author: MARING, Justice. KAPSNER, Justice,

text:
    2004 ND 153
    Roland C. RIEMERS, Plaintiff and Appellant, v. Jenese PETERS-RIEMERS, Michael L. Gjesdahl, and Gjesdahl & Dietz, PLLP, Defendants and Appellees.
    No. 20030353.
    Supreme Court of North Dakota.
    July 23, 2004.

      Roland C. Riemers, pro se, Grand Forks, N.D., plaintiff and appellant.
    Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, N.D., for defendants and ap-pellees.
   MARING, Justice.

[¶ 1] Roland Riemers appeals the dismissal with prejudice of his civil action against Jenese Peters-Riemers (n/k/a Peters-Harris), his former wife, her attorney, Michael Gjesdahl, and his law firm. We affirm.

[¶ 2] This appeal is one of many Riem-ers has filed related to his divorce from Peters-Riemers. See Flattum-Riemers v. Peters-Riemers, 2001 ND 121, 630 N.W.2d 71 (affirming the dismissal of Riemers’ application for a domestic violence restraining order); Peters-Riemers v. Riemers, 2001 ND 62, 624 N.W.2d 83 (affirming a domestic violence restraining order against Riemers); Peters-Riemers v. Riemers, 2002 ND 49, 641 N.W.2d 83 (affirming Riemers’ eviction from the former marital residence); Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197, cert. denied, 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003) (affirming Riemers and Peters-Riemers’ divorce judgment); Peters-Riemers v. Riemers, 2003 ND 96, 663 N.W.2d 657 (reversing a contempt order for failure to comply with property distribution in Riemers and Peters-Riemers’ divorce judgment and reversing a money judgment); Peters-Riemers v. Riemers, 2004 ND 28, 674 N.W.2d 287 (reversing a contempt order for failure to pay child and spousal support and reversing a money judgment for the arrears); Riemers v. O’Halloran, 2004 ND 79, 678 N.W.2d 547 (affirming an order dismissing his action against the forensic accounting firm that testified at Riemers and Peters-Riemers’ divorce proceedings); Riemers v. Anderson, 2004 ND 109, 680 N.W.2d 280 (affirming an order denying Riemers’ motions for default judgment and summary judgment and dismissing his complaints, with prejudice, against persons involved in arresting and prosecuting him for assault of Peters-Riemers).

[¶ 3] Riemers commenced an action against Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm to recover damages for alleged torts occurring during his marriage and during his divorce proceedings which he alleged caused him injuries. He requested more than 200 million dollars in damages. The trial court summarized Riemers’ claims as follows:

1.) [Riemers] alleges that his former wife, [Peters-Riemers], committed various torts against [Riemers] since 1997 including physical and emotional abuse (par. 3 of Complaint), intentional infliction of emotional distress by depriving [Riemers] of a relationship with his son Jonathan through attempts to alienate Jonathan from [Riemers] and depriving him of visitation with Jonathan (paragraph 3 of Complaint);
2.) [Riemers] alleges that [Peters-Riem-ers], Gjesdahl and Gjesdahl’s law firm, under the doctrine of responde-at superior, knowingly, falsely and deliberately, conspired to give false testimony in the parties’ divorce proceedings including a dishonest listing of debts and values to the court and a false portrayal of [Riemers] as [a] pornography addict who has committed adultery during his marriage all with the intent to inflame the court against [Riemers], thus preventing [Riemers] from having a fair hearing, and for the financial and legal gain of [Peters-Riemers], Gjesdahl, and the law firm (paragraphs 3, 5 and 8 of Complaint) and abused the judicial process for financial and legal gain of [Peters-Riemers], Gjes-dahl, and the law firm (paragraphs 3, 5 and 8 of Complaint);
3.) [Riemers] alleges that Gjesdahl and the law firm deliberately delayed settlement of issues between [Riemers] and [Peters-Riemers] (paragraph 6 of Complaint) and that Gjesdahl and the law firm are guilty of knowing deceit and collusion or consented to deceit and collusion with the intent to deceive or commit fraud on [the] court and others in violation of N.D.C.C. § 27-13-08.

[¶ 4] The trial court granted summary judgment to Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm and dismissed Riemers’ action with prejudice. The trial court concluded that: 1.) Riemers’ claims against Peters-Riemers are barred by collateral estoppel and res judicata, and any claims Riemers has regarding visitation are under the continuing and exclusive jurisdiction’ of the trial court for the divorce proceedings; 2.) Riemers’ claims against Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm for conspiracy to give false testimony and abuse of process were not supported by facts sufficient to survive summary judgment; any allegation regarding perjured testimony at the divorce proceedings may not be collaterally attacked by Riemers; no civil action for damages will lie for perjury; Riemers failed to establish competent admissible facts to prove a civil action for conspiracy to commit perjury; Riemers’ claim of abuse of process is barred by collateral estoppel and res judi-cata because the contempt order for which he was jailed was already fully litigated and appealed; his argument regarding abuse of process was not supported by sufficient facts in his affidavits; and 3.) Riemers’ claims against Gjesdahl and his law firm are conclusory and unsupported factually; Riemers’ affidavits in response to the defendants’ motion are conclusory and contain no facts supporting his claims of deceit and collusion; Gjesdahl lied to the court and the United States Immigration Service; he allowed or encouraged Peters-Riemers to lie in the divorce proceedings; and he abused the judicial process.

[¶ 5] The trial court denied Riemers’ request for a 30-day continuance to amend his complaint and a 90-day continuance to conduct further discovery, concluding that Riemers had sufficient time to present his evidence pertinent to the motion for summary judgment.

[¶ 6] Riemers now appeals the order dismissing his action with prejudice against Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm.

I

[¶ 7] Our standard of review for granting a summary judgment is as follows:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Whether summary judgment was properly granted is a question of law which we review de novo on the entire record. On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclu-sory allegations. Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e). Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.

Zuger v. State, 2004 ND 16, ¶¶ 7, 8, 673 N.W.2d 615 (citations and quotations omitted).

II Riemers’ Claims Against Peters-Riemers

A. Emotional and Physical Abuse

[¶ 8] Riemers argues his claims against Peters-Riemers for emotional and physical abuse are not barred by res judi-cata or collateral estoppel. He contends these issues against Peters-Riemers were not addressed because Judge Backes “flipped through” the pleadings and failed to properly review them. He also argues he did not admit to assaulting Peters-Riemers when he pled guilty to the criminal charge, but submitted an Alford plea. We disagree.

[¶ 9] Courts bar relitigation of claims and issues to promote the finality of judgments, which increases certainty, discourages multiple litigation, wards off wasteful delay and expense, and conserves judicial resources. Riemers, 2004 ND 109, ¶ 12, 680 N.W.2d 280 (quoting Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶ 23, 583 N.W.2d 377). “[Collateral estoppel, or issue preclusion, generally forecloses the re-litigation in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.” Riemers, 2004 ND 109, ¶ 12, 680 N.W.2d 280 (quoting Reed v. University of N.D., 1999 ND 25, ¶ 9, 589 N.W.2d 880 (quotation omitted)). An issue must satisfy four tests before collateral estoppel will bar relitigation of that issue in a new proceeding: “(1) Was the issue decided in the prior adjudication identical to the one presented in the action in question?; (2) Was there a final judgment on the merits?; (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?; and (4) Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?” Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 384 (N.D.1992).

[¶ 10] In Riemers and Peters-Riemers’ divorce proceedings, Riemers alleged that Peters-Riemers had committed domestic violence against him and that his actions were in self-defense. In the trial court’s Findings of Fact and Conclusions of Law, dated May 4, 2001, it specifically found:

10. In the fall of 1996, [Peters-Riem-ers] became pregnant with the parties’ son. A few months later, in February of 1997, [Peters-Riemers] learned of [Riemers’] physical relationship with [another woman]. A physical argument erupted. During the course of such incident, [Riemers] slapped and punched [Peters-Riemers]. He also kicked her in the stomach. Consequently, [Peters-Riemers] suffered vaginal bleeding and obtained medical treatment.
15. In October of 1999, [Peters-Riem-ers] heard Johnathan crying outside. She walked out to discover that Johnathan had fallen down the stairs and had hurt himself. [Riemers] was standing a few yards away from Johnathan, talking on his phone instead of tending to his son. [Peters-Riemers] made an angry comment to [Riemers] about his priorities then went back inside. [Riemers] than came into the kitchen and slapped [Peters-Riemers] in the face.
16. During the marriage, [Riemers] kept pornographic magazines and videos in the marital residence, sometimes in places where Johnathan would encounter them. In January of 2000, [Peters-Riemers] destroyed one of [Riemers’] pornographic videos. When [Riemers] discovered his destroyed tape, he came up behind [Peters-Riemers] as she was making a bed and kicked her in the back.
17. On March 4, 2000, after a verbal argument, [Peters-Riemers] attempted to leave the marital residence with the parties’ son, Johnathan. [Riemers] refused to allow her to leave with Johnathan, but attempted to force her out of her home alone. He pinned her left arm behind her back as she held Johnathan tight in her other arm. [Peters-Riem-ers] escaped long enough to call 911, but [Riemers] hung up the phone. He then punched her in the face, knocking her to the ground. He broke a finger in the process. [Peters-Riemers] was later diagnosed with a fractured bone in her face.
18. On March 6, 2000, [Peters-Riem-ers] obtained a Temporary Protection Order against [Riemers]. On March 7, 2000, [Riemers] was charged with felony assault as a result of striking [Peters-Riemers]. A No Contact Order issued as a condition of [Riemers’] Pretrial Release. After a fully contested hearing, [a]n Adult Abuse Protection Order issued against [Riemers] on March 14, 2000. At all of his appearances in the Protection Order proceeding, and at all times during this divorce, [Riemers] maintained that his striking [Peters-Riemers] on March 4, 2000 was in self-defense. Nevertheless, on October 6, 2000, [Riemers] pled guilty to the reduced charge of misdemeanor assault, admitting that a factual basis existed for that plea.

The trial court concluded:

19. [Riemers] committed at least one act of domestic violence which resulted in serious bodily injury to [Peters-Riem-ers], During their relationship, there was a pattern of [Riemers] inflicting domestic violence upon [Peters-Riemers]. On occasion, [Peters-Riemers] may have struck, hit or scratched [Riemers]. However, her actions were largely in self-defense and were of a far less serious nature and degree than [Riemers’] domestic violence.

We, therefore, have a finding by the trial court that Riemers committed domestic violence against Peters-Riemers, but that Peters-Riemers did not commit domestic violence against Riemers. In Peters-Riemers, 2002 ND 72, ¶ 31, 644 N.W.2d 197, cert. denied, 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003), we affirmed the judgment of divorce, including the trial court’s findings about whether Peters-Riemers committed domestic abuse against Riemers. In another suit, Riem-ers alleged he was falsely arrested for assault and his former wife Peters-Riem-ers should have been, but was not arrested. See Riemers, 2004 ND 109, ¶ 9, 680 N.W.2d 280. We concluded on appeal from that judgment that Riemers was collaterally estopped from relitigating those issues because they were addressed in the divorce judgment, which we had affirmed. Id. at ¶ 13.

[¶ 11] Riemers’ allegations of Peters-Riemers’ domestic abuse were also addressed when Riemers applied for protection orders against Peters-Riemers in both Traill and Grand Forks Counties. The Traill County District Court denied his application on March 7, 2000. The Grand Forks District Court also denied his August 31, 2000, application for a protection order against Peters-Riemers, which Riemers appealed. Flattum-Riemers, 2001 ND 121, 630 N.W.2d 71. A petition for domestic abuse is a civil action in which a party must prove by a preponderance of the evidence that an alleged violent household member inflicted domestic violence as it is defined in N.D.C.C. § 14-07-01(2) upon the petitioner or another household member. N.D.C.C. § 14-07-02. Section 14-07-01(2), N.D.C.C., defines domestic violence as:

“Domestic violence” includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.

In Riemers’ petition for protective relief against Peters-Riemers to the Grand Forks district court, he alleged among other things that:

[I]n March 1997, Peters-Riemers “charged after me several times with kitchen knives and attempted to kill” * him while they lived together in Grand Forks. He stated police were summoned, Peters-Riemers was taken to a hospital, and although both were charged with offenses, those charges were dropped “[a]t our mutual insistence.” Flattum-Riemers also alleged Peters-Riemers fractured several of his ribs during the summer of 1999, and in December 1999, she threatened him with a loaded revolver in his Buxton home. Police were again summoned, but no arrests were made. Flattum-Riemers also related a verbal and physical altercation on March 4, 2000, when Peters-Riemers attempted to leave the residence with the couple’s son. Flattum-Riemers was arrested and charged with felony assault after that incident. According to Flattum-Riemers, the final incidents occurred during the summer of 2000, when she contacted him, berated him, and threatened to have him arrested for violating the domestic violence protection order.

Flattum-Riemers, 2001 ND 121, ¶ 3, 630 N.W.2d 71. A judicial referee denied and dismissed his petition because Riemers had not satisfied his burden to prove Peters-Riemers inflicted domestic violence upon Riemers. Riemers requested review by the Grand Forks District Court, which affirmed the judicial referee’s decision.

[¶ 12] In Riemers’ complaint in this case, he describes the abuse he alleges occurred:

That [Peters-Riemers] had a long history since 1997 of physically and mentally abusing Plaintiff including such things as threatening to kill him with a knife & gun; putting a loaded gun to his head; stopping their car in front of a freight train; hitting, scratching and tearing off his [clothes]; threatening to have him falsely arrested for rape; destroying or taking his personal property; falsely accusing him of pornography addiction, adultery and domestic abuse....

[¶ 13] We have carefully examined each issue of abuse now raised by Riemers against Peters-Riemers, and we conclude that each identical issue was raised and decided against Riemers and in favor of Peters-Riemers in a prior proceeding.

[¶ 14] For collateral estoppel to apply, “only parties or their privies may take advantage of or be bound by the former judgment.” Hofsommer, 488 N.W.2d at 384. Riemers and Peters-Riemers were both parties to all proceedings relevant to Riemers’ current appeal; therefore, either may take advantage or be bound by the prior proceedings.

[¶ 15] Finally, Riemers had a fair opportunity to be heard on these issues in the divorce proceedings and two protection order proceedings. He had multiple opportunities to present testimony, evidence, and arguments regarding abuse by Peters-Riemers. We affirmed the trial court’s conclusion in the divorce proceedings that Riemers committed domestic violence and that Peters-Riemers’ actions were largely in self-defense and not domestic abuse. A final judgment on the merits, in the form of an amended divorce judgment and two orders denying Riemers a protection order, decide all issues related to issues of abuse in this appeal. Peters-Riemers, 2002 ND 72, 644 N.W.2d 197, cert. denied, 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003); Flattum-Riemers, 2001 ND 121, 630 N.W.2d 71.

[¶ 16] In addition, we recently addressed the issue of domestic abuse in Peters-Riemers and Riemers’ relationship again in Riemers, 2004 ND 109, 680 N.W.2d 280. In that case, Riemers sued the officials involved in his arrest and prosecution for assaulting Peters-Riemers. We concluded,

In earlier litigation, the trial court had determined Riemers committed domestic violence and Peters-Riemers did not. In Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197, cert. denied, 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003), we affirmed a judgment dissolving the marriage of Riemers and Peters-Riemers. Riemers’ domestic violence and Peters-Riemers’ alleged domestic violence were addressed at length in the opinion. The trial court made findings about Riemers committing domestic violence against Jenese Peters-Riemers, in connection with the incident on March 4, 2000, which we held were supported by the evidence. Id. at ¶ 15, 644 N.W.2d 197.

Riemers, 2004 ND 109, ¶ 13, 680 N.W.2d 280.

[¶ 17] Therefore, we conclude the issues Riemers raises against Peters-Riem-ers for abuse are barred by collateral es-toppel and the trial court did not err in dismissing his claims.

B. Visitation Issues

[¶ 18] Riemers argues the trial court erred in granting summary judgment because he is entitled to a remedy under N.D. Const, art. I, § 9 for the “loss of consortium and the mental torture” suffered by Peters-Riemers’ alleged denial of visitation with his son. He also argues he is entitled to recovery for intentional infliction of emotional distress resulting from Peters-Riemers depriving him of a relationship with his son through attempts to alienate him from Riemers. We disagree.

[¶ 19] “Except as otherwise provided in section 14-14.1-15, a court of this state which has made a child custody determination consistent with section 14-14.1-12 or 14-14.1-14 has exclusive, continuing jurisdiction over the determination....” N.D.C.C. § 14-14.1-13. Therefore, Riem-ers must bring his complaints to the court that made the custody and visitation determination regarding his son. In addition, Riemers has not cited any case law to support his constitutional claim, nor has he cited any case law to support his claim for intentional infliction of emotional distress due to lack of visitation. His affidavits also do not- set forth facts that would support a cause of action for intentional infliction of emotional distress. See Muchow v. Lindblad, 435 N.W.2d 918, 923-24 (N.D.1989) (holding a party must have competent evidence of “(1) extreme' and outrageous conduct that is (2) intentional or reckless and that causes (3) severe emotional distress” to support a claim of intentional infliction of emotional distress).

[¶ 20] We conclude the trial court did not err when it concluded that Riemers cannot attack the custody and visitation judgment in this action and that Riemers has failed to support his claim with competent evidence of the tort of intentional infliction of emotional distress.

