be filed “within 60 days from service of notice of entry of the judgment or order being appealed.” David’s July 15, 2004, notice Of appeal was filed almost one year after service of the notice of entry of the order appointing GPS as guardian and conservator and is, therefore, untimely. Although a timely motion for a new trial under N.D.R.Civ.P. 59 tolls the time for filing a notice of appeal, see Larson v. Larson, 2002 ND 196, ¶ 6, 653 N.W.2d 869, David’s February 23, 2004, motion for a new trial was not timely under N.D.R.Civ.P. 59(c) to toll the time to appeal from the July 30, 2003, order. Moreover, David’s motion for a new trial specified “the December 9, 2003 decision is against the law,” not that the July 30, 2003, order was erroneous.

[¶ 10] There is no statutory exception in North Dakota guardianship and conser-vatorship law for the timely filing of a notice of appeal. We conclude we have no jurisdiction to consider David’s appeal from the July 30, 2003, order appointing GPS guardian and conservator and his allegations of error relating to that proceeding.

Ill

[¶ 11] Under N.D.RApp.P. 42(c), Craig and Susan have informed us that the ward has been discharged from Edgewood Vista because “he now requires skilled nursing care” and “he is no longer in a secured unit.” They argue the appeals from the December 15, 2003, and July 8, 2004, orders are, therefore, moot and should be dismissed.

[¶ 12] This Court can consider the issue of mootness in every appeal and will dismiss an appeal if the issues become moot. In re D.P.O., 2005 ND 39, ¶ 8, 692 N.W.2d 128. An appeal will be dismissed as moot if no actual controversy is left to be determined. In re E.T., 2000 ND 174, ¶ 5, 617 N.W.2d 470. No actual controversy exists if certain events have occurred which ■ make it impossible for this Court to issue relief, or when the lapse of time has made the issue moot. In re W.O., 2004 ND 8, ¶ 10, 673 N.W.2d 264. We will determine a moot issue, rather than dismiss the appeal, if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review. Id. at ¶ 11.

[¶ 13] The ward is afflicted with Alzheimer’s disease which is progressing, and he is under the control of a court-appointed guardian and conservator. The decisions of a guardian and conservator for a ward with progressive dementia or Alzheimer’s disease could effectively be shielded from review because of continuing changes in the ward’s condition. We conclude the issues in this case are capable of repetition, yet evading review, and we decline to dismiss the appeals from the December 15, 2003 and July 8, 2004 orders.

IV

[¶ 14] David argues the district court erred in denying his request to participate by telephone in the December 9, 2003 hearing.

[¶ 15] Although we have recognized that a person’s right to appear in a proceeding may be satisfied by allowing appearance via telephone, see St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175, a person has no right to demand to appear in a proceeding and testify by telephone. See State v. Hilgers, 2004 ND 160, ¶¶ 22-23, 685 N.W.2d 109; State v. Lemons, 2004 ND 44, ¶¶ 9-11, 675 N.W.2d 148. Under N.D.R.Civ.P. 43(a), the “court may, upon the agreement of the parties, or for good cause shown in compelling and unexpected circumstances, and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.” The presentation of testimony by contemporaneous transmission is not allowed for the mere convenience of a witness, and even if the parties agree to contemporaneous transmission, it must be approved by the court. N.D.R.Civ.P. 43, Explanatory Note. Here, in denying the request, the district court said:

It isn’t really practical for someone to participate in a hearing by telephone, our telephone equipment simply isn’t that sophisticated and we’ve had problems in the past in trying to do that. We also need to make advance arrangements for that type of thing. If any party would like to call Mr. Van Sickle at some later time, we can try to arrange that but it wouldn’t be possible to participate in the hearing by telephone.

No arrangements were subsequently made for the taking of David’s testimony.

[¶ 16] A district court has broad discretion in determining evidentiary matters. Hilgers, 2004 ND 160, ¶ 22, 685 N.W.2d 109. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Praus ex rel. Praus v. Mack, 2001 ND 80, ¶ 6, 626 N.W.2d 239. We conclude the district court did not abuse its discretion in denying David’s request to participate by telephone.

V

[¶ 17] P & A argues that GPS had no authority to place the ward in the Family Living Center at Edgewood Vista, which P & A describes as a “locked, dementia unit of a basic care facility,” without first obtaining a court order. P & A relies on N.D.C.C. § 30.1-28-12(2), which provides in part that “no guardian may voluntarily admit a ward to a mental health facility or state institution for a period of more than forty-five days without a mental health commitment proceeding or other court order.”

