author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota by its Attorney General, Mike HATCH, Respondent, v. ALLINA HEALTH SYSTEM, Defendant, Board of Medica Health Plans, Appellant.
    No. A03-1274.
    Court of Appeals of Minnesota.
    May 18, 2004.

      Mike Hatch, Attorney General, Lori R. Swanson, Solicitor General, St. Paul, MN, for respondent.
    Marianne D. Short, Dorsey & Whitney LLP, Minneapolis, MN, for appellant.
    Kay Nord Hunt, Diane M. Odeen, Lorn-men, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for amicus curiae Minnesota Council of Nonprofits.
    Considered and decided by TOUSSAINT, Chief Judge; ANDERSON, Judge; and HUSPENI, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

The state brought this action against Allina Health System seeking solely to compel disclosure of certain documents. The state and Medica, formerly a subsidiary of Allina, agreed to an order appointing eight identified individuals as administrators of Medica. After nearly two years under this arrangement, Medica moved to dismiss the original action arguing, inter alia, that the goals of the litigation had been achieved. The district court denied this motion and granted the state affirmative relief, including authorizing the Attorney General to “rehabilitate” Medica, declaring the elections of some board members void, ordering the administrators to remain in their positions, and authorizing the state to appoint additional administrators. Because Medica was not given adequate notice of the requested relief and thus did not have an opportunity to be heard regarding the proposed relief, we reverse.

FACTS

The appellant in this proceeding is the board of directors of Medica Health Plans (Medica); the respondent is the State of Minnesota. On January 18, 2000, the United States Department of Health and Human Services, Office of the Inspector General (HHS IG), issued an audit report detailing questionable administrative costs for nine health-care management organizations, including Medica, which was then a subsidiary of Allina Health System (Alli-na). Allina and Medica are both non-profit corporations organized under chapter 317A of the Minnesota Statutes.

The Minnesota Attorney General began an investigation of Allina, but Allina provided the Attorney General only some of the information and documents demanded. As a result, respondent filed a complaint in district court alleging that Allina had failed to produce all of the demanded documents and requesting an order: (1) declaring Al-lina in violation of Minn.Stat. § 309.54 (2000) for refusing to produce the documents, (2) ordering Allina to produce the documents, (3) granting respondent attorneys’ fees, investigative costs, and costs and disbursements, (4) appointing a referee to supervise the production of the information and documents, (5) ordering Allina to pay for respondent’s accountants, and (6) “[granting such further relief as the Court deems necessary.” The complaint sought no other relief and has never been amended.

On August 2, 2001, a consent order between Allina and respondent was entered in Hennepin County District Court that provided for the separation of Allina-affili-ated organizations financing health care from Allina-affiliated organizations delivering health care. The consent order required an independent board of directors and noted that the then-current board of Medica had resigned and that persons qualified to act as directors for Medica were hesitant to do so because of an ongoing investigation by the U.S. Attorney’s Office. Consequently, the consent order appointed eight individuals as directors and special administrators of Medica pursuant to chapter 309 of the Minnesota Statutes.

The special administrators were ordered “to adopt Restated Bylaws and Articles of Incorporation necessary to effect the reorganization,” of Medica but did not otherwise identify the duties of the special administrators. The president and chief financial officer were ordered to enter into indemnification agreements with each of the newly appointed Medica directors.

On January 10, 2002, Medica and Allina entered into a plan separating the two organizations. On April 30, 2002, Medica, with the approval of the Minnesota Department of Health, adopted new articles of incorporation and bylaws.

In June 2002, elections to Medina’s board were held and four of the special administrators were elected as member-directors. The remaining special administrators were elected as non-member directors, along with others who had never served as special administrators. The chair and vice chair of the newly appointed board were both special administrators.

On February 19, 2003, respondent moved to dismiss Allina as a party to this litigation and to dismiss three of Medina’s special administrators but specifically did not terminate the proceedings as related to Medica. The district court granted this motion before receiving a response from Medica, but vacated the order on February 27, 2003, because Medica objected to it. The parties then engaged in fruitless negotiations.

On April 25, 2003, Medica moved to dismiss for lack of subject matter jurisdiction or for summary judgment. In response, respondent argued, inter alia, that the appointments of the special administrators continued until Medica had been successfully rehabilitated; respondent also argued that the appointments were not to terminate until the Attorney General petitioned the district court for dismissal. Respondent attacked the performance of the special administrators, essentially accusing the special administrators of failing to perform their duties and of unethical behavior, and criticized Medica’s business practices. Respondent also argued “that factual disputes would prevent” a grant of summary judgment. Respondent made no motions.

In an order filed August 14, 2003, the district court denied Medica’s motion. The district court also (1) ruled that the Attorney General “possesses statutory supervisory authority over Medica’s ‘rehabilitation’ until this matter is dismissed;” (2) declared the board elections null and void, ordered the special administrators to remain in that capacity and as non-elected board members, and ruled the special administrators could only seek election to the board of directors once they are dismissed as special administrators; (3) authorized the Attorney General to appoint additional special administrators to serve as non-elected board members so that the special administrators controlled the Medica board; and (4) ordered the special administrators to meet with representatives of the Attorney General and to issue regular reports to the court.

In the memorandum accompanying its order, the district court concluded that the present action is the same action originally commenced against Allina and that, because the district court initially had jurisdiction over Medica, it retains jurisdiction over Medica, despite the separation from Allina. Regarding the appointment of the special administrators, the district court noted, “There is significant dispute between the parties as to what the [sjpecial [administrators were charged with accomplishing. ...” The district court concluded that, because there was no language stating when the appointments terminated, the unambiguous language of the order meant that the appointments did not terminate. The district court found that, even if the language of the consent order was ambiguous, it was “simply not plausible” to believe that the Attorney General would enter into a consent order for only a limited purpose and that the purpose of the consent order, instead, “was to address the systemic dysfunction at Medica.” The district court relied on affidavits from the Attorney General and found, “It is not credible” that most of the special administrators “had an entirely different understanding of the original court order” from the Attorney General. The district court cited its broad equitable powers under Minn.Stat. § 309.57, subd. 1, Minn.Stat. § 317A.751, subd. 5(5), and Minn.Stat. § 8.31, subd. 3, as authority to appoint special administrators without a finding of illegality. The district court concluded that the directors’ duty of loyalty to Medi-ca did not render the original consent order invalid because the special administrators were subject to the Code of Judicial Conduct, characterizing them as court personnel similar to receivers. The district court also stated that the lack of an explicit retention of jurisdiction in the consent order did not deprive the district court of jurisdiction.

Regarding the Attorney General, the district court concluded that the Attorney General has the power “to seek oversight of Medica’s rehabilitation via court appointment of the [sjpecial [ajdministra-tors.” Regarding the elections, despite contradictory evidence, the district court stated, “The court believes, quite frankly, that the Attorney] G[eneral] should have [known], but did not know of or did not realize the import of, the election of the [sjpecial [a]dministrators to Medica’s board,” and therefore the Attorney General’s challenge to the elections was not barred by laches. This appeal followed.

A special term panel of this court concluded that the district court’s decision is appealable but deferred resolution of appellant’s standing to challenge the district court’s order and whether to extend review to non-jurisdietional issues to this panel.

ISSUES

I. Does the district court have subject matter jurisdiction over this case?
II. Does appellant have standing?
III. Which issues are renewable?
IV. Did appellant have notice of respondent’s claims?
V. Did the district court improperly resolve disputed facts?