Ill Riemers’ Complaints against Peters-Riemers, Gjesdahl, and Gjesdahl’s Law Firm

[¶ 21] Riemers argues the court erred when it granted summary judgment to Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm because civil suits for damages resulting from perjury in another proceeding should be allowed under the United States and North Dakota constitutional requirements of due process. The trial court concluded that North Dakota would follow other jurisdictions which have held that no civil action for damages lies for perjury.

[¶ 22] While our Court has not directly adopted this position, it has acknowledged that the general rule is that no civil action lies for perjury. Hurt v. Freeland, 1999 ND 12, ¶ 35, 589 N.W.2d 551. We have also pointed out that “[ojther jurisdictions have uniformly held that a plaintiff may not, by claiming conspiracy, avoid the doctrine there is no civil action for perjury.” Id. at ¶ 36 (quoting Stolte v. Blackstone, 213 Neb. 113, 328 N.W.2d 462, 466 (1982)).

[¶ 23] The remedy for perjury in North Dakota is a criminal action prosecuted by the State of North Dakota. See N.D.C.C. ch. 12.1 § 11. We adopt the doctrine that a litigant- cannot bring a civil action in tort for perjury.

[1124] Although we have recognized a cause of action for a civil conspiracy to commit an unlawful act or to commit a lawful act by unlawful means, Riemers’ affidavits do not provide competent, admissible evidence that would form a basis for liability or damages. See Hurt, 1999 ND 12, ¶ 37, 589 N.W.2d 551 (holding the essence of a civil conspiracy is the damages caused by the agreement between parties to inflict injury upon another). The district court properly dismissed Riemers’ conspiracy claims.

[¶25] Riemers argues that Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm abused the judicial process for their financial and legal gain by pursuing contempt actions which resulted in his incarceration. The trial court concluded that this argument was barred by res judi-cata and collateral estoppel and that even if it were not barred, Riemers failed to produce evidence sufficient to survive summary judgment.

[¶ 26] We agree with the trial court that Riemers’ claims are barred by res judicata. “Res judicata means that a valid, existing final judgment from a court of competent jurisdiction is conclusive, with regard to the issues raised, or those that could have been raised, and determined therein, as to the parties and their privies in all other actions.” Ohio Cas. Ins. Co., 1998 ND 153, ¶ 23, 583 N.W.2d 377. This claim is barred by res judicata as both contempt judgments were appealed and reversed by this Court because Riemers had not been advised of his right to counsel. See Peters-Riemers, 2004 ND 28, 674 N.W.2d 287; Peters-Riemers, 2003 ND 96, 663 N.W.2d 657.

IV Riemers’ Claims Against Gjesdahl and his Law Firm

[¶ 27] Riemers argues the trial court erred granting summary judgment to Gjesdahl and his law firm because he provided sufficient facts showing that they deliberately delayed settlement of issues between Riemers and Peters-Riemers and that they are guilty of knowing deceit and collusion or consented to deceit and collusion with the intent to deceive or commit fraud on the court and others in violation of N.D.C.C. § 27-13-08.

[¶ 28] Section 27-13-08, N.D.C.C., provides:

Every attorney who:
1. Is guilty of any deceit or collusion or consents to any deceit or collusion with intent to deceive the court or any party;
2. Willfully delays his client’s suit with a view to his own gain; or
3. Willfully receives any money or other property for or on account of any money or debt which he has not laid out or become answerable for,
is guilty of a class A misdemeanor and in addition forfeits to the party injured treble damages to be recovered in a civil action.

[¶ 29] Riemers’ affidavits make only conclusory allegations such as, “[i]n 2002 when Gjesdahl and [Peters-Riemers] had me illegally jailed for debt (that I didn’t even owe) for two and a half weeks, Gjes-dahl admitted in court his plan was to get me in jail for debt for 6 months, and then, after I had fallen further in arrears on support, have me imprisoned for a felony under Federal law,” and “[o]n several occasions in letters to me [Gjesdahl] has offered un-supervised visitation in exchange for paying his legal expenses for [Peters-Riemers].”

[¶ 30] The trial court found that Riem-ers failed to support his claims with any facts and that his affidavits contained only conclusory allegations. We agree with the trial court and conclude Riemers’ allegations are not supported by any evidence sufficient to survive summary judgment.

V Motions for Continuance

[¶ 31] On appeal, Riemers argues the trial court abused its discretion when it denied his motions for a 30-day continuance to amend his complaint and a 90-day continuance to conduct additional discovery pursuant to N.D.R.Civ.P. 56(f). We disagree.

[¶ 32] We will not reverse a trial court’s denial of a motion for a continuance to amend a complaint unless the trial court abused its discretion. Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d 439, 442 (N.D.1991). In addition, we will not reverse a trial court’s denial of a motion under Rule 56(f) for a continuance to conduct additional discovery unless the trial court abused its discretion. Aho v. Maragos, 1998 ND 107, ¶ 5, 579 N.W.2d 165. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Boehm v. Boehm, 2002 ND 144, ¶ 6, 651 N.W.2d 672 (quoting Fahlsing v. Teters, 552 N.W.2d 87, 90 (N.D.1996)). Generally, the ability to x*equest additional time to conduct discovery in order to respond to a motion for summary judgment is liberally applied.

[¶ 33] The trial court concluded that Riemers had a reasonable opportunity, more than the 30 days provided under N.D.R.Civ.P. 56, to present all material relevant to the summary judgment motion. The trial court stayed the discovery issues until the motion for summary judgment was resolved and explained to Riemers that if the motion was denied, it would address the discovery issues.

[¶ 34] In his request for a continuance, Riemers presented no argument as to why he should be granted a continuance. Similar to Timmerman Leasing, Inc., 525 N.W.2d at 663, Riemers did not give, by affidavit, a good reason as to why he was unable to obtain an affidavit or other evidence in the more than four weeks before the hearing on the motion. Additionally, the facts relevant to this case have been litigated for approximately four years. Riemers should have had the necessary evidence or should have known where to get it because all of his claims relate to those actions. Therefore, the trial court did not abuse its discretion when it denied Riemers’ motions for a 30-day or 90-day continuance.

VI Sanctions

[¶ 35] On appeal, Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm move this Court under N.D.R.Civ.P. 11 for no less than $15,000 in sanctions. In addition, they request we enjoin Riemers from filing any further actions against Peters-Riem-ers or Gjesdahl that are not signed by an attorney. Finally, they request we enjoin Riemers from filing any claim related to any issue or claim that has or could have been considered in any prior action.

[¶ 36] Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm argue Riemers violated N.D.R.App.P. 13, N.D.R.App.P. 38, and N.D.R.Civ.P. 11. They argue they are entitled to damages under those rules and under N.D.R.Civ.P. 54(e)(2), N.D.C.C. § 28-26-01, and N.D.C.C. § 28-26-31. Specifically, the Rule 11 Motion requests that our Court conclude by filing a Notice of Appeal, and commencing an appeal herein, Riemers violated Rule 11(b) of the North Dakota Rules of Civil Procedure.

[¶ 37] Rule 11(b), N.D.R.Civ.P., states: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or are reasonably based on a lack of information or belief.

Under Rule 11(c), a court that determines a violation of subdivision (b) may impose sanctions upon parties responsible for the violation. N.D.R.Civ.P. 11(c).

[¶ 38] Rule 38, N.D.R.App.P., authorizes an award of costs, including reasonable attorney fees, for a frivolous appeal. “An appeal is frivolous under Rule 38, N.D.R.App.P., if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.” Riemers, 2004 ND 79, ¶ 16, 678 N.W.2d 547 (quotation omitted).

[¶ 39] We cannot conclude all of Riemers’ arguments on appeal are so flagrantly groundless as to warrant the sanctions Peters-Riemers, Gjesdahl, and Gjes-dahl’s law firm request. Therefore, their request for monetary and injunctive sanctions is denied. However, this is the 9th appeal involving issues arising out of the parties’ divorce. We have in other cases prohibited a party from filing any action against other individuals without permission from a district court judge as a sanction for violating Rule 11, N.D.R.Civ.P. See Federal Land Bank of St. Paul v. Ziebarth, 520 N.W.2d 51, 57 (N.D.1994). We have the authority to protect the public from those “who abuse the process of the Courts to harass and annoy others with meritless, frivolous, vexatious or repetitive appeals and other proceedings.” Id. at 58 (quoting In re Hartford Textile Corp., 659 F.2d 299, 305 (2nd Cir.1981)). The record in this case comes very close to a pattern of abuse of legal process.

VII

[¶40] We find Riemers’ remaining arguments without merit and affirm the trial court’s order granting Peters-Riemers, Gjesdahl, and Gjesdahl’s law firm summary judgment and dismissing Riemers’ civil action.

[¶ 41] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, concur.

KAPSNER, Justice,

concurring and dissenting.

[¶ 42] I concur with Justice Maring’s analysis of the issues raised by Riemers in ¶¶ 1-34 of the majority opinion. That analysis, however, reveals the number of times Riemers has attempted to re-litigate the same issues to the detriment of the other parties and the judicial system. See particularly ¶¶ 8-17 of the majority opinion.

[¶ 43] Riemers has managed to state a single issue on which the Court has not previously affirmatively spoken, resulting in the majority opinion now clearly adopting the doctrine that a litigant cannot bring a civil action in tort for perjury. See ¶ 23 of the majority opinion.

[¶ 44] However, merely articulating an issue should not prevent sanctions under these circumstances. The trial court concluded, and we affirm, that Riemers’ assertion of the claim was not supported by sufficient facts to survive summary judgment. Rather than being a reason not to sanction, the assertion of this “new” claim is actually another basis for sanctions under N.D.R.CivJP. 11(b)(3).

[¶ 45] Reimers’ repetitive assertions of previously decided claims and assertions of claims without evidentiary support are flagrant violations of N.D.R.Civ.P. 11(b). Therefore, I cannot join the majority in its disposition of the motion for sanctions. Rule 11 provides for sanctions that are either monetary or nonmonetary directives; both would be appropriate here. At minimum, I would prohibit Riemers from filing any further actions or motions naming Peters-Riemers as a party without explicit permission from a district judge, unless the sole request was to modify child support and the motion brought not less than one year after the last order dealing with child support. See Federal Land Bank of St. Paul v. Ziebarth, 520 N.W.2d 51, 57 (N.D.1994). Further, to assist the district judge in deciding whether the claims asserted were actually new claims not previously litigated, I would require Riemers to attach to his request for permission to file, a copy of every opinion cited by the majority opinion in which Riemers is a party.

[¶ 46] CAROL RONNING KAPSNER and WILLIAM A. NEUMANN, JJ., concur.

      . The notice of appeal is from the Memorandum Decision and Order Granting Defendants' Motion To Dismiss, which contains an order dismissing the action with prejudice. An order dismissing an action with prejudice involves the merits of an action and is appeal-able under N.D.C.C. § 28-27-02(5). See Zimmerman v. Newton, 1997 ND 197, ¶ 6 n. 2, 569 N.W.2d 700; Timmerman Leasing, Inc. v. Christianson, 525 N.W.2d 659, 660 n. 1 (N.D.1994).


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2004 ND 154
    AG ACCEPTANCE CORPORATION, as assignee of Ag Services of America, Inc., Plaintiff and Appellee v. Cecelia GLINZ, and the Estate of Bruce Glinz, by and through Cecelia Glinz, as duly appointed representative of the Estate, Defendants and Appellants.
    No. 20030197.
    Supreme Court of North Dakota.
    July 26, 2004.
    Rehearing Denied Sept. 3, 2004.

      Jon R. Brakke, Vogel Law Firm, Fargo, N.D., for plaintiff and appellee.
    Jonathan T. Garaas, Garaas Law Firm, Fargo, N.D., for defendants and appellants.
   NEUMANN, Justice.

[¶ 1] Cecelia Glinz and the Estate of Bruce Glinz appealed from a summary judgment awarding Ag Acceptance Corporation (“Ag Acceptance”) judgment in the amount of $238,874 on a promissory note. We affirm.

I

[¶ 2] Cecelia Glinz and her husband, Bruce Glinz, ran a farming operation. On August 15, 1997, the Glinzes signed a “Master Promissory Note” payable to Ag Services of America, Inc. (“Ag Services”) to finance their 1998 crop. The note was in the amount of $750,000 with interest at 2.75 percent above the prime rate. All principal and interest was due on January 15, 1999. The note was secured by security agreements covering personal property, including farm products, equipment, government payments, and proceeds. In addition, because a portion of the proceeds were to be used to purchase agricultural supplies from Ag Services, the parties executed a document entitled “Customer Pricing Agreement, Program Fee Agreement, Release, and Disclaimer of Warranties” outlining the terms of any sales by Ag Services to the Glinzes.

[¶ 3] On October 20, 1997, Ag Services assigned its rights under the note to Ag Acceptance. On March 30, 1998, the Glinzes signed a supplement to the note increasing the principal amount of the note to $1,300,000. This supplement to the note referred to the prior assignment of the note to Ag Acceptance.

[¶ 4] On September 22, 1998, the Glinzes signed a Master Promissory Note in the amount of $1,300,000 payable to Ag Services to finance their 1999 crop. The interest rate was 2.75 percent above the prime rate and all principal and interest was due on January 15, 2000. The Glinzes again executed security agreements on personal property and a customer pricing agreement. On February 22, 1999, Ag Services assigned its rights under the note to Ag Acceptance.

[¶ 5] Bruce Glinz died in September 1999. Cecelia Glinz was named personal representative of his estate.

[¶ 6] In February 2000, Ag Acceptance brought this action against Cecelia Glinz and the Estate of Bruce Glinz alleging the notes were in default and the Glinzes owed $859,318.31, with interest accruing at the rate of $246.75 per day. Ag Acceptance sought immediate delivery of all collateral and a deficiency judgment. Cecelia and the Estate answered, alleging that the notes were not loans of money but constituted revolving charge agreements under N.D.C.C. ch. 51-14 and that only the amounts owed at the time the notes were assigned to Ag Acceptance were due and owing. Cecelia Glinz claimed any funds advanced after the notes were assigned constituted unsecured loans on an open account to Bruce Glinz personally, and were not covered by the notes or security agreements.

[¶ 7] Ag Acceptance took possession of and sold the collateral. As a result, the 1997 note was paid in full, and Ag Acceptance sought a deficiency judgment in the amount of $232,579.93, plus $38.73 interest per diem, on the 1998 note. Both sides moved for summary judgment, and the trial court denied Glinzes’ motion for summary judgment and granted Ag Acceptance’s motion for summary judgment. Judgment in favor of Ag Acceptance in the amount of $238,874.08 was entered on May 1, 2003. Cecelia Glinz and the Estate of Bruce Glinz (collectively “Glinz”) have appealed.

II

[¶ 8] This case comes to us in the posture of an appeal from a summary judgment. We outlined our standard of review of appeals from a summary judgment in Zuger v. State, 2004 ND 16, ¶¶ 7-8, 673 N.W.2d 615 (citations omitted):

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. “Whether summary judgment was properly granted is ‘a question of law which we review de novo on the entire record.’ ” Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343 (quoting Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689). On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.

A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. “Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e).” 1 Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D.1994). “Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.” Id.

The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.
Iglehart, at ¶ 10 (quoting Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (citations omitted)). Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. If no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed that no such evidence exists.

Ill

[¶ 9] Ag Acceptance argues, and the trial court concluded, that the written agreements between the parties constitute a traditional loan of money secured by personal property. Glinz argues the agreement is a revolving charge account under N.D.C.C. ch. 51-14 between the Glinzes and Ag Services, and that any sales made to the Glinzes after the notes were assigned by Ag Services to Ag Acceptance were made to Bruce Glinz personally on an open account. Glinz therefore argues any transactions occurring after February 19, 1999, were not made under the notes, are not covered by the security agreements, and therefore are owed by Bruce Glinz personally on an open account, with an interest rate of six percent. Glinz further argues that Ag Acceptance’s failure to comply with statutory requirements for revolving charge agreements under N.D.C.C. ch. 51-14 precludes the collection of certain fees and interest charges.

A

[¶ 10] Initially, the parties dispute which state’s law governs their agreements. The promissory notes contain choice of law clauses providing the agreements are deemed to have been made in Iowa and that Iowa law is to govern their interpretation. Ag Acceptance argues N.D.C.C. ch. 51-14 is therefore inapplicable, and the agreements must be construed under Iowa law. Glinz argues there are strong public policy reasons to apply North Dakota law in this ease, and N.D.C.C. ch. 51-14 should control. For purposes of this case we will assume, without deciding, that North Dakota law applies.

B

[¶ 11] The trial court concluded the parties’ agreement was for a loan, not a revolving charge agreement under N.D.C.C. ch. 51-14. Glinz contends the agreement in this case falls within the definition of “revolving charge agreement” under the statute. “Revolving charge agreement” and other related relevant terms are defined in N.D.C.C. § 51-14-01:

1. “Credit service charge” means the amount, however expressed, which the retail buyer contracts to pay or pays the retail seller in excess of the amount of credit extended, representing the total charges by the retail seller incident to investigating and extending credit under a revolving charge agreement and for extending to the retail buyer the privilege of paying over a period of time therefor.
2. “Retail buyer” or “buyer” means a person who buys personal property from a retail seller, or to whom a retail seller otherwise extends credit, pursuant to a revolving charge agreement.
3. “Retail seller” or “seller” means a person who agrees to sell or sells goods or services pursuant to a revolving charge agreement and a state-chartered or national bank that extends credit by the advancement of moneys or the payment for goods or sendees under a revolving charge agreement.
4. “Revolving charge agreement” means a written instrument, defining the terms of credit extended from time to time pursuant thereto, pursuant to which the buyer’s total unpaid balance thereunder, whenever incurred, is payable over a period of time and under the terms of which a credit service charge, other than the portion thereof consisting of late payment or other charges, is to be computed in relation to the buyer’s unpaid balance from time to time.

