author: MARING, Justice. CROTHERS, Justice,

text:
    2006 ND 154
    Chad MARQUETTE, Plaintiff and Appellant v. Gretchen D. MARQUETTE, Defendant and Appellee.
    No. 20050296.
    Supreme Court of North Dakota.
    July 18, 2006.

      Kevin Joseph Chapman, Chapman Law Office, Williston, N.D., for plaintiff and appellant.
    Carrie Lynn Francis (argued) and Aaron Curtis Vibeto (appeared), Legal Services North Dakota, Minot, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Chad A. Marquette appealed from a divorce judgment granting Gretchen D. Marquette custody of their three minor children, dividing their marital property, and ordering that he pay child support. He challenges the visitation provision of the divorce decree, the property distribution, and a part of the child support determination. We reverse and remand for the preparation of findings to explain the restricted visitation awarded to Chad Marquette, but we otherwise affirm the judgment.

I

[¶ 2] Chad Marquette and Gretchen Marquette were married in 1996 in Willi-ston. They eventually had three children. After living about one year in Williston, the family moved to Dickinson, and in 1998 they moved again to Monticello, Minnesota, where they purchased a home. According to Gretchen Marquette, Chad Marquette was not stable and was easily agitated during the marriage. In November 2000, Chad Marquette was diagnosed by a psychiatrist as having mild depression and he was prescribed antidepressants to treat the symptoms. While Chad Marquette was taking his medication, his condition slowly improved until January 2001, when Gretchen Marquette discovered he had not been taking all of his pills. After learning that he could not join the Navy if he was taking antidepressant medicine, Chad Marquette threw the pills away. Because Gretchen Marquette did not believe he was stable any longer, she returned to Williston with the children and obtained an emergency order allowing her to remain there with the children.

[¶ 3] After Chad Marquette began seeing a psychiatrist who placed him back on medication, Gretchen Marquette and the children returned to the marital home in Minnesota in August 2001. However, Gretchen Marquette began noticing changes in Chad Marquette’s behavior during the summer of 2002. He was spending more time alone, was unable to sleep, was crying often, and was becoming delusional. His increasingly unusual behavior culminated in an incident in August 2002 where Chad Marquette, while the children were upstairs with Gretchen Marquette, intentionally shot himself in the foot with a shotgun while he was in the garage. Following the shotgun incident, Chad Marquette was hospitalized for his mental illness mostly on a semi-inpatient basis until November 2002. Gretchen Marquette, who had gone to Williston with the children, returned to the marital home upon his discharge.

[¶ 4] Although Chad Marquette continued his treatment and counseling, he began to go through violent mood swings, and Gretchen Marquette again returned to Williston with the children. Upon returning to Minnesota in late January 2003, Gretchen Marquette learned that Chad Marquette was on his way to Rome, Italy, “[b]y orders of the Pope.” However, on the way to Rome, he was arrested upon arrival at St. John’s, Newfoundland, and placed on a seven-day psychiatric hold. Chad Marquette remained in Newfoundland for three weeks, was diagnosed with bipolar disorder, and began receiving treatment there. Gretchen Marquette returned to Williston with the children, and when Chad Marquette came there to visit in April 2003, she noticed a significant improvement in his condition and she believed he was recovering. Chad Marquette commenced this divorce action in December 2003.

[¶ 5] During the February 2005 divorce trial, Gretchen Marquette sought primary custody of the children with supervised visitation for Chad Marquette. Chad Marquette testified that he was seeing a psychiatrist once a month, was taking anti-psychotic medication and lithium to stabilize his anxiety, and had been taking his medications consistently. His mother testified that he had been stable for about five months. Chad Marquette also presented a January 2005 letter from a psychiatrist stating:

Chad has been quite consistent with his follows [sic] ups since his return from North Dakota. He is seen on approximately a month to six week basis. He has been compliant with his medications, which are reflected by adequate Lithium levels. He has endorsed stability of his mood, and has not had any tendencies towards profound depressive symptoms or mania. He seems to be bettering himself through increased physical activity and monitoring his diet.
Historically Chad has had rather significant symptoms, much of this occurred prior to his formal diagnosis of Bipolar Disorder. He has been quite compliant with his cares and has maintained stability recently. Currently, he is not a threat to himself, nor does he pose a significant risk to anyone else.

Gretchen Marquette admitted that she had not seen or heard Chad Marquette yell at or physically hurt the children, and that the children feel love and affection for their father.

[¶ 6] Following the trial, the district court granted custody of the children to Gretchen Marquette and awarded Chad Marquette “liberal visitation” with the “visitation occurring under the supervision of [Gretchen Marquette] or under the supervision of another party of [Gretchen Marquette’s] choosing. The Court specifically reserves the right to review the need for supervised visitation and make such visitation modifications as the Court may deem appropriate in the future.” The court divided the marital property and debt, awarding each party approximately $15,000 in net marital property. The court also ordered that Chad Marquette’s total child support obligation would be $771 per month, which was the amount of Social Security Children’s Benefits the children were receiving because of his mental disability.

II

[¶ 7] Chad Marquette argues the district court erred in awarding him supervised, rather than unsupervised, visitation with the children.

[¶ 8] Visitation is governed by N.D.C.C. § 14-05-22(2), which provides:

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

A district court’s determinations regarding visitation are findings of fact that are not upset on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Sisk v. Sisk, 2006 ND 55, ¶ 8, 711 N.W.2d 203. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire record, we are left with a definite and firm conviction a mistake has been made. Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113.

[¶ 9] The district court granted “liberal visitation” for Chad Marquette, “with such visitation occurring under the supervision of [Gretchen Marquette] or under the supervision of another party of [Gretchen Marquette’s] choosing,” and reserved the right to review the need for supervised visitation in the future. The court’s visitation decision not only restricts visitation to a supervised setting, but also delegates to Gretchen Marquette the authority to decide the manner and timing of visitation. Although the primary purpose of visitation is to promote the best interests of children, our statutes and case law recognize that visitation with a noncustodial parent may be curtailed or eliminated entirely if it is likely to endanger the child’s physical or emotional health. See, e.g., Simburger v. Simburger, 2005 ND 139, ¶ 15, 701 N.W.2d 880; Litoff v. Pinter, 2003 ND 172, ¶ 12, 670 N.W.2d 860; Negaard v. Negaard, 2002 ND 70, ¶ 13, 642 N.W.2d 916. However, a restriction on visitation must be based on a preponderance of the evidence and be accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation. See, e.g., Simburger, at ¶ 15; Wigginton v. Wigginton, 2005 ND 31, ¶ 9, 692 N.W.2d 108; Johnson v. Schlotman, 502 N.W.2d 831, 835 (N.D.1993).

[¶ 10] Furthermore, a district court generally cannot delegate to anyone the power to decide questions of child custody or related issues. See Paulson v. Paulson, 2005 ND 72, ¶21, 694 N.W.2d 681. In Wigginton, 2005 ND 31, ¶ 1, 4, 7, 692 N.W.2d 108, however, we upheld a visitation provision allowing visitation for the father, who was battling a methamphetamine addiction, at the “sole discretion” of the mother. In upholding this “highly unusual” restriction on visitation, we reasoned:

Giving the custodial parent such complete discretionary authority over the manner and timing of visitation should be used only when there is a demonstrated need to protect the children from the potential for physical or emotional harm and where, as here, the custodial parent has demonstrated that he or she is “deeply concerned that the children, for the children’s benefit, maintain a relationship with” the noncustodial parent. The findings of the trial court specifically indicate Sandra Wig-ginton’s willingness to foster the parent-child relationship between Joel Wiggin-ton and his children. The court made a point of stating the visitation award can be modified at any time if Joel Wiggin-ton feels he is being treated unfairly by Sandra Wigginton. He can also move to modify visitation once he has taken actions to convince the court he is no longer using drugs.

Id. at ¶ 12. As Wigginton indicates, we do not encourage the use of visitation provisions which give the custodial parent total control over the time and manner of the noncustodial parent’s visitation. The use of these provisions should be reserved for the most exceptional of circumstances, and only if the custodial parent sufficiently demonstrates a willingness to foster the parent-child relationship between the noncustodial parent and the children.

[¶ 11] The district court made no findings of fact relating to the visitation issue. Before the court may properly impose these visitation restrictions, findings of fact are required detailing the physical or emotional harm to the children likely to result from unsupervised visitation, and explaining why supervised visitation under the sole control of Gretchen Marquette is necessary. The findings must also address whether Gretchen Marquette is willing to foster the parent-child relationship between Chad Marquette and the children. When a district court provides no indication of the evidentiary and theoretical basis for its decision, the reviewing court is left to speculate whether appropriate factors were considered and the law was properly applied. Clark v. Clark, 2005 ND 176, ¶ 9, 704 N.W.2d 847; Berg v. Berg, 2000 ND 36, ¶ 10, 606 N.W.2d 895. Under these circumstances, we are unable to perform our appellate function. Clark, at ¶ 9. We reverse the district court’s visitation decision and remand for the preparation of findings to explain the restrictions imposed. It is within the district court’s discretion whether to prepare the findings based on the existing record or to allow the presentation of additional evidence.

Ill

[¶ 12] Chad Marquette argues the district court erred in dividing the marital property because it overvalued the marital home, failed to recognize debts the couple owed to his mother, and awarded Gretchen Marquette his retirement account.

[¶ 13] A district court’s determinations on valuation and division of property are findings of fact which are reversed on appeal only if they are clearly erroneous. Sack v. Sack, 2006 ND 57, ¶ 15, 711 N.W.2d 157. A court’s valuation of property is presumed correct and we view the evidence presented in the light most favorable to the court’s findings of fact. Korynta v. Korynta, 2006 ND 17, ¶ 13, 708 N.W.2d 895. We have said the district court is in a better position to judge credibility, observe demeanor, and determine the facts regarding property value, and marital property valuations within the range of the evidence are not clearly erroneous. Dvorak v. Dvorak, 2005 ND 66, ¶ 20, 693 N.W.2d 646.

[¶ 14] The district court valued the marital home at $175,000. Although no professional appraisals were entered into evidence, both parties testified the home was initially listed for sale at $175,000, but the sale price was later reduced to $170,000. Chad Marquette’s mother, a realtor who mainly works for farmers selling their land to developers, testified she thought the home could be sold for between $160,000 and $170,000. His mother also testified, however, that the house was on the market for only three months at $170,000, before she decided to rent it to others. Chad Marquette testified he plans to move back into the home, and it is unclear whether the home will be placed back on the market. Considering these uncertainties, we believe the district court’s valuation is within the range of the evidence, and we conclude it is not clearly erroneous.

[¶ 15] Chad Marquette argues the court erred in failing to exclude $9,661 from the marital estate for payments made by his mother for the parties’ medical insurance, home mortgage, and home equity line of credit. The parties disputed whether these payments were intended as loans or gifts. The mother’s ambiguous testimony did not establish that she considered the payments loans rather than gifts. On this record, we cannot say the district court’s failure to treat the payments as loans is clearly erroneous.

[¶ 16] Chad Marquette argues the district court erred in awarding Gretchen Marquette his retirement account as part of the property distribution. However, pensions and retirement benefits are marital assets subject to equitable distribution by the court. See, e.g., Ebach v. Ebach, 2005 ND 123, ¶ 16, 700 N.W.2d 684. Chad Marquette has failed to establish that the court’s award of his retirement account to Gretchen Marquette is clearly erroneous.

[¶ 17] We conclude the court’s distribution of marital property is not clearly erroneous.

IV

[¶ 18] Chad Marquette argues this case should be remanded for clarification and to take additional evidence regarding “the exact amount of Social Security Children’s Benefits that were received by Gretchen, including all retroactive lump sum back pay she received, so that a refund may be paid to Chad for past child support paid pursuant to the Interim Child Support Oder [Order].”

[¶ 19] The district court ordered:
Plaintiff is currently receiving Social Security Disability payments, thus making the minor children eligible to receive dependant benefits of $257.00 per month per child ($771.00 total). That amount will constitute the total child support obligation.
It is also anticipated that funds for child expenses for months prior to the award by Social Security will be awarded to the Plaintiff on behalf of the children. Those funds shall be considered back child support for the purpose of this Order and shall be distributed to the Defendant (custodian) as reimbursement (less credit for any child support the Plaintiff has previously paid from other sources.)

[¶ 20] The court simply ordered that any anticipated retroactive dependency benefits awarded to Chad Marquette shall be distributed to Gretchen Marquette, and Chad Marquette will be given credit for the child support payments he made under the interim child support order. If the parties cannot agree on the proper amount of credit, a motion can be made in the district court to resolve the issue. No clarification or remand is necessary.

V

[¶ 21] We reverse the visitation provisions of the divorce judgment and remand for the preparation of findings of fact to explain the restricted visitation awarded to Chad Marquette. We affirm the remainder of the judgment.

[¶ 22] VANDE WALLE, C.J., and KAPSNER, J., concur.

I concur in the result. DALE V. SANDSTROM.

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 23] I respectfully dissent from Part II of the majority’s opinion regarding visitation, but concur with Parts I, III, and IV providing facts of the case, affirming division of marital property, and declining to clarify or remand the child support issue.

[¶ 24] The majority reverses the district court judgment and remands for preparation of findings supporting supervised rather than unsupervised visitation for Chad Marquette. I believe the majority’s approach needlessly prolongs this matter because Part I of the Court’s opinion contains more than sufficient facts to allow this Court to decide the supervised visitation issue. Also significant, but ignored by the majority, is that Chad does not want the case remanded for findings.

[¶ 25] During oral argument Chad’s counsel was asked whether he was requesting remand for additional findings. He unequivocally responded “no” because his position was based on the law rather than on the inadequacy of the district court’s findings. Chad’s position is evidenced by the following colloquy:

Justice Maring: So what are you asking us to do? Are you asking us to remand this to the district court for more specific findings, or are you asking, are you saying to us there, even if let’s say if the trial court said — Well I made my decision based on, you know, the episode of him shooting himself in the foot, the manic episodes that he has had, and you know and so on, his noncompliance with meds in the past and I don’t know if he is going to be compliant, you know, in the future. Would you be back up here again — I mean, if we sent it back and said make findings and the court made such findings to support its decision— Would you be back up here saying those are not sufficient?
Mr. Chapman: Your honor, my position is that there could be no findings under this record that would be sufficient to withstand prior case law by this Court and the statute that we are dealing with, 14-05-22(2). I am asking for a reversal and to institute the visitation suggestions as outlined in my brief and as testified to by—
Justice Sandstrom: It is your position— that it is not merely the court failed to make sufficient findings, but if it had made findings that on their face appeared to be sufficient they would be clearly erroneous, is that what your— because of—
Mr. Chapman: Absolutely, because there is no, there’s no evidence, there’s no finding that the court could possibly make creating any causal link whatsoever—

This exchange conclusively establishes the issue here is not whether the district court’s findings were adequate. Rather, the question is whether North Dakota law and this Court’s precedent allow Gretchen Marquette to supervise and wholly control Chad’s visitation.

[¶ 26] I would address the issue framed at oral argument. That is the real question now, and likely will be the question presented to us again after completion of the exercise in futility interposed by remand. I would also answer the real question in this case, and not remand for additional findings because, as explained below, facts supporting the district court’s order are evident from both the record and the majority’s own opinion.

[¶ 27] I agree with the majority that district courts generally need to provide adequate findings of fact to allow this Court to perform our appellate function. Majority opinion at ¶ 11; see In re Spicer, 2006 ND 79, ¶ 8, 712 N.W.2d 640. “However, we will not reverse a district court’s decision when ‘valid reasons are fairly dis-cernable, either by deduction or by inference.’ ” Id. In this case, like in Spicer, the district court made virtually no findings. See id. at ¶ 9. And here, like in Spicer, we have all the information necessary to understand the underlying decision. I also note that the same dearth of findings that led the majority to remand the visitation issue provided adequate findings for us to affirm the district court’s property distribution. Majority opinion at ¶¶ 12-17.

[¶ 28] Regarding visitation, the fact section of the majority opinion shows the parties were married from 1996 to 2005, during which time “Chad Marquette was not stable and was easily agitated.” Majority opinion at ¶ 2. Chad was diagnosed with mild depression in November of 2000 and was prescribed antidepressants. Id. Chad quit taking his medication in January of 2001, and his mental condition was so unstable that Gretchen left the marital home with the children. Id. This protective move from Minnesota to Williston was supported by a North Dakota district court’s emergency order allowing her to remain in Williston with the children. Id.

[¶ 29] Gretchen and the children returned to Minnesota in August 2001, but Chad’s condition declined less than a year later when he was spending more time alone, was unable to sleep, was crying often, and was delusional. Id. at ¶ 3. In August 2002, Chad went into their garage and shot himself in the foot. Id. At the time of Chad’s self-inflicted gunshot wound, Gretchen and the children were in their house which was attached to the garage. Id. Gretchen and the children again left for Williston, and Chad was hospitalized until November 2002.

[¶ 30] Gretchen and the children returned to Minnesota upon Chad’s discharge from the hospital but again had to return to Williston when Chad experienced violent mood swings. Id. at ¶ 4. Gretchen went back to Minnesota in January 2003, only to learn Chad left for Rome on “orders of the Pope.” Id. Chad was detained en route and hospitalized for three weeks. Id. Gretchen and the children returned to Williston. Id. Chad filed for divorce in December 2003. Id. During trial in February 2005, Chad’s mother testified that Chad had been stable for about five months, meaning Chad had not been stable much of 2004. Id. at ¶ 5.

[¶ 31] Additional facts not included in the majority’s statement of facts but cited in a brief filed with this Court show Chad has been consistently delusional during the marriage. He has told his children that they are decedents of European royalty and has expressed the view that he has billions of dollars waiting for him in a London bank. Chad has engaged in violence with Gretchen and with his brother and father, the latter of which led to criminal charges against Chad. Chad shot himself in the foot as part of a perceived deal with the devil, and he has called Gretchen derogatory and demeaning names in public. He has also lost control and caused a public scene while with Gretchen and the children.

[¶ 32] The record contains additional details but these facts more than adequately demonstrate remand is not necessary to adjudicate this case. The district court ordered supervised visitation because the unfortunate facts surrounding Chad’s mental illness establish unsupervised “visitation is likely to endanger the child’s physical or emotional health.” N.D.C.C. § 14-05-22(2). The district court’s order is well supported by facts in the record, and remand will only delay— but not change — 'that conclusion. We should therefore proceed to answer the real question, namely whether the district court improperly gave Gretchen excessive authority to supervise Chad’s visitation. Because the majority declines to do so, I respectfully dissent from that part of the opinion.

[¶ 33] DANIEL J. CROTHERS


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2006 ND 164
    In the Matter of the APPLICATION FOR DISCIPLINARY ACTION AGAINST Lee J. BALERUD, a person admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court on North Dakota, Petitioner v. Lee J. Balerud, Respondent.
    No. 20060165.
    Supreme Court of North Dakota.
    July 20, 2006.
   SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] Lee J. Balerud (“Balerud”) was admitted to practice as an attorney in North Dakota on September 29, 1983, and his name has appeared on the roll of attorneys since that date. On May 7, 2004, Balerud was transferred to disability inactive status under N.D.R. Lawyer Discipl. 5.1(B) until further order of the Court. Disciplinary Board v. Balerud, 2004 ND 99, 679 N.W.2d 768.

[¶ 2] On July 28, 2005, Balerud was personally served with a summons and petition for discipline alleging violation of N.D.R. Prof. Conduct 1.1, Competence; 1.3, Diligence; 1.4, Communication; 8.4(d), Misconduct; and N.D.R. Lawyer Discipl. 1.2(A)(8), engaging in conduct prejudicial to the administration of justice.

[¶ 3] The petition alleged that in his representation of Aftem Lake Development and Gerald Aftem, Balerud missed meetings, including a mediation, was late for court multiple times, disorganized at trial and repetitious in his questioning of witnesses. The petition further alleged that following the case, Balerud proposed to forego his fee in exchange for Aftem not filing a disciplinary complaint against him.

[¶ 4] Balerud filed a response to the petition, admitting in part the allegations but denying that his actions violated any rules of professional conduct. Balerud’s response further states that he did not appreciate the severity of his medical conditions and their effect on his performance at trial.

[¶ 5] A hearing was held on February 27, 2006, before a Hearing Panel of the Disciplinary Board of the Supreme Court. Post-hearing briefs were filed and on June 5, 2006, the Hearing Panel filed its Findings, Conclusions and Recommendation.

[¶ 6] The Hearing Panel found that in 2004 Balerud acted as lead counsel for Aftem Lake Development in an action against an engineering firm for professional malpractice. During his representation, Balerud failed to attend scheduled mediation. Balerud was repeatedly late for court, and throughout the trial Balerud was disorganized and repetitious in his questioning of witnesses. Aftem Lake Development was dissatisfied with the jury verdict and with Balerud’s representation. Following trial, Balerud proposed waiving his fees if Aftem Lake Development agreed to release him from any malpractice claims or disciplinary complaints.

[¶ 7] The Hearing Panel considered information provided by Balerud in the form of letters from psychiatrist L. Mark Bell, D.O. In an August 3, 2004, letter, Dr. Bell stated that Balerud is suffering from a major depression and attention deficit hyperactivity disorder, conditions present at the time of trial. In a letter dated March 22, 2006, Dr. Bell’s stated that if untreated, Balerud would be unable to practice law.

[¶ 8] The Hearing Panel concluded that Balerud’s conduct violated N.D.R. Prof. Conduct 1.1, Competence; 1.3, Diligence; 1.4, Communication; 8.4(d), Misconduct; and N.D.R. Lawyer Discipl. 1.2(A)(8), engaging in conduct that is prejudicial to the administration of justice.

[¶ 9] The Hearing Panel further concluded that Balerud did not present any evidence that his medical condition caused or contributed to his professional misconduct and offered no expert testimony to show his medical condition either caused or contributed to his breaches of professional conduct.

[¶ 10] The Hearing Panel considered Standard 4.41(c), N.D. Std. Imposing Lawyer Sanctions. Under Standard 4.41(c), disbarment is generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client. The Hearing Panel further considered Standard 4.42(a) and (b), N.D. Stds. Imposing Lawyer Sanctions. Under Standard 4.42, suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client, or (b) engages in a pattern of neglect, and causes injury or potential injury to a client. The Hearing Panel concluded that Standard 4.41(c) is more appropriate.

[¶ 11] The Hearing Panel also considered Standard 5.11(a), N.D. Stds. Imposing Lawyer Sanctions, as to Balerud’s attempt to avoid the filing of a complaint against him. Under Standard 5.11(c), disbarment is generally appropriate when a lawyer engages in serious conduct a necessary element of which includes intentional interference with the administration of justice. Additionally, the Hearing Panel considered Standard 7.1, N.D. Stds. Imposing Lawyer Sanctions, because Balerud knowingly sought to dissuade his client from filing a disciplinary complaint by offering to waive his fee. Under Standard 7.1, disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer, and causes serious or potentially serious injury to a client, the public, or the legal system.

[¶ 12] The Hearing Panel considered the following aggravating factors: Standard 9.22(c), pattern of misconduct; 9.22(d), multiple offenses; 9.22(e), bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. The Hearing Panel also considered Balerud’s substantial experience in the practice of law as an aggravating factor under Standard 9.22(i).

[¶ 13] The Hearing Panel considered the following mitigating factors: Standard 9.32(c), personal or emotional problems; 9.32(e), full and free disclosure; 9.32(g), character or reputation; and 9.32(l), remorse.

[¶ 14] The Hearing Panel recommended that Balerud be suspended from the practice of law for six months and one day and that he pay the costs of the disciplinary proceeding in the amount of $4,511.90, and the cost of a transcript of the hearing on this matter. The Findings, Conclusions and Recommendation of the Hearing Panel were referred to the Court under N.D.R. Lawyer Discipl. 3.1(F). Bal-erud filed no objections to the report of the Hearing panel under N.D.R. Lawyer Discipl. 3.1(F)(2). The Court considered the matter, and

[¶ 15] ORDERED, the Findings, Conclusions and Recommendation of the Hearing Panel are accepted, and Lee J. Balerud is suspended from the practice of law for six months and one day, effective August 1, 2006.

[¶ 16] FURTHER ORDERED, Lee J. Balerud pay the costs of the disciplinary proceeding in the amount of $4,511.90.

[¶ 17] FURTHER ORDERED, Lee J. Balerud must petition for reinstatement under N.D.R. Lawyer Discipl. 4.5, governing reinstatement after a long suspension, and N.D.R. Lawyer Discipl. 5.2, governing reinstatement after transfer to disability inactive status.

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


author: KAPSNER, Justice.

text:
    2006 ND 165
    Krista M. FRISK, Petitioner and Appellee v. Daniel J. FRISK, Respondent and Appellant.
    No. 20050391.
    Supreme Court of North Dakota.
    July 21, 2006.

      Carrie Lynn Francis (argued), Edward B. Reinhardt, Jr. (on brief), and James Patrick Fitzsimmons (appeared), Legal Services of N.D., Minot, N.D.; for petitioner and appellee.
    Steven M. Light (argued) and Lorelle Ann Moeckel (appeared), Larivee & Light, Bank of the West Tower, Fargo, N.D., for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] Daniel Frisk appeals from an amended domestic violence protection order entered against him. We conclude the district court made sufficient findings of actual or imminent domestic violence to support the amended order, and we affirm.

I

[¶ 2] Daniel and Krista Frisk separated on May 9, 2004. Following the separation, Krista Frisk filed a petition for protective relief, and the district court issued a temporary domestic violence protection order. The parties submitted affidavits, and on June 3, 2004, an evidentiary hearing was held, but before the conclusion of the hearing the parties agreed to a continuation of the temporary protection order for a period of six months or until further order of the court. The agreement specifically stated there would be no findings on domestic violence.

[¶ 3] On November 10, 2004, Krista Frisk applied for an extension of the protection order. The parties submitted affidavits, and on December 15, 2004, an evi-dentiary hearing was held. The district court subsequently granted the extension for a period of two years. Daniel Frisk appealed the district court’s order. On appeal, we reversed the protection order and remanded to the district court for consideration of whether the evidence supported a finding that Daniel Frisk poses an “actual or imminent” danger of domestic violence to Krista Frisk. Frisk v. Frisk, 2005 ND 154, ¶ 14, 703 N.W.2d 341.

[¶ 4] On remand, the district court held a hearing on October 15, 2005, to determine whether it needed new evidence to proceed or whether it could make a finding of domestic violence based upon the evidence already presented. The court concluded it could proceed using the previously presented evidence and found there was an actual or imminent danger of domestic violence. The court entered an amended protection order extending the stipulated order until December 15, 2006.

II

[¶ 5] “ ‘Whether there is domestic violence sufficient to support the issuance of a protection order is a question of fact which will be overturned on appeal only if it is clearly erroneous. However, a trial court’s decision to extend an existing protection order is reviewed under an abuse of discretion standard.’ ” Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341 (quoting Gaab v. Ochsner, 2001 ND 195, ¶6, 636 N.W.2d 669).

III

[¶ 6] Daniel Frisk argues N.D.C.C. § 14-07.1-02, the statute governing issuance of domestic violence protection orders, only allows the court to “amend” an existing protection order, and he claims the meaning of the word “amend” does not include extend. He argues the district court erred in extending the stipulated protection order because the stipulated order expired before it was extended. He also claims a stipulated order cannot pro-eedurally be extended beyond its agreed upon time limit, and Krista Frisk must apply for a new protection order relying on entirely new evidence.

A

[¶ 7] Section 14-07.1-02, N.D.C.C., sets out the procedure for issuing a domestic violence protection order. Section 14-07.1-02(6), N.D.C.C., states, “[t]he court may amend its order or agreement at any time upon subsequent petition filed by either party.” Section 14-07.1-02, N.D.C.C., is a remedial statute “which we construe ‘liberally, with a view to effecting its objects and to promoting justice.’ ” Gaab, 2001 ND 195, ¶ 5, 636 N.W.2d 669 (quoting Lucke v. Lucke, 300 N.W.2d 231, 234 (N.D.1980)). The purpose of the statute is to protect victims of domestic violence from further harm. Gaab, at ¶ 5. In Gaab, we considered the language of the statute and its legislative history, and held that N.D.C.C. § 14-07.1-02 allows for the extension of a permanent domestic violence protection order without a finding of actual or imminent domestic violence, if there was a previous finding of actual or imminent domestic violence. Id.

[¶ 8] Although N.D.C.C. § 14-07.1-02 does not specifically state that a protection order may be extended, it does provide that the court’s order or agreement may be amended at any time upon the request of either party. “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. When we interpret a statute, “ ‘our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.’ ” GO Comm. v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865 (quoting Larson v. Larson, 2005 ND 67, ¶8, 694 N.W.2d 13). The ordinary meaning of “amend” means to improve, change, correct, or revise. Black’s Law Dictionary 81 (6th ed.1990). “Extend” has a variety of meanings, including “to expand, enlarge, prolong, lengthen, widen, carry or draw out further than the original limit.” Black’s Law Dictionary 583 (6th ed.1990). Construing N.D.C.C. § 14-07.1-02(6) liberally to effectuate its purpose, we interpret the word “amend” to include a change that extends the terms of a stipulated protection order. Our interpretation is consistent with Gaab and provides domestic violence victims with continued protection from further harm, and therefore effectuates the purpose of the statute.

B

[¶ 9] Daniel Frisk argues that even if the stipulated order could be extended, it was extended after it had expired and therefore could no longer be extended. He claims it is not enough for an individual to apply for an extension before the expiration of the protection order; instead the court must actually extend the protection order before the expiration. He urges this Court to look to Minnesota and Ohio law for guidance, citing Minn.Stat. § 518B.01, subd. 6a, and Ohio Rev.Code Ann. § 3113.31(E)(3)(c).

[¶ 10] Daniel Frisk’s reliance on the Minnesota and Ohio statutes is misplaced. Subdivision 6a, Minn.Stat. § 518B.01, states, “[u]pon application, notice to all parties, and hearing, the court may extend the relief granted in an existing order for protection or, if a petitioner’s order for protection is no longer in effect when an application for subsequent relief is made, grant a new order.” The plain language of the statute allows for an extension of the original protection order if an application for extension is made before the order expires and requires a new order only if the original order is no longer in effect when an application for extension is made.

[¶ 11] The Ohio statute states, “[a]ny protection order issued or consent agreement approved pursuant to this section may be renewed in the same manner as the original order or agreement was issued or approved.” Ohio Rev.Code Ann. § 3113.31(E)(3)(c). The statute does not state that a renewal must occur before an original order expires. Daniel Frisk cites Felton v. Felton, 1997 Ohio 302, 79 Ohio St.3d 34, 679 N.E.2d 672, in support of his claim, but his reliance on that case is also misplaced. The two issues before the court in Felton were whether a court may issue a domestic protection order when the parties agreed, as part of the divorce decree, to not harass each other; and the burden of proof for issuing a protection order. Id. at ¶ 1, 679 N.E.2d 672. Renewal of a protection order was mentioned only in passing, and was not an issue in the case. In listing the benefits of a protection order versus a harassment provision of a divorce decree, the court said, “the overwhelming benefits to the victim of domestic violence that the protection order offers far outweigh any concerns about the temporary nature of the protection order, which can be renewed at the end of the effective period.” Id. at ¶4, 679 N.E.2d 672. The court’s language does not support Daniel Frisk’s claim; the court said the order may be renewed at the end of the effective period, not that it must be renewed before the end of the effective period.

[¶ 12] A logical extension of Daniel Frisk’s argument would require petitioners to apply for an extension of a protection order as soon as the original protection order was issued to ensure the court would have sufficient time to amend the order. We construe statutes to avoid ludicrous results and idle acts, see County of Stutsman v. State Historical Soc’y, 371 N.W.2d 321 (N.D.1985), and we decline to construe N.D.C.C. § 14-07.1-02 to encourage that practice. Encouraging parties to apply for an extension as soon as the original order is issued fails to give the parties time to see if an extension is necessary. The purpose of the protection order is to protect domestic violence victims from further harm, and that purpose may be accomplished by giving the parties time to calm down and put some distance between them. The purpose of the statute is best promoted if a petitioner is only required to apply for an extension before the original order expires, and not to require the court to enter the amended order before the expiration.

[¶ 13] We conclude a protection order may be amended if the petitioner requests the amendment before the original protection order expires, whether or not the court actually enters the amended order before the expiration of the original order. In this case, Krista Frisk applied for an extension of the stipulated protection order a month before the order expired, and we conclude her application was timely.

C

[¶ 14] In the prior appeal, Daniel Frisk argued the stipulated order could not be extended because the parties agreed to limit the duration of the order to six months, and because the parties agreed to this time limit, they were bound by that agreement. Frisk, 2005 ND 154, ¶ 4, 703 N.W.2d 341. We considered his argument in the first appeal, but we failed to adopt that argument and instead reversed the order and remanded with instructions for the district court to make specific findings about domestic violence. We said, “[w]hether a party files a new application for a protection order, N.D.C.C. § 14-07.1-02(1), or files a petition to amend the stipulated protection order or agreement, N.D.C.C. § 14-07.1-02(6), is a procedural matter of lesser importance than the substantive question of whether the applicant or petitioner has satisfied the threshold burden of demonstrating ‘actual or imminent domestic violence,’....” Id. at ¶ 13. The law of the case doctrine applies when an appellate court has decided a legal question and remanded to the district court for further proceedings. Fandrich v. Wells County Bd. of County Comm’rs, 2000 ND 181, ¶ 28, 618 N.W.2d 166. “Whether [an] appeal was decided correctly or not, the questions that were raised or could have been raised in that case will not be re-examined.” Pearce v. North Dakota Workmen’s Compensation Bureau, 68 N.D. 318, 325, 279 N.W. 601, 603 (1938). See also Fandrich, at ¶ 28.

[¶ 15] If we had agreed with Daniel Frisk’s argument, we would not have remanded to the district court for consideration of whether the evidence supported a finding of actual or imminent danger of domestic violence. We concluded the stipulated protection order could be extended if the district court made a finding of domestic violence, and we decline Daniel Frisk’s invitation to re-examine this issue.

IV

[¶ 16] Daniel Frisk argues the district court was required to hold a full hearing on remand before issuing the amended protection order, because no previous findings of domestic violence had been made.

[¶ 17] “When this Court specifies a defect to be cured and remands for redetermination of an issue without specifying the procedure to be followed, the [district] court need only rectify the defect in a manner consistent with our opinion and conformable to law and justice.” Kautzman v. Kautzman, 2000 ND 116, ¶ 7, 611 N.W.2d 883. See also Moch v. Moch, 1998 ND 95, ¶9, 578 N.W.2d 129 (when this Court specifies which defects the district court must cure, the district court only needs to rectify those defects and proceed in a manner consistent with this Court’s opinion); Kern v. Kelner, 75 N.D. 703, 713-14, 32 N.W.2d 169,174 (N.D.1948) (when this Court does not give the district court specific instructions in remanding for further proceedings, the district court is “free to make any order or direction in the further progress of the case not inconsistent with the decision and opinion of this court and conformable to law and justice”).

[¶ 18] In Frisk, we instructed the district court to determine “whether the evidence supports a finding that Daniel Frisk poses an ‘actual or imminent’ danger of domestic violence to Krista Frisk.” Frisk, 2005 ND 154, ¶ 14, 703 N.W.2d 341. We did not instruct the district court to hold a full evidentiary hearing on remand. A district court has discretion to hold further hearings or accept further evidence. See Kautzman, 2000 ND 116, ¶ 7, 611 N.W.2d 883.

[¶ 19] On remand, Daniel Frisk requested a hearing and an opportunity to present testimony in support of his objection to the proposed amended protection order. A hearing was held on October 19, 2005, and the district court heard arguments on the issue of whether the stipulated order could be extended or whether the court could make findings of domestic violence based on the evidence already before the court, which were the issues Daniel Frisk raised in his brief objecting to the amended protection order. Daniel Frisk argued the case should be dismissed because the stipulated order had expired and could not be extended. He did not make any other arguments, offer any testimony, or raise any other issues at the hearing. Daniel Frisk did not request another hearing to present further evidence, and the district court did not conclude another hearing was necessary because the court determined it had sufficient evidence to make a decision.

[¶ 20] Daniel Frisk did not request an evidentiary hearing and therefore he cannot complain that the court erred in failing to hold a hearing. This Court did not specify the procedure the district court was required to follow on remand, and therefore it was in the court’s discretion whether to hold a further evidentiary hearing. We conclude the district court did not abuse its discretion in failing to hold an evidentiary hearing on remand.

V

[¶ 21] Daniel Frisk argues the district court erred in including in its protection order the findings of fact from the parties’ divorce proceedings. Krista Frisk argues the court did not err because almost all the incidents in the findings in the divorce decree were presented to the court in the protection order proceeding, the findings from the divorce proceeding were not the primary basis for the protection order, there was sufficient evidence before the court without considering the incidents from the divorce proceeding, and the court took judicial notice of the divorce proceeding.

A

[¶ 22] We have said a district court may take judicial notice of evidence presented in a closely related case, particularly when the judge and parties are the same in both proceedings. See State v. Bergstrom, 2006 ND 45, ¶ 18, 710 N.W.2d 407. When one party requests the court take judicial notice, upon notice of that request, the opposing party has advance warning that judicial notice is being contemplated. 1 Weinstein’s Fed. Evid., § 201.30[4], p. 201-63 (2d ed.2006). Parties have the right to challenge the court’s decision to take judicial notice, but the burden is on the challenging party to request the opportunity to be heard. N.D.R.Ev. 201(e); Bender v. Beverly Anne, Inc., 2002 ND 146, ¶ 5, 651 N.W.2d 642. A request for an opportunity to be heard to challenge the court’s decision to take judicial notice may be made after judicial notice has been taken if there was no prior notification of the court’s intent to take judicial notice. N.D.R.Ev. 201(e).

[¶ 23] During the October 19, 2005, hearing on remand, Krista Frisk’s attorney said, “I don’t think it’s necessary that we have another evidentiary hearing. We’ve had two, plus seven or so days of divorce trial, which also focused on the issue of domestic violence as well.” This was a request for the judge, who was the judge in the divorce case, to take judicial notice of the evidence presented in the divorce trial. The court did not grant or deny this request, and Daniel Frisk did not object or address this request. The court issued the amended protection order clearly stating its basis for its finding of domestic violence, including the adoption of findings 10(j) from the parties’ divorce. Daniel Frisk did not object to the court’s decision to take judicial notice, and he did not request an opportunity to be heard to challenge the court’s decision. We conclude the district court did not err in taking judicial notice of the findings in the divorce case.

B

[¶ 24] Assuming the district court erred in relying on the findings from the divorce proceeding, we conclude that error would be harmless because the court’s other findings are sufficient to support the court’s finding of domestic violence. The district court made a finding of domestic violence, and stated its finding was based upon the following:

1. Threatening statements to Krista that Daniel would blow up her parents!’] boat and that she would find them floating in Lake Superior.
2. Daniel appeared to be following Krista while she was driving when she received a phone call from Daniel where he stated that someone was following him in his vehicle and trying to kill him. During this call, Daniel indicated that he had a gun from the office safe and there would be carnage because he would commit suicide by cop. Fearful, Krista drove to her parents!’] home where Daniel partially blocked the driveway. Because of Daniel’s behavior during this incident, the police were concerned enough to contact Daniel’s psychiatrist who recommended that Daniel be picked up for evaluation.
3. After entry of the stipulated Order of June 3, 2004, Daniel continued “harassment” type behavior and “taunting” behavior toward Krista including driving by her home, retrieving property from the home without waiting for law enforcement to arrive, showing up at the children’s school at a time when he knew that Krista would be there to pick them up and attempting to communicate with Krista through gestures and facial expressions when she is in her vehicle at the children’s school.

Krista Frisk presented evidence to the district court in her affidavits and at the June 3, 2004, and December 15, 2004, evi-dentiary hearings to support those three findings.

[¶ 25] In Krista Frisk’s affidavit, dated May 28, 2004, she stated during the 2003 Christmas holiday, Daniel Frisk threatened to hire a convicted criminal to kill her parents. She claimed Daniel Frisk said, “Don’t be surprised if you find your parents floating in Lake Superior,” and told her he was going to blow up her parents’ boat and make it look like an accident. Daniel Frisk’s attorney questioned Krista Frisk about this incident during the June 3, 2004, evidentiary hearing.

[¶ 26] In the May 28, 2004, affidavit, Krista Frisk claimed on May 10, 2004, Daniel Frisk showed up at the children’s tae kwon do lesson and said, “You have a problem. You just lost your kids,” and then he left. Krista Frisk claimed:

He called me on my cell phone a few minutes later, stating he had just retrieved his gun from [his law partner’s] safe. He stated that someone is following him and trying to kill him. He made the statement, “There is going to be carnage.” After leaving Tae Kwan Do, I eventually drove to my parents!’] home in South Fargo. When I arrived, I found that Daniel was blocking my vehicle from driving into my parents!’] driveway. My parents called 911, however, by the time the police arrived, Daniel had left.
That night, I stayed at my parents!’] home with the children. At 5:00 the next morning, Daniel began calling my parents!’] home, asking if I was “out at the bar.” He called at least nine times that morning. At 7:30 a.m. on May 11, 2004, Daniel was seen parked down the street from my parents!’] home. The police arrived and, later that day, took him to the hospital for a psychiatric evaluation. One of the officers that interviewed me ... stated that he could tell by Daniel’s body language that Daniel was extremely agitated. The officer called Daniel “a ticking time bomb.” I was later informed that Daniel’s physician, Jack Lind, had signed an emergency order of committal.

Krista Frisk testified about this allegation at the June 3, 2004, evidentiary hearing. Although Daniel Frisk did not testify at the June 3, 2004, hearing, there was testimony from Dr. Lind, Daniel Frisk’s psychiatrist, about his application for Daniel Frisk’s emergency commitment; and testimony from Daniel Frisk’s law partner about Daniel Frisk’s access to the law firm’s safes, including the safe Krista Frisk claimed Daniel Frisk said he took the gun from.

[¶ 27] The court also received evidence from Krista Frisk about Daniel Frisk’s continued harassing and taunting behavior after the stipulated order was entered. This included Krista Frisk’s affidavit and testimony at the December 15, 2004, hearing that Daniel Frisk removed items from the parties’ marital home without the presence of law enforcement officers, disregarding the stipulated order which excluded him from the residence; Daniel Frisk was present at the visitation exchanges, although the stipulated order required the children’s grandparents to participate in the exchanges to limit contact between the parties; Daniel Frisk’s girlfriend passed by Krista Frisk’s home and tried to talk to the parties’ children; Daniel Frisk attempted to communicate with Krista Frisk at court hearings; and Daniel Frisk walked by Krista Frisk’s vehicle while she was transporting the children to and from school. These acts occurred after the stipulated protection order went into effect, and the court found these acts were an attempt to harass and taunt Krista Frisk.

[¶ 28] Although Daniel Frisk claims these incidents are too remote in time for the court to rely on them as the basis for its finding of actual or imminent domestic violence, we disagree. Past abusive behavior is relevant in determining whether the threat of domestic violence is actual or imminent. Lovcik v. Ellingson, 1997 ND 201, ¶ 17, 569 N.W.2d 697. While the district court can consider past abusive behavior, in this case much of the behavior was in close proximity to Krista Frisk’s application for the extension. The incident which resulted in Daniel Frisk’s emergency psychiatric evaluation occurred in May 2004, and Krista Frisk applied for the extension in November 2004. The harassing and taunting behavior occurred in the months immediately preceding Krista Frisk’s application for extension. These incidents are not remote in time. We conclude there is sufficient evidence to support the court’s findings, and the findings alone are sufficient to support the court’s finding of domestic violence.

VI

[¶ 29] On remand, the district court was instructed to consider “whether the evidence supports a finding that Daniel Frisk poses an ‘actual or imminent’ danger of domestic violence to Krista Frisk.” Frisk, 2005 ND 154, ¶ 14, 703 N.W.2d 341. After concluding there was evidence presented during the December 15, 2004, hearing that could plausibly lead to a finding of “actual or imminent” domestic violence, we remanded the case concluding it was not clear from the court’s order whether the court thought it was necessary to make a finding of “actual or imminent” domestic violence. Id. at ¶ 12. We conclude the court made findings of domestic violence as it was required to do on remand. The court’s finding is supported by the evidence and is not clearly erroneous. We therefore affirm the amended domestic violence protection order.

[¶ 30] GERALD W. VANDE WALLE, C.J., THOMAS J. SCHNEIDER, D.J., DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ.

[¶ 31] The Honorable THOMAS J. SCHNEIDER, D.J., sitting in place of MARING, J., disqualified.


author: YANDE WALLE, Chief Justice.

text:
    2006 ND 166
    Robert E. DAHL and Mark Weigand, d/b/a Tailfeather Inn, (The Convent), Plaintiffs and Appellants v. Victor MESSMER and Clara Messmer, Defendants and Appellees.
    No. 20050426.
    Supreme Court of North Dakota.
    July 24, 2006.

      Matthew R. Rolling (argued), and Randall N. Sickler (on brief), Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, ND, for plaintiffs and appellants.
    Bruce A. Selinger, Kubik, Bogner, Ridl & Selinger, Dickinson, ND, for defendants and appellees.
   YANDE WALLE, Chief Justice.

[¶ 1] Robert Dahl and Mark Wiegand (“Dahl and Wiegand”) appeal from a partial summary judgment on their claims brought against Victor and Clara Messmer (“Messmer”) regarding the Management Contract and from a judgment as a matter of law on their remaining claims against Messmer. We affirm.

I

[¶ 2] This action is the result of the sale and purchase of the Tailfeather Inn, a Mott, North Dakota convent converted into a home and hunting lodge Dahl and Wiegand purchased from Messmer. Messmer owned the former convent located in Mott. Messmer was using the convent as his residence and also renting it out as a hunting lodge. Messmer was managing the business and living in the building at the same time.

[¶ 3] Dahl and Wiegand were interested in purchasing the building as a place to stay on their hunting trips to Mott and to rent it out as a hunting lodge when they were not there. Dahl and Wiegand maintain they were not interested in running the hunting lodge operation themselves because they lived in Arizona. Dahl and Wiegand allege Messmer told them he would be willing to continue managing the hunting lodge business for them if they bought it. Dahl and Wiegand also allege Messmer represented to them that the hunting lodge made around $51,000 per hunting season, the building’s furnaces were in good shape, the roof was still under warranty, and it cost around $500 per year to insure the building.

[¶ 4] Dahl and Wiegand allege they agreed to purchase the hunting lodge based on Messmer’s representations regarding profitability, the building’s condition and cost of insurance, and his intention to continue to manage the business.

The parties entered into a Management Contract which provided that Messmer would continue to stay at the property and manage the hunting lodge business. The contract provided the agreement could be terminated by either party upon 90 days notice. The parties closed the sale in March of 2003. Three days after the sale occurred, Messmer sent Dahl and Wiegand a letter terminating his management responsibilities. Dahl and Wiegand sued Messmer alleging he breached the contract requiring him to manage the hunting lodge and that he fraudulently misrepresented the profitability of the business and other facts about the business.

[¶ 5] Dahl and Wiegand contend they had to hire a new manager, they had to put the whole building on electric heat shortly after the sale because two furnaces were defective, and it cost around $3,000 per year to insure the building. Dahl and Wiegand also contend the Tailfeather Inn made only $15,000. They allege losses of $61,000 the first year they operated the business. They allege the business lost $45,000 the second year and is expected to lose $40,000 to $45,000 every year.

[¶ 6] Messmer moved for summary judgment on the Management Contract claim. The district court excluded certain evidence citing the parol evidence rule and granted Messmer’s motion for partial summary judgment. The district court found the Management Contract was unambiguous and Messmer could terminate the relationship upon 90 days notice.

[¶ 7] During trial, Messmer moved for judgment as a matter of law on the remaining claims of misrepresentation. The district court granted Messmer judgment as a matter of law finding the statements made by Messmer were “puffing.”

II

[¶ 8] On appeal, Dahl and Wiegand argue the district court erred by granting partial summary judgment to Messmer on the Management Contract claim. The standard of review for summary judgments is well-established. In Zuger v. State, 2004 ND 16, ¶7, 673 N.W.2d 615 (citations omitted), this Court explained:

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.

“Although actions involving state of mind, such as fraud, are not usually suited for disposition by summary judgment, if a plaintiff fails to support his opposition to a summary judgment motion with sufficient facts to show that there is a genuine issue for trial, then, even in these cases, summary judgment is appropriate.” Kary v. Prudential Ins. Co. of Am., 541 N.W.2d 703, 706 (N.D.1996). “Summary judgment is proper when a party fails to raise even a reasonable inference of the existence of an element essential to the party’s claim, which must be proved at trial.” Id. “A key element in proving fraud or deceit is reliance by the complaining party upon the false or misleading representations.” Id. Furthermore, we must consider the substantive evidentiary standard of proof when reviewing a motion for summary judgment. Matter of Estate of Stanton, 472 N.W.2d 741, 743 (N.D.1991). “Fraud is never presumed, but must be proved by evidence that is clear and convincing.” Kary, at 705.

[¶ 9] “In the absence of an ambiguity, a written contract supersedes any prior oral agreement or negotiations between the parties.” Heart River Partners v. Goetzfried, 2005 ND 149, ¶ 11, 703 N.W.2d 330; see N.D.C.C. § 9-06-07 (providing “[t]he execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument”). “Parol evidence is admissible, however, in an action to reform a written contract on the grounds of fraud or mutual mistake to establish the alleged fraud or mistake and to correct the instrument to conform to the agreement or intention of the parties.” Heart River Partners, at ¶ 12. However, “[t]his Court has said a party who seeks reformation has the burden to prove by clear and convincing evidence that a written agreement does not fully or truly state the agreement the parties intended to make.” Id. at ¶ 14.

[¶ 10] Although there was a written Management Contract in this case, Dahl and Wiegand argued Messmer represented he would stay and manage the hunting lodge business for a period longer than the period contained in the Management Contract. In granting partial summary judgment, the district court ruled no parol evidence would be allowed regarding the validity of the Management Contract and no claims for damages arising out of the Management Contract would be allowed at trial.

[¶ 11] In Dahl and Wiegand’s opposition to the summary judgment motion, in which they argue parol evidence should be admissible and that genuine issues of material fact existed, the only evidence they offer is an affidavit from Wiegand stating he thought Messmer would continue as manager of the business for four and a half years and a major reason Dahl and Wie-gand purchased the business was because they thought Messmer would continue as manager. The affidavit contains allegations but offers no supporting evidence of false or misleading representations, much less clear and convincing evidence. Although the affidavit alleges Messmer’s purchase of another house in Mott shows he did not plan on continuing his management of the business, the affidavit does not expressly state that Messmer in any way misrepresented his intentions. Messmer’s actions are not inconsistent with nor contrary to the language of the Management Contract. Dahl and Wiegand thus arguably offered proof of reliance but offered no clear and convincing proof of false or misleading representations.

[¶ 12] The allegations contained in the affidavit are not enough to overcome Dahl and Wiegand’s burden to present clear and convincing evidence that the Management Contract did not reflect the parties’ intentions nor is the evidence presented by Dahl and Wiegand in their opposition to the summary judgment motion enough to demonstrate any genuine issues for trial regarding parol evidence that would establish any misrepresentation. We affirm the district court’s grant of partial summary judgment on the Management Contract claims.

Ill

[¶ 13] Dahl and Wiegand contend the district court erred by granting Mess-mer’s motion for judgment as a matter of law on their claims Messmer misrepresented the profitability and condition of the Tailfeather Inn. It is unclear whether Dahl and Wiegand are pursuing damages under a theory of fraud or deceit. The parties and the court below drew no distinction between fraud and deceit in the pleadings, arguments, or judgment and, for purposes of this appeal, neither will we.

[¶ 14] “The trial court’s decision on a motion brought under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion.” Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450. “The trial court’s decision on a motion for judgment as a matter of law is fully reviewable on appeal.” Id.

[¶ 15] “Generally, statements of value and predictions of future earnings or profits fall within the class of statements whose truth or falsity cannot be precisely determined and which are not, therefore, actionable as misrepresentations of fact.” Kary v. Prudential Ins. Co. of Am., 541 N.W.2d 703, 706 (N.D.1996). “Whether there were fraudulent representations or not in a given case must depend upon the facts in each case.” Gershman v. Engelstad, 160 N.W.2d 80, 83 (N.D.1968). “General expressions of opinion by a seller, commendatory of the thing he is selling, are not actionable even though not entirely true.” Id. at 86. “Hence, statements of opinion, as, for example, expressions by the seller commending the thing he is selling, have been held not actionable even though they are false.” Id. at 83. “These expressions come within the term generally referred to as ‘puffing’ and are considered mere dealer’s talk.” Id.

[¶ 16] Dahl and Wiegand purchased the Tailfeather Inn “as is” and contracted not to hold Messmer liable for any non-disclosed or latent defects. Dahl and Wie-gand presented testimony of Messmer’s alