author: PER CURIAM.

text:
    2006 ND 13
    In the Matter of the APPLICATION FOR DISCIPLINARY ACTION AGAINST Bryan L. GIESE, A Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Bryan L. Giese, Respondent.
    No. 20050158.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, N.D., for petitioner.
    Bryan L. Giese, pro se, Mandan, N.D., for respondent.
   PER CURIAM.

[¶ 1] Bryan L. Giese objects to a report by a hearing panel of the Disciplinary Board which found he violated N.D.R. Prof. Conduct 3.3, 5.5, and 8.1, and recommended he be suspended from the practice of law for 60 days and pay $1,772.05 in costs for the disciplinary proceeding. We conclude there is clear and convincing evidence Giese violated those rules, and we adopt the hearing panel’s recommendations.

I

[¶ 2] On June 3, 2003, this Court suspended Giese from the practice of law for 90 days, effective August 1, 2003, for violating N.D.R. Prof. Conduct 1.8, 3.1, 3.2, and 8.4(e), and N.D.R. Lawyer Discipl. 1.2(A)(3). Disciplinary Bd. v. Giese, 2003 ND 82, ¶ 28, 662 N.W.2d 250. We concluded the evidence clearly and convincingly established Giese engaged in a prohibited real estate transaction with a client, and his conduct necessitated ensuing litigation about that transaction, which he unnecessarily delayed. Id. at ¶¶ 22, 24.

[¶ 3] In June and July 2003, Giese prepared legal documents for Ronald and Nancy Getsman, and on August 5, 2003, they scheduled an August 12, 2003, appointment with Giese at his office to discuss those documents. The Getsmans subsequently learned Giese had been suspended from the practice of law, effective August 1, 2003, and they cancelled the appointment. Giese admits he did not send a notice of suspension by registered or certified mail to Getsmans or to any other clients within ten days after this Court’s decision on June 3, 2003, as required by N.D.R. Lawyer Discipl. 6.3.

[¶ 4] According to Giese, he entered into an agreement with attorney Benjamin Pulkrabek in which Giese agreed to work for Pulkrabek as a legal clerk or paralegal and Pulkrabek agreed to assist Giese’s past and future clients with their current and ongoing legal needs. According to Giese, he closed his office on July 31, 2003, and he moved into Pulkrabek’s office as a legal assistant. In a written statement, Giese explained that Getsmans scheduled:

an appointment for August 12th. They anticipated bringing with them additional information in regard to changes to the first draft of the will or POA. I didn’t represent myself as an attorney nor did I take any information nor consultation over the telephone. I planned to call them just prior to the appointment and either meet directly at attorney Benjamin Pulkrabek’s office or to greet them at my old office and immediately take them directly to Mr. Pulkra-bek’s office for the office visit.
On August 12, 2003, I received a message from Ronald Getsman on my telephone answering machine stating that he and his wife decided to cancel the appointment and not have any further dealings with me. Upon receiving the message, on the afternoon of August 12, 2003, I made one last telephone call to Mr. Getsman to give him the details of attorney Benjamin Pulkrabek’s law firm and my working for/with Mr. Pulkrabek, to assist past and present persons with their legal matters. I advised Mr. Gets-man that I did not wish to cause any harm or detriment to any person or past clients and therefore had made proper arrangements for attorney Pulkrabek to finalize any matters that I was not able to complete because of the suspension of my license. I further informed Mr. Getsman that it was his choice to continue with attorney Ben Pulkrabek or not[.] He stated that he did not wish to do so and asked me if he owed me anything for fees. I told him that since the process was not finalized that there would be no charge.

[¶ 5] Giese claims he did not hold himself out to be a lawyer and he did not engage in the practice of law during his suspension. On September 15, 2003, he filed an affidavit with this Court, which stated he had complied with, or substantially complied with, N.D.R. Lawyer Dis-cipl. 6.3, and he had not engaged in the practice of law or rendered legal advice during his suspension.'

[¶ 6] In September 2004, disciplinary counsel petitioned for discipline against Giese, alleging Giese had engaged in the unauthorized practice of law in violation of N.D.R. Prof. Conduct 5.5; he had made a false statement to a tribunal in violation of N.D.R. Prof. Conduct 3.3; and he had made a false statement in connection with a disciplinary matter in violation of N.D.R. Prof. Conduct 8.1. A hearing panel found Giese violated those rules and recommended he be suspended from the practice of law for 60 days and pay $1,772.05 in costs for the disciplinary proceeding.

II

[¶ 7] “We review disciplinary proceedings de novo on the record.” Giese, 2003 ND 82, ¶ 7, 662 N.W.2d 250. We give due weight to the hearing panel’s findings, conclusions, and recommendations, but we do not act as a rubber stamp of the hearing panel’s decision. Id. Disciplinary counsel must prove each alleged violation of the disciplinary rules by clear and convincing evidence. Id. A disciplinary case is considered on its own facts to determine the appropriate discipline. Id.

III

[¶ 8] Giese argues he did not hold himself out as a lawyer, or practice law while he was suspended. He argues that, during his suspension, it was appropriate for him to work for Pulkrabek as a law clerk or paralegal and for Pulkrabek to handle legal matters for Giese’s clients.

[¶ 9] Rule 5.5, N.D.R. Prof. Conduct, provides, in part:

(a) A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.
(d) A lawyer who is not admitted to practice in this jurisdiction shall not represent or hold out to the public that the lawyer is admitted to practice law in this jurisdiction.