A “loan of money” is defined in N.D.C.C. § 47-14-01:

A loan of money is a contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which the person borrowed.

[¶ 12] A contract must be interpreted to give effect to the mutual intention of the parties as it existed at the time of contracting. N.D.C.C. § 9-07-03; Binek v. Binek, 2004 ND 5, ¶ 13, 673 N.W.2d 594. When a contract has been reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible. N.D.C.C. § 9-07-04; Binek, at ¶ 13; Kondrad ex rel. McPhail v. Bismarck Park District, 2003 ND 4, ¶ 6, 655 N.W.2d 411. Construction of a written contract to determine its legal effect is a question of law for the court to decide, and on appeal this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation. Lamb v. Riemers, 2003 ND 148, ¶ 6, 669 N.W.2d 113; Kondrad, at ¶ 6. Extrinsic evidence is properly considered only if the language of the agreement is ambiguous and the parties’ intentions cannot be determined from the writing alone. Binek, at ¶ 13; Lamb, at ¶ 6. An unambiguous contract is particularly amenable to summary judgment. Airport Inn Enters., Inc. v. Ramage, 2004 ND 92, ¶ 10, 679 N.W.2d 269; Kondrad, at ¶ 6.

[¶ 13] The parties in this case reduced their agreement to writing. The August 15,1997, promissory note provides:

FOR VALUE RECEIVED, the undersigned debtors jointly and severally, as principals, promise to pay to the order of Ag Services of America, Inc .... the principal sum of Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) or, if less, the outstanding principal balance of all loans and advances made hereunder, together with accrued interest, said principal balance and accrued interest to be due and payable in full on or before January 15, 1999. The undersigned agree to pay interest on the principle balance outstanding hereunder from time to time at the rate equal to Two Pt. Seven Five percent (2.75%) in excess of the Prime Rate, and shall be adjusted as of each date of change thereof to reflect changes in the Prime Rate.

The note makes numerous further references to principal and interest. The September 22, 1998, note is identical except the face amount is increased to $1,300,000 and the note is due on January 15, 2000.

[¶ 14] The parties’ March 30, 1998, Agreement to Supplement the Master Promissory Note identifies the Glinzes as “Debtor” and Ag Services and Ag Acceptance collectively as “Lender.” The supplement provides “Debtor is desirous of increasing the maximum funds available under the Note” and increases the “principal amount under the Note” to $1,300,000.

[¶ 15] The language used by the parties indicates a loan of money, not a revolving charge agreement. The notes state that the Glinzes promise to pay “the outstanding principal balance of all bans and advances made hereunder, together with accrued interest.” The notes use the terms “principal” and “interest,” denoting a loan of money, rather than the corresponding terms “credit extended” and “credit service charge,” indicative of a revolving charge agreement, found in N.D.C.C. § 51-14-01. The supplement to the first note designates the parties as debtor and lender, and provides for increasing the “funds” available under the note, further indicative of a loan of money. Under the revolving charge agreement statute, the parties are designated as the “retail buyer” and “retail seller,” and “credit” is extended. See N.D.C.C. § 51-14-01. The language of the parties’ written agreement unambiguously characterizes the agreement as a loan of money, not a revolving credit agreement.

[¶ 16] Glinz argues that Ag Services sold products to the Glinzes on credit under the notes, that Ag Services was therefore a “retail seller,” and that the agreement constituted a revolving charge agreement. Although the parties anticipated that a portion of the proceeds of the notes would be used to purchase products from Ag Services, the language of the notes also provides for loans and advances of money. Glinz relies upon the “Customer Pricing Policy Agreement, Program Fee Agreement, Release, and Disclaimer of Warranties” to support her assertion that this was a revolving credit agreement. The language of that document, however, indicates that all products purchased will be treated as an advance against the note, and explicitly envisions cash advances to the Glinzes:

3. The undersigned agrees that all products purchased, cash advanced and insurance premium due Ag Services will be charged as an advance against the undersigned’s Master Promissory Note payable to Ag Services or its assignee as of the date of shipment of products or the date of the cash advanced and shall be secured by and subject to the terms of the Agricultural Security Agreement and all other agreements or documents executed in connection therewith.

The parties clearly intended their agreement to cover more than an extension of credit to finance purchases under a revolving credit agreement.

[¶ 17] Furthermore, the written agreements in this case provided that the full amounts due under the notes must be paid by a specific date. The sine qua non of a revolving charge account is that it revolves: it has no specific date upon which the total amount is due. See H.R. Rep. 90-1040 (1967), reprinted in 1968 U.S.C.C.A.N.1962, 1971 (indicating revolving credit accounts are synonymous with open-ended credit). An agricultural operating loan evidenced by a promissory note specifying that all principal and interest shall be due on a date certain shortly after completion of that crop year is not a revolving charge agreement.

[¶ 18] We conclude the trial court did not err in concluding the parties’ written agreement was a loan of money, not a revolving charge agreement under N.D.C.C. eh. 51-14.

IV

[¶ 19] Glinz contends that, if the transaction between the parties was a loan, the agreement violated the Sherman Antitrust Act, 15 U.S.C. §§ 1-7, and the state antitrust act, N.D.C.C. ch. 51-08.1, because the agreement impermissibly tied the extension of credit to an agreement to purchase agricultural products from Ag Services.

A

[¶ 20] The trial court concluded it did not have jurisdiction over Glinz’s claimed violation of the Sherman Antitrust Act because jurisdiction under the Act is vested exclusively in the federal courts. Glinz contends state courts may consider Sherman Act violations which are pleaded as a defense in a contract action. We find it unnecessary to determine whether the trial court properly declined to exercise jurisdiction because we conclude Glinz failed to present sufficient evidence of an antitrust violation to preclude summary judgment.

B

[¶ 21] In her brief on appeal, Glinz concedes that to establish an antitrust violation through an illegal tying of products she must show “possession of the seller of sufficient economic power with respect to the tying product to appreciably restrain a free market.” The focus of the antitrust laws prohibiting tying is upon the effect on the relevant markets in which the two products are sold, not upon individual instances of a forced sale. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 16, 18, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). As the Court explained in Jefferson Parish, at 16, 104 S.Ct. 1551:

If only a single purchaser were “forced” with respect to the purchase of a tied item, the resultant impact on competition would not be sufficient to warrant the concern of antitrust law. It is for this reason that we have refused to condemn tying arrangements unless a substantial volume of commerce is foreclosed thereby.

[¶ 22] Thus, in order to establish an antitrust violation based upon illegal tying, it must be shown that the seller possesses significant market power in the tying market:

Having found sufficient evidence of a tying arrangement, we consider the other necessary feature of an illegal tying arrangement: appreciable economic power in the tying market. Market power is the power “to force a purchaser to do something that he would not do in a competitive market.” Jefferson Parish, 466 U.S. at 14, 104 S.Ct. at 1559. It has been defined as “the ability of a single seller to raise price and restrict output.” Fortner [Enters., Inc. v. United States Steel Corp.], 394 U.S. [495,] 503, 89 S.Ct. [1252,] 1259 [22 L.Ed.2d 495 (1969)]; United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, [76 S.Ct. 994, 1005, 100 L.Ed. 1264] (1956). The existence of such power ordinarily is inferred from the seller’s possession of a predominant share of the market.

Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 464, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (footnote omitted). The Court in Eastman Kodak further noted:

“[T]he essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms. When such ‘forcing’ is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated.”

Id. at 464, n. 9, 112 S.Ct. 2072 (quoting Jefferson Parish, 466 U.S. at 12, 104 S.Ct. 1551).

[¶ 23] In United States Steel Corp. v. Fortner Enters., Inc., 429 U.S. 610, 97 S.Ct. 861, 51 L.Ed.2d 80 (1977), the Court addressed allegations that sale of prefabricated houses had been illegally tied to an offer of credit. Reversing a judgment of the Court of Appeals which concluded the creditor had sufficient economic power in the credit market to make the tying arrangement illegal, the Supreme Court stated:

[T]hese decisions do not require that the defendant have a monopoly or even a dominant position throughout the market for a tying product. They do, however, focus attention on the question whether the seller has the power, within the market for the tying product, to raise prices or to require purchasers to accept burdensome terms that could not be exacted in a completely competitive market. In short, the question is whether the seller has some advantage not shared by his competitors in the market for the tying product.

Id. at 620, 97 S.Ct. 861 (citation and footnote omitted); see also Fortner Enters., Inc. v. United States Steel Corp., 394 U.S. 495, 502-03, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969). Glinz has not directed our attention to any evidence in the record showing Ag Services or Ag Acceptance had some advantage in the credit market not shared by their competitors.

