author: VANDE WALLE, Chief Justice.

text:
    2004 ND 47
    Michael T. VANDALL, M.D., Plaintiff and Appellant v. TRINITY HOSPITALS, a corporation, and Margaret C. Nordell, M.D., Defendants and Appellees.
    No. 20030255.
    Supreme Court of North Dakota.
    Feb. 27, 2004.

      Craig R. Campbell, Gunhus, Grinnell, Klinger, Swenson & Guy, Ltd., Moorhead, MN, for plaintiff and appellant.
    James B. Lynch (argued), Dorsey & Whitney, Minneapolis, MN, David J. Ho-gue (on brief), Pringle & Herigstad, P.C.,
    Minot, N.D., for defendant and appellee Trinity Hospitals.
    Tracy L. Vigness Kolb (argued) and Lance D. Schreiner (appeared), Zuger Kir-mis & Smith, Bismarck, N.D., for defendant and appellee Margaret C. Nordell, M.D.
   VANDE WALLE, Chief Justice.

[¶ 1] Michael T. Vandall, M.D., appealed from a judgment dismissing his action against Trinity Hospitals (“Trinity”) and Margaret C. Nordell, M.D. for failure to state a claim upon which relief could be granted, and awarding Trinity $24,740.63 in attorneys’ fees. We hold Vandall’s complaint fails to state a claim upon which relief can be granted, and the trial court abused its discretion in awarding Trinity attorneys’ fees. We affirm the judgment dismissing Vandall’s complaint but we reverse the award of attorneys’ fees.

I

[¶ 2] Trinity hired Vandall under a Physician Services Agreement effective from December 1, 1996, through November 30, 2001. Vandall alleged that, during the course of his employment with Trinity, he learned Nordell, another Trinity physician, was engaged in a level of treatment that Vandall believed violated accepted standards of care. According to Vandall, he unsuccessfully attempted to address the problem through Trinity’s available internal procedures. Vandall alleged that, after consulting with legal counsel, he ultimately reported the matter to the North Dakota Board of Medical Examiners (“Board”), and the Board concluded Nordell’s treatment constituted gross negligence and immediately suspended her license to practice medicine in North Dakota. Vandall claimed Trinity then began a series of retaliatory actions against him, including censuring him and failing to reappoint him to various hospital committees. Vandall alleged Nordell initiated the censure action against him with a letter to Trinity’s Quality Assurance Committee, and she filed meritless complaints, which were terminated in his favor, with the Board and with the American College of Obstetricians and Gynecologists (“ACOG”). On October 9, 2001, Trinity informed Vandall that his employment at Trinity would end when his Physician Services Agreement expired on November 30, 2001.

[¶ 3] In January 2003, Vandall sued Trinity and Nordell, alleging Trinity undertook a series of retaliatory actions against him, because, as required by N.D.C.C. § 43-17.1-05.1, he reported deficiencies in Nordell’s medical practice. Vandall alleged Nordell, without a reasonable basis, initiated and continued a series of meritless administrative actions to impair his right and ability to practice medicine. Vandall also alleged the actions by Trinity and Nordell constituted intentional infliction of emotional distress.

[¶ 4] The trial court dismissed Van-dall’s complaint against Trinity and Nor-dell under N.D.R.Civ.P. 12(b)(vi), concluding Vandall failed to state a claim upon which relief could be granted against both defendants. The court concluded Van-dall’s claim for retaliation against Trinity was barred by the 180-day statute of limitations in N.D.C.C. § 34-01-20, which preempted his common law cause of action for retaliation. The court concluded Van-dall failed to state a claim against Nordell because she did not initiate, continue, or procure a civil administrative proceeding against him within the meaning of Restatement (Second) of Torts § 680 (1977). The court also concluded Vandall’s claims against Trinity and Nordell failed to meet the threshold requirement of extreme and outrageous conduct necessary for a claim for intentional infliction of emotional distress under Restatement (Second) of Torts § 46 (1965). The court also awarded Trinity $24,740.63 in attorneys’ fees under N.D.C.C. § 34-01-20(3).

II

[¶ 5] A motion to dismiss a complaint under N.D.R.Civ.P. 12(b)(vi) tests the legal sufficiency of the claim presented in the complaint. Ziegelmann v. Daimler Chrysler Corp., 2002 ND 134, ¶ 5, 649 N.W.2d 556. On appeal from a dismissal under N.D.R.Civ.P. 12(b)(vi), we construe the complaint in the light most favorable to the plaintiff and accept as true the well-pleaded allegations in the complaint. Ziegelmann, at ¶ 5. Under N.D.R.Civ.P. 12(b)(vi), a complaint should not be dismissed unless “it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.” Ziegelmann, at ¶ 5 (quoting Lang v. Schafer, 2000 ND 2, ¶ 7, 603 N.W.2d 904). We will affirm a judgment dismissing a complaint for failure to state a claim if we cannot “discern a potential for proof to support it.” Ziegelmann, at ¶ 5 (quoting Towne v. Dinius, 1997 ND 125, ¶7, 565 N.W.2d 762).

III

[¶ 6] Vandall argues his complaint states a common law claim for retaliation against Trinity. He argues his common law claim is subject to a six-year statute of limitations and has not been preempted by the 180-day statute of limitations in N.D.C.C. § 34-01-20.

[¶ 7] Section 34-01-20(1), N.D.C.C., prohibits an employer from discharging or penalizing an employee for reporting the violation or suspected violation of a law, ordinance, regulation, or rule to an employer, a governmental body, or a law enforcement official. Under N.D.C.C. § 34-01-20(3), an employee may bring a civil action for injunctive relief or .actual damages, or both, within 180 days after the alleged violation, completion of proceedings with the department of labor, or completion of any internal grievance procedure, whichever is later. Vandall commenced his action against Trinity in January 2003, which is more than 180 days after his Physician Services Agreement expired on November 30, 2001.

[¶ 8] Vandall nevertheless argues N.D.C.C. § 34-01-20 does not preempt his common law claim for retaliatory discharge. He argues the clear legislative intent of N.D.C.C. § 34-01-20 was to expand, not to restrict, the existing common law remedies for tortious retaliatory conduct. He argues this Court has recognized the coexistence of common law and statutory claims for retaliatory discharge after the enactment of N.D.C.C. § 34-01-20.

[¶ 9] In 1993, the North Dakota Legislature enacted the whistle-blower statute now codified at N.D.C.C. § 34-01-20. See 1993 N.D. Sess. Laws ch. 346. The 1993 enactment prohibited an employer from discharging or penalizing an employee for reporting a violation of law to the employer, a governmental body, or a law enforcement official. Id. Under the 1993 enactment, an employer who willfully violated that statute was guilty of an infraction and the employee could seek assistance from the labor commissioner to assure compliance with the law, but the 1993 enactment did not specifically authorize a civil action. Id. See Dahlberg v. Lutheran Soc. Servs., 2001 ND 73, ¶ 33, 625 N.W.2d 241. In 1997, the Legislature amended N.D.C.C. § 34-01-20 to authorize an employee claiming retaliation to bring a civil action for injunctive relief or damages and to allow the labor department to receive complaints about violations of the statute. 1997 N.D. Sess. Laws ch. 291. See Dahl-berg, at ¶ 33. The 1997 enactment required the employee to bring a civil action within ninety days after the alleged violation, completion of proceedings before the labor department, or completion of an internal grievance procedure, whichever was later. 1997 N.D. Sess. Laws ch. 291. In 2001, the Legislature amended the ninety-day time period to 180 days. 2001 N.D. Sess. Laws ch. 307, § 1.

[¶ 10] Before the 1997 enactment of legislation authorizing a civil action for retaliatory discharge, this Court had discussed a limited public policy exception to the employment at-will doctrine for cases where a termination violated a specific declaration of public policy evidenced by a constitutional or a statutory provision. Lee v. Walstad, 368 N.W.2d 542, 546-47 (N.D.1985) (citing Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 840 (1983)). Without deciding the propriety of a public policy exception to the at-will doctrine, we held the employee in that case had not defined a clear public policy which his termination violated. Lee, at 547.