ANALYSIS

I. Subject matter jurisdiction

The motion before the district court challenged the district court’s subject matter jurisdiction over this case. Respondent instituted this suit to compel Allina to produce documents in compliance with chapter 309 of the Minnesota Statutes. Subject matter jurisdiction may be raised at any point, either by a party or sua sponte. Minn. R. Civ. P. 12.08(c). Questions of subject matter jurisdiction are reviewed de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002). Minnesota Statute section 309.57 expressly states that the district courts have “jurisdiction to restrain, enjoin, and redress violations of sections 309.50 to 309.61.” Minn. Stat. § 309.57, subd. 1 (2004).

Here, respondent pleaded a violation of and requested relief for a violation of Minnesota Statute section 309.54. The district court explicitly has jurisdiction to redress violations of this section. Id. Thus, the district court did not err in concluding that it had subject matter jurisdiction.

II. Standing

As a threshold matter, respondent argues that, because the special administrators were appointed by the district court, appellant lacks standing. A party’s standing may be challenged at any time. Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 433 (Minn.App.1995), review denied (Minn. May 31, 1995). “Standing is the requirement that a party has a sufficient stake in a justiciable controversy to seek relief from a court.” State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 493 (Minn.1996). Standing is an amorphous concept and requires a potential party to “allege injury in fact, or otherwise have a sufficient stake in the outcome, to have a court decide the merits of a dispute.” Cochrane, 529 N.W.2d at 433. The purpose “of the standing requirement is to ensure that issues before the courts will be ‘vigorously and adequately presented.’ ” Philip Morris, 551 N.W.2d at 493 (quoting Channel 10, Inc. v. Indep. Sch. Dist. No. 709, 298 Minn. 306, 314, 215 N.W.2d 814, 821 (Minn.1974)).

Respondent argues that it is the former special administrators, rather than the board of directors of Medica, that seeks to appeal. Further, respondent argues, and the district court concluded, that special administrators are analogous to receivers. Because receivers have no standing to contest their appointments, respondent argues that the special administrators, and thus appellant, lack standing. See Twin Cities Nat Bank v. Anderson Co., 156 Minn. 502, 504, 195 N.W. 273, 274 (1923) (stating that receivers have no standing to contest their appointments).

We conclude that appellant has standing. In the original consent decree and the order on appeal, the special administrators were also appointed directors of Medica, and, as the board of directors, they have a duty to serve Medica’s best interests. Minn.Stat. § 317A.251, subd. 1 (2004). The district court order gives supervisory authority of the board and Medi-ca to respondent, voids the election of certain board members, and affects the board’s ability to govern Medica. Thus, the board of directors of Medica has arguably been injured by the district court’s order and has a sufficient stake in the resolution of the issues presented by this appeal to insure that those issues are adequately presented.

III. Reviewability of issues

This court, by special term order, held that parts of the district court’s order not dealing directly with the issue of the district court’s jurisdiction, were not ap-pealable directly under Minn. R. Civ.App. P. 103.03(b) or (e), but deferred a decision on whether to review those issues under Minn. R. Civ.App. P. 103.04 (permitting this court to review any matter “as the interest of justice may require”). Appellant argues all issues should be reviewed because the district court’s order has the effect of granting an injunction and a final judgment; respondent disputes appellant’s argument, claiming that justice does not require such a review.

We conclude that, under rule 103.04, review of all properly presented issues in the interests of justice is appropriate. Appellant correctly notes that the district court order compelling the board membership and the actions to be taken by the Medica board of directors determines the result here. Medica will be subject to supervisory authority by respondent, and, if respondent’s position is adopted, appellant is deprived of an opportunity to determine whether such relief was appropriate and, not incidentally, is also deprived of an opportunity for a meaningful appeal of the district court action. The district court was quite clear that it will not rule again concerning elections, control of Medica, or any other issue regarding the relief granted in the district court order until the special administrators are relieved of their duties. An appeal by appellant at that juncture is meaningless. Given the importance of the issues presented and the probable impossibility of future appeal, we will review the issues raised by the appellant.

IV. Notice

Appellant argues that it did not receive notice of relief to be sought by respondent, and respondent argues that absence of notice was not a procedural defect that deprived appellant of its due process rights because appellant was not entitled to a trial.

“The primary function of notice pleading is to give the adverse party fair notice of the theory on which the claim is based.” Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 276 (Minn.App.1998). Therefore, pleadings should be liberally construed in favor of the pleader. Basich v. Bd. of Pensions of Evangelical Lutheran Church in Am., 493 N.W.2d 293, 295 (Minn.App.1992). A party is bound by the pleadings if that party does not amend, unless an issue is litigated by consent. Roberge v. Cambridge Coop. Creamery Co., 243 Minn. 230, 233-34, 67 N.W.2d 400, 403 (1954).

In Roberge, the plaintiff alleged that there was an express contract and that “plaintiff earned under said contract the sum of $7,611.84.” Id. at 232, 67 N.W.2d at 402. The supreme court ruled that this complaint did not give the defendant notice of a claim for implied promise or for unjust enrichment. Id.

In Folk v. Home Mut. Ins. Co., the complaint specifically referred to an insurance policy by its policy number. 336 N.W.2d 265, 267 (Minn.1983). In post-trial submissions, the plaintiffs argued and won on an implied contract theory. Id. The supreme court again held that the pleadings did not give the defendant notice of the theory of recovery and reversed the district court. Id. at 267-68.

Here, appellant had inadequate notice that respondent sought any affirmative relief and no notice of the far-reaching relief addressed in the district court order. The prayer for relief in the original complaint requested only an order directing AUina to disclose information, or other relief associated with the disclosure or the information, and for “such further relief as the [cjourt deems necessary.”

As with Roberge and Folk, appellant had no notice of respondent’s claims, by way of motion, complaint, or any other pleading. Even the consent decree entered into by the parties fails to outline or give a hint of the sweeping relief granted by the district court. Because appellant did not receive notice of respondent’s claims or requested relief, the district court order at issue here is reversed.

V. Whether disputed, material facts were resolved

Summary judgment is only to be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact.” Minn. R. Civ. P. 56.03. Thus, “on a summary judgment motion a court may not weigh the evidence or make factual determinations.” Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn.1995). The evidence must be viewed in the light most favorable to “the party against whom the motion was granted.” Id.

Appellant moved for summary judgment based on the absence of notice of any other issues, and the district court granted relief as if both parties had moved for summary judgment, even though respondent made no formal motion for affirmative relief. Appellant argues that, in doing so, the district court impermissibly engaged in the weighing of evidence and making credibility determinations. We agree.

In Smith v. Woodwind Homes, Inc., this court was faced with a summary judgment order in which the memorandum included statements that showed the district court weighed the evidence; those statements included, “[t]his explanation certainly makes more sense” than the other party’s argument and that one party’s scenario was “far more likely” than other explanations. 605 N.W.2d 418, 422-23 (Minn.App.2000). We concluded “that the findings impermissibly weighted] disputed facts” because whether to believe facts urged by one side or another is ultimately a question to be decided at trial, not summary judgment. Id. at 423.

While respondent asserts that there was no weighing of the evidence, the district court memorandum belies that assertion. Regarding the duration of the appointments and the purpose of the consent order, the district court stated that appellant’s position was “not plausible” and that appellant’s evidence was “not credible,” in light of contrary evidence submitted by respondent. Regarding the election of board members, the district court stated that laches did not apply because it “be-lievefd], quite frankly, that the Attorney] G[eneral] should have [known of], but did not know of or did not realize the import of, the election.... ” This explicit weighing of the facts is improper in the context of a motion for summary judgment. Accordingly, we reverse.

DECISION

Because the district court improperly weighed the evidence on a summary judgment motion and because of the absence of appropriate notice of claims at issue, the district court’s order is reversed.

Reversed.