[¶ 24] There is nothing inherently illegal about tying the sale of one product or service to another:

It is clear, however, that not every refusal to sell two products separately can be said to restrain competition. If each of the products may be purchased separately in a competitive market, one seller’s decision to sell the two in a single package imposes no unreasonable restraint on either market, particularly if competing suppliers are free to sell either the entire package or its several parts.

Jefferson Parish, 466 U.S. at 11-12, 104 S.Ct. 1551. A tying arrangement is not illegal if the seller lacks control or power in the market:

Of course where the seller has no control or dominance over the tying product so that it does not represent an effectual weapon to pressure buyers into taking the tied item any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.

Northern Pacific Railway Co. v. United States, 356 U.S. 1, 6-7, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); see also Jefferson Parish, 466 U.S. at 11-12, 104 S.Ct. 1551.

[¶ 25] Glinz has not drawn our attention to any evidence in the record which demonstrates Ag Services or Ag Acceptance had significant market power or an advantage not shared by its competitors in the relevant markets. Glinz argues it may be inferred that the tying of these products appreciably restrained a free market because Ag Services does business in 35 states and the prices Ag Services charged for the tied products were higher than Glinzes could have purchased the products for elsewhere. Neither of these facts creates an inference of market power in the tying market by Ag Services or Ag Acceptance. See Fortner, 429 U.S. at 617-18, 97 S.Ct. 861 (fact that lender was a subsidiary of one of the nation’s largest corporations and charged a higher price for the tied product than its competitors did not demonstrate the lender had economic power in the credit market). There is no evidence showing Ag Services or Ag Acceptance had a predominant share of the market or sufficient economic power to control prices. See Eastman Kodak, 504 U.S. at 464, 112 S.Ct. 2072. Nor is there any evidence suggesting Glinz could not have obtained financing and products separately from other businesses. See Jefferson Parish, 466 U.S. at 11-12,104 S.Ct. 1551.

[¶ 26] A party opposing a motion- for summary judgment may not rely upon unsupported, conclusory allegations nor mere speculation, and a scintilla of evidence is not sufficient to support a claim. Zuger v. State, 2004 ND 16, ¶ 8, 673 N.W.2d 615. The resisting party must present, and draw the court’s attention to, competent admissible evidence which raises a genuine issue of material fact. Id. Because Glinz has failed to draw our attention to any evidence showing that Ag Services or Ag Acceptance had significant market power in the relevant markets, we conclude summary judgment on the antitrust issues was appropriate.

V

[¶ 27] We have considered the remaining issues raised by Glinz and find they were either not raised in the court below, are unnecessary to our decision, or are without merit. The judgment is affirmed.

[¶ 28] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ„ DOUGLAS L. MATTSON, D.J., concur.

[¶ 29] The Honorable DOUGLAS L. MATTSON, D.J., sitting in place of KAPSNER, J., disqualified.


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 155
    Palmer J. MILLER, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Real Builders Inc., Respondent.
    No. 20040064.
    Supreme Court of North Dakota.
    July 29, 2004.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, ND, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Palmer Miller appealed from a district court judgment affirming a Workforce Safety and Insurance (“WSI”) order denying him further disability and vocational rehabilitation benefits. We temporarily remand for an evidentiary hearing regarding alleged improper ex parte communications.

I

[¶ 2] In July 1993, Miller suffered a work-related injury to his lower back while employed as a carpenter with Real Builders, Inc., of Minot. The Worker’s Compensation Bureau, now WSI, accepted Miller’s claim and paid associated medical expenses and disability benefits. Between the time of his injury and the order at issue, Miller underwent numerous functional capacity evaluations (“FCEs”) to determine his ability to return to gainful employment. A March 2001 FCE placed Miller at “a light job classification on a full time basis.” In September 2001, WSI notified Miller of its decision to discontinue his benefits effective October 19, 2001. Miller requested reconsideration of WSI’s decision and, in November 2001, WSI issued an order denying further benefits to Miller, stating he was employable, without retraining, on a full-time basis as a telephone solicitor, customer-service representative, floor walker, or mail clerk. Miller requested a formal hearing, which was held in December 2002 before a Temporary Administrative Law Judge (“ALJ”). The ALJ issued recommended findings of fact, conclusions of law, and order, in which he concluded Miller was employable only on a part-time basis, could not obtain substantial gainful employment, and WSI’s rehabilitation plan had not identified an appropriate rehabilitation option.

[¶ 3] After the hearing, WSI’s outside litigation counsel, Lawrence Dopson, wrote a letter to Tina Wahlin, an attorney with WSI, expressing his concerns with the ALJ’s recommendation and informing Wahlin of different possibilities that could arise depending on whether WSI adopted or rejected the ALJ’s decision. At oral argument, outside counsel stated this was the normal procedure in these types of cases and he assumed the letter was transferred in some way to Nick Jolliffe, WSI claims director. A copy of the letter was sent to Miller’s counsel, who acknowledged that he received it, but did not respond to it.

[¶ 4] In April 2003, Jolliffe issued WSI’s findings, conclusions, and order rejecting the ALJ’s recommendations. WSI concluded Miller was employable full-time and ineligible for disability benefits after October 19, 2001. Miller appealed to the district court, which affirmed WSI’s order. The district court concluded that the difference between the ALJ’s recommended decision and WSI’s order was based on a difference in the weight and credibility given to the evidence and that Miller received a fair hearing.

[¶ 5] On appeal, Miller claims WSI failed to identify the first appropriate rehabilitation option and that he was denied a fair hearing due to improper ex parte communications.

II

[¶ 6] On appeal we review an agency order in the same manner as the district court under N.D.C.C. § 28-32-46. Zander v. Workforce Safety and Ins., 2003 ND 194, ¶ 6, 672 N.W.2d 668. A district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46. We conclude an ev-identiary hearing is necessary to determine whether WSI directly or indirectly engaged in improper ex parte communications.

[¶ 7] Ex parte communications are those that are “ ‘without notice and opportunity for all parties to participate in the communication.’” Kraft v. State Bd. of Nursing, 2001 ND 131, ¶ 44, 631 N.W.2d 572 (quoting former N.D.C.C. § 28-32-12.1, now codified at N.D.C.C. § 28-32-37).

There are strong policy reasons for prohibiting ex parte communications between the attorney who represented the agency at an adversarial hearing and the agency decision maker. In Camero v. United States, 179 Ct.Cl. 520, 375 F.2d 777 (Ct.C1.1967), the court held an agency decision was invalid where the attorney representing the agency communicated with the decision maker, advised him to reject the recommendation of a grievance committee, and participated in preparing the final decision. The court reasoned:
[0]ne of the fundamental premises inherent in the concept of an adversary hearing, particularly if it is of the evidentiary type, is that neither adversary be permitted to engage in an ex parte communication concerning the merits of the case with those responsible for the decision.... It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendations to the decision makers. To allow such activity would be to render the hearing virtually meaningless.

Scott v. N.D. Workers Comp. Bureau, 1998 ND 221, ¶ 12, 587 N.W.2d 153 (quoting Camero, at 780-81 (citations omitted)).

[¶ 8] Section 28-32-37(1), N.D.C.C., provides that an agency head or hearing officer in an adjudicative proceeding may not engage in ex parte communications, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending. Section 65-01-16(8), N.D.C.C., provides:

Rehearings must be conducted as hearings under chapter 28-32 to the extent provisions of that chapter do not conflict with this section. The organization may arrange for the designation of hearing officers to conduct rehearings and issue recommended findings, conclusions, and orders. In reviewing recommended findings, conclusions, and orders, the organization may consult with its legal counsel representing it in the proceeding.

(emphasis added). “This section is effective for all orders and decisions on all claims regardless of the date of injury or the date the claim was filed.” N.D.C.C. § 65-01-16(12). In Lawrence v. N.D. Workers Comp. Bureau, we harmonized N.D.C.C. § 65-01-16(8) with N.D.C.C. ch. 28-32 by determining the Bureau can consult with its outside legal counsel in reviewing a pending ALJ recommendation as long as those communications are not ex parte. 2000 ND 60, ¶ 20, 608 N.W.2d 254.

[¶ 9] This case raises concerns regarding the provisions in N.D.C.C. § 28-32-37, including the requirement there must be an opportunity for all parties to participate in communications regarding the merits of an adjudicative proceeding. Although Miller’s counsel received a copy of the letter from outside counsel to Wah-lin and could have replied to it, that reply might well have been presumptuous because there is no legal relationship between Wahlin and Miller’s counsel, and WSI’s rules lack any provision establishing the opportunity for such a reply.