[¶ 10] In Disciplinary Bd. v. Larson, 485 N.W.2d 345, 349 (N.D.1992) (quoting In re Christianson, 215 N.W.2d 920, 925-26 (N.D.1974)), this Court discussed the scope of prohibitions placed upon a suspended attorney:

A suspended lawyer is not the same as a layman. The public knows that he has a legal education, that he has engaged in the practice of law, and that his work and his opinions are presumably more valuable on that account. We cannot accept the argument that a disbarred or suspended lawyer may engage in all activities which nonlawyers also perform. On the other hand, we are not willing to foreclose him from acts which he is permitted to perform by reason of alternate qualifications, such as a real estate broker’s license.... A suspended lawyer may engage in some such activities if he is otherwise qualified to do so, but not if his qualifications come from having been a lawyer. For example, a suspended lawyer who is also a public accountant may prepare tax returns as a public accountant. But a suspended lawyer may not prepare the papers necessary to incorporate a corporation merely because one of the stockholders of the corporation might also be able to fill in blanks on a printed form by himself. When professional expertise enters into the activity, and when the activity is one which is customarily performed by lawyers, then such activity is forbidden to a suspended attorney, even though under some conditions members of other professions may sometimes be allowed to perform the same acts.

[¶ 11] In Larson, at 350, this Court refined that language from Christianson, stating suspended attorneys may not continue, unabated, a significant part of their practice in the same community and state where they have practiced law because the public may be misled if suspended attorneys are allowed to continue with ‘business as usual.’ ” This Court said unless otherwise ordered, a suspended attorney must refrain from all facets of the ordinary practice of law. Larson, at 350.

[¶ 12] Here, the hearing panel’s recommendation about the unauthorized practice of law did not make a specific finding about Giese’s status as a law clerk for Pulkrabek. Rather, the hearing panel’s recommendation was limited to his failure to communicate his status to Getsmans in July 2003, and his communications with Getsmans in August 2003, when scheduling a meeting at his office for August 12, 2003. The hearing panel found Giese held himself out as a licensed attorney and did not inform the Getsmans that he had been suspended from the practice of law, effective August 1, 2003. The hearing panel also found Giese had an opportunity to notify the Getsmans in July 2003, that he would be suspended from the practice of law in August 2003, and his failure to disclose his upcoming suspension misled the Getsmans into believing he was authorized to practice law in August 2003.

[¶ 13] The essence of the hearing panel’s recommendation is that Giese’s failure to disclose his upcoming suspension misled the Getsmans into believing he was authorized to practice law in North Dakota in August 2003. Other courts have held that the unauthorized practice of law includes suspended attorneys’ conduct in holding themselves out as being authorized to practice law in the state. Famham v. State Bar of California, 17 Cal.3d 605, 131 Cal.Rptr. 661, 552 P.2d 445, 449 (1976); Cadwell v. State Bar of California 15 Cal.3d 762, 125 Cal.Rptr. 889, 543 P.2d 257, 261-62 (1975); In Matter of Application for the Reinstatement of Peterson, 274 N.W.2d 922, 926 (Minn.1979). We agree with those courts that the unauthorized practice of law includes the holding out by a suspended attorney that he is entitled to practice law in this state. See N.D.R. Prof. Conduct 5.5(d).

[¶ 14] Giese’s written statement about his professional relationship with Gets-mans and Getsmans’ testimony about the events in August 2003 clearly indicate Giese did not advise Getsmans about his status until August 2003 and he “planned to call them just prior to the [August] appointment and either meet directly at ... Pulkrabek’s office or to greet them at my old office.” We conclude the evidence clearly and convincingly shows Giese held himself out as an attorney and misled the Getsmans into believing he was a licensed attorney in August 2003. We conclude that conduct constitutes the unauthorized practice of law.

[¶ 15] Giese admits he was tardy in sending notices of his suspension to his clients, but claims he substantially complied with N.D.R. Lawyer Discipl. 6.3. Giese argues he did not file a false statement with a tribunal.

[¶ 16] The hearing panel found:
Giese filed an Affidavit ... with the Supreme Court, dated September 15, 2003, in which he stated that he had complied with, or substantially complied with, Rule 6.3, NDRLD, and that he had not been engaged in the practice of law[ ] during the month of August 2003, both of which statements were not true. Rule 6.3(F), NDRLD, does not permit “substantial compliance”, but requires “full compliance”. Filing an affidavit which suggests substantial compliance is a violation of the Rule of Candor towards the tribunal.
RULE 8.1, RPC, BAR ADMISSION AND DISCIPLINARY MATTERS, ... provides that a lawyer in connection with a disciplinary matter, shall not knowingly make a false statement of material fact, [and] Giese filed an Affidavit ... with the Supreme Court, dated September 15, 2003, in which he stated that he had complied with, or substantially complied with, Rule 6.3, NDRLD, and that he had not been engaged in the practice of law during the month of August 2003, both of which statements were not true.

[¶ 17] Rule 6.3(A), N.D.R. Lawyer Dis-cipl., requires a lawyer, within ten days after the date of the order of suspension, to give notice by registered or cértified mail to all clients represented in pending matters. The notice must state the place of residence of the client and the lawyer, must include the order of the court, and must' state that the lawyer cannot act as a lawyer after the effective date of the order. Id. Rule 6.3(F), N.D.R. Lawyer Dis-cipl., requires an attorney, within ten days of the effective date of an order of suspension, to file an affidavit with the court showing “full compliance” with the notice provisions of the rules for lawyer discipline. Rule 8.1, N.D.R. Prof. Conduct, prohibits a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter.

[¶ 18] Giese’s affidavit stated he had complied with, or had substantially complied with,- the requirements of N.D.R. Lawyer Discipl. 6.3, and he had not engaged in the practice of law in August 2003. Our rules require “full” compliance with the rules for lawyer discipline, not “substantial” compliance. Although our rules require full compliance, the affidavit submitted by Giese asserts he “substantially complied” with N.D.R. Lawyer Discipl. 6.3. Therefore, for purposes of determining whether Giese committed a violation of N.D.R. Prof. Conduct 8.1, by making a false statement of material fact in connection with a disciplinary matter, we will examine whether his conduct - amounted even to substantial compliance. By doing so, we do not imply substantial compliance with the rules is acceptable; rather we do so to show that Giese’s conduct failed to meet a lower standard than that required by the Rules of Professional Conduct.