[¶ 18] In Van Klootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 12, 665 N.W.2d 679 (quoting Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶¶ 20-21, 663 N.W.2d 186), we summarized the rules of statutory construction:

[O]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.

[¶ 19] The term “mental health facility” is not defined by statute. We believe a rational argument can be made that the term “mental health facility” was not intended to include a basic care facility that does not have as its primary purpose the treatment of a mental illness. We also believe a rational argument can be made that the term “mental health facility” is broad enough to include a locked dementia unit of a basic care facility. Compare Guardianship of Muellner v. Blessing Hosp., 335 Ill.App.3d 1079, 270 Ill.Dec. 240, 782 N.E.2d 799, 802-803 (2002) (under Illinois law, the behavioral unit of a skilled care nursing facility qualifies as a “mental health facility” and a guardian must proceed under the Mental Health Code before placing a ward there). Therefore, it is appropriate to examine the legislative history of N.D.C.C. § 30.1-28-12(2).

[¶ 20] Before 1993, N.D.C.C. § 30.1-28-12(2) prohibited a guardian from admitting a ward to “a mental health facility, state institution, or secured unit of a long term care facility ” without commencing a mental health commitment proceeding or obtaining a court order. (Emphasis added.) The legislature deleted “or secured unit of a long term care facility” from the statute in 1993.' See 1993 N.D. Sess. Laws ch. 260, § 2. The legislative history reveals that the amendment was intended to eliminate the unnecessary expense of a court hearing for families and guardians before a ward could be placed in a secured unit of a long term care facility because adequate screening safeguards were already in place to assure only appropriate individuals would be admitted to those secured units. See Hearing on S.B. 2315 Before the Senate Human Services Committee, 53rd N.D. Legis. Sess. (January 27, 1993) (testimony of Senator Judy L. DeMers; testimony of attorney Melvin L. Webster; testimony of Shelly Warner, Executive Director of the North Dakota Long Term Care Association).

[¶21] We conclude a “mental health facility” within the meaning of N.D.C.C. § 30.1-28-12(2) does not include a locked and secured unit of a basic care facility. Therefore, GPS had the authority to place the ward in Edgewood Vista without first obtaining a court order.

VI

[¶22] David and P & A contend the district court erred in determining the ward’s placement at Edgewood Vista was the least restrictive alternative for his residence.

[¶ 23] North Dakota law demands a least-restrictive protection approach in guardianship matters so the protected person will have personal liberties and prerogatives restricted only to the extent necessary under the circumstances. See Matter of Guardianship of Braaten, 502 N.W.2d 512, 516 (N.D.1993). Section 30.1-28-04(1), N.D.C.C., accordingly provides that “[t]he court shall exercise the authority conferred in this chapter consistent with the maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person’s actual mental and adaptive limitations or other conditions warranting the procedure.” More specifically, N.D.C.C. § 30.1-28-12(5) provides:

When exercising the authority granted by the court, the guardian shall safeguard the civil rights and personal autonomy of the ward to the fullest extent possible by:
a. Involving the ward as fully as is practicable in making decisions with respect to the ward’s living arrangements, health care, and other aspects of the ward’s care; and
b. Ensuring the ward’s maximum personal freedom by using the least restrictive forms of intervention and only as necessary for the safety of the ward or others.

[¶ 24] Because the “intrusion upon individual liberty by the involuntary imposition of a guardianship upon an incapacitated ward sufficiently resembles the involuntary commitment of a mental health patient to call for similar careful standards of decision making,” we “expect trial courts to use a clear and convincing evi-dentiary standard, while our appellate review under N.D.R.Civ.P. 52(a) uses a more probing ‘clearly erroneous’ standard.” Braaten, 502 N.W.2d at 518. 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, although there is some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Matter of Guardianship of Renz, 507 N.W.2d 76, 77 (N.D.1993).

A

[¶ 25] David argues the district court improperly placed the burden on P & A to prove that a placement other than Edge-wood Vista was in the ward’s best interest because GPS should have had the burden of showing no less restrictive alternative was available.