      . The statute in effect in 2001, when the case was instituted, and in 2003, when the district court issued its order, is the same statutes as is currently in effect. Minn.Stat. § 309.57 (2000); Minn.Stat. § 309.57 (2002); Minn. Stat. § 309.57 (2004). Accordingly, we refer to the current version of the statute in this opinion.

      . Respondent’s assertion that the special administrators serve only the district court is not supported by correspondence from the Attorney General. In letters to the special administrators dated July 31, 2001, the Attorney General acknowledged that the administrators were agents of the Attorney General and of the district court. Additional correspondence from the Attorney General to the special administrators identifies the Attorney General, not the district court, as the client of the special administrators. Thus, the contention that the special administrators had only "receiver” status, and therefore no standing, is not supported by the record.

      . The Attorney General argues, and the district court assumes, that it has authority to commence a "rehabilitation” of Medica. Appellant does not agree and claims the only statutory authority for rehabilitation of Medi-ca is found in Minn.Stat. § 62D.18 (2004) and that authority is entrusted to the Commissioner of Health, not the Attorney General. We note that neither the complaint nor the consent order even hint at the possibility of a rehabilitation procedure. Whether the Attorney General has the authority he suggests is not properly before this court, and we do not decide it.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    VAUBEL FARMS, INC., claimant, Respondent, v. SHELBY FARMERS MUTUAL, Respondent Below, North Star Mutual Insurance Company, Appellant.
    No. A03-1607.
    Court of Appeals of Minnesota.
    May 18, 2004.

      Steven J. Vatndal, Gislason & Hunter, LLP, Mankato, MN, for respondent.
    Marcus J. Christianson, Kristine Hinds MacLean, Maschka, Riedy & Ries, Manka-to, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; TOUSSAINT, Chief Judge; and KALITOWSKI, Judge.
   OPINION

TOUSSAINT, Chief Judge.

On appeal from an order confirming an arbitration award, appellant North Star Mutual Insurance Company argues that respondent Vaubel Farms’s request for appointment of an appraiser was untimely because it occurred nearly three years after the loss, and the terms of the policy explicitly required any “suit” to be commenced within two years. Because we conclude the language of the contract reflects an arbitration clause and because arbitration is not barred by the two-year contractual limitation period for “suits,” we affirm.

FACTS

Respondent Vaubel Farms entered into a combination insurance package policy with Shelby Farmers Mutual Fire Insurance Company and appellant North Star Mutual Insurance Company in 1997. North Star was Vaubel’s insurer for windstorm damage, and drafted the windstorm insurance agreement between the two parties. At issue are two clauses in the policy conditions, one preventing Vaubel from commencing any “suit to recover for any property claim” after two years, the other labeled “arbitration,” which reads as follows:

16. Arbitration. If [Vaubel] or [North Star] fail to agree on the actual cash value of an item or amount of loss on written demand by either party, the insured and the company shall each, within twenty (20) days of the demand, select a competent and disinterested appraiser and notify the other party of the appraiser’s identity. If either party fails to select an appraiser within the time provided, the presiding judge of the district court in the county in which the loss occurred shall appoint an appraiser to represent that party. The appointment shall be made upon application to the court by the party not failing to make the required selection and upon five (5) days written notice to the other party. The appraisers appointed pursuant to this section shall make a good faith effort to select a competent and disinterested umpire. If the appraisers fail to agree upon an umpire within fifteen (15) days of their appointment, the presiding judge of the district court ... shall appoint an umpire upon application by either party and five (5)' days written notice to the other party. The appraisers shall appraise the loss, stating separately actual value and loss to each item. If the appraisers fail to agree, they shall submit their differences to the umpire whose decision shall control to the extent of the differences between the appraisers. An award in writing, approved by the appraisers or by an appraiser and the umpire ... shall be conclusive evidence of the actual value and loss to an item.

On May 15,1998, while this policy was in effect, Vaubel sustained wind damage to a hog-finishing barn. Vaubel subsequently notified North Star of the damage, and North Star agents then preliminarily investigated the matter. North Star did not take further action on the claim, however, because Vaubel failed to respond to requests for invoices, bills, and statements relating to the damage.

On April 10, 2001, nearly three years after the damage occurred, Vaubel sent North Star a letter detailing the damage and assessing total losses of $62,839.71. North Star declined to honor the claim, citing the two-year limit to all “suits,” and noted that it “would appear to be beyond the limit of time within which [the claim] may be appropriately pursued.”

Vaubel then demanded arbitration and, after North Star failed to cooperate, moved the district court to compel arbitration, claiming that North Star refused to appoint an arbitrator/appraiser pursuant to the aforementioned “arbitration” clause. North Star moved for summary judgment, again claiming the “suit” was barred by the policy’s two-year limitation period. It also argued that the policy did not provide for arbitration, even though it contained a clause labeled as such, and instead merely provided an appraisal clause that could not be pursued after the two-year limitation.

After a hearing, the district court determined that all ambiguities should be construed against North Star, the drafter of the agreement, that the policy contained an arbitration clause, and that arbitration did not fall within the contractual time limitation on “suits.” It therefore denied North Star’s summary judgment motion, and thereafter appointed an appraiser/arbitrator.

The parties proceeded to arbitration in March 2003, and Vaubel received an award of $127,885.63, plus interest. The district court subsequently confirmed the award in August 2003. North Star now appeals.

ISSUES

I. Did the district court err in holding that the policy contained an arbitration clause?
II. Did the district court err in determining that arbitration was not time-barred by the two-year contractual limitation for “suits”?

ANALYSIS

Construction of an insurance policy involves a question of law that this court reviews de novo. Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn.1978). If there is no dispute of material fact, this court independently reviews the district court’s interpretation of the insurance contract. Nat’l City Bank v. St. Paul Fire & Marine Ins. Co., 447 N.W.2d 171, 175 (Minn.1989).

I.

North Star first argues that the policy does not provide for arbitration, even though a clause is captioned “arbitration,” because “the only thing that this clause provides is for appraisal when the parties disagree on the value of the loss.” It argues that the clause is merely a “condition precedent and a provision that must be met before suit to recover any property claim may be brought against North Star.”

Minnesota law provides that in order to effectuate the parties’ intent, “[t]he policy must be read as a whole, and unambiguous language must be accorded its plain and ordinary meaning.” SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311 (Minn.1995). Here, North Star urges us to examine the entire agreement to determine the meaning of the arbitration clause even though the district court was never provided with a full copy of the agreement. Because we may only consider the papers filed in the trial court, the exhibits, and the transcript of the proceedings, we must limit our review to the two paragraphs of the agreement that were actually presented to the district court. See Minn. R Civ.App. P. 110.01; Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988) (an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence at the trial court).

The clause labeled “arbitration” describes the process by which the parties may select appraisers, who in turn select an umpire. The appraisers then conduct an independent assessment of the loss, and if the parties cannot agree to a loss value, the umpire makes the ultimate value determination. This determination, according to the contract, is “an award.”

North Star argues that the clause “is essentially a formula for appraising a loss rather than arbitration as set forth in Chapter 572 of the Minnesota Statutes.” But this interpretation renders meaningless the express use of the terms “arbitration” and “award.” It also seems contrary to the broad language of the Uniform Arbitration Act, which provides that “[a] provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable.... ” Minn.Stat. § 572.08 (2002) (emphasis added). At best, the arbitration language creates ambiguity, and any ambiguity should be construed against North Star as the drafter of the agreement. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn.1979).

The terms of an insurance policy should be construed according to what a reasonable person in the position of the insured would have understood the words to mean rather than what the insurer intended the language to mean. Canadian Universal Ins. Co., v. Fire Watch, Inc., 258 N.W.2d 570, 572 (Minn.1977). A reasonable person in the position of the insured would read a clause labeled “arbitration,” which ultimately granted “an award,” as an arbitration clause. The district court’s determination will therefore not be disturbed.

II.

We next address North Star’s reliance on the contractual two-year period of limitations for Vaubel to file “suit.” North Star argues that, even if arbitration could be compelled after the two-year period, Vaubel could not sue to enforce the award due to the contractual language preventing suits after two years.

In essence, North Star argues that any arbitration award granted after the two-year period of limitations has run is essentially a hollow victory. But statute and precedent indicate otherwise: a statutory arbitration is summarily reviewable and enforceable under statute, rather than by suit on the award. Minn.Stat. § 572.08 (2002); Park Constr. Co. v. Indep. Sch. Dist. No. 32, 209 Minn. 182, 183, 296 N.W. 475, 476 (1941). Any arbitration award confirmed by the district court is “enforced as any other judgment or decree.” Minn. Stat. § 572.21 (2002). Vaubel therefore need not bring a separate action to enforce the arbitration on the award, because the parties are bound by the judgment entered. See Ehlert v. W. Nat’l Mut. Ins. Co., 296 Minn. 195, 199, 207 N.W.2d 334, 336 (1973).

Though no Minnesota court has expressly defined “suit,” we hereby adopt the following definition: “[a]ny proceeding by a party or parties against another in a court of law.” Black’s Law Dictionary 1448 (7th ed.1999) (emphasis added); see also Harter Corp. v. Home Indem. Co., 713 F.Supp. 231, 233 n. 3 (W.D.Mich.1989) (“the word suit cannot be defined without reference to a proceeding in a court of justice”); Fireman’s Fund Ins. Co. v. Super. Ct, 65 Cal.App.4th 1205, 78 Cal.Rptr.2d 418, 426 (1997) (“the word ‘suit’ refers to a proceeding in a court of law”); Lapham-Hickey Steel Corp. v. Prot. Mut. Ins. Co., 166 Ill.2d 520, 211 Ill.Dec. 459, 655 N.E.2d 842, 847 (1995) (“The primary attribute of a suit is that the parties to the action are involved in actual court proceedings.”) This definition is consistent with our prior, broader definition of “action.” See, e.g., Spira v. Am. Standard Ins. Co., 361 N.W.2d 454, 457 (Minn.App.1985) (“action” is “confined to judicial proceedings”), review denied ' (Minn. Mar. 29, 1985). Arbitration, on the other hand, is an adjudicative process carried out outside the established tribunals of justice. Park Constr. Co. v. Indep. Sch. Dist. No. 32, 216 Minn. 27, 33-35, 11 N.W.2d 649, 652-53 (1943). We therefore conclude that “suit” refers specifically to established and traditional judicial proceedings, while “arbitration” involves the resolution of disputes by non-traditional means. Because “suit” does not include “arbitration,” North Star cannot claim that the two-year limit for suits bars arbitration.

Because enforcement of the arbitration award is not subject to the two-year period of limitations in the contract, Vaubel’s arbitration demand is subject solely to the general six-year statute of limitations prescribed in Minn.Stat. § 541.05, subd. 1(1) (2002). Har-Mar, Inc. v. Thorsen & Thorshov, Inc., 300 Minn. 149, 155, 218 N.W.2d 751, 755 (1974). And, since this limitation period did not begin to run until Vaubel demanded arbitration, the district court correctly determined that this demand was timely and proper.

DECISION

Because a clause labeled “arbitration” and providing for an “award” should reasonably be interpreted as an arbitration clause under these circumstances; and because arbitration proceedings are not “suits” because they are not proceedings in a court of law, the district court properly determined that the two-year contractual limitation for “suits” is inapplicable to this arbitration proceeding. We therefore affirm the district court’s certification of the arbitration award and denial of summary judgment.

Affirmed.


author: NEUMANN, Justice.

text:
    2004 ND 97
    Melvin TIBERT, Mark Tibert, Cathy Tibert, and Suzi Tibert, Plaintiffs Melvin Tibert, Mark Tibert, and Suzi Tibert, Plaintiffs and Appellants v. CITY OF MINTO, a Municipal Corporation, Bill Slominski, and Kathy Slominski, D/B/A Minto Grain LLC, Defendants and Appellees.
    No. 20030207.
    Supreme Court of North Dakota.
    May 5, 2004.

      David C. Thompson (argued), Grand Forks, N.D., for plaintiffs and appellants.
    Nicholas B. Hall of Hodny Currie Lawyers, Grafton, N.D., and Ronald F. Fischer of Pearson Christensen, Grand Forks, N.D., for defendant and appellee City of Minto; submitted on brief.
    Scott J. Landa of Zimney Foster, P.C., Grand Forks, N.D., for defendants and appellees Bill and Kathy Slominski and Minto Grain, LLC; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Melvin and Cathy Tibert and Mark and Suzi Tibert (collectively known as “Tiberts”) appeal from the trial court’s judgment dismissing their action against the City of Minto, Bill and Kathy Slomin-ski, and Minto Grain, LLC, for declaratory relief. We affirm.

I

[¶ 2] Minto Grain is located at Minto, North Dakota, adjacent to railroad tracks used by Burlington Northern Santa Fe Railroad (“BNSF”), the successor of Burlington Northern Railroad. Minto Grain is a grain storage facility that was previously owned by Minto Farmer’s Elevator. Bill and Kathy Slominski assumed operation of Minto Grain in 1999, and they purchased the facilities in January 2000. At that time, the facilities were located on property comprising a railroad right of way owned by BNSF or its predecessors and leased to the operators of the facility. In January 2001, BNSF conveyed two parcels of the right of way to the Slominskis by quit-claim deed, reserving certain roadway easements and mineral rights. The Ti-berts own residential property adjacent to one of those parcels in Minto.

[¶ 3] Since at least 1980, a road once called Elevator Road and now known as Kilowatt Drive, has existed along the eastern portion of the two Minto Grain parcels. Kilowatt Drive also partially lies on a railroad right of way owned by persons not joined in this action. Elevator Road, now Kilowatt Drive, was commonly used by the public and the Tiberts to access Minto Grain, railroad property, other businesses, and residential properties.

[¶ 4] On June 2, 1980, the City proposed an ordinance to establish Elevator Road as a city street and rename it Kilowatt Drive. The ordinance was passed on July 7, 1980. However, the trial court found the City failed to take any further action in compliance with statutory requirements for the opening of a public street. Despite this failure, the City erected street signs, placed water and sewer lines along the street, and maintained at least a portion of Kilowatt Drive through snow removal and occasional maintenance. Residences along Kilowatt Drive were assigned addresses, which allowed delivery and emergency services to accurately locate the homes.

[¶ 5] A portion of Kilowatt Drive crosses a bridge over the Harriet Drain. On July 11, 1980, a bridge maintenance agreement was executed among the City, Walsh County, and Walsh County Water Management. On August 4, 1980, the City’s mayor reported the bridge would be maintained by Walsh County and the Walsh County Water Management District. On August 5, 1980, Walsh County Board of Commissioners decided that Walsh County would assume future bridge maintenance. On December 2, 1980, Burlington Northern Railroad conveyed its ownership in the bridge to Walsh County through a donation bill of sale. The stated purpose of the conveyance was “for the continued use, operation, and maintenance in the interest of the public, forever.” According to the trial court, there is no evidence showing any other portions of Kilowatt Drive were conveyed to the City or Walsh County.

[¶ 6] The Tiberts sued the City and Minto Grain in October 2001, seeking a declaration that Kilowatt Drive is a public street. The Tiberts claimed BNSF made a common-law dedication of the railroad right of way over which- Kilowatt Drive is situated before it conveyed the property to the Slominskis. On October 30, 2002, Min-to Grain gave a perpetual easement across the portions of the two parcels comprising Kilowatt Drive to the City of Minto. The purpose of the easement was to allow public ingress and egress to the Kilowatt Drive area and to “foster commerce along the rail, limit the non-commercial use of the roadway by the public, and provide general access to residences.... ”

[¶ 7] Following a bench trial, on May 12, 2003, the trial court dismissed the Ti-berts’ action. The trial court found the Tiberts faded to show, by clear and convincing evidence, that Kilowatt Drive was established by the conduct of Minto Grain and its predecessors or BNSF and its predecessors. Specifically, the trial court found Kilowatt Drive was never statutorily established or dedicated as an official city street. The trial court also held the Ti-berts’ action moot, finding Minto Grain’s October 2002 perpetual easement provided essentially the same relief the Tiberts would acquire if the trial court determined there was a statutory or common-law dedication. The trial court further found Bill and Kathy Slominski were entitled to a judgment of dismissal because no cognizable claim had been established against them. The Tiberts appeal.

II

[¶ 8] On appeal, the Tiberts argue the trial court erred in finding there was no justiciable controversy because the perpetual easement between Minto and Minto Grain rendered the Tiberts’ issue moot. The Tiberts contend the easement granted by Minto Grain to the City of Minto is not equivalent to an easement held in trust for the public for purposes of a public street.

[¶ 9] When a trial court dismisses a case for mootness, we review the factual findings under the clearly erroneous standard set forth in Rule 52(a), North Dakota Rules of Civil Procedure. See Syversen v. Hess, 2003 ND 118, ¶ 9, 665 N.W.2d 23. However, a trial court’s legal conclusion of mootness is reviewed de novo. See Minnesota Humane Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir.1999) (holding, “[w]e review a dismissal for mootness de novo ”); State v. Utvick, 2004 ND 36, ¶ 31, 675 N.W.2d 387 (noting, “[wjhile we do not conduct a de novo review of the findings of fact, questions of law are fully reviewable”); see also St. Louis Firefighters Ass’n v. City of St. Louis, 96 F.3d 323, 329 (8th Cir.1996) (stating, “[w]e review the district court’s dismissal for mootness de novo”).

[¶ 10] A trial court properly dismisses a case for mootness if the case “has lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law.” St. Louis Fire Fighters Ass’n, 96 F.3d at 329. While voluntary cessation of the alleged conduct does not make the case moot, the case is moot when “there is no reasonable expectation that the alleged violation will recur, and ... interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. Wdien this occurs, “neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.” Id.

[¶ 11] The trial court erred in finding the easement created essentially the same relief the Tiberts were seeking. The newly-created easement is more limited than if the trial court were to declare a public dedication of Kilowatt Drive.

Unless there are reservations, the general public, that is to say any and every one, has the right to use dedicated property to the full extent to which such easements are commonly used.... Whatever use of the dedicated land as is fairly within the terms of the dedication and reasonably serves to fit the land for enjoyment by the public in the manner contemplated is authorized.

C.J.S. Dedication § 73, 383-84 (2001). Kilowatt Drive was commonly used as a public street allowing members of the public, including the Tiberts, to gain access to the various businesses and homes in the area along Kilowatt Drive. Under the terms of the easement, this access may now be restricted. The stated goal of the newly-created easement is to “limit the non-commercial use of the roadway by the public.” Although the easement purports to allow access to residences, Minto Grain has reserved the right to close Kilowatt Drive for specified periods at its discretion. We hold the trial court erred in concluding the Tiberts’ case was moot.

Ill

[¶ 12] The Tiberts argue the trial court erred in determining there was no clear and convincing evidence of BNSF and its predecessors’ common-law dedication of Kilowatt Drive. The Tiberts argue a public roadway was established by BNSF and its predecessors’ actions, which amounted to an implied dedication, resting on or including and incorporating the principles of estoppel in pais.

[¶ 13] “In a dedication, the private landowner intentionally appropriates land for public use.” Brown v. Bd. of Co. Commissioners for Pennington Co., 422 N.W.2d 440, 442 (S.D.1988). A dedication may be either express or implied, and an express dedication is completed by a deed or a written instrument. Carlson v. Burkhart, 271 Kan. 856, 27 P.3d 27, 32 (2001). A dedication is generally established through common law or statutory law. See Cole v. Minnesota Loan & Trust Co., 17 N.D. 409, 117 N.W. 354, 357 (1908). A statutory dedication is “in the nature of a grant,” while a common-law dedication “rests upon the principles of estoppel in pais.” Cole, at 357.

The dedication, therefore, is regarded not as transferring a right, but as operating to preclude the owner from resuming his right of private property, or indeed any use inconsistent with the public use. The ground of the estoppel is that to reclaim the land would be a violation of good faith to the public and to those who have acquired private property with a view to the enjoyment of the use contemplated by the dedication.

Ark. State Highway Comm. v. Sherry, 238 Ark. 127, 381 S.W.2d 448, 451 (1964); Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 508 (Mo.1993) (holding, “because dedication is a theory premised on estoppel ... the owner can be precluded from resuming rights over the property if the public acts upon the owner’s manifestations”). Indeed, we have previously stated “the common-law method of dedication is analogous to ... [equitable] estoppel.” Cole, at 357. If a dedication arises through “legal implication, ... the landowner is estopped from precluding public use of the land.” Brown, at 442.

[¶ 14] The property interest conveyed through a common-law dedication is an easement. Pleak v. Entrada Prop. Owners’ Ass’n, 207 Ariz. 418, 87 P.3d 831 at * 834 (holding, “[t]he effect of a common law dedication is that the public acquires an easement to use the property for the purposes specified, while the fee remains with the dedicator”); see Headley v. Northfield, 227 Minn. 458, 35 N.W.2d 606, 609 (1949) (holding, “[t]he effect [of a common-law dedication] is to create only such an estate or right in the public as is necessary to enable it to enjoy the uses for which the dedication is made and to reserve the fee to the dedicator”); General Auto Serv. Station v. Maniatis, 328 Ill.App.3d 537, 262 Ill.Dec. 568, 765 N.E.2d 1176, 1183 (2002) (holding, “a common law dedication keeps the fee vested in the donor, burdened with an easement over the way in question and subject to the acceptance of the easement by the public”); Cenac v. Pub. Access Water Rights Ass’n, 851 So.2d 1006, 1012 (La.2003) (holding, “an implied dedication gives rise to a servitude of public use and does not transfer ownership”); C.J.S. Dedication § 2, 280 (2001) (common-law dedication).

[¶ 15] Common-law dedication requires, (1) an intention to dedicate and, (2) public acceptance of the dedication. Cole, 17 N.D. 409, 117 N.W. at 358. Intent to dedicate, “is to be ascertained from the acts of the owner, and not from the purpose hidden in his mind.... Dedications have been established in every conceivable way by which the intention of the party can be manifested.” Ramstad v. Carr, 31 N.D. 504, 154 N.W. 195, 199 (N.D.1915) (citation omitted); Cole, at 358 (stating, “the intention to dedicate be properly and clearly manifested”); Security Federal Savings & Loan Ass’n v. C & C Investments, 448 N.W.2d 83, 87 (Minn.App.1989) (holding that, “intent need not be express, and in fact need not actually exist in the owner’s mind, but may be implied from acts and conduct of the owner which are unequivocally and convincingly indicative of a dedication and upon which the public has a right to and does rely”).

[¶ 16] A common-law dedication must be proven by clear and convincing evidence. See Cole, 17 N.D. 409, 117 N.W. at 356; Sons of Union Veterans of Civil War, Dept. of Iowa v. Griswold American Legion Post 508, 641 N.W.2d 729, 734 (Iowa 2002); Smith v. Sponheim, 399 N.W.2d 899, 901 (S.D.1987); Descheemaeker v. Anderson, 131 Mont. 322, 310 P.2d 587, 591 (1957). The proponent of the dedication bears the burden of proof. Carlson v. Burkhart, 271 Kan. 856, 27 P.3d 27, 32 (2001); 14 Richard R. Powell, Powell on Real Property, § 84-01[7][b][I] (Michael Allan Wolf, ed., 2004).

[¶ 17] Whether a common-law dedication has been made is a question of fact, and the trial court’s determination will not be reversed unless it is clearly erroneous. Wojahn v. Johnson, 297 N.W.2d 298, 307 (Minn.1980); see N.D.R.Civ.P. 52(a); see also Pryatel v. K.P., 2004 ND 52, ¶27, 676 N.W.2d 744. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is some evidence to support it, or if, although there is some evidence to support it, on the entire evidence, this Court is left with a definite and firm conviction a mistake has been made.” Pryatel, 2004 ND 52, ¶ 27, 676 N.W.2d 744. Here, the trial court found the Tiberts failed to show, by clear and convincing evidence, that conduct on the part of either BNSF or its predecessors established a common-law dedication of Kilowatt Drive, either impliedly or expressly. In its order, the trial court made at least thirteen findings to support its factual determination that the railroad’s conduct did not establish a dedication. According to the trial court, the railroad’s allowance of public use provided it with commercial benefits, as it allowed access to the rail line and nearby businesses. Additionally, Kilowatt Drive provided access to the railroad’s own property. The railroad did not participate in the City’s efforts to pass ordinances creating Kilowatt Drive. The trial court found the railroad did convey property within the right of way, including a portion of Kilowatt Drive, but the only property conveyed was that which passed over Harriet Drain. The trial court also found this dedication was made to Walsh County, and the railroad made no effort to convey any other portions of Kilowatt Drive. Other than the Harriet Drain conveyance, there is also no abstract of title or other documentation related to BNSF or its predecessors that show any reference to a conveyance in fee, dedication, or easement for the Kilowatt Drive property.

[¶ 18] The trial court also made findings related to, or referring to, our decision in Nowling v. BNSF Ry., 2002 ND 104, 646 N.W.2d 719. Relying on Nowl-ing, the trial court found BNSF and its predecessors have continued railroad operations on the rail line, while Minto Grain has continued grain elevator operations in the same location. In other words, the property had not been abandoned. The trial court found that all of the railroad right of way constituted a public highway and was therefore not subject to adverse possession or prescription, under our holding in Nowling. The trial court then applied the principles of that holding, finding, “it would follow that dedication by estoppel is also not possible.”

[¶ 19] We conclude the trial court did not err in finding a lack of clear and convincing evidence that BNSF or its predecessors dedicated Kilowatt Drive. The trial court’s interpretation of our holding in Nowling was not clearly erroneous. In Nowling, we held that an operating railroad’s right of way was a public highway, under the North Dakota Constitution and, as such, not subject to adverse possession or acquiescence. Nowling v. BNSF Ry., 2002 ND 104, ¶ 14, 646 N.W.2d 719. While we decline to address any specific limitations of our Nowling holding today, we note that adverse possession, acquiescence and common-law dedication are based upon similar principles, as each allows for the transfer of an interest based on the public, or an individual’s use or lack of use of property. Because common-law dedication is based upon principles of es-toppel, and could reasonably be viewed as similar to adverse possession and acquiescence, the trial court did not err in applying Nowling. See Connell v. Baker, 458 S.W.2d 573, 578 (Mo.App.1970). A common-law dedication is, “a doctrine predicated on equitable estoppel or estoppel in pais by reason of a user by the public under such circumstances and for such a period of time, with the acquiescence of the owner, as to imply on his part a dedication of the land and a prescriptive right thereto on the part of the public by its acceptance and appropriation as a public highway.” Id. (emphasis and citations omitted).

[¶ 20] Upon reviewing the entire record, we do not have a definite and firm conviction that the trial court was mistaken in finding the Tiberts failed to show, by clear and convincing evidence, that a common-law dedication occurred. We conclude the trial court’s findings, based on the evidence before it, were not clearly erroneous.

IV

[¶ 21] We affirm the judgment of the trial court dismissing the Tiberts’ action for declaratory relief.

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

      . An implied dedication is sometimes referred to as "common-law dedication” or "dedication by estoppel.” Carlson v. Burkhart, 271 Kan. 856, 27 P.3d 27, 32 (2001); see Collins v. Taylor, 518 So.2d 602, 605-06 (La.App.1987); Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650, 653 (1931).


author: SANDSTROM, Justice.

text:
    2004 ND 95
    Brenda M. HILGERS, Plaintiff and Appellee v. Douglas G. HILGERS, Defendant and Appellant.
    No. 20030252.
    Supreme Court of North Dakota.
    May 5, 2004.

      Douglas G. Hilgers (pro se), Duluth, MN, submitted on brief.
    Brenda M. Hilgers, plaintiff and appel-lee; no appearance.
   SANDSTROM, Justice.

[¶ 1] Douglas G. Hilgers appealed from a district court letter opinion denying his motion to set aside, amend, or reconsider earlier orders involving spousal and child support obligations arising out of his divorce from Brenda M. Hilgers. We conclude that Douglas Hilgers has attempted to appeal from a nonappealable order but that the exercise of our supervisory authority is appropriate under the circumstances. We conclude the district court did not abuse its discretion in refusing to reconsider Douglas Hilgers’ request for relief from the divorce judgment and for an award of spousal support from Brenda Hilgers. However, we conclude the district court abused its discretion in failing to address other spousal and child support issues raised by Douglas Hilgers. We dismiss the appeal and direct the district court to address the spousal and child support issues Douglas Hilgers has repeatedly raised in his motions.

I

[¶ 2] Douglas Hilgers and Brenda Hil-gers were married in 1980 and had four children. Brenda Hilgers sued for divorce in Ward County District C$urt, and following default divorce proceedings, a divorce judgment was entered in September 1998. At the time of the divorce, only two of the children were minors. Brenda Hilgers, who lives in Bottineau, North Dakota, was awarded custody of the minor children, and Douglas Hilgers, who lives in Duluth, Minnesota, was ordered to pay $977 per month in child support. Douglas Hilgers was also ordered to pay $500 per month spousal support to Brenda Hilgers until the minor son “has reached the age of 19 or graduated from high school, whichever occurs first.” In October 1998, Douglas Hilgers unsuccessfully moved for relief from the divorce judgment under N.D.R.Civ.P. 55 and 60(b), but the amount of child support was later reduced to $610 for the two children. In Hilgers v. Hilgers, 2002 ND 173, ¶29, 653 N.W.2d 79, this Court affirmed the district court’s denial of Douglas Hilgers’ motion for a change of custody, but we reversed and remanded with directions that the court create a visitation schedule and explain its reasoning for setting the effective date of the child support reduction at December 1, 2000.

[¶ 3] While the appeal in Hilgers was pending, Douglas Hilgers continued filing motions with the district court. On August 5, 2002, he filed a motion to review and modify the spousal support order, and he supported the motion with an affidavit claiming his net monthly income was almost $1,400 less than the amount relied upon in the default divorce proceedings. After the remand in Hilgers, the district court, in January 2003, issued an order setting a visitation schedule and explaining the reasons for reducing child support effective December 1, 2000. The judge also recused from the case, and the case was reassigned to another judge, who, in February 2003, denied Douglas Hilgers’ request to change venue to a location closer to his home.