[¶ 19] At the hearing, Giese acknowledged he “did not undertake everything that was required by that rule,” and he did not comply with the rule until he was contacted by this Court and informed that his failure to comply with the rule could affect the terms of his reinstatement. Giese did not provide appropriate notice at all to the Getsmans who were expecting to meet with him during the period of suspension. Giese’s failure to communicate his suspension to the Getsmans during July or August does not amount to minimal, much less substantial, compliance with Rule 6.3. Giese’s affidavit demonstrates a lack of candor about the requirements for compliance with the rules for lawyer discipline and about his compliance with those rules.

[¶ 20] We conclude this record clearly and convincingly establishes Giese violated N.D.R. Prof. Conduct 8.1, when he stated in his affidavit that he had complied with, or substantially complied with, N.D.R. Lawyer Discipl. 6.3 and that he had not been engaged in the practice of law during the month of August 2003. We conclude the evidence clearly and convincingly establishes Giese failed to comply with the requirements of N.D.R. Lawyer Discipl. 6.3, and he held himself out as a licensed attorney in August 2003.

rv

[¶ 21] Giese argues the hearing panel’s recommended sanction is too harsh and he should only be admonished and required to pay costs not to exceed $500 for the disciplinary proceeding.

[¶ 22] In determining the appropriate discipline for Giese, the hearing panel applied N.D. Stds. Imposing Lawyer Sanctions 7.2, which provides that a suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system. The hearing panel concluded Giese failed to notify clients as required by N.D.R. Lawyer Discipl. 6.3 and engaged in a process of meeting clients in person at his office and giving them the opportunity to be taken to Pulkrabek, with whom Giese had an agreement to act as a paralegal. The hearing panel concluded Giese’s conduct reflected a knowing violation of N.D.R. Lawyer Discipl. 6.3. The hearing panel cited N.D. Stds. Imposing Lawyer Sanctions 6.12, which provides that a suspension is generally appropriate when a lawyer knows that a false statement is being submitted to the court, and N.D. Stds. Imposing Lawyer Sanctions 6.13, which provides that a reprimand is generally appropriate when a lawyer is negligent in submitting false statements to a court. The hearing panel concluded the misleading nature of Giese’s affidavit reflected intentional misconduct and warranted a suspension. The hearing panel also considered prior disciplinary offenses as an aggravating factor in imposing discipline against Giese. Although Giese may have been experiencing some personal issues regarding his mother’s illness and death in late July and early August 2003, those issues were not necessarily present when this Court issued its decision on June 3, 2003, which is the relevant time frame for the notice required by N.D.R. Lawyer Dis-cipl. 6.3(A).

[¶ 23] We conclude Giese violated N.D.R. Prof. Conduct 3.3, 5.5, and 8.1, and we order he be suspended from the practice of law for 60 days, effective April 3, 2006, and he pay $1,772.05 in costs for the disciplinary proceeding.

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


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2006 ND 11
    Danny R. LIVINGGOOD, Plaintiff and Appellant v. Aaron BALSDON, Defendant and Appellee.
    No. 20050149.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Cameron D. Sillers, Cameron D. Sillers, PC, Langdon, ND, for plaintiff and appellant.
    Neil W. Fleming, Fleming, DuBois & Fleming, PLLP, Cavalier, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Danny Livinggood appealed from a district court judgment awarding him damages related to the 2004 crop year plus costs and disbursements but denying him restoration of his leasehold rights and treble damages for forcible exclusion from the property. We affirm in part, reverse in part, and remand.

I

[¶ 2] Danny Livinggood entered into a 5-year farm lease with Duane Balsdon. Livinggood farmed the land under the lease for one year and made the lease payment in advance for the next farm year. Aaron Balsdon then purchased the farmland from Duane Balsdon. Living-good argues Aaron Balsdon was aware of the existence of the lease when Balsdon purchased the farmland. Aaron Balsdon argues he had no knowledge of the lease at the time of the purchase.

[¶ 3] After he purchased the farmland, Aaron Balsdon declared Livinggood had no rights or access to the farmland. Liv-inggood argues Aaron Balsdon entered the land, forcibly evicted Livinggood from the land, and prevented Livinggood from exercising his leasehold rights. Aaron Balsdon denies that he forcibly evicted Livinggood from the land. Livinggood argues that when he protested interference with his leasehold rights, Aaron Balsdon tendered him a check purported to be Aaron Balsdon’s estimation of any damages Livinggood might experience. Liv-inggood refused the payment and continued to demand his leasehold rights.

[¶ 4] Livinggood sued Aaron Balsdon to have Balsdon ejected from the premises, to reinstate Livinggood’s leasehold rights for the remainder of the lease term, and for treble damages for forcible exclusion from the property. The district court found Livinggood held a valid lease to farm the land. The district court awarded Livinggood one year of damages stating any other damages would be too speculative and too difficult to ascertain. The district court did not reinstate Livinggood to his leasehold estate nor did the court grant treble damages for forcible exclusion from the property.

II

[¶ 5] Specific performance is one of the available remedies in cases involving an interest in real estate when it has unique character or if monetary damages are otherwise inadequate compensation for a breach of contract. Jonmil, Inc. v. McMerty, 265 N.W.2d 257, 259 (N.D.1978).

[¶ 6] “The granting of the remedy of specific performance rests in the sound discretion of the trial court and we will not interfere with that discretion unless we are shown that it was abused.” Wolf v. Anderson, 834 N.W.2d 212, 215 (N.D.1988). “The person seeking specific performance has the burden of proving he is entitled to it.” Id. “A complaint which prays for the equitable remedy of specific performance must clearly show that the legal remedy of damages is inadequate.” Tower City Grain Co. v. Rickman, 232 N.W.2d 61, 66 (N.D.1975). “A party seeking specific performance of a contract ‘is held to a higher standard than if he merely asks for money damages for breach of the contract.’ ” Linderkamp v. Hoffman, 1997 ND 64, ¶ 5, 562 N.W.2d 734 (quoting Sand v. Red River Natl Bank & Trust Co., 224 N.W.2d 375, 378 (N.D.1974)).

[¶ 7] Livinggood did not meet the higher standard by clearly showing that the legal remedy of damages is inadequate. The evidence presented by Livinggood was not sufficient to show he was entitled to specific performance and was not sufficient to show there is no adequate remedy at law. While Livinggood offered some evidence that the land in this case was in the proximity of other land he farmed and that he would have difficulty proving future damages, that evidence fell short of proving monetary damages could not be a sufficient remedy for securing and farming land in another location. The trial court did not abuse its discretion in failing to award specific performance.

[¶ 8] In cases where damages are an adequate remedy, they must nevertheless be proved. Great Plains Supply Co. v. Mobil Oil Co., 172 N.W.2d 241, 250 (N.D.1969). However, the fact the amount of damages may be hard to prove does not alone preclude recovery. Meyer v. Hansen, 373 N.W.2d 392 (N.D.1985). Rather, where damage obviously has been suffered, but there is no definite evidence available for an exact determination of the amount of damage resulting from a breach of contract, the best evidence which the circumstances will permit is all the law requires. Bergquist-Walker Real Estate, Inc. v. William Clairmont, Inc., 333 N.W.2d 414, 420 (N.D.1983). Thus where it is reasonably certain that substantial damage has resulted, the mere uncertainty as to the exact amount does not preclude recovery. Yet, damages that are not clearly ascertainable in their nature and origin cannot be recovered. Id.; N.D.C.C. § 32-03-09.

[¶ 9] Insofar as the trial court’s decision might be read to imply that damages for breach of a farm lease beyond one year are speculative and uncertain as a matter of law, we disagree. However, on this record, we agree with the trial court that damages are not clearly ascertainable and would be speculative.

[¶ 10] The district court made no findings on the issue of treble damages under N.D.C.C. § 32-03-29, which Living-good pled in his amended complaint. Liv-inggood argued and presented some evidence on the issue of treble damages. On appeal Livinggood argues the requirements for treble damages were met by Balsdon’s actions and Balsdon argues his actions did not rise to the level required for treble damages. In Helgeson v. Locken, 130 N.W.2d 573, 574-75 (N.D.1964), relied upon by Balsdon, the trial court gave a jury instruction which defined forcibly ejecting or excluding a person from the possession of real property as “force of an unusual kind which tends to bring about a breach of the peace, such as an injury with a strong arm, or a multitude of people, or in a riotous manner, or with personal violence, or with threat or menace to life or limb, or under circumstances which would naturally inspire fear.” However, as this Court observed, that instruction was the settled law of the case because there was no objection to the instruction. The instruction does not necessarily reflect the law to be applied in all similar cases.

[¶ 11] In Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442 (1903), this Court held in Syllabus 4:

To authorize a recovery of treble damages for a forcible ejectment from real property, under section 5007, Rev. Codes, it is necessary that the entry shall be forcible, but it is not necessary that the force shall be actually applied. It is enough if it is present and threatened, and is justly to be feared.

We remand to the district court with directions to consider the issue of treble damages under N.D.C.C. § 32-08-29 and the standard set out in Wegner.

Ill

[¶ 12] The judgment is affirmed in part, reversed in part, and remanded to the district court for further proceedings in accordance with this opinion.

[¶ 13]DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

      . Under Section 102 of the North Dakota Constitution then in effect, the Supreme Court was required to prepare a syllabus of the points adjudicated in each case.


text:
    2006 ND 12
    Randi J. KUPERUS, Plaintiff and Appellant v. Bonita K. WILLSON, individually, and as the Personal Representative of the Estate of Daniel Kent Willson, Deceased, Defendants and Appellees.
    No. 20050114.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Arnold V. Fleck, Fleck Law Office, Bismarck, ND, for plaintiff and appellant.
    James J. Coles, Coles Law Firm, PC, Bismarck, ND, for defendants and appel-lees.
   VANDE WALLE, Chief Justice.

[¶ 1] Randi J. Kuperus appealed from a judgment entered upon an order dismissing her action against Bonita K. Willson (“Willson”), individually and as the personal representative of the Estate of Daniel Kent Willson, and denying Kuperus’s request to reinstate a judgment awarding her $11,800, plus interest. We conclude the district court misapplied the law in interpreting a settlement agreement between Kuperus and Willson. We reverse the judgment dismissing Kuperus’s action against Willson and remand to the district court with instructions to reinstate the judgment awarding Kuperus $11,800, plus interest.

I

[¶ 2] Daniel and Bonnie Willson were divorced in November 1999. Daniel Will-son and Kuperus began a relationship, and she was living in his home with his two minor sons and her three minor children when he died in an automobile accident in January 2001. Willson was appointed personal representative of Daniel Willson’s estate, and she denied Kuperus’s claim for $11,800 from the estate. Kuperus claimed she had been engaged to Daniel Willson and the $11,800 represented proceeds for her workers compensation claim, which had been deposited in his bank account.

[¶ 3] Kuperus sued Willson, individually and in her capacity as personal representative of Daniel Willson’s estate, to recover the $11,800. The parties executed a settlement agreement that was signed by Kuperus on July 22, 2004, and by Willson on August 1, 2004, The agreement provided:

[Willson] shall pay ... Kuperus a lump sum payment of $3,000 on or before August 9, 2004. The $3,000 payment shall be made in the form of a certified or cashier’s check from a reliable financial institution made payable to “Arnold V. Fleck,” Ms. Kuperus’ attorney. The $3,000 payment shall be presented to Mr. Fleck on or before 5:00 p.m., central standard time, on August 9, 2004, at his office.... Upon proof of timely payment being filed with this Court, in the form of an affidavit of ... [Willson’s] attorney, verified under oath, this action may be dismissed with prejudice without an award of costs to any party.
If [Willson] should fail to make the $3,000 payment by 5:00 p.m., central standard time, on August 9, 2004, a money judgment in favor of [Kuperus] shall be entered against [Willson] ... in the amount of $11,800, plus interest at the rate of 6% per annum on the principal amount of $11,800, from April 30, 2001, to the date of entry of the judgment, at which time interest shall accrue on the total judgment (i.e. $11,800, plus pre-judgment interest) at the post-judgment rate of 12% per annum. Such judgment shall be entered upon Arnold V. Fleck, [Kuperus’s] attorney, filing with this Court an affidavit that verifies under oath that [Willson] failed to make the $3,000 payment by the August 9, 2004, deadline.