[IT 26] We have not determined which party has the burden to prove a ward’s residential placement is the least restrictive alternative available. In Braaten, 502 N.W.2d at 518, this Court found guidance from “[o]ur precedents on the related subject of the care, treatment, and commitment of mentally ill persons.” In In Interest of Cuypers, 389 N.W.2d 812, 814 (N.D.1986), this Court held that, because of the legislature’s specific intent to safeguard individual rights in commitment procedures, “the party attempting [a transfer from outpatient treatment to the State Hospital] must prove by clear and convincing evidence that hospitalization is the least restrictive treatment.” Because of the similar interests at stake in a guardianship proceeding, we conclude that the party proposing the transfer of a ward to a more restrictive living arrangement has the burden of proving by clear and convincing evidence that the proposed placement is the least restrictive alternative available. This allocation of the burden of proof is in accord with the current trend of courts and legislatures to enhance the protections available to persons alleged to be incapable of caring for themselves or their property. See 1 J. Krauskopf, R. Brown, K. Tokarz, and A. Bogutz, Elderlaw: Ad vocacy for the Aging § 9:3 (2nd ed.1993, Supp.2005); see also Conservatorship of Guerrero, 69 Cal.App.4th 442, 81 Cal. Rptr.2d 541, 543 (1999); Matter of Guardianship of Hedin, 528 N.W.2d 567, 581 (Iowa 1995); Matter of Sanders, 108 N.M. 434, 773 P.2d 1241, 1245 (N.M.App.1989); Matter of Marvin W., 306 A.D.2d 289, 760 N.Y.S.2d 337 (N.Y.App.Div.2003).

[¶ 27] In O’Neill v. O’Neill, 2000 ND 200, ¶ 3, 619 N.W.2d 855 (quoting Helbling v. Helbling, 541 N.W.2d 443, 445-46 (N.D.1995)), we described the general concepts of a prima facie case and the shifting burdens of proof and of going forward with evidence:

The plaintiff or moving party generally bears the burden of proof. If the party bearing the burden of proof presents evidence strong enough, if uncontradict-ed, to support a finding in her favor, that party has made a prima facie case. When the party with the burden of proof establishes a prima facie case, “the burden of going forward with the evidence ... shifts to the defendant. If the defendant can impair the prima facie quality of [i.e., rebut] the case against him, the burden [of going forward] returns to the party having the burden of proof.” If the party having the burden of proof establishes a prima facie case, this party will prevail unless the opposing party offers “proof to the contrary.”

[¶ 28] We conclude these principles apply to guardianship proceedings. See, e.g., Hedin, 528 N.W.2d at 581 (where guardianship is voluntarily imposed, once ward has made prima facie showing that ward has decision making- capacity, the guardian has the burden of proving by clear and convincing evidence the ward’s incompetency, but the burden of persuasion always rests on the guardian); Sanders, 773 P.2d at 1245 (same). Consequently, in this case GPS had the burden of establishing a pri-ma facie case that Edgewood Vista was the least restrictive placement available for the ward. Once a prima facie ease was established, the ward had the burden of going forward with evidence that impaired the prima facie case. If the ward goes forward with sufficient evidence to impair the prima facie case, the burden of going forward with the evidence shifts to GPS and GPS must prove by clear and convincing evidence that Edgewood Vista is the least restrictive alternative.

[¶ 29] David appears to contend the burden of proof was not placed on GPS because the court had P & A present its- case before 'GPS presented its case. This may have been a variation in the order of proof, but the parties did not object to this procedure at the hearing. In any event, under N.D.R.Ev. 611(a), a court is allowed “reasonable control over the mode and order of interrogating witnesses áñd presenting evidence.... ” The “propriety of examination and cross-examination of witnesses and the order in which evidence is presented are matters largely within the sound discretion of the trial court.” Killmer v. Duchscherer, 72 N.W.2d 650, 657 (N.D.1955). In American Nat. Watermattress Corp. v. Manville, 642 P.2d 1330, 1340 (Alaska 1982), the court said “most errors in the order of proof would be harmless. Very infrequently would the result of a trial be changed merely by presenting the evidence in a different order.” See also Hoffman v. North Dakota Workers Comp. Bureau, 2002 ND 138, ¶ 15 n. 1, 651 N.W.2d 601. Here, David has not shown how he was prejudiced by the court’s variation in the order of proof, and we see' nothing in the record to indicate the district court improperly placed the burden of proof on P &. A rather than GPS.

B

[¶ 30] David and P & A argue the court erred in not placing the ward in the least restrictive environment, which they contend would have been in Monteith’s home with appropriate private health services.

[¶ 31] Judy Vetter, a licensed social worker and program director for GPS, testified she “considered all the options from adult foster care all the way up to nursing home care” for a residential placement for the ward. The ward’s Alzheimer’s disease had been re-evaluated to be in the “severe” category and he had wandered from Monteith’s residence. Mon-teith had recently fallen and fractured her pelvis, necessitating assistance during her convalescence. Monteith had been appointed as the ward’s attorney in fact, established a joint checking account with the ward using about $100,000 of the ward’s funds, attempted to make herself the beneficiary of the ward’s life insurance benefits, attempted to obtain a passport for the ward so they could vacation in Mexico without GPS’s consent, and changed some members of the ward’s health care team. GPS was also concerned that it was difficult for other family members and friends to contact and visit the ward at Monteith’s apartment.

[¶ 32] The ward’s physician believed a nursing home would be the safest environment for the ward, but that he could continue to live with Monteith if certain conditions were met, including at least three weekly visits by an objective third party to ascertain Monteith’s physical and mental capabilities to care for the ward. According to Vetter, Monteith was “in total denial” of the ward’s diagnosis of Alzheimer’s disease. Vetter said she had visited with Monteith and the ward in an effort to have health care professionals visit them at the apartment on an unannounced basis so they could monitor the ward’s condition at different times of the day, but Monteith resisted those efforts, explaining they were “private people” and “it was [unnecessary to have a nurse checking on him.” Mon-teith refused respite care, a “lifeline system,” and home care services “that could have amounted anywhere from 24 hours to an hour a day.” Vetter testified that home care options had been considered:

I think that option was presented to Helen Monteith and that’s what I find very interesting, in that she had the chance to have additional care brought into her home so that he could stay there and she refused it and was resistive from day one in implementing even the least of services. And so to put him into another — so let’s say if you even took him and put him into an independent apartment setting, we are still going to have a period of agitation and confusion because it’s going to be strange to him, he doesn’t know. So again we’re moving him, so it’s just another move. Do you see what we’re trying to say? And not only that, given the type of resistance I’ve met with Helen and trying to find a home care agency, in my mind, that would be able to provide a level of care that would meet her standards- — not the [ward’s], her standards — it would be very difficult to find.

[¶ 33] Vetter testified that adult foster care was not “an appropriate option” for the ward because of “his level of Alzheimer’s dementia” and because she had contacted Burleigh County Social Services and “they were emphatic and said absolutely not.” P & A’s disabilities advocate, Lorena Poppe, testified she had contacted two adult foster care providers “who said that they had openings and both expressed interest” in caring for the ward. Vetter testified that she was familiar with those particular foster care providers, but “they would not be able to provide the level of care that [the ward] needs.”

Because you have one individual providing care for up to four people and it’s not awake staff and again it’s not people with the same type of disease that are there. You have people in varying degrees. One of the ladies that we have out there currently just needs physical assistance and the other person that we have is a gentleman that’s in very early stages of dementia and it’s nowhere near [the ward’s] degree. And working with [the foster care provider] and our experience is that even though she’s a good person, I mean, it’s very stressful to provide 24-hour care for individuals, even on a one-on-one basis but let alone take care of four and then try to deal with the issues of behaviors and wandering.

[¶ 34] In ruling that placement at Edgewood Yista was the least restrictive alternative, the district court explained:

There’s been a suggestion that somehow adult foster care should be considered and I have not heard anything that would make me believe that would be a less restrictive alternative. It would have to be provided in a locked setting. It would most likely be provided by people who don’t have the training and experience of the people at Edgewood Vista. I believe that [the ward] is not a prisoner there. I believe that he has contacts. He’s provided with a security net but I believe that he has an ability to be out of the facility, to have meaningful contacts and I believe that that’s encouraged and that that not only is it the least restrictive but it is the best setting.

[¶ 35] We conclude the district court’s finding that Edgewood Vista was the least restrictive alternative for placement of the ward is not clearly erroneous.

C

[¶ 36] We also conclude the district court did not err in refusing to remove GPS as guardian of the ward. The record establishes that David is at odds with other family members concerning proper care for the ward. “The best interest of the ward is served by appointing a non-family member as guardian where the family members are unable to get along with each other....” Matter of Guardianship of Kelly, 184 Ariz. 514, 910 P.2d 665, 671 (Ariz.App.1996).