[¶ 4] On March 3, 2003, Douglas Hil-gers filed a letter with the district court, complaining about the court’s refusal to grant a hearing on his motion for review and modification of the spousal support and child support orders. On March 27, 2003, Douglas Hilgers was convicted in Bottineau County District Court of removing his minor son from the state during 2001 in violation of a custody decree. On March 28, 2003, he sought an order for a temporary change of custody of his minor son, and the Ward County District Court, on April 2, 2003, granted the motion, pending a hearing. On May 8, 2003, Douglas Hilgers again filed a motion, accompanied with a brief and affidavit, requesting a review and modification of his child and spousal support obligations and termination of the spousal support award and requesting that Brenda Hilgers submit “wage records” so her child support obligation could be determined in accordance with the Child Support Guidelines. Following a hearing, on May 13, 2003, the district court ordered the custody of the minor son be changed to Douglas Hilgers, terminated his child support obligation effective April 2, 2003, and ordered Brenda Hilgers to begin paying child support from that date “in the minimal amount of $168 a month.” The court indicated in a letter accompanying the order that “[t]his amount could be elevated in the future dependent upon Ms. Hilgers’ earnings.” The order did not address spousal support.

[¶ 5] On June 12, 2003, Douglas Hil-gers filed another motion for “Modification of the Support Orders” and “for just relief upon his previouse [sic], multiple petitions.” He asked the court to issue a child support order, to terminate the spousal support he had been ordered to pay, and, upon a showing of Brenda Hilgers’ financial status, to order that she pay him “custodial parent spousal support.” He complained that, since custody of the child had been changed, he had received none of the child support ordered, and he sought to have Brenda Hilgers’ child support obligation determined under the Child Support Guidelines. He also sought review and modification of “the perpetual with-holdings of the Defendant’s wages so as to permit him some access to health care and a minimal subsistence....” He also relied on “the Rules pertaining to default judge-ments [sic]” because Brenda Hilgers had not responded “to any of his petitions.” In a one-sentence letter from the district court, dated June 17, 2003, and filed June 19, 2003, the court stated, “I have reviewed the’file and any requests for spousal support by Mr. Hilgers from Ms. Hil-gers is denied.”

[¶ 6] On June 25, 2003, Brenda Hilgers filed a letter to the clerk of district court “in response to the Notice of Arrears and possible Contempt of Court notice I have received.” She complained, “There was no child support hearing” and “I have never received notice requiring financial income to base this order on. How was this amount determined?” She stated, “Until I am allowed a fair hearing on this issue I have no intention of paying Doug Hilgers one penny of my hard earned income” because of his refusal to comply with previous court orders. She attached to the letter a financial ledger showing that, through May 15, 2003, Douglas Hilgers had $3,140.98 in child support arrearages and $13,544.03 in spousal support arrear-ages.

[¶ 7] Upon learning that Brenda Hil-gers was no longer a resident of Ward County, the district court, on July 2, 2003, on its own motion under N.D.C.C. § 14-09-08.1, ordered that a certified copy of the court’s “child support and/or spousal support” order be filed with the clerk of the district court for Bottineau County and notified the parties “inquiries are to be directed to” the Bottineau County Clerk of Court.

[¶ 8] On July 7, 2003, Douglas Hilgers filed with the Ward County District Court a motion to set aside or amend the “Orders of the Court” under N.D.R.Civ.P. 52, 55 and 60. He sought “all relief either denied or not addressed as requested in his petitions.” He again complained that he had not received any child support payments from Brenda Hilgers and that the court did not cite “any income information in its determination, as required by statute and ignores the movant’s petition for orders to obtain appropriate information.” He requested “reasonable withholding of the defendant’s wages, to contribute toward the mounting arrears,” the establishment of “just and lawful support for the minor child ... based upon the income of the mother ...,” termination of the spousal support he was ordered to pay, a “reasonable amount” be withheld from his wages, and an explanation as to why he was denied spousal support in the court’s June 19, 2003, ruling. This motion was also accompanied by an affidavit.

[¶ 9] In a letter dated July 14, 2003, Douglas Hilgers asked the Ward County District Court whether his prior motions were being considered and whether he must await their resolution before he could address “this order for a change of venue?” He objected to the court’s failure to address his “latest motions for reconsideration” and argued “venue is not convenient to all of the parties” because he lived in Duluth, “500 miles from Bottineau.” On August 21, 2003, the Ward County District Court judge sent him a two-page letter explaining that the “case has not been moved to Bottineau” but “is still venued in Ward County” and that the court could not transfer the case to Minnesota. The court further stated:

You have access to this court and you have availed yourself of that access. The pro se filings by yourself are numerous in this case. You choose that avenue rather than retaining counsel. It is your right to appear on a pro se basis. However, you are still required to follow our Rules of Civil Procedure and you are responsible for your own failures if you choose not to follow our Rules of Civil Procedure.

The court did not mention the child or spousal support issues.

[¶ 10] On September 2, 2003, Douglas Hilgers filed a notice of appeal. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06.

II

[¶ 11] Douglas Hilgers does not specify from what he is appealing in his notice of appeal except “rulings of the Court.” However, in an accompanying “Petition For Review and Relief Of The District Courts [sic] Spousal and Child Support Orders,” he states he is seeking “relief from the order denying a reconsideration of the Spousal Support orders denied in the Order of June 17, 2003.”

[¶ 12] Under N.D.R.App.P. 4(a)(1), a notice of appeal must be filed “with the clerk of district court within 60 days from service of notice of entry of the judgment or order being appealed.” There is no notice of service of entry of an order in the record, but actual knowledge of entry of a judgment or order commences the running of the time for appeal when actual knowledge is clearly evidenced in the record. Redfield v. Bitterman, 2000 ND 217, ¶ 7, 620 N.W.2d 570; Domres v. Domres, 1998 ND 217, ¶ 9, 587 N.W.2d 146. In his petition for modification of the support orders filed June 12, 2003, and dated June 6, 2003, Douglas Hilgers specifically refers to the amount of child support the district court ordered Brenda Hilgers to pay in the May 13, 2003, order. This clearly evidences Douglas Hilgers’ actual knowledge of the May 13, 2003, order on June 6, 2003, more than 60 days before he filed the September 2, 2003, notice of appeal. See Domres, at ¶ 8.

[¶ 13] A timely motion for reconsideration of a judgment is treated as a motion to alter and amend the judgment under N.D.R.Civ.P. 59 for purposes of tolling the time period for filing a notice of appeal. Larson v. Larson, 2002 ND 196, ¶ 7, 653 N.W.2d 869. A motion to alter and amend a judgment under N.D.R.Civ.P. 59(j) is timely only if it is “served and filed no later than 15 days after notice of entry of the judgment.” Douglas Hilgers had actual knowledge of the May 13, 2003, order on June 6, 2003, and his June 12, 2003, petition for modification of the support orders was timely for purposes of tolling the time to appeal from the May 13, 2003, order. The district court disposed of this motion on June 19, 2003. Again, no notice of service of entry of the ruling appears in the record. However, Douglas Hilgers’ July 7, 2003, motion to set aside and amend the findings and order of the court is dated July 2, 2003, and acknowledges the June 19, 2003, ruling denying his request for spousal support. Douglas Hil-gers’ July 7, 2003, motion can be considered a timely motion for reconsideration. However, a motion to reconsider or amend an order disposing of a time-tolling, post-trial motion for reconsideration does not extend the time to file a notice of appeal. Larson, at ¶ 10. Consequently, an attempt to appeal the May 13, 2003, order of the district court would be untimely.

[¶ 14] We reach the same conclusion regarding the district court’s June 19, 2003, ruling. The record shows Douglas Hilgers had actual knowledge of that ruling on July 2, 2003, which is more than 60 days before he filed his notice of appeal on September 2, 2003. Although N.D.R.Civ.P. 6(e) permits an additional three days to be added to the time period for service by mail, see Schaan v. Magic City Beverage Co., 2000 ND 71, ¶ 11, 609 N.W.2d 82, Rule 6(e) does not apply under these circumstances. Douglas Hilgers did not receive service of notice of entry of the order by mail. Rather, the running of the time for appeal began upon his actual notice of the June 19, 2003, ruling. When a period begins only after actual notice, Rule 6(e) is not applied to extend the time because its use is not necessary to protect the party receiving notice from any possible harsh effects caused by use of service by mail. See 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil Sd § 1171, at p. 592 (2002), and cases cited therein.

[¶ 15] We conclude Douglas Hilgers has timely attempted to appeal only the district court’s August 21, 2003, two-page letter opinion in response to his July 7, 2003, motion to set aside or amend the previous orders of the court. However, unless followed by a subsequently entered consistent judgment or order, a letter opinion is not an appealable order under N.D.C.C. § 28-27-02. See First American Bank West v. Berdahl, 556 N.W.2d 63 n. 1 (N.D.1996); Patten v. Green, 369 N.W.2d 105, 106 (N.D.1985). The district court’s August 21, 2003, letter opinion is not followed by a consistent judgment or order. Therefore, we dismiss the appeal.

Ill

[¶ 16] This Court may examine a district court decision by invoking its supervisory authority. See Patten, 369 N.W.2d at 106. In Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 19, 603 N.W.2d 66 (citations omitted), we said:

Our authority to issue supervisory writs arises from Article VI, Sec. 2 of the North Dakota Constitution and N.D.C.C. § 27-02-04. This authority is discretionary; it cannot be invoked as a matter of right. We issue supervisory writs “only to rectify errors and prevent injustice when no adequate alternative remedies exist.” We exercise this authority “rarely and cautiously” and only in “extraordinary cases.”

[¶ 17] Douglas Hilgers’ major argument in this case concerns the district court’s failure to address issues involving the proper determination of Brenda Hil-gers’ child support obligation and modification of his spousal support obligation, which he has raised in numerous motions brought before the court. Because the district court’s failure to address these issues deprives Douglas Hilgers of any remedy, we conclude the exercise of our supervisory authority is warranted here. This Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. § 27-02-04.

IV

[¶ 18] A district court’s denial of a motion to alter, amend, or reconsider an order or judgment will not be reversed absent a manifest abuse of discretion. Hanson v. Hanson, 2003 ND 20, ¶ 5, 656 N.W.2d 656; Larson, 2002 ND 196, ¶ 11, 653 N.W.2d 869. A district court abuses its discretion only 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. Larson, at ¶ 11.

[¶ 19] Douglas Hilgers’ appellate brief lists 16 “issues” for review, essentially raising five allegations of error. He argues the district court erred in refusing to grant him relief from the spousal support order contained in the divorce judgment under N.D.R.Civ.P. 60(b)(vi); erred in refusing to order that Brenda Hilgers pay him spousal support, or in lieu of spousal support, order that she establish a trust fund for their minor son; erred by failing to comply with the Child Support Guidelines in setting Brenda Hilgers’ child support obligation; erred in refusing to find a material change of circumstances warranting a termination or modification of his spousal support obligation and a modification of his payments on existing arrearag-es; and erred by failing to specifically address these issues.

A

[¶ 20] Douglas Hilgers’ argument for relief from the divorce judgment under N.D.R.Civ.P. 60(b)(vi) was initially raised in October 1998 and rejected by the district court. As he did then, Douglas Hil-gers again relies on his health problems during the time of the default divorce proceedings as justification for relief from the judgment. He offered no new evidence or arguments to the court. We conclude the district court did not abuse its discretion in refusing to reconsider denial of this motion.

B

[¶ 21] Douglas Hilgers argues the district court should have ordered Brenda Hilgers to pay him spousal support or ordered that she establish a trust fund for their minor son. Because the district court made no initial award of spousal support to Douglas Hilgers and failed to reserve expressly its jurisdiction to do so in the divorce judgment, the district court lacks jurisdiction to award spousal support to him at this juncture. See, e.g., Rudh v. Rudh, 517 N.W.2d 632, 634 (N.D.1994); Becker v. Becker, 262 N.W.2d 478, 484 (N.D.1978). Douglas Hilgers did not request establishment of a trust fund in the district court and therefore cannot raise the issue for the first time in this Court. See Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 6, 658 N.W.2d 756. We conclude the district court did not abuse its discretion in refusing to reconsider this argument.

C

[¶ 22] We agree with Douglas Hil-gers that the district court erred in failing to address issues concerning Brenda Hil-gers’ child support obligation and modification of his spousal support obligation and payments on the arrearages. These issues were clearly and repeatedly raised in Douglas Hilgers’ numerous motions filed with the court.

[¶ 23] The issues are not patently frivolous. A court errs as a matter of law when it fails to comply with the requirements of the Child Support Guidelines in determining an obligor’s child support obligation, see, e.g., McDowell v. McDowell, 2003 ND 174, ¶ 27, 670 N.W.2d 876, and spousal support payments may be modified upon a showing of a material change of circumstances. See, e.g., Lohstreter v. Lohstreter, 2001 ND 45, ¶ 13, 623 N.W.2d 350. Here, Douglas Hilgers has requested that Brenda Hilgers’ child support obligation be determined in accordance with the Child Support Guidelines, and the district court even envisioned further hearings to determine her actual earnings. The record shows Brenda Hilgers is also confused about the determination of her child support obligation. Douglas Hilgers also alleged with supporting affidavits that his financial circumstances have changed, justifying a termination or modification of his spousal support obligation and the modification of his payments on arrearages. This is not a situation in which we can clearly understand the court’s factual determinations and discern through inference or deduction the rationale for the district court’s result. See Sweeney v. Sweeney, 2002 ND 206, ¶ 20, 654 N.W.2d 407.

[¶ 24] Although it appears Brenda Hil-gers received service of the motions and accompanying documents by mail, the record does not reflect that Douglas Hilgers provided her with any notices of hearing. It is a movant’s responsibility to secure from the district court a hearing date, to notice the motion for hearing, and to serve the notice under N.D.R.Civ.P. 6(d), or if the court refuses to set a hearing, to make the refusal a matter of record. Bohn v. Eichhorst, 181 N.W.2d 771, 776 (N.D.1970). See also Bakes v. Bakes, 532 N.W.2d 666, 668 (N.D.1995); Breyfogle v. Braun, 460 N.W.2d 689, 692-93 (N.D.1990); Production Credit Ass’n v. Schlak, 383 N.W.2d 826, 827 (N.D.1986). If this was the reason for the district court’s rejection of the child and spousal support arguments, the court should have so explained in denying the motions.

[¶ 25] A district court abuses its discretion when it fails to address nonfriv-olous issues presented to the court. See Hilgers, 2002 ND 173, ¶ 29, 653 N.W.2d 79; Kautzman v. Kautzman, 1998 ND 192, ¶ 36, 585 N.W.2d 561; Helbling v. Helbling, 532 N.W.2d 650, 653 (N.D.1995); Anderson v. Anderson, 448 N.W.2d 181, 183 (N.D.1989). We conclude the district court abused its discretion in failing to reconsider and address the issues of Brenda Hilgers’ child support obligation and modification of spousal support and payment of arrearages raised by Douglas Hil-gers.

V

[¶ 26] We dismiss the appeal, but we exercise our supervisory authority and direct the district court to address Douglas Hilgers’ requests for a determination of Brenda Hilgers’ child support obligation and for modification of his spousal support obligation and payments of arrearages.

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