[¶ 4] Willson does not dispute that she failed to present a lump sum payment of $3,000 to Kuperus’s attorney before 5:00 p.m. on August 9, 2004. Kuperus’s attorney sent the district court judge a letter, dated August 9, 2004, and received and filed by the clerk of the district court on August 10, 2004. The letter from Kupe-rus’s attorney informed the court the parties had settled and stated the following documents were enclosed for entry of judgment consistent with the parties’ agreement: the settlement agreement, an affidavit of nonpayment, an affidavit of identification of judgment debtors, a proposed order for judgment, and a proposed judgment. The district court signed an order for judgment on August 16, 2004, and a judgment, dated and filed August 17, 2004, was entered in favor of Kuperus against Willson for $11,800, plus pre-judgment interest.

[¶ 5] Meanwhile, on August 11, 2004, a $3,000 certified check, drawn by Willson and dated August 10, 2004, was delivered by UPS with no cover letter to Kuperus’s attorney. Kuperus’s attorney negotiated the check and sent Willson’s attorney an August 11, 2004 letter stating:

Other than the check, nothing else was enclosed in the envelope that was delivered by UPS.
Since the payment was issued and received after the August 9th deadline provided for ... [in] the Settlement Agreement, it is being treated as a payment on the balance owed under the stipulation/confession to judgment.... Upon receipt of notice of entry of the judgment from the Clerk’s office, I will file with the court a partial satisfaction of the judgment noting the $3,000 payment was received on August 11, 2004. The satisfaction will include a statement of the balance owing after the $3,000 payment is applied to the balance stipulated to in ... the Settlement Agreement.

On August 19, 2004, Kuperus’s attorney filed a partial satisfaction of judgment that

reflected a payment of $3,000 had been made to reduce the total amount owed under the judgment.

[¶ 6] In November 2004, Willson moved under N.D.R.Civ.P. 60(b) to vacate the judgment, claiming an accord and satisfaction. The court granted Willson’s motion to vacate the judgment, concluding:

From the information provided, the Court is most concerned about a judgment signed by the Court and without the knowledge the settlement amount was paid, even if paid late. The Court is forced to determine whether receiving that knowledge on the front end would have made a difference in deciding to sign the order for judgment due to default by the Plaintiff. The Court is of the opinion clarification would have been required by the Court if this information would have been before the Court. Having determined this the Court finds vacating the order and judgment under Rule 60(b) is appropriate.
The parties are now free to present to the Court the issues of default under the agreement, accord and satisfaction, sufficiency of the agreement or any other issue involved.

[¶ 7] Kuperus subsequently moved to reinstate the $11,800 judgment, or, alternatively, for clarification of the order vacating the judgment. Kuperus argued the settlement agreement was unambiguous and there was no evidence of an accord and satisfaction. Willson resisted Kupe-rus’s motion and filed a cross-motion, arguing the settlement agreement should be confirmed and Kuperus’s action should be dismissed. The court denied Kuperus’s motion to reinstate the $11,800 judgment, concluding the $3,000 was not a partial payment under the settlement agreement and Kuperus waived the late payment by accepting the amount under the stipulated settlement agreement. The court concluded Kuperus’s acceptance of the late payment constituted confirmation of the settlement agreement and dismissed her action against Willson.

II

[¶ 8] This appeal reaches us in the context of the district court’s decision to grant Willson relief from the original judgment under N.D.R.Civ.P. 60(b). We review a court’s decision on a motion for relief from a judgment under the abuse-of-discretion standard. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 18, 699 N.W.2d 45. “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law.” Id.

III

[¶ 9] Kuperus argues the district court erred in concluding she waived her right to recover under the settlement agreement by accepting the $3,000, because she was entitled to more than $11,800, plus interest, under the terms of the agreement and the $3,000 payment was unconditionally made to her. She argues the settlement agreement is unambiguous, and the district court’s determination that she waived her right to recover under the agreement by accepting the $3,000 payment is contrary to law. Willson responds the court did not abuse its discretion in construing the settlement agreement, and Kuperus’s acceptance of $3,000 constituted a waiver of Willson’s late payment. Willson argues she was entitled to relief from the original judgment because the $3,000 was received in settlement of Kuperus’s action.

[¶ 10] “ ‘In North Dakota, the law looks with favor upon compromise and settlement of controversies between parties, and where the settlement is fairly entered into, it should be considered as disposing of all disputed matters which were contemplated by the parties at the time of the settlement.’ ” Vandal v. Peavey Co., 523 N.W.2d 266, 268 (N.D.1994) (quoting Thomas C. Roel Assoc., Inc. v. Henrikson, 295 N.W.2d 136, 137 (N.D. 1980)). When a settlement is fairly made before trial, it “takes on the character of a contract between the parties and is final and conclusive, and based on good consideration.” Bohlman v. Big River Oil Co., 124 N.W.2d 835, 837 (N.D.1963). A settlement will not be set aside absent a showing of fraud, duress, undue influence, or any other grounds for rescinding a contract. Id. at 837-39.

[¶ 11] A settlement agreement is a contract that either party may enforce, and the parties’ rights and responsibilities are limited by the terms of the agreement. Hastings Pork v. Johanneson, 335 N.W.2d 802, 806 (N.D.1983). The interpretation of a written contract to determine its legal effect is a question of law. Lenthe Invs., Inc. v. Service Oil, Inc., 2001 ND 187, ¶ 14, 636 N.W.2d 189. In Lire, Inc. v. Bob’s Pizza Inn Rests., Inc., 541 N.W.2d 432, 433-34 (N.D.1995) (citations omitted), we outlined our rules for the interpretation of a written contract:

Contracts are construed to give effect to the mutual intention of the parties at the time of contracting. The parties’ intention must be ascertained from the writing alone if possible. A contract must be construed as a whole to give effect to each provision, if reasonably practicable. We construe contracts to be definite and capable of being carried into effect, unless doing so violates the intention of the parties. Unless used by the parties in a technical sense, words in a contract are construed in their ordinary and popular sense, rather than according to their strict legal meaning.
If a written contract is unambiguous, extrinsic evidence is not admissible to contradict the written language. However, if a written contract is ambiguous, extrinsic evidence may be considered to show the parties’ intent. Whether or not a contract is ambiguous is a question of law. An ambiguity exists when rational arguments can be made in support of contrary positions as to the meaning of the language in question.

[¶ 12] We conclude the parties’ settlement agreement clearly and unambiguously required Willson to pay Kuperus $3,000 before 5:00 p.m. on August 9, 2004, in order to authorize the court to dismiss with prejudice Kuperus’s action against Willson. The plain language of the settlement agreement provided that if Willson did not make the $3,000 payment by that designated time, Kuperus was entitled to a money judgment in the amount of $11,800, plus interest, and Kuperus was entitled to entry of a judgment upon her attorney’s filing of an affidavit that verified Willson failed to make the $3,000 payment by that deadline. The language in the settlement agreement plainly and unambiguously outlines the consequences for Willson’s failure to make the $3,000 payment by the August 9, 2004 deadline, and Willson does not dispute that she failed to make the payment by that deadline.

[¶ 13] The district court essentially decided Willson breached the settlement agreement and Kuperus waived the late payment by accepting the $3,000. A waiver requires a voluntary and intentional relinquishment of a known right. Public Service Comm’n v. American Grain & Cattle, Inc., 281 N.W.2d 48, 54 (N.D.1979). The designation of a specific time for the $3,000 payment, with consequences for failure to make the payment by that time, unambiguously manifests an intent that time was of the essence for the settlement agreement. See N.D.C.C. § 9-07-23 (stating time is of the essence for a contract if the contract discloses that intent). See also Asplund v. Danielson, 56 N.D. 485, 489, 217 N.W. 848, 850 (1928).

[¶ 14] Moreover, the contemporaneous documents prepared by Kuperus’s attorney do not support a determination that Kuperus voluntarily and intentionally relinquished her right to a judgment for $11,800. This is not a case in which Kuperus’s actions reflect a pattern of conduct constituting a waiver. See Shervold v. Schmidt, 359 N.W.2d 361, 363-64 (N.D.1984) (accepting several late monthly payments constituted waiver and precluded cancellation of contract for deed); Dangerfield v. Market, 252 N.W.2d 184, 191-93 (N.D. 1977) (seller’s continued deliveries under contract waived seller’s right to rely upon 15-day payment provision). Rather, Kuperus’s attorney sent the district court judge a letter, dated August 9, 2004, and received and filed by the clerk of the district court on August 10, 2004, which informed the court the parties had settled and enclosed certain documents for entry of judgment for $11,800. When Kuperus received the certified check on August 11, 2004, her attorney negotiated the check and sent Willson’s attorney an August 11, 2004 letter that stated the check had been received without a cover letter, and because payment was received after the August 9, 2004 deadline, Kuperus’s attorney was treating the check as payment on the balance owed under the stipulation. Kuperus’s attorney indicated that upon receipt of the notice of entry of judgment, he would file a partial satisfaction of the judgment, noting the $3,000 payment was received on August 11, 2004. Kuperus’s attorney had a clear right to negotiate the check under the terms of the settlement agreement. See N.D.C.C. § 9-12-07. Kuperus’s negotiation of the check without evidence of her mutual assent does not constitute an accord and satisfaction under North Dakota law. See Peterson v. Ramsey County, 1997 ND 92, ¶12, 563 N.W.2d 103. Kuperus’s actions do not constitute an intentional relinquishment of a known right, and we conclude the district court misapplied the law in interpreting the settlement agreement and deciding Ku-perus waived her right to payment by the August 9, 2004 deadline.

[¶ 15] In Bohlman, 124 N.W.2d at 838-39, this Court recognized a district court has inherent power to avoid a stipulation in law or equity. See, e.g., Weber v. Weber, 1999 ND 11, ¶¶ 10-11, 589 N.W.2d 358. Here, there is no evidence the stipulation was entered into on the grounds of fraud or any other grounds under which a contract may be set aside, and Willson has not claimed there is any such evidence. We conclude Willson’s failure to comply with the clear and unambiguous contractual terms in the settlement agreement is not a basis in law or equity to set aside the agreement. Willson’s failure to make the $3,000 payment by the August 9, 2004 deadline was not a breach of the settlement agreement, but an event that triggered the provisions of the settlement agreement which required judgment to be entered against her in the amount of $11,800, plus interest.

[¶ 16] On August 10, 2004, at the time the judgment was submitted to the court, Kuperus’s attorney did not know the $3,000 check from Willson would be received the next day, August 11, 2004. The cheek had been received when the court ordered judgment on August 16, 2004. The court expressed concern over its lack of knowledge of the $3,000 payment on August 11, 2004, and stated that clarification would have been required. Although Kuperus’s attorney might have notified the court of the late receipt, neither that knowledge nor any subsequent clarification would have changed application of the law we have outlined to this chain of events.

[¶ 17] We conclude the district court misapplied the law in interpreting the settlement agreement and vacating the original judgment. We therefore conclude the court abused its discretion. Under the plain language of the settlement agreement, Kuperus was entitled to entry of judgment in the amount of $11,800, plus interest.

IV

[¶ 18] We reverse the judgment dismissing Kuperus’s action against Willson and remand to the district court with instructions to reinstate the original judgment for $11,800, plus interest, subject to the partial satisfaction.

[¶ 19]CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ„ concur.


author: CROTHERS, Justice.

text:
    2006 ND 15
    EDWARD H. SCHWARTZ CONSTRUCTION, INC., Plaintiff and Appellee v. Garry DRIESSEN d/b/a A & G Construction Company, Defendant and Appellant.
    No. 20050150.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Dann E. Greenwood, Greenwood & Ramsey, PLLP, Dickinson, ND, for plaintiff and appellee.
    Ronald G. Schmidt, Schmidt, Schroyer, Moreno & Lee, P.C., Rapid City, SD, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Garry Driessen, doing business as A & G Construction Company, appeals from a judgment awarding Edward H. Schwartz Construction, Inc., $20,615, plus interest, for breach of an oral contract to provide aggregate at $2 per cubic yard for a road construction project. We conclude the district court did not clearly err in finding Driessen orally contracted with Schwartz Construction to provide aggregate for the project at $2 per cubic yard, and we affirm.

I

[¶ 2] In May 2002, the North Dakota Department of Transportation solicited bids on County Federal Aid Project No. SC-1927(056) for grading and aggregate surfacing of a county road south of Carson. Bids for the project were due on May 17, 2002, and on the evening of May 16, 2002, Randall Schwartz, the president of Schwartz Construction, secured bids from prospective subcontractors for the different parts of the project, including aggregate. According to Schwartz, Driessen orally offered to provide aggregate at $2 per cubic yard for the project. According to Driessen, his quote for the aggregate was $2 per ton. Schwartz testified he informed Driessen that Driessen had the low bid for the aggregate and that Schwartz Construction’s bid for the'project was based on Driessen’s bid for the aggregate. Schwartz Construction was awarded the contract for the project, and Driessen acknowledged that he learned Schwartz Construction had been awarded the contract shortly after the bids were opened on May 17, 2002.

[¶ 3] The parties did not have any further contact until June 2002, when Schwartz and Driessen had a telephone conversation and Schwartz Construction faxed several documents to Driessen. According to Driessen, he received a call from Schwartz on June 23, 2002, while Driessen was traveling to Aberdeen, South Dakota. Driessen testified he had taken other work in Aberdeen, because he did not know he had the job with Schwartz Construction. Driessen testified that during the phone conversation, Schwartz said “[h]e wanted [Driessen] to do the job,” and Driessen replied that “maybe we could do it on the way back.” According to Schwartz, he asked Driessen “point-blank if he was still going to do [the job]. And [Driessen] said, yeah, he’d do it after South Dakota.” On June 26, 2002, Schwartz Construction faxed several documents to Driessen, including a cover letter, a request to sublet form, and a standard subcontract agreement form for the project. Those documents stated the price for the aggregate was $2 per cubic yard. In the cover letter, Schwartz Construction asked Driessen to “sign & mail subcontracts & request to sublet back to me,” but Driessen did not return those documents to Schwartz Construction.

[¶ 4] Driessen did not provide Schwartz Construction with the aggregate for the project, and Schwartz Construction subsequently subcontracted with another firm to provide aggregate for the project at the price of $2.96 per cubic yard. Schwartz Construction sued Driessen for the difference in prices. Schwartz Construction claimed Driessen had contracted to provide aggregate for the project at the price of $2 per cubic yard. Driessen claimed there was no contract because his quote was conditioned .upon Schwartz Construction providing a gravel pit to supply the aggregate, his quote was not accepted by Schwartz Construction in a timely manner, and his quote was to provide the aggregate at $2 per ton and not $2 per cubic yard. After a bench trial, the district court found Driessen contracted with Schwartz Construction to provide aggregate for the project at $2 per cubic yard. The court awarded Schwartz Construction damages of $20,615, plus interest.

II

[¶ 5] During oral argument to this Court, Driessen abandoned his claim that this Court’s review of the district court’s findings is not - governed by the clearly erroneous rule because the court’s findings rest primarily upon documentary evidence. Compare Dolajak v. State Auto. & Cas. Underwriters, 252 N.W.2d 180, 181-82 (N.D.1977) (declining to apply clearly erroneous rule to findings based on documentary evidence), with Stracka v. Peterson, 377 N.W.2d 580, 582 (N.D.1985) (applying clearly erroneous rule to findings based on undisputed facts or documentary evidence). Driessen argues the district court clearly erred in finding he orally contracted with Schwartz Construction to provide aggregate for the project at $2 per cubic yard. Driessen argues there was no meeting of the minds between the parties, because his offer was conditioned upon Schwartz Construction securing a gravel pit to supply the aggregate, his offer was not accepted in a timely manner' and lapsed, and his offer was to supply aggregate at $2 per ton. Driessen argues the district court’s finding that there was an oral contract is not supported by substantial evidence and was induced by an erroneous view of the law. He also claims this Court should be left with a definite and firm conviction the district court made a mistake in finding he orally contracted with Schwartz Construction to provide aggregate at $2 per cubic yard.

[¶ 6] The existence of an oral contract and the extent of its terms are questions of fact, subject to the “clearly erroneous” standard of review under N.D.R.Civ.P. 52(a). Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 57, 689 N.W.2d 366; Comstock Constr., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶ 13, 651 N.W.2d 656. In Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144 (citations omitted) we recently outlined our scope of review under the “clearly erroneous” rule:

A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction the trial court made a mistake. A trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court. On appeal, we do not reweigh conflicts in the evidence, and we give due regard to the trial court’s opportunity to judge the credibility of the witnesses.

A

[¶ 7] Driessen argues the district court clearly erred in finding he did not condition his quote upon Schwartz Construction securing a gravel pit for the aggregate. Driessen argues the district court misapplied the law because the performance of the conditions of a proposal is necessary for the acceptance of a proposal under N.D.C.C. § 9-03-20 and the record clearly establishes he conditioned acceptance of his quote upon Schwartz Construction securing a gravel pit.

[¶ 8] Although Driessen testified his offer was conditioned upon Schwartz Construction procuring a gravel pit for the aggregate, Schwartz testified Driessen did not limit or condition his offer to Schwartz Construction. The district court found Driessen did not condition his quote upon Schwartz Construction securing a pit for the aggregate. On appeal, we do not reweigh conflicting evidence, and a choice between two permissible views of the evidence is not clearly erroneous. Brandt, 2005 ND 35, ¶ 12, 692 N.W.2d 144. Simply because we may have viewed the evidence differently does not entitle us to reverse the district court. Id. We conclude the district court’s finding that Driessen did not condition his quote upon Schwartz Construction securing a gravel pit is supported by evidence in this record and that finding was not induced by an erroneous application of the law. We are not left with a definite and firm conviction the court made a mistake in finding Driessen did not condition his quote, and we conclude the court’s finding is not clearly erroneous.

B

[¶ 9] Driessen argues the district court clearly erred in finding a contract existed between the parties because Schwartz Construction did not timely accept his offer, which Driessen claims was revoked by the lapse of a reasonable time under N.D.C.C. § 9-03-23(2). Relying on testimony about industry standards, Dries-sen also claims the evidence establishes Schwartz Construction did not accept Driessen’s bid in a timely manner because Schwartz Construction did not accept Driessen’s May 16, 2002, quote within the applicable industry standard of three to five days. Driessen also argues the district court’s finding of an oral contract overlooks or misconstrues the nexus between a June 23, 2002, telephone conversation between him and Schwartz and documents faxed by Schwartz Construction to Driessen on June 26, 2002. Driessen argues the telephone conversation established he “may” do the job if he got done with another job in South Dakota. Dries-sen also argues the court’s finding totally ignores the “request to sublet” form, which prohibits a contractor from subletting any portion of a contract without the written consent of the engineer. Driessen argues the district court completely overlooked the fact that he neither executed nor returned the “request to sublet” form and he therefore rejected the contract.

[¶ 10] Schwartz testified he told Dries-sen on May 16, 2002, that Driessen had the low bid for the aggregate and that Schwartz Construction was going to use Driessen’s bid for the aggregate in computing its bid for the project. Driessen testified that shortly after the bid letting in May 2002, he learned that Schwartz Construction had been awarded the bid for the project. Although there is evidence in this record about industry standards of a five to ten day acceptance period for a subcontractor’s quote, there is also evidence in this record that industry standards establish a contract between a prime contractor and a subcontractor if the subcontractor knows the prime contractor is relying on the subcontractor’s quote and the prime contractor is awarded the contract based upon that quote. There is no evidence the parties had any contacts between May 16, 2002, and June 23, 2002, but Schwartz testified that on June 23, 2002, Driessen affirmatively indicated he would provide the aggregate after completing his job in South Dakota.

[¶ 11] The district court’s memorandum decision may be used to explain the court’s findings. Mougey Farms v. Kaspari, 1998 ND 118, ¶ 36, 579 N.W.2d 583. The court’s memorandum decision explained that Driessen submitted a “firm” offer on May 16, 2002, which did not place a limit on acceptance, and when the parties had a phone conversation in June 2002, Driessen then indicated he could do the job after finishing the work in South Dakota. The court found the contract did not fail because of lack of timely acceptance.

[¶ 12] There is evidence in this record which supports the creation of an oral contract between .the parties in May 2002, when Schwartz Construction relied on Driessen’s quote and in June 2002, when Driessen agreed to do the job after he got back from South Dakota. In view of that evidence, Driessen’s failure to return the “request to sublet” form did not control whether there was an oral contract between the parties. Although there is conflicting evidence about a timely acceptance and the creation of a contract, we do not reweigh conflicts in the evidence and we give due regard to the district court’s opportunity to judge the credibility of the witnesses. Brandt, 2005 ND 35, ¶ 12, 692 N.W.2d 144. We conclude the court’s finding about acceptance is not clearly erroneous.

C

[¶ 18] Driessen argues his offer for the aggregate was $2 per ton and the parties did not mutually consent to the price of $2 per cubic yard. Driessen argues a comparison of the four quotes received by Schwartz Construction for the aggregate shows something was “out of whack” if his quote was by the cubic yard.

[¶ 14] Although Driessen claimed his bid was $2 per ton, there was evidence Driessen’s bid was $2 “per unit” and the project specifications called for cubic yards. Schwartz testified he memorialized the May 16, 2002, phone conversation with Driessen with a contemporaneous note indicating Driessen’s bid was $2 per cubic yard. There is evidence Driessen did not object to the $2 per cubic yard price in the documents faxed to him on June 26, 2002. There is also evidence Driessen bid county jobs by the cubic yard, and although this project was administered by the North Dakota Department of Transportation, the job was for a county road. In addition to Driessen’s quote, the other quotes for aggregate for this project were $2.10 per ton, $3.48 per cubic yard, and $3.60 per cubic yard. There is evidence in this record that the parties used a 1.35 multiplier to convert tons into cubic yards, and assuming Driessen’s quote was per ton, that multiplier would convert his quote to a price of $2.70 per cubic yard. A comparison of that price to the other bids does not definitely and firmly establish something was “out of whack” if Driessen’s quote was by the cubic yard.

[¶ 15] The evidence in the record and inferences from that evidence support the district court’s finding that Driessen and Schwartz Construction mutually agreed to a price of $2 per cubic yard for the aggregate for the road project. Although there is also contrary evidence, on appeal we do not reweigh conflicts in the evidence and simply because we may have viewed the evidence differently does not entitle us to reverse the district court. Brandt, 2005 ND 35, ¶ 12, 692 N.W.2d 144. We conclude the district court’s findings were not based on an erroneous application of the law about mutual consent, and we are not left with a definite and firm conviction the court made a mistake in finding Driessen orally contracted with Schwartz Construction to provide aggregate for the project at the price of $2 per cubic yard.

Ill

[¶ 16] We affirm the judgment.

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