[¶ 11] Since Lee, we have recognized employees may bring a tort action for retaliatory discharge against an employer, if the employer’s actions contravene a clear statement of public policy in a constitutional or a statutory provision. In Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 794-95 (N.D.1987), we held an at-will employee could sue an employer in tort for wrongful discharge .in retaliation for seeking statutorily authorized workers compensation benefits. In Ressler v. Humane Soc., 480 N.W.2d 429, 431-32 (N.D.1992), we held an at-will employee could sue an employer for wrongful discharge in retaliation for honoring a subpoena and for testifying truthfully at a trial. In Jose v. Norwest Bank, 1999 ND 175, ¶21, 599 N.W.2d 293, we cited N.D.C.C. § 34-01-20, but we concluded an at-will employee could not sue an employer for wrongful discharge for participating in an internal employee investigation where the employee defined no clear public policy which the discharge violated. In Schultze v. Continental Ins. Co., 2000 ND 209, ¶¶ 9-10, 619 N.W.2d 510, we considered an at-will employee’s wrongful discharge claim in the context of an insurance company’s duty to defend the employer, and we concluded the insurance company had a duty to defend because the employee’s complaint alleged acts that began before the prior acts date for coverage under an insurance policy. In Dahlberg, 2001 ND 73, ¶¶ 32-38, 625 N.W.2d 241, we said we had recognized a limited public policy exception to the at-will doctrine if the employee established a termination in retaliation for complying with a clear public policy, and we then construed N.D.C.C. § 34-01-20 to require reports of violations or suspected violations of law to be made for the purpose of “blowing the whistle” to expose an illegality. In Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶29, 630 N.W.2d 46, we said under either the public policy exception to the at-will doctrine or the statutory provisions in N.D.C.C. § 34-01-20, a prima facie case for retaliatory discharge required an employee to show: (1) the employee engaged in protected activity; (2) the employer took adverse action against the employee; and (3) the existence of a causal connection between the employee’s protected activity and the employer’s adverse action.

[¶ 12] Vandall claims our decision in Anderson recognizes the coexistence of both a common law and a statutory action for retaliatory discharge. We reject Van-dall’s broad reading of Anderson. As the United States Supreme Court recently explained in Illinois v. Lidster, ■ — ■ U.S. -,-, 124 S.Ct. 885, 889, 157 L.Ed.2d 843,-(2004), general language in judicial opinions must be read in the context of the issues before a court and not in reference to circumstances different from what the court was then considering.

[¶ 13] In Anderson, 2001 ND 125, ¶¶ 27-37, 630 N.W.2d 46, we considered a summary judgment dismissal of a retaliatory discharge claim, and we held the employee had failed to establish a genuine issue of material fact on a causal connection between the employee’s protected activity and her termination a year later. In that context, we said the elements of a claim for retaliatory discharge under both the public policy exception and the statutory claim included the existence of a causal connection between the employee’s protected action and the employer’s adverse action. However, no issue was raised in Anderson, or any other cases cited by Vandall, about the coexistence of a common law and statutory claim for retaliation after the authorization of a civil action for retaliatory discharge in N.D.C.C. § 34-01-20. This is the first case in which an issue has been raised about the coexistence of common law and statutory claims for retaliatory discharge.

[¶ 14] Section 1-01-06 N.D.C.C. says “[i]n this state there is no common law in any case where the law is declared by the code,” and that language has consistently been construed to mean that statutory enactments take precedence over and govern conflicting common law doctrines. See Northern Pac. R.R. Co. v. Herbert, 116 U.S. 642, 654, 6 S.Ct. 590, 29 L.Ed. 755 (1886); In the Interest of M.C.H., 2001 ND 205, ¶ 9, 637 N.W.2d 678; Hill v. Weber, 1999 ND 74, ¶ 9, 592 N.W.2d 585; Martin v. Rath, 1999 ND 31, ¶20, 589 N.W.2d 896; Cermak v. Cermak, 1997 ND 187, ¶ 9, 569 N.W.2d 280; Olson v. Souris River Telecomms. Coop, Inc., 1997 ND 10, ¶ 13, 558 N.W.2d 333; Burr v. Trinity Med. Ctr., 492 N.W.2d 904, 907-10 (N.D.1992); Nuelle v. Wells, 154 N.W.2d 364, 365-66 (N.D.1967); Fitzmaurice v. Fitzmaurice, 62 N.D. 191, 196-200, 242 N.W. 526, 527-29 (1932); Reeves & Co. v. Russell, 28 N.D. 265, 275-83, 148 N.W. 654, 657-61 (1914) (on petition for rehearing).

[¶ 15] In Hill, 1999 ND 74, ¶ 9, 592 N.W.2d 585, we said “[w]here the provisions of the statute differ from previous case law, the statute prevails.” In Rath, 1999 ND 31, ¶ 20, 589 N.W.2d 896, we said “[statutory principles govern over general common law if there is a conflict.” In Burr, 492 N.W.2d at 907-10, we recognized a hierarchy which favored statutory law over common law, and we declined to apply a common law doctrine of equitable tolling to toll a malpractice statute of limitations. In Nuelle, 154 N.W.2d at 365-66, we concluded statutory provisions in N.D.C.C. § 9-10-06 for negligence actions prevailed over the common law doctrine that unemancipated minors could not maintain tort actions against their parents. In Fitzmaurice, 62 N.D. at 196-200, 242 N.W. at 527-29, we held the common law rule that a wife may not sue her husband in tort was abrogated by statute. In Herbert, 116 U.S. at 654, 6 S.Ct. 590, the United States Supreme Court discussed the predecessor of N.D.C.C. § 1-01-06, and said the code governs where it declares the law, but the common law prevails where the code is silent, and if language in the code is not defined by the code, that language can be explained by case law. The common thread in the cases applying the language of N.D.C.C. § 1-01-06 is “[t]here cannot be two rules of law on the same subject contradicting each other.” Herbert, at 654, 6 S.Ct. 590. See also Rath, at ¶ 20 (“[statutory principles govern over general common law if there is a conflict.”).

[¶ 16] The elements of the statutory and the common law actions for retaliatory discharge are essentially the same. See Anderson, 2001 ND 125, ¶29, 630 N.W.2d 46; Dahlberg, 2001 ND 73, ¶ 34, 625 N.W.2d 241. However, the statutes of limitation are different. Because the language of N.D.C.C. § 1-01-06 precludes two contradictory rules of law on the same subject, we conclude the plain language of the 180-day statute of limitations in N.D.C.C. § 34-01-20(3) governs Vandall’s claim for retaliatory discharge against Trinity. We therefore hold Vandall’s action against Trinity is barred by the statute of limitations, and his complaint against Trinity for retaliatory discharge fails to state a claim upon which relief can be granted.

[¶ 17] Because of our resolution of this issue, we do not consider issues about whether Vandall became an at-will employee after two years of employment with Trinity under N.D.C.C. § 34-01-02, or whether Trinity’s conduct in allowing his employment contract to expire constituted acts of retaliation.

IV

[¶ 18] Vandall argues his complaint states a cause of action against Nor-dell for the common law tort of wrongful initiation and continuation of administrative proceedings under Restatement (Second) of Torts § 680 (1977). Vandall’s complaint alleged Nor dell initiated a censure action against him with a letter to Trinity’s Quality Assurance Committee and Nordell filed complaints against him with the Board and with the ACOG. Vandall’s eomr plaint alleged Nordell’s complaints, with the exception of Trinity’s censure, were all terminated in his favor.

[¶ 19] We have not previously considered whether to adopt the Restatement (Second) of Torts § 680 in North Dakota, nor do we need to do so here. Assuming without deciding such an action exists in North Dakota, we conclude Vandall’s complaint fails to state a claim against Nordell under that provision, which relates to proceedings before an administrative board and provides:

One who takes an active part in the initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if
(a) he acts without probable cause to believe that the charge or claim on which the proceedings are based may be well founded, and primarily for a purpose other than that of securing appropriate action by the board, and
(b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.

[¶ 20] Vandall alleged Nordell initiated Trinity’s censure action with a letter to Trinity’s Quality Assurance Committee, but Vandall’s complaint alleged he was censured by Trinity. Vandall’s complaint does not and cannot allege Nordell’s letter to Trinity’s Quality Assurance Committee resulted in the termination of that proceeding in his favor because Trinity did censure him. Therefore his allegations regarding that letter fail to state a claim upon which relief can be granted under Restatement (Second) of Torts § 680. Moreover, Vandall has not marshaled an argument in this Court about his allegation that Nordell filed two complaints with the ACOG. We have said a party waives an issue by not providing supporting argument. McMorrow v. State, 2003 ND 134, ¶ 12, 667 N.W.2d 577 (citing Olander Contracting, Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 27, 643 N.W.2d 29). We conclude Vandall has waived any argument about Nordell’s complaints with the ACOG.

[¶ 21] We move to consideration of Vandall’s argument about Nordell’s two complaints to the Board, which he alleges were terminated in his favor and were made for revenge and without justification and probable cause.

[¶ 22] Courts that have considered the application of Restatement (Second) of Torts § 680 generally have recognized it does not apply to a complaint made to an administrative agency that has an independent investigative panel charged with investigating and determining whether the complaint warrants further action, because the agency, not the complainant, issues legal process and initiates, continues, or procures the administrative proceeding. See Hogen v. Valley Hosp., 147 Cal.App.3d 119, 195 Cal.Rptr. 5, 7-8 (1983); Stanwyck v. Home, 146 Cal.App.3d 450, 194 Cal. Rptr. 228, 233-34 (1983); Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964, 979 (1994); Davis v. Board of Educ., 963 S.W.2d 679, 685-87 (Mo.Ct.App.1998).

[¶ 23] In Davis, 963 S.W.2d at 686, the Missouri Court of Appeals explained the principle of initiating, continuing, or procuring an administrative proceeding:

What constitutes initiation, institution or instigation of charges in an agency setting depends on how charges are brought to the agency for adjudication. In those cases where the agency provides a means for persons to file complaints which automatically trigger agency action on those complaints, the person is held to have instigated the action.
Thus, where the defendants on their own initiative submitted affidavits to licensing officials with the intent to secure the revocation or non-renewal of plaintiffs private detective’s license and the licensing authorities refused to renew the license on the basis of the affidavits, the court held that instigation was sufficient. Melvin[ v. Pence], 130 F.2d [423] at 427 [(1942)].
Where a defendant filed written verified charges of misconduct with a Real Estate Licensing Board which required the Board to hold a hearing, the defendant “instituted” the administrative action. Carver[ v. Lykes], [262 N.C. 345,-]137 S.E.2d [139] at 145^6 [(1964)]. The defendant’s motive is not relevant. Id. at 146. Likewise, where a document is filed with an agency which document initiates a contested proceeding, a defendant has instigated an action. Hillside Associates[ v. Stravato], 642 A.2d [664] at 670 [(1994)] (filing an appeal of plaintiffs building permit with a zoning board). In Kauffman[ v. A.H. Robins, Co], 448 S.W.2d [400] at 403-04 [(1969)], the Tennessee Supreme Court held that the defendant drug company had instituted an agency Board of Pharmacy proceeding where it filed a complaint in which it stated that it stood ready to attempt to prove that plaintiff violated certain pharmacy laws. As a result of the complaint, plaintiff was cited to appear before the State Board of Pharmacy for a hearing. Id. at 401.
On the other hand, when an agency official has sole authority to initiate the action, persons who have provided information to that official are not held to have initiated or taken an “active part” in initiating the action. The general rule is that an individual who merely provides facts concerning the conduct of another to an officer possessing the authority to issue charges is not liable for malicious prosecution. See e.g., Linden-man, 875 P.2d at 979. In Lindenman the Kansas Supreme Court held that a county board of health employee who inspected a day care center and filed a report with the board did not initiate the board’s ex parte suspension of the day care center’s license and cannot be considered an “active part” of the board’s subsequent revocation action against the day care center. Id. The board filed the revocation action when the day care center refused to stipulate to the accuracy of the inspection report, a condition for lifting the suspension. Id. at 969. Likewise, in Werner v. Hearst Publications, Inc., 65 Cal.App.2d 667, 151 P.2d 308, 312 (1944), individuals who sent a letter to an investigator for a state bar association complaining about an attorney did not institute the show cause proceeding against the attorney, where the local bar association committee made an independent investigation and one of its members signed the complaint initiating the proceeding. This holding was reaffirmed in Stanwyck v. Horne, 146 Cal. App.3d 450, 194 Cal.Rptr. 228, 234 (1983).

[¶ 24] In Stanwyck, 194 CaLRptr. at 233-34, the California Court of Appeals discussed the initiation of proceedings in the context of a complaint to the state bar association about a lawyer’s conduct. The court concluded the state bar association’s rules required it to conduct an independent investigation and determine whether to proceed on the complaint, and the state bar association, not the complainant, therefore initiated, continued, or procured disciplinary proceedings against the attorney. Id. at 234. The court recognized a strong public policy dictated allowing a person to make a complaint to the state bar association without fear of a subsequent action for malicious prosecution. Id. at 234-36. In Hogen, 195 Cal.Rptr. at 8, the California Court of Appeals extended the rationale of Stanwyck to complaints to the Board of Medical Quality Assurance, noting the mechanism for handling those complaints was similar to the procedure employed by the state bar association.

[¶ 25] Under N.D.C.C. § 43-17.1-05.1, a physician with actual knowledge that a licensed physician may have committed any of the grounds for disciplinary action shall promptly report that information to the Board’s investigative panel, and the investigative panel shall investigate any evidence the licensee may have committed any grounds for discipline. Under parallel provisions in N.D.C.C. § 43-17.1-05(1), any person may make a complaint to the Board’s investigative panel, and the investigative panel shall conduct the investigation “it deems necessary” to determine whether any physician has committed any grounds for discipline provided by law. The investigative panel shall make findings, including whether the physician’s conduct warrants further proceedings. N.D.C.C. § 43-17.1-05(1). Under N.D.C.C. § 43-17.1-05(2), if the investigative panel decides a formal hearing should be held, it shall serve a formal complaint upon the physician and with the Board for disposition by the Board under N.D.C.C. ch. 28-32, and the complaint is then prosecuted before the Board. If the investigative panel finds insufficient facts to warrant further investigation or action, the complaint must be dismissed and the matter is closed. N.D.C.C. § 43-17.1-05(3). Under N.D.C.C. §§ 43-17.1-05(1) and 43-17.1-05.1, a person who, in good faith, makes a report to an investigative panel is not subject to civil liability for making the report.

[¶ 26] Although Vandall claims the corollary of the “good faith” language in those provisions is that the Legislature presumed the lack of good faith would establish the basis for an action, he has not marshaled an argument to support that claim. See Trade ‘N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, ¶ 2, 628 N.W.2d 707 (holding no implied private right of action for damages under Unfair Discrimination Law or Unfair Trade Practices Law). The good faith exception to civil liability recognizes the public policy of encouraging persons to come forward with complaints about medical professionals without fear of defending a malicious prosecution action. The good faith exception does not necessarily establish an independent action for bad faith, and that language is not germane to whether Nordell initiated, continued, or procured an administrative proceeding within the meaning of Restatement (Second) of Torts § 680.

[¶27] Under the statutory scheme in N.D.C.C. §§ 43-17.1-05 and 43-17.1-05.1, the investigative panel, not a physician or person making a report or complaint to the investigative panel, is the entity that initiates, continues, or procures proceedings before the Board within the meaning of Restatement (Second) of Torts § 680. See Hogen, 195 Cal.Rptr. at 7-8. We therefore conclude Vandall has failed to state a claim against Nordell for wrongful use of civil proceedings before an administrative board under Restatement (Second) of Torts § 680.

V

[¶ 28] Vandall argues his complaint states a cause of action against Trinity and Nordell for intentional infliction of emotional distress.

[¶ 29] In Muchow v. Lindblad, 435 N.W.2d 918, 923-25 (N.D.1989), we said a claim for intentional infliction of emotional distress under Restatement (Second) of Torts § 46 (1965) consists of extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress. In discussing the degree of extreme and outrageous conduct necessary for intentional infliction of emotional distress, we said a recitation of the defendant’s conduct must lead an average member of the community to exclaim, “outrageous!” Muchow, at 924 (quoting Restatement (Second) of Torts § 46 comment d). In Dahlberg, 2001 ND 73, ¶ 19, 625 N.W.2d 241, we said the threshold element of extreme and outrageous conduct is narrowly limited to outrageous conduct that exceeds all possible bounds of decency. In determining whether conduct is extreme and outrageous, courts consider whether the conduct is so extreme in degree as to be beyond all possible bounds of decency and utterly intolerable in a civilized society. Id. (quoting Muchow, at 924). Whether the alleged actions meet the threshold of extreme and outrageous conduct is a question of law to be decided by the court. Dahlberg, at ¶ 21. In Dahlberg, at ¶25, in discussing a claim in the context of the termination of employment, we said “[t]he nature of any termination is such that it often produces stress and mental anguish in the person being terminated [and] the test is not whether or not the termination was traumatic, but whether or not the termination was outrageous.”

[¶ 30] We conclude Vandall’s claims against Trinity do not allege conduct that is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. To the extent Van-dall raises a similar claim against Nordell, we also conclude those claims do not rise to the level of extreme and outrageous conduct. We therefore conclude Vandall’s complaint fails to state a claim for intentional infliction of emotional distress against Nordell and Trinity.

VI

[¶ 31] Vandall argues the trial court erred in awarding Trinity attorneys’ fees. He argues he did not sue Trinity under N.D.C.C. § 34-01-20, and attorneys’ fees should not be awarded under that statute. •

[¶ 32] Attorney fees are not allowed to a successful litigant unless expressly authorized by statute. In re Estate of Lutz, 2000 ND 226, ¶ 33, 620 N.W.2d 589. Section 34-01-20(3), N.D.C.C. provides that “[i]n any action under this section, the court may award reasonable attorneys’ fees to the prevailing party as part of the costs of litigation.”

[¶ 33] In awarding Trinity attorneys’ fees, the court recognized its “authority for the awarding an unspecified amount of reasonable attorney fees in N.D.C.C. § 34-01-20(3) was discretionary,” and said “Vandall’s legal action was obviously barred by the statute of limitations” in N.D.C.C. § 34-01-20. Vandall cannot escape the statute of limitations by pleading a common law action. See Sime v. Tvenge Assocs. Architects & Planners, P.C., 488 N.W.2d 606, 609 (N.D.1992) (stating party cannot escape malpractice statute of limitations by simply couching complaint in terms of ordinary negligence). Although the statute of limitations in N.D.C.C. § 34-01-20 precludes Vandall’s claim for retaliatory discharge, his complaint and arguments were premised upon a common law claim for retaliatory discharge, not a statutory claim. Vandall did not purport to sue Trinity under N.D.C.C. § 34-01-20, and the primary issue in the trial court and on appeal to this Court was whether Vandall could bring an action under the common law. Furthermore, this is the first case in which we have specifically considered an issue regarding the interrelationship of a provision in that statute and a common law claim for retaliation. We agree with Van-dall that he should not suffer the detriment of an adverse award of attorney fees where he has not couched his complaint in terms of nor relied upon the statute. Under these circumstances, we conclude the trial court was without authority to award Trinity attorneys’ fees under the statute.

VII

[¶ 34] We affirm the judgment dismissing Vandall’s complaint and reverse the award of attorneys’ fees.

[¶ 35] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and WILLIAM F. HODNY, S.J., concur.

[¶ 36] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of EAPSNER, J., disqualified.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2004 ND 51
    STATE of North Dakota, Plaintiff and Appellee v. Scott WILSON, Defendant and Appellant.
    No. 20030112.
    Supreme Court of North Dakota.
    March 1, 2004.

      Wayne D. Goter, Bismarck, N.D., for defendant and appellant.
    Brian D. Grosinger, Assistant State’s Attorney, Mandan, N.D., for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Scott Wilson appeals his judgment of conviction for theft by deception, in violation of N.D.C.C. § 12.1-23-02(2). Wilson argues there was insufficient evidence to sustain the guilty verdict. Wilson also argues the trial court erred in failing to instruct the jury on the definitions of “deception,” “deprive,” and “intent.” We affirm.

I

[¶ 2] Scott Wilson sold meat products door-to-door for Farmer’s Pride, a company with offices in Fargo, North Dakota, and Roseville, Minnesota. C.M., a Mandan, North Dakota, resident, was diagnosed with Alzheimer’s disease type dementia in November 2000. C.M. purchased meat products from Wilson and issued four checks to him, in the amounts of $650.00, $1,014.42, $1,600.00, and $3,000.00, between January 11, 2001, and January 17, 2001. C.M.’s son, R.M., soon received nonsufficient funds notices regarding his mother’s bank account and learned of the meat purchases. C.M. later informed R.M. that over 1000 pieces of meat had been delivered to her home and she had to store some of them in her garage and on her back porch. R.M. contacted Wilson, asking to cancel the sale and have Wilson retrieve the meat. Wilson refused, stating the three-day cancellation period had expired.

[¶ 3] Wilson was initially charged with theft of property. The charge was amended to theft by deception after the preliminary hearing. A jury trial commenced on July 30, 2002. At trial, a police officer testified Wilson had informed him that the $3,000 check was a personal loan and, according to Wilson, C.M. wanted to use some of the meat products as gifts. R.M. testified that each check bore his mother’s signature, but only one check, for $650, was entirely in his mother’s handwriting. C.M.’s doctor and R.M. both explained her memory problems. Wilson admitted to spending an hour and a half with C.M., which R.M. believed was an adequate amount of time to detect her memory problems. C.M. testified that she did not know or recognize Wilson, but that she did sign the checks. C.M. testified that she did not know why she would have bought so much meat. She also testified that she did not lend money to Wilson.

[¶ 4] Wilson twice requested the trial court provide a jury instruction defining “deception.” The trial court denied Wilson’s requests, stating the term was a matter of common use and an instruction could unnecessarily confuse the jury. The jury found Wilson guilty of theft by deception. Wilson was sentenced to five year’s imprisonment, with two years suspended. During that two-year period of suspension, Wilson will be placed under supervised probation. Wilson appeals.

II

[¶ 5] Wilson argues the State presented insufficient evidence to sustain his conviction for theft by deception. Wilson claims the evidence shows a series of contracts between C.M. and himself that are not fraudulent in nature or in their terms. According to Wilson, C.M. received the property she contracted for and there is no evidence showing the personal loan would not have been repaid. Therefore, there is no evidence from which a jury could reasonably infer Wilson practiced a deception, intending to deprive C.M. of her money without her authorization. We disagree.

[¶ 6] Under N.D.C.C. § 12.1-23-02(2), a person is guilty of theft if he “[kjnowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat.” When reviewing-challenges to the sufficiency of the evidence, we view the evidence most favorable to the verdict and all reasonable inferences from such evidence. State v. Knowels, 2003 ND 180, ¶6, 671 N.W.2d 816. The defendant “must show the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt.” State v. Strutz, 2000 ND 22, ¶ 7, 606 N.W.2d 886. We do not weigh conflicting evidence or judge the credibility of witnesses. State v. Johnson, 425 N.W.2d 903, 906 (N.D.1988). We “merely review the record to determine if there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilty and fairly warranting a conviction.” State v. Jacobson, 419 N.W.2d 899, 901 (N.D.1988). This Court reverses a conviction only if no rational fact-finder could have found the defendant guilty beyond a reasonable doubt, after applying the standard above. State v. Burke, 2000 ND 25, ¶ 12, 606 N.W.2d 108. Wilson bears the burden of convincing this Court there is no reasonable inference of guilt, based on the evidence. See State v. Ebach, 1999 ND 5, ¶24, 589 N.W.2d 566.

[¶ 7] Sufficient evidence exists to support the jury’s finding that Wilson knowingly obtained the property of C.M. by deception with the intent to deprive C.M. of such property, in violation of N.D.C.C. § 12.1-23-02(2). The facts, viewed in the light most favorable to the verdict, support Wilson’s conviction. Wilson visited C.M. four times over a week-long period, obtaining more money from C.M. with each visit. Wilson admitted to spending an hour and a half with C.M., which R.M. testified would have been adequate time to become aware of C.M.’s memory problems. The jury heard testimony from both R.M. and Dr. Dale Klein describing C.M.’s Alzheimer’s and the effect it has on her mental abilities. The jury also had an opportunity to observe C.M. personally while she testified. C.M. testified she did not know or recognize Wilson, nor did she lend him money. C.M. also testified she did not know why she would buy so much meat.

[¶ 8] Additionally, the evidence related to the checks supports Wilson’s conviction. While each check bore C.M.’s signature, only one check, for $650, was written entirely in C.M.’s handwriting. Wilson claims the fourth check, in the amount of $3,000, was a loan, but R.M. testified Wilson had informed him it was for an additional twenty cases of meat. Wilson then told a different story to law enforcement stating the check was a loan from C.M. These facts, viewed in a light most favorable to the verdict, support Wilson’s conviction.

[¶ 9] Wilson argues there was no evidence to show C.M. was incompetent to enter into contracts and, although this may have been an ill-advised contract, Wilson did not engage in criminal activity. Additionally, Wilson argues, with regard to the purported loan, the evidence showed he gave C.M. his personal identification information and there is no evidence of the terms of the loan, thus there is no evidence the loan was not going to be repaid. However, Wilson must do more than set forth alternative arguments and facts countering those that support his conviction. The jury, not this Court, has the task of weighing evidence and judging the credibility of the witnesses. Ebach, 1999 ND 5, ¶ 24, 589 N.W.2d 566. “A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.” State v. Hatch, 346 N.W.2d 268, 277 (N.D.1984). Based on the facts viewed in the light most favorable to the verdict and on the inferences to be drawn, the jury reasonably could have found Wilson guilty beyond a reasonable doubt. Wilson’s conviction is supported by sufficient evidence.

Ill

[¶ 10] Wilson argues the trial court committed reversible error in failing to properly instruct the jury on the definition of deception.

[¶ 11] On appeal, jury instructions are fully reviewable. State v. Steffes, 500 N.W.2d 608, 611 (N.D.1993). Instructions are reviewed as a whole, and we determine “whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous.” State v. Hammeren, 2003 ND 6, ¶ 13, 655 N.W.2d 707. We will reverse only if the instructions, as a whole, are (1) erroneous, (2) relate to a central subject in the case, and (3) affect a substantial right of the accused. State v. Huber, 555 N.W.2d 791, 793 (N.D.1996).