[¶ 10] Further, even though the procedure used by WSI in this case may be an attempt to comply with the statutes and our decision in Lawrence, it raises concerns about the treatment of substantive communications received by someone at WSI who may or may not be involved in the decision making process and how or whether that information is passed on to the decision maker. Outside counsel stated at oral argument that he assumed the letter to Wahlin was, in some fashion, given to Jolliffe. A better approach would be to send the letter directly to Jolliffe and provide a copy to opposing counsel. Similar to a post-trial brief, this would provide opposing counsel an opportunity to respond by writing directly to the decision maker. Sending the letter directly to the decision maker negates any possibility of intentional or unintentional distortion of either side’s communications and allows the decision maker to view the parties’ positions without having them filtered through other levels of the organization. It also serves as additional notification to the other party that the communication will be considered by the decision maker, and therefore, should likely be responded to.

[¶ 11] We will not assume that any improper ex parte communications actually occurred in this case because the only communication contained in this record is the letter from outside counsel tq Wahlin, which Miller’s counsel received. See Lewis v. North Dakota Workers Comp. Bureau, 2000 ND 77, ¶ 9, 609 N.W.2d 445 (“The appeal statute specifically limits a district court’s appellate review to the administrative agency record filed with the court”). This record does not contain any direct or indirect ex parte communication between Jolliffe and outside counsel, and Miller did not seek to supplement the certified record on appeal. See Lawrence, 2000 ND 60, ¶ 10, 608 N.W.2d 254 (“Lawrence ... moved to supplement the certified record to include the Bureau’s ex parte communications with its outside litigation counsel about the pending ALJ recommendation”). Certainly, a motion to supplement the record would have been a more prudent approach by Miller and, in the future, failing to supplement the record at the district court or agency level may foreclose an opportunity to claim the existence of improper ex parte communications which are not contained in the record. See Sprunk v. North Dakota Workers Comp. Bureau, 1998 ND 93, ¶ 9, 576 N.W.2d 861 (Appellant did not attempt to augment the record by using the procedure provided by N.D.C.C. § 28-32-45, and therefore, the challenged evidence was not part of the record on appeal and was not considered). However, sufficient concerns are raised in this case regarding the potential of direct or indirect ex parte communications to implicate N.D.C.C. § 28-32-46(4) and cause us to remand for an evidentiary hearing.

[¶ 12] Because of the substantial policy concerns implicated by improper ex parte communications, we remand to WSI with instructions to hold an evidentiary hearing to ascertain whether any improper ex parte communications occurred and, if so, to place them in the record. In the interest of judicial economy, we retain jurisdiction similar to our procedure under N.D.R.App.P. 35(a)(3) because our decision to remand is limited to obtaining evidence of alleged post-hearing ex parte communications and does not resolve the merits of the agency’s decision. See Horsley v. North Dakota Workers Comp. Bureau, 2001 ND 60, ¶ 12, 623 N.W.2d 377 (quoting Luithle v. Burleigh County Soc. Servs., 474 N.W.2d 497, 499-500 (N.D.1991) (“Section 28-32-18, N.D.C.C. [now codified at N.D.C.C. § 28-32-45], evinces a clear legislative intent that the district court retain jurisdiction when the matter is remanded for the limited purpose of considering additional, rejected, or excluded evidence”); see also Courchene v. Delaney Distrib., 418 N.W.2d 781, 781-82 (N.D.1988).

[¶ 13] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ,, and BURT L. RISKEDAHL, District Judge, concur.

[¶ 14] The Honorable BURT L. RISKEDAHL, District Judge, sitting in place of KAPSNER, J., disqualified.


text:
    2004 ND 161
    GRAND FORKS COUNTY, Petitioner and Appellant v. Suzanne J. TOLLEFSON, Troy O’Hara, Darrell Kvernen, Michael Coachman, Respondents and Job Service North Dakota, Respondent and Appellee.
    No. 20030370.
    Supreme Court of North Dakota.
    Aug. 4, 2004.

      Deborah J. Carpenter, Special Assistant State’s Attorney, Bismarck, N.D., for petitioner and appellant.
    Kevin McCabe, Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] Grand Forks County appealed from a district court judgment affirming the decision of Job Service that the County was properly charged for a portion of unemployment benefits paid to Suzanne Tol-lefson, Troy O’Hara, and Darrell Kvernen and dismissing the County’s petition for judicial review of the claim of Michael Coachman. We affirm.

I

[¶ 2] Tollefson, O’Hara, Kvernen, and Coachman were employed by the County. In 1999, Tollefson, Kvernen, and Coachman resigned to accept other employment; O’Hara was fired for misconduct. Each employee applied for unemployment benefits with Job Service, and each was found to be ineligible because they had either voluntarily quit or had been discharged for cause.

[¶ 3] Each of the employees subsequently worked for other employers, left that employment, and again applied for unemployment benefits. In each case the employee was found eligible for benefits. Job Service notified the County that, as a base-period employer, it would be liable for a portion of the benefits paid to each of the employees.

[¶ 4] The County appealed Job Service’s initial decisions and requested hearings in each case. After the hearings, the appeals referee determined the County was liable for benefits, and the County appealed each case to Job Service. After various remands and appeals in light of the procedural requirements enunciated in Stutsman County v. Westereng, 2001 ND 114, 628 N.W.2d 305, new hearings were held in each case. The appeals referee again determined the County was hable for a portion of the employees’ benefits. The County appealed the appeals referee’s decisions in the Tollefson, O’Hara, and Kver-nen cases to Job Service. The County did not appeal the referee’s decision in Coachman’s case to Job Service. Job Service affirmed the referee’s decisions in Tollef-son, O’Hara, and Kvernen’s cases.

[¶ 5] The County filed petitions for judicial review in the district court and the four cases were consolidated. The district court dismissed the County’s petition for review of the Coachman case and affirmed Job Service’s decisions in Tollefson, O’Hara, and Kvernen. The County has appealed from the judgment.

II

[¶ 6] When a decision of an administrative agency is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency, rather than the decision of the district court. Gartner v. Job Service North Dakota, 2004 ND 135, ¶ 3, 681 N.W.2d 828; Baier v. Job Service North Dakota, 2004 ND 27, ¶ 6, 673 N.W.2d 923. The district court’s analysis, however, is entitled to respect if its reasoning is sound. Gartner, at ¶ 3; Baier, at ¶ 6. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we must affirm an agency’s decision unless (1) the decision is not in accordance with the law; (2) the decision violates the appellant’s constitutional rights; (3) the provisions of N.D.C.C. ch. 28-32 have not been complied with in the proceedings before the agency; (4) the agency’s rules or procedures have not afforded the appellant a fair hearing; (5) the agency’s findings of fact are not supported by a preponderance of the evidence; (6) the agency’s conclusions of law are not supported by its findings of fact; (7) the agency’s findings of fact do not sufficiently address the evidence presented to the agency by the appellant; or (8) the agency’s conclusions of law and order do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge. Baier, at ¶ 6; Morris v. Job Service North Dakota, 2003 ND 45, ¶ 5, 658 N.W.2d 345.

[¶ 7] In reviewing an agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency; rather, we decide only whether a reasoning mind could have reasonably determined the agency’s factual conclusions were supported by the weight of the evidence. Gartner, 2004 ND 135, ¶ 3, 681 N.W.2d 828. Questions of law, including interpretation of a statute, are fully reviewable on appeal from an administrative decision. Morris, 2003 ND 45, ¶ 5, 658 N.W.2d 345. A person is denied due process or a fair hearing when defects in the hearing process might lead to a denial of justice. Gullickson v. Kline, 2004 ND 76, ¶ 22, 678 N.W.2d 138; Westereng, 2001 ND 114, ¶ 8, 628 N.W.2d 305.

Ill

[¶ 8] The County contends Job Service erred in determining that the “benefit year” for calculating the County’s liability for benefits commenced when each employee filed their first claim for benefits when leaving employment with the County. The County argues the “benefit year” should begin when the employees filed their second claims for benefits after the termination of their subsequent employment. Analysis of this issue requires a detailed examination of the statutes governing unemployment benefits.

[¶ 9] When a claimant is determined to be eligible for and receives unemployment benefits, the benefits are charged to the employee’s base-period employers:

Benefits paid to an individual must be charged against the accounts of the individual’s base-period employers. The amount of benefits so chargeable against each base-period employer’s account must bear the same ratio to the benefits paid to an individual as the base-period wages paid to the individual by such employer bear to the total amount of the base-period wages paid to the individual by all of the individual’s base-period employers.

N.D.C.C. § 52-04-07(1). An employee’s base period is “the first four of the last five completed calendar quarters immediately preceding the first day of an individual’s benefit year.” N.D.C.C. § 52-01-01(3). A base-period employer is one who paid wages to the employee during the base period. N.D.C.C. § 52-01-01(4) and (5); see Westereng, 2001 ND 114, ¶ 9, 628 N.W.2d 305.

[¶ 10] When, as in these cases, employment with the base-period employer was terminated for cause or by the employee’s voluntary resignation, the base-period employer’s liability for benefits depends upon whether it is a reimbursable method employer or a contributing employer. Although private employers in the state are required to make regular contributions into the Unemployment Compensation Fund based upon their payroll, see N.D.C.C. ch. 52-04, governmental employers may elect to either make regular contributions or to reimburse the Fund for actual benefits paid to its former employees, effectively self-insuring for unemployment claims. N.D.C.C. § 52-04-19.1; Westereng, 2001 ND 114, ¶ 10, 628 N.W.2d 305. The County elected the reimbursable method, and its liability for benefits is therefore governed by N.D.C.C. § 52-04-19.1(2)(c): '

In lieu of contributions an employer may elect to pay to the bureau for the unemployment fund an amount equal to the amount of benefits paid under chapters 52-06 and 52-07.1 which are attributable to wages paid in the employ of such governmental employer, to individuals for weeks of unemployment.

[¶ 11] We explained the significance of the distinction between contributing employers and reimbursing employers in cases such as these in Westereng, 2001 ND 114, ¶ 11, 628 N.W.2d 305:

Job Service correctly concluded Stuts-man County, as a reimbursable method employer, is not excused from being charged because Westereng voluntarily left her employment with Stutsman County. N.D.C.C. § 52-04-07. Section 52-04-07(1), N.D.C.C., requires benefits paid to an individual “must be charged against the accounts of the individual’s base-period employers.” However, N.D.C.C. § 52-04-07(2)(b) provides an exception, stating an employer’s account may not be charged: With benefits paid to an individual who left the employment of the employer voluntarily without good cause or with good cause not involving fault on the part of the employer or who was discharged from employment by the employer for misconduct.
Although this exception applies to contributing employers, this exception does not apply to Stutsman County because N.D.C.C. § 52-04-07(3) provides “[subsection 2 does not apply to benefit payments which are financed under a reimbursable method.” Therefore, the fact Westereng left Stutsman County voluntarily does not absolve Stutsman County of future responsibility as a base-period employer. If Westereng is eligible for benefits, Stutsman County is chargeable for its proportionate share of the benefits paid.

Thus, the fact that these employees left their employment with the County under disqualifying circumstances does not absolve the County of liability as a base-period employer when the employees are found to be eligible for benefits after termination of subsequent employment.

[¶ 12] This case presents a slight factual variation from Westereng. The claimant in Westereng did not file a claim for benefits when she voluntarily left her employment with Stutsman County, but first filed when she left her subsequent employer. In this case, the employees filed claims when they left their employment with the County and were found to be ineligible for benefits. They each then secured additional employment, and filed a second claim for benefits when the subsequent employment ended. The County contends the second application for benefits constituted a new claim, and the benefit year for purposes of calculating the claimants’ base period should have begun with the second application for benefits, not the first.

[¶ 13] As previously noted, a base-period employer is one who paid wages to the employee during the first four of the last five completed calendar quarters immediately preceding the first day of an individual’s benefit year. N.D.C.C. § 52-01-01(3), (4), and (5). “Benefit year” is defined in N.D.C.C. § 52-01-01(6):

“Benefit year” means the fifty-two-week period beginning the first week in which an insured worker first files a request for determination of the worker’s insured status and thereafter the fifty-two-week period beginning the first week in which the individual next files such request after the end of the individual’s last preceding benefit year. The filing of a notice of unemployment must be deemed a request for determination of insured status if a current benefit year has not previously been established. ... A subsequent benefit year cannot be established until the expiration of the current benefit year.

[¶ 14] In construing a statute, we try to ascertain the intent of the legislature by looking at the plain language of the statute and giving each word of the statute its ordinary meaning. N.D.C.C. § 1-02-02; Gratech Co. v. Wold Eng’g, 2003 ND 200, ¶ 10, 672 N.W.2d 672; In re Guardianship of Shatzka, 2003 ND 147, ¶ 5, 669 N.W.2d 95. If the language of a statute is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. Gratech, at ¶ 10.

[¶ 15] Section 52-01-01(6), N.D.C.C., is clear and unambiguous. A benefit year is the fifty-two-week period beginning when the employee first files a request for determination of insured status, and a subsequent benefit year cannot be established until the expiration of the current benefit year. Thus, a benefit year for each of these employees commenced when they filed their first claim for benefits after leaving employment with the County, and a new benefit year could not commence until expiration of that first benefit year. When the employees filed subsequent claims for benefits prior to expiration of the previously established benefit year, Job Service correctly determined the amount of contributions due from base-period employers by calculating the base period from commencement of that benefit year. The County’s argument that the first claim for benefits should be disregarded, and the benefit year should be calculated from the date of the second, “new” claim for benefits, is contrary to the clear language of the statute.

[¶ 16] We conclude Job Service did not misconstrue the law in determining the County’s liability for benefits.

IV

[¶ 17] The County argues the procedure employed by Job Service violated due process requirements, as enunciated in Westereng, because at three of the hearings the employee did not appear or testify-

[¶ 18] In each of these cases the employees were found to be eligible for benefits after subsequent employment ended. The County was then given notice the employee had filed a claim for benefits and the County would be liable for a portion of those benefits. The County requested hearings in the cases and, prior to the hearings, was provided an abstract of the information used to determine the employee’s eligibility for benefits and to calculate the County’s proportionate share of the benefits. Tollefson, O’Hara, and Kvernen did not appear or testify at the hearings on the County’s liability for their respective claims. Coachman appeared and testified at the hearing on his claim.

[¶ 19] The County argues the failure of Job Service to require the attendance and testimony of Tollefson, O’Hara, and Kver-nen violated the due process requirements of Westereng. In Westereng, Job Service refused to disclose any information regarding the employee’s subsequent employment, including the circumstances of her leaving, or any information that served as the basis for determining the employer’s proportionate share of benefits. The district court reversed Job Service’s order and remanded to the agency to allow the employer an opportunity to review the evidence upon which Job Service based its decision and to challenge Job Service’s decision at a hearing.

[¶ 20] We affirmed the district court judgment, concluding the employer had a right to review information about the employee’s subsequent employment history and to challenge Job Service’s determination of eligibility and calculation of its proportionate share of benefits. Westereng, 2001 ND 114, ¶¶ 12-21, 628 N.W.2d 305. Our decision in Westereng does not, however, require Job Service to mandate the appearance and testimony of the employee in all cases. We required only that Job Service provide the information upon which its decision was based, and allow the employer to challenge eligibility and calculation of liability for benefits at the hearing. If the County wished to have the employees available to testify regarding their subsequent employment history, it had the right to have them subpoenaed upon request. N.D.C.C. §§ 28-32-33(3) and 52-06-23; Stalcup v. Job Service North Dakota, 1999 ND 67, ¶ 13, 592 N.W.2d 549. A party’s failure to request that a witness be subpoenaed waives the right to have the witness present and available for cross-examination. Stalcup, at ¶ 13.

We agree with the district court’s well-reasoned analysis of this issue:

Neither these statutes nor Stutsman, however, require Job Service to notice or subpoena the claimant .... Nothing would have prevented the County from requesting Job Service to issue subpoenas to require the claimants to testify at the hearings. The fact that Job Service did not notice or subpoena the claimants, when there is no evidence in the record that the County requested Job Service to subpoena the claimants, did not deny the County due process and a fair hearing.

The record also reveals that prior to the hearings in Tollefson, O’Hara, and Kvemen, Job Service provided the County with a Certifícate of Information Abstract and an Abstract of Client Information containing information about wages earned, recent employment history, most recent employment separation history, and the amount of each base period employer’s liability. At each hearing, a Job Service representative testified as to the underlying information from which the abstract was drawn. In each hearing, the County had the opportunity to cross examine the Job Service representative about the abstract and the information underlying it....

Stutsman 2001 ND 114, ¶¶ 12-22, 628 N.W.2d 305, holds that to afford the county due process and a fair hearing Job Service must disclose to the county the information Job Service used to determine a claimant’s eligibility. Job Service complied with the mandates of Stutsman in providing information to the County. The fact that the only evidence in the record regarding information the claimants provided when they applied for benefits and the circumstance under which they left their subsequent employers was provided by Job Service Staff did not deny the County due process and a fair hearing.

[¶ 21] We conclude the failure of Job Service to require the appearance and testimony of the employees when the County did not request that they be subpoenaed did not violate due process.

V

[¶ 22] Because we conclude Job Service did not err on the merits in determining the County’s liability for benefits and its procedures did not violate due process, we find it unnecessary to address whether the district court erred in dismissing the County’s petition for review in Coachman’s case. We have considered the remaining issues and arguments raised by the parties and find them to be either without merit or unnecessary to our decision. We do not answer questions that are unnecessary to the determination of the appeal. E.g., Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 2002 ND 83, ¶ 39, 643 N.W.2d 685.

[¶ 23] The judgment of the district court is affirmed.

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