VII

[¶ 37] David argues the district court erred in denying his motion for a new trial. We review a district court’s denial of a N.D.R.Civ.P. 59 motion for new trial under the abuse of discretion standard. Hamilton v. Oppen, 2002 ND 185, ¶ 4, 653 N.W.2d 678.

A

[¶ 38] David presented his affidavit and Monteith’s affidavit in support of his motion for a new trial. These affidavits essentially consist of testimony David and Monteith would have given if they had appeared at the December 9, 2003, hearing. The district court concluded the affidavits were not newly discovered evidence, and we agree.

In Johnson v. Johnson, 2001 ND 109, ¶ 6, 627 N.W.2d 779, we said:

Under N.D.R.Civ.P. 59(b)(4), the court may vacate a decision and grant a new trial if there is newly discovered material evidence that the party, with reasonable diligence, could not have discovered and produced at the trial. Before a new trial is granted on the ground of newly discovered evidence, it must be shown: 1) the evidence was discovered following trial; 2) the movant must have exercised due diligence in discovering the evidence; 3) the evidence must not be merely cumulative or impeaching; 4) the evidence must be material and admissible; and 5) the evidence must be such that a new trial would probably produce a different result.

[¶ 39] Obviously, this evidence was not discovered after trial. The record shows Monteith was informed of the December 9 hearing date during a prior hearing, but that she did not appear. David was given an opportunity to personally appear at a later time after the December 9 hearing, but he did not take advantage of the opportunity. The parties could have called either David or Monteith as a witness, but they did not. The district court reasoned the affidavits “do not suggest the possibility there is persuasive evidence which would lead to a result different from that reached at the conclusion of the December 9 hearing.”

[¶ 40] We conclude the district court did not abuse its discretion in denying the motion for new trial on the ground of newly discovered evidence.

B

[¶ 41] David also argues a new trial must be granted because the ward, the ward’s attorney of record, and the guardian ad litem should have appeared at the December 9, 2003 hearing and because the case file was improperly restricted by the court.

[¶ 42] The record of the December 9 hearing reveals there was no objection to the absence of the ward or the attorneys, nor was there an objection to the restricted status of the case file. In Kirchoffner v. Quam, 264 N.W.2d 203, 206-07 (N.D.1978), this Court held a district court does not abuse its discretion in denying a motion for new trial when the alleged error is raised for the first time in the motion for new trial and the alleged error could have been raised during the actual trial. See also Hefty v. Aldrich, 220 N.W.2d 840, 846 (N.D.1974); N.D.R.Civ.P. 59(b)(7) (listing as a cause for new trial “[e]rrors in law occurring at the trial and, when required, excepted to by the party making the application”); Henderson v. Montgomery City-County Pers. Bd., 695 So.2d 9, 11 (Ala.Civ.App.1996); Conant v. Whitney, 190 Ariz. 290, 947 P.2d 864, 867 (Ariz.App.1997); Neiman-Marcus v. Gammage, 191 Ga.App. 510, 382 S.E.2d 208, 209 (1989); Bergeron v. Blake Drilling & Workover Co., Inc., 599 So.2d 827, 849 (La.App.1992); Guess v. Escobar, 26 S.W.3d 235, 241 (Mo.App.2000); Martin v. Board of Educ. of Wappingers Cent. Sch. Dist., 201 A.D.2d 711, 608 N.Y.S.2d 297 (1994); Williamson v. New Times, Inc., 980 S.W.2d 706, 712 (Tex.App.1998). David did not arrange to personally appear at a time after the December 9 hearing to testify or to voice any objections to the proceedings. Because these issues were raised for the first time in David’s motion for a new trial, we conclude the district court did not abuse its discretion in denying the motion.

VIII

[¶ 43] We deny the requests of GPS and Craig and Susan for an award of attorney fees under N.D.R.App.P. 38 for the filing of frivolous appeals. We conclude the other issues raised by the parties are either without merit or their resolution is unnecessary for disposition of this case. We dismiss David’s appeal from the July 30, 2003, order of the court. We affirm the December 15, 2003, and July 8, 2004, orders of the court.

[¶ 44] GERALD W. VANDE WALLE, C.J., WILLIAM F. HODNY, and NORMAN J. BACKES, S.J., concur.

[¶ 45] The Honorable WILLIAM F. HODNY, Surrogate Judge and the Honorable NORMAN J. BACKES, Surrogate Judge, sitting in place of SANDSTROM, J., and KAPSNER, J., disqualified.

[¶ 46] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.