[¶ 12] Wilson asserts the information failed to specify the acts of deception, which made the concept of deception general and vague, necessitating a defining instruction to ensure the jury examined this issue properly under N.D.C.C. § 12.1-23-02(2). Wilson concedes he did not request a bill of particulars, nor did he object to the information.

[¶ 13] Wilson requested a jury instruction defining “deception,” under N.D.C.C. § 12.1-23-10(2), at both the beginning and end of the trial. However, Wilson’s request omitted significant portions of the definition under N.D.C.C. § 12.1-23-10(2). The trial court denied Wilson’s request, stating no definition is necessary because the term is common. The trial court also expressed concern over needlessly confusing the jury by parsing the multiple definitions apart and noted that, although there is a statutory definition for “deception,” it generally is not given as an instruction because of the commonality of the term. The trial court agreed to provide a definition of “deception” if requested by the jury, and instructed the jury as to the appropriate means of communicating with the trial court during deliberations.

[¶ 14] Wilson’s requested jury instruction, as proposed, was not a complete statement of the law. The trial court properly refused Wilson’s requested jury instruction. See, e.g., State v. Hafner, 1998 ND 220, ¶24, 587 N.W.2d 177 (holding, “[a] court must refuse a requested instruction that misstates the applicable law”).

[¶ 15] However, we must still consider whether, as a whole, the jury instructions adequately and correctly inform the jury of the applicable law. As previously stated, the trial court has a duty to correctly instruct the jury on the applicable law. State v. Weaver, 2002 ND 4, ¶ 16, 638 N.W.2d 30. Thus, even though the trial court had no duty to provide Wilson’s specific proposed instruction, a complete instruction defining “deception” may have been necessary to adequately and correctly inform the jury of the applicable law. Wilson argues the trial court was required to provide a definition for “deception” because the term is not a matter of common usage as related to this case. We disagree.

[¶ 16] In State v. Motsko, 261 N.W.2d 860, 866 (N.D.1977), we held the trial court did not err in failing to issue a jury instruction defining “deception,” as used in a kidnaping statute. We reiterated the holding in Railway Company v. McCarthy, 96 U.S. 258, 265-66, 24 L.Ed. 693 (1877), stating, “[i]f the instructions given cover the case and are correct, that is enough” and concluded “deception” is a word of common understanding. Motsko, at 866. We also stated that, although the defendant did not request the instruction, in the event such a request was made, it was within the discretion of the trial court to decide whether to instruct the jury accordingly. Id.; see also U.S. v. Lee, 356 F.3d 831, 838 (8th Cir.2003) (holding, “[a] defendant is not entitled to instructions on the definition of every word in an instruction. [T]he word ‘knowingly’ is not beyond the ken of a jury or common layperson.”) (citations omitted).

[¶ 17] Although we are contemplating a different offense in this case, we believe our holding in Motsko is applicable here. The trial court found the word had a common meaning and an instruction might only serve to unnecessarily confuse the jury. “Frequently, to attempt to explain understandable language is merely to confuse.” Motsko, at 866. We conclude “deception,” as it applies to Wilson’s case, is a term of common understanding, easily understood by the jury. As such, the trial court did not err in failing to provide the jury with a definition of “deception.”

[¶ 18] The instructions, as a whole, adequately and correctly inform the jury of the law, even though they do not include a definition for “deception.” Because we conclude the jury instructions were not erroneous, it is unnecessary to continue our inquiry to determine whether Wilson’s alleged error related to a central subject in the case or affected a substantial right. See State v. Huber, 555 N.W.2d 791, 793 (N.D.1996) (setting forth three criteria for analyzing alleged jury instruction errors).

rv

[¶ 19] For the reasons stated, the trial court’s judgment of conviction is affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., GORDON 0. HOBERG, S.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 21] The Honorable GORDON 0. HOBERG, S.J., sitting in place of SANDSTROM, J„ disqualified.

      . According to the trial transcript, Wilson's requested instruction incorporated portions of N.D.C.C. § 12.1 — 23—i0(2)(a) and (g), and apparently would have resulted in an instruction stating: deception means creating or reinforcing a false impression as to fact, law, status, value, intention, or other state of mind, or any other scheme to defraud; but deception as to a person's intention to perform a promise may not be inferred from the fact alone that the person did not substantially perform the promise unless it is part of a continuing scheme to defraud.

      . Under the ''definitions'' section of the kid-naping chapter, "Restraint is ‘without consent' if it is accomplished by: a. force, intimidation, or deception.” N.D.C.C. § 12.1-18-04(2).


text:
    2004 ND 49
    Michael BEAUDOIN, Plaintiff and Appellant v. SOUTH TEXAS BLOOD & TISSUE CENTER, Defendant and Appellee.
    No. 20030148.
    Supreme Court of North Dakota.
    March 1, 2004.

      Kay Nord Hunt (argued), Robert J.King, Jr., and Diane M. Odeen, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, and Orell D. Schmitz, Schmitz & Schmidt, Bismarck, ND, for plaintiff and appellant.
    Michael T. Andrews (argued) and H. Patrick Weir, Vogel Law Firm, Bismarck, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Michael Beaudoin appealed from a judgment dismissing without prejudice his action against South Texas Blood & Tissue Center (“South Texas”). We conclude South Texas was properly served with process, and we reverse and remand for further proceedings.

[¶ 2] Beaudoin had his right patellar tendon surgically replaced on August 23, 2000, in Dickinson, North Dakota, with a tendon removed from a cadaver in Texas. At the request of a Connecticut corporation, South Texas shipped the tendon to Dickinson. Beaudoin sued South Texas, alleging the tendon was not sterile, and that, as a result, he contracted an infection in his right knee. A professional process server delivered a copy of the summons and complaint to Betty Nickerson, South Texas’s Executive Office Manager, on August 19, 2002. South Texas did not answer or appear, and a default judgment was entered against it. Relying on N.D.R.Civ.P. 12(b), and N.D.R.Civ.P. 60(bj(i), (iv) South Texas moved to vacate the default judgment and to dismiss the complaint “on the grounds that the Court lacks personal jurisdiction over the defendant.”

[¶ 3] South Texas submitted an affidavit of Nickerson stating, in part:

1. I am the Executive Office Manager for the South Texas Blood and Tissue Center (Blood and Tissue Center). I have been employed by the Blood and Tissue Center for 21 years. As the Executive Office Manager, I am responsible for providing administrative support for the Vice Presidents, and for Dr. Norman D. Kalmin, M.D., President/CEO and Medical Director of the Blood and Tissue Center.
[2]. I am not an officer, director, superintendent, managing or general agent, partner, or associate of the South Texas Blood and Tissue Center.
[3]. I am not an agent authorized to receive service of process on behalf of the South Texas Blood and Tissue Center.
[4], On August 19, 2002, I received a telephone call from the company receptionist, who asked me to sign for a document. As it turned out, this document was the Summons and Complaint in the matter of Michael Beaudoin v. South Texas Blood and Tissue Center. The document was not addressed to any particular person, but was simply directed to the South Texas Blood and Tissue Center.
[5]. I delivered the document to Dr. Kalmin, who then delivered it to Mary Beth Fisk, Vice President of Tissue Services. Ms. Fisk sent a copy of the document to Donna Respondek, Vice President of Financial Services, requesting that Ms. Respondek file a claim with the insurance company.
[6]. Ms. Respondek was on vacation at the time, and the copy of the Summons and Complaint sent to her was thereafter accidentally misfiled in the Financial Services Department, without any action taken. This was discovered on January 8, 2003, when a call was received from Mr. Beaudoin’s attorney informing us of the default judgment.

[¶ 4] Charles N. Lambrecht, a professional process server engaged to serve South Texas, stated, in part, in his affidavit:

I was contacted by the law firm of Schmitz and Schmidt to serve a Summons and Complaint on the South Texas Blood & Tissue Center. After receipt of those papers, I proceeded to South Texas Blood <& Tissue Center and upon entry, requested of the receptionist a Managing Agent or Director of the corporation. After waiting for a period of time, Betty Nickerson was brought to me and identified as the Executive Office Manager and authorized to accept the papers. I told her I was delivering legal papers on her and she certainly seemed to understand what was happening.

[¶ 5] The trial court ruled South Texas was not properly served and the court, therefore, did not acquire personal jurisdiction over South Texas. The court ordered the default judgment vacated, and it dismissed the action without prejudice. A judgment of dismissal without prejudice was entered on March 31, 2003.

[¶ 6] On appeal, Beaudoin contends (1) the judgment is appealable because the claim is for malpractice and the statute of limitations has run; (2) South Texas was properly served under N.D.R.Civ.P. 4(d); (3) South Texas had sufficient relationships or contacts with North Dakota to subject it to the jurisdiction of North Dakota courts; and (4) the default judgment was valid and should not have been vacated.

I

[¶ 7] While ordinarily not ap-pealable, “a dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiffs chosen forum.” Winer v. Penny Enterprises, Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9. A judgment of dismissal without prejudice is appealable if the plaintiff will be barred by the statute of limitations from bringing another action. Jaskoviak v. Gruver, 2002 ND 1, ¶ 8, 638 N.W.2d 1.

[¶ 8] Section 28-01-18(3), N.D.C.C., provides a two-year statute of limitations for “[a]n action for the recovery of damages resulting from malpractice.” Malpractice is the failure of one rendering professional services to exercise the degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession, which results in injury, loss, or damage to the recipient of those services or to those entitled to rely upon them. Johnson v. Haugland) 303 N.W.2d 533, 538 (N.D.1981). See also Jilek v. Berger Elec., Inc., 441 N.W.2d 660, 661 (N.D.1989) (stating “malpractice is a professional’s failure to exercise the requisite degree of skill and learning in providing services,” or, more simply, “professional negligence”).

[¶ 9] While “any alleged professional malpractice may be framed generally in either tort or contract theory,” Johnson, 303 N.W.2d at 539 n. 4, “[i]n a malpractice case, the malpractice statute of limitations controls over statutes of limitations applicable to contract or other tort actions,” Jilek, 441 N.W.2d at 661. “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of ... science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience.” Sime v. Tvenge Assocs. Architects and Planners, P.C., 488 N.W.2d 606, 609 (N.D.1992) (citations omitted).

[¶ 10] We are satisfied that the harvesting, preservation, and delivery of body parts involves “science or art requiring special skills not ordinarily possessed by lay persons,” Sime, 488 N.W.2d at 609, and we, therefore, conclude that this case is governed by the two-year statute of limitations for malpractice prescribed by N.D.C.C. § 28-01-18(3). Thus, “[i]f the dismissal stands, [Beaudoin] will be barred from bringing another action by N.D.C.C. § 28-01-18(3).” Jaskoviak, 2002 ND 1, ¶ 8, 638 N.W.2d 1. We conclude the dismissal without prejudice entered in this case is, therefore, appealable.

II

[¶ 11] “Valid service of process is necessary to assert personal jurisdiction over a defendant.” Gessner v. City of Minot, 1998 ND 157, ¶ 5, 583 N.W.2d 90. Thus, we must determine if South Texas was properly served with process under N.D.R.Civ.P. 4(d), which provides, in part:

(2) How Service Made Within the State. Personal service of process within the state must be made as follows:
(D) upon a domestic or foreign corporation ... by (i) delivering a copy of the summons to an officer, director, superintendent or managing or general agent, ... or to an agent authorized by appointment or by law to receive service of process in its behalf....
(3) How Service Made Outside the State. Service upon any person subject to the personal jurisdiction of the courts of this state may be made outside the state:
(A) in the manner provided for service within this state, with the same force and effect as though service had been made within this state.

[¶ 12] When what is now N.D.R.Civ.P. 4(d)(2)(D) was adopted in 1957, it superseded N.D.R.C.1943, § 28-0606, which provided, in part: “If the defendant in a civil action is a domestic corporation, service of the summons shall be made upon the president, secretary, cashier, or treasurer, or upon a director or a managing or authorized agent thereof.”-' The provision was drawn from C.L.1913, § 7426(4), R.C. 1899, § 5252(4), and R.C. 1895, § 5252(4), which was, in turn, drawn from Code of Civil Procedure § 102, Revised Codes of the Territory of Dakota (1877). The provision was previously codified in Code of Civil Procedure § 86, Laws of Dakota 1867-8, which provided for service of a summons upon a corporation’s “president or other head of the corporation, secretary, cashier, treasurer, a director, or managing agent thereof.” Volume 1, Revised Codes of the Territory of Dakota (1883), notes the source of § 102 of the Code of Civil Procedure was Wait’s Code § 134. At page v of the Preface to the Revised Codes of the Territory of Dakota (1877), the New York source of our provision is also noted:

The [1877 Code of Civil Procedure] originated also in New York, where it was enacted into law. In an abridged form it was enacted in Dakota in 1868, and took effect on the first day of June in that year.

The New York antecedent of our provision for service of process on corporations was enacted in 1848, as part of the Code of Procedure, “known as the ‘Field Code,’ ” after David Dudley Field, one of the commissioners on practice and pleadings proposing the code. Mildred V. Coe and Lewis W. Morse, Chronology of the Development of the David Dudley Field Code, 27 Cornell Law Rev. 238, 239-42 (1942).

[¶ 13] Our rule on service of process upon a corporation, and its statutory antecedents here extending as far back as 1868, have authorized service upon a managing agent, as does N.Y.C.P.L.R. § 311(a)(1) (McKinney 2001), which, as the source notes indicate, is derived from “C.P. (Field Code) 1848, § 134,” and provides for service of process upon a corporation by delivering the summons “to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service.” Because our rule and N.Y.C.P.L.R. § 311(a)(1) (McKinney 2001) share a common derivation from New York’s Field Code of Procedure § 134 (1848), New York court decisions, like “California court decisions construing Field Code sections, while not binding, are entitled to respectful consideration, and may be ‘persuasive and should not be ignored.’ ” Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473, 477 n. 4 (N.D.1986) (quoting Becker v. Becker, 262 N.W.2d 478, 483 (N.D.1978)).

[¶ 14] In New York, a process server is entitled to rely upon a defendant corporation’s employees’ representations about an individual’s authority to receive service of process for the corporation. See the description of service in Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 428 N.Y.S.2d 890, 406 N.E.2d 747, 749 (1980):

At a hearing before a Special Referee, the process server testified.... When he arrived at the defendant’s offices he went to the receptionist and stated: “I have a summons and complaint to serve on Zurich. Can you please tell me who I might see or who handles this.” The receptionist told him to proceed down a certain corridor and “see the girl sitting down there.” He did as directed and found Ann Robertson sitting at a desk. He told her that he had a summons and complaint to serve on Zurich. She asked to see the papers and, after looking them over, said “Okay, leave it with me * * * I’ll take it.” When he asked her if she was authorized “to accept this”, she stated “I can take it.”
The receptionist testified that she was responsible for directing visitors to the proper person within the office. Ann Robertson stated that she was the executive secretary for Joseph Scanlon, who was a member of the board of directors and the vice-president in charge of the New York office.... [S]he said that she was not an officer or managing agent of the corporation and had not been expressly authorized to accept service on its behalf.
She admitted, however, that she had received the summons and complaint in this ease and that she had informed Mr. Scanlon of this when he returned from lunch. At his direction she had forwarded the papers to the company’s legal department by interoffice mail.

The Court of Appeals held the service was proper, explaining:

The purpose of CPLR 311 (subd. 1) is to give the corporation notice of the commencement of the suit....
A corporation may appoint an agent to accept service without observing the formalities necessary to “designate” an agent pursuant to CPLR 318....
Thus a corporation may assign the task of accepting process and may establish procedures for insuring that the papers are directed to those ultimately responsible for defending its interests .... In such a case the process server cannot be expected to know the corporation’s internal practices. Reliance may be based on the corporate employees to identify the proper person to accept service. In such circumstances, if service is made in a manner which, objectively viewed, is calculated to give the corporation fair notice, the service should be sustained.

(Citations omitted.) Fashion Page, Ltd,., 428 N.Y.S.2d 890, 406 N.E.2d at 750-51. See also Evergreen Marine Corp. v. Welgrow Int’l, Inc., 942 F.Supp. 201, 205 (S.D.N.Y.1996) (stating “it is well settled in New York that a process server is entitled to rely upon the representations of an employee who claims to be authorized to receive service of process”). The United States Court of Appeals for the Second Circuit has also recently addressed New York’s requirements for service of process on a corporation:

In tendering service, the process server may rely upon the corporation’s employees to identify the individuals authorized to accept service. Fashion Page, 50 N.Y.2d at 272-73, 428 N.Y.S.2d 890, 406 N.E.2d 747. As long as the process server’s reliance on corporate personnel is reasonable, the defendant may not later complain that it lacked notice even if the complaint was mistakenly delivered to a person who was not authorized to accept service. Id. at 273-74, 428 N.Y.S.2d 890, 406 N.E.2d 747.

Old Republic Ins. Co. v. Pacific Fin. Servs. of America, Inc., 301 F.3d 54, 57 (2d Cir.2002).

[¶ 15] This Court addressed sendee upon a corporation’s “managing agent” in Brown v. Chicago, Milwaukee & St. Paul Ry. Co., 12 N.D. 61, 95 N.W. 153 (1903), which involved service upon a foreign railroad corporation in North Dakota. The defendant’s attorney’s affidavit said:

the only service of summons and complaint in this action was that made upon W.H. Gross, who ... was local station agent for defendant at the city of Fargo, in Cass County, N. D.... That W.H. Gross ... had authority to act for it in the sale of passenger tickets ... and to collect pay for tickets so sold, to receive and deliver freight, and to collect unpaid charges for freight carried on said railway; with necessary incidental authority for the execution of the above powers, but with no other or further authority to represent it as agent.

Brown, 12 N.D. at 64-65, 95 N.W. at 154. This Court said:

This motion presents the question whether the station agent of a foreign railway corporation doing business within this state is a managing agent within the meaning of subdivision 5, § 5252, Rev.Codes 1899, which provides that the summons in a civil action may be served upon a foreign corporation by delivering a copy thereof to the Secretary of State, or to the president, secretary, cashier, treasurer, a director, or managing agent thereof, if within the state, doing business for the defendant. We agree with the trial court that Mr. Gross was enough of a managing agent for defendant to sustain this service. He transacted freight and passenger business for it at its Fargo station or office.... Every object of the service is attained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made. The statute is satisfied if he be a managing agent to any extent.

Brown, 12 N.D. at 65-66, 95 N.W. at 154.

[¶ 16] We note commentators have also espoused a practical approach to corporate service under Fed.R.Civ.P. 4. See, e.g., 28 Fed. Proc. Lawyers Ed., § 65:147 (1996) (“A person not in charge of a corporation’s activities within a state may still qualify as a general or managing agent, if his or her position is one of sufficient responsibility so that it is reasonable to assume that he or she will transmit notice of the commencement of an action to his or her superiors.”); Id. at § 65:148 (“A person having the title of office manager, general manager, district manager, divisional manager, or the like, is generally a managing or general agent.”); 4 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc.: Civil 3d, § 1061, at 311-12 (2002) (Rule 4, Fed. R.Civ.P., “was designed to provide maximum freedom and flexibility in the procedures for giving all defendants ... notice of the commencement of the action and to eliminate unnecessary technicality in connection with service of process.”); 4A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc.: Civil 3d, § 1074, at 362-63 (2002) (“In the case of service on a corporation, delivery to an officer or an agent whose position in the organization indicates that there is a high probability that the papers will reach those persons in the organization responsible for protecting the firm’s interests in the litigation is sufficient.”).

[¶ 17] We recognize that Minnesota courts deem service on a corporate employee based on the employee’s self-identification as a person authorized to accept service to be insufficient. See, e.g., Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 313-14 (Minn.1997) (stating “we decline to depart from case law which establishes an employee’s representations to a process server are inadequate to find authority to accept service on behalf of the corporation”). Nevertheless, we agree with the approach taken by courts construing N.Y.C.P.L.R. § 311(a), which shares with our rule a common derivation from New York’s Field Code of Procedure § 134 (1848), and is consistent with this Court’s early construction of our rule’s statutory predecessor in Brown, 12 N.D. 61, 95 N.W. 153. Under such an analysis, a process server’s service of process upon a corporation’s Executive Office Manager will be deemed valid if a corporate employee identifies the Executive Office Manager as a proper person to accept service, the process server reasonably relies on that identifying representation, the Executive Office Manager served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made, and the service results in actual delivery to a person responsible for protecting the corporation’s interests in litigation.

[¶ 18] Here, the professional process server asked the defendant’s receptionist for a corporate director or managing agent. The receptionist brought to him Betty Nickerson, the defendant’s Executive Office Manager, who was identified as one authorized to accept the papers, a representation upon which the process server could reasonably rely. He delivered the summons and complaint to Nickerson, who reasonably appeared to be of sufficient character and rank to make it reasonably certain that the defendant would be apprised of the service made, which appearance was confirmed when Nicker-son did, in fact, deliver the summons and complaint to the defendant’s “President/CEO and Medical Director.” We believe an Executive Office Manager responsible for providing administrative support to the “President/CEO and Medical Director of the Blood and Tissue Center” is of “sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made.” Brown, 12 N.D. at 65, 95 N.W. at 154. We conclude South Texas was validly served in accordance with N.D.R.Civ.P. 4(d). We further conclude, therefore, that the trial court abused its discretion in vacating the default judgment and dismissing the complaint for lack of valid service of process.

[¶ 19] Our decisions in cases such as Spring Creek Ranch, L.L.C. v. Svenberg, 1999 ND 113, 595 N.W.2d 323; Eggl v. Fleetguard, Inc., 1998 ND 166, 583 N.W.2d 812; Gessner v. City of Minot, 1998 ND 157, 583 N.W.2d 90; and Brakke v. Rudnick, 409 N.W.2d 326 (N.D.1987), which did not involve service upon a person represented by a corporate employee as being qualified to accept service, are inapposite to the validity of the service effected here.

III

[¶ 20] We express no views on other issues raised in this appeal that the trial court has not determined. “Our function is one of review, rather than initial determination.” Christl v. Swanson, 2000 ND 74, ¶ 14, 609 N.W.2d 70.

IV

[¶ 21] The judgment is reversed and the matter is remanded for further proceedings in accordance with this opinion.

[¶ 22] DONOVAN J. FOUGHTY, D.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

[¶ 23] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.

      . As footnote 4 in Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473, 476-77 (N.D.1986) shows, the “Field Code” referred to in connection with California court decisions was a "Civil Code proposed for New York by David Dudley Field,” which, “although not adopted by New York for which it was proposed in 1865, was adopted by Dakota Territory in 1865 and by California in 1872,” and is distinguished from "the 'more famous code of Civil Procedure, which is most frequently referred to as "the Field Code' ” ” (quoting W. Fisch, Civil Code: Notes for an Uncelebrated Centennial, 43 N.D.L.Rev. 485 (1967)).


author: KONENKAMP, Justice.

text:
    2004 SD 12
    STATE of South Dakota, Plaintiff and Appellee, v. Brandon BRUDER, Defendant and Appellant.
    No. 22851.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 12, 2004.
    Decided Jan. 28, 2004.
    Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    David M. Hosmer, Yankton, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Defendant was charged with aggravated assault against a sixteen year old boy stemming from an altercation with two boys at his home. In his trial, defendant testified that one of the boys shoved him. In response, he shoved back. According to defendant, the second boy then attempted to strike him. Defendant testified that he blocked the blow and struck the boy a single time. The boy was severely injured. Despite defendant’s testimony and request for jury instructions on self-defense, the trial court ruled that defendant failed to present sufficient evidence to support such instructions. The jury returned a guilty verdict. Defendant contends on appeal that the trial court erred in refusing to instruct the jury on self-defense. Because sufficient evidence was presented to support a self-defense jury instruction, we reverse.

Background

[¶ 2.] On Saturday, August 10, 2002, A.K., C.H., and J.F. went to the home of defendant, Brandon Bruder, to retrieve certain personal items that belonged to A.K, defendant’s former girlfriend. A.K., C.H., and J.F. arrived at defendant’s home at approximately 9:00 a.m. Defendant was sleeping at the time; however, upon their arrival, he arose and began assisting the others by removing his computer from a desk that belonged to A.K. Meanwhile, the two boys had begun to wash some of A.K.’s dishes that defendant had used the night before. When A.K. questioned why there were two settings of dishes, defendant responded that he and a female companion had dined together the previous evening. Defendant’s revelation angered A.K. As a result, A.K. began making sarcastic and joking remarks about defendant’s dinner companion.

[¶ 3.] At some point, C.H. and J.F. joined in, stating, “Why don’t you have your bitch get over here and do her dishes?” Defendant also heard C.H. or J.F. comment that he was either a “punk” or a “chump.” After hearing these “disrespectful” comments, defendant quickly moved to the kitchen where he intended to confront C.H. and J.F. and “lay down some ground rules,” but not physically assault the pair.

[¶ 4.] Defendant approached J.F. and ordered him to be more respectful. J.F. responded, “Fuck off’ and gave defendant a little shove. The shove caused defendant to take a step back. In response, defendant shoved J.F. in the chest. J.F. stumbled back, tripped on a chair directly behind him, twisted around, and fell on the floor, face first. As he fell, J.F.’s chin struck a window sill. Fearing for her safety, A.K. fled the home.

[¶ 5.] According to defendant, as he watched J.F. fall, C.H. attempted to strike him in the face. Defendant covered his face with his arm, causing C.H.’s blow to land on defendant’s forearm. Defendant then struck C.H. The blow caused C.H. to fall to the ground and suffer serious injury.

[¶ 6.] Defendant was charged with aggravated assault against C.H. and abuse of or cruelty to a minor, J.F. At trial, defendant offered his version of the events on that day. During settlement of instructions, defendant requested four separate self-defense jury instructions. The trial court denied defendant’s request. As a result of the trial court’s denial, the following discussion took place between defendant’s counsel and the trial judge:

[COUNSEL]: I obviously object to the lack of the self-defense instruction. Under State versus Blue Thunder there is evidence to support it. I have my client who testified that there is evidence to support it. He got up on the stand and stated why he did what he did, what there was to it. There is corroboration for his statements of self-defense immediately after to Sergeant Duin and it’s immediately after it. Without this instruction, Your Honor, we are being denied the right to present a defense under the Constitution. In effect, he will be denied of an absolute fair trial. And for those reasons, both statutorily, evi-dentiary and for constitutional reasons it’s a mistake.
THE COURT: You haven’t even met the minimum requirement for the self-defense defense. State v. Bogenreif, 465 N.W.2d 777 (1991) South Dakota: “A defendant is entitled to an instruction on his or her theory of defense if there is evidence to support it and a proper request is made. Conversely, he is not entitled to an instruction if there is no evidence to support his or her theory. The defense of self-defense is available only to prevent imminent danger of great personal injury, or to prevent an offense against one’s self or property.” There is just absolutely not one bit of evidence to justify any fear of great personal injury or to prevent an offense against himself or property. So it will be denied. Any other objections or exceptions to the court proposed instructions?
[COUNSEL]: Only that I disagree. He had an offense against him, touching is an assault.
THE COURT: But just absolutely no evidence of great personal injury, which is the criteria.
[COUNSEL]: But after that it says “offense against one’s self,” Your Honor.
THE COURT: If you’re interpreting it as you are, you’re saying danger of great personal injury or to prevent any touching, then the statute — the Supreme Court’s language doesn’t make any sense.
[COUNSEL]: My client testified that there was two on one, four fists against two, the combined weight was greater, and there could have been an offense against him. I mean, to say that somehow my client can’t defend himself against two individuals who totally outweigh him and there are four fists against two, is to deny the fact that someone larger can never, ever under any circumstances defend themselves when there is no weapon.
THE COURT: He never testified to any logical basis upon which he could fear great personal injury. So—
[COUNSEL]: Your Honor, but that is for the jury to decide. That is for the jury-
THE COURT: No, that’s what the Supreme Court said. Have you read Bo-genreif?
[COUNSEL]: Yes, and its credibility. There is evidence that it should go, then if they are to believe him, Your Honor. This is fairness, Your Honor.
THE COURT: He is not entitled to an instruction if there is no evidence to support his theory, and there has been no evidence to support the fact that it ivas done to prevent imminent danger of great personal injury. And there is no evidence to support that....

(Emphasis added.)

[¶ 7.] An hour after the jurors retired to deliberate, they sent a note to the judge. They asked, “Is self-defense a considerable [sic] issue? If so, is there a definition for it?” In response, the court instructed the jury that it had, as a matter of law, determined that defendant was not entitled to claim self-defense. Subsequently, the jury acquitted defendant of cruelty to a minor, J.F., and convicted him of aggravated assault against C.H. Defendant appeals on the following issues: (1) whether the trial court erred in failing to give self-defense instructions; and (2) whether the error in failing to give self-defense instructions was so serious as to deny due process. We need not reach the second issue because the error here requires reversal on the first issue.

Analysis and Decision

[1-5] [¶ 8.] Defendant argues that the trial court erred in denying his request for a jury instruction on self-defense. The application of facts to a legal standard presents a mixed question of fact and law requiring us to apply a de novo standard. State v. DeLaRosa, 2003 SD 18, ¶ 5, 657 N.W.2d 683, 685. Criminal defendants are entitled to instructions on their theory of the case when evidence exists to support that theory. State v. Charles, 2001 SD 67, ¶ 19, 628 N.W.2d 734, 738 (citing State v. Charger, 2000 SD 70, ¶40, 611 N.W.2d 221, 229). This Court will not find reversible error where jury instructions, as a whole, set forth a “full and correct statement of the law.” State v. Engesser, 2003 SD 47, ¶ 73, 661 N.W.2d 739, 759 (quoting State v. McVay, 2000 SD 72, ¶ 18, 612 N.W.2d 572, 576). Denial of a defendant’s request for an instruction on self-defense where such a request is properly submitted and supported by the evidence is reversible error because it infringes on a defendant’s constitutional right to due process. Means v. Solem, 646 F.2d 322, 328 (8th Cir.1980); see also State v. Huber, 356 N.W.2d 468, 474 (S.D.1984).

[¶ 9.] South Dakota law provides:
To use or attempt or offer to use force or violence upon or toward the person of another is not unlawful when committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.

SDCL 22-18-4.

[¶ 10.] The trial court erroneously applied a heightened standard in determining whether to allow defendant’s requested instruction on self-defense. During settlement of instructions, the court repeatedly referred to defendant’s duty to demonstrate that his actions were “done to prevent imminent danger of great personal injury.” That standard applies to homicide cases. South Dakota law places no such duty on a defendant who claims self-defense where defendant’s actions did not result in a homicide. In concluding that defendant was not entitled to the instruction, the trial court relied on the reasoning in State v. Bogenreif, 465 N.W.2d 777 (S.D.1991). In Bogenreif, we stated, “The defense of self-defense is available only to prevent imminent danger of great personal injury, SDCL 22-16-35, or to prevent an offense against one’s self or property, SDCL 22-18-4.” 465 N.W.2d at 781. SDCL 22-16-35 provides:

Homicide is justifiable when committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.

(Emphasis added.) Clearly, that discussion merely pointed to the two statutes under which a defendant might claim the defense of self-defense. Because defendant’s actions did not result in a homicide, it was enough that defendant’s actions were done to prevent an assault against him. The trial court’s application of the elements of SDCL 22-16-35 was erroneous.

[¶ 11.] Here, defendant presented evidence that supported his theory that striking C.H. was necessary to fend off an assault by C.H. Where “the individual situation required an immediate response ... to prevent unlawful force from being inflicted upon [defendant] or another,” the claim of self-defense is available under SDCL 22-18-4. Bogenreif, 465 N.W.2d at 781. Defendant testified that C.H. and J.F. were the aggressors and that he pushed J.F. only after J.F. pushed him and struck C.H. only after C.H. struck him.

[¶ 12.] The State argues that because defendant was much larger than either C.H. or J.F. and because defendant did not indicate that “he was in fear of any kind,” he should not be permitted to argue that his actions were in self-defense. The State also argues that defendant’s “massive retaliation” resulting in C.H.’s severe and permanent injuries should preclude such an assertion because it went beyond what was necessary to prevent the offense. First, we note that our law does not require one to be smaller than an attacker to lawfully use force to prevent an attack. Nor does SDCL 22-18-4 require one to be fearful of the results of such an attack. Second, it may be reasonably necessary to strike an attacker with one’s fist in order to prevent the attacker from striking. Here, defendant asserts that C.H. attempted to strike him. It was the jury, not the trial court, who should have determined whether defendant’s response was reasonably necessary.

[¶ 13.] Reversed.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Several versions of the encounter were presented through testimony at the trial. However, at issue here is whether defendant presented sufficient evidence to warrant a jury instruction on self-defense. Therefore, it is not necessary to present every version of the events.

      . The instructions were taken verbatim from the South Dakota Pattern Criminal Jury Instructions. They read:
      2-9-1:
      Under certain circumstances it is lawful to use or attempt or offer to use force or violence upon or toward the person of another. The force or violence may be employed under the following circumstances:
      1. In preventing or attempting to prevent an offense against a person; or
      2. In preventing or attempting to prevent any trespass; or
      3. In preventing or attempting to prevent unlawful interference with the possession of real or personal property.
      Under any of the circumstances described above, the force or violence may be used, offered, or attempted either by a person about to be injured or by another person in that person's aid or defense, but the force or violence used may never, be more than sufficient to prevent such offense.
      2-9-2:
      A person who has been attacked and who is exercising the right of lawful self-defense is not required to retreat, and may not only defend against the attack but also may pursue the assailant until secure from danger if that course appears to the defendant, and would appear to a reasonable person in the same situation, to be reasonably and apparently necessary; and this is the defendant's right even if safety may have been more easily gained by withdrawing from the scene.
      2-9-5:
      Where an assault is made with only the hands and fists but with such force and in such manner as is likely to produce great bodily injury, the person attacked may lawfully resist the attack with whatever force is reasonably and apparently necessary.
      2-9-7:
      A person who defends against unlawful attack must stop the use of force as soon as danger of attack has ended. If it would appear to a reasonable person in the same position that there is no further danger, there should be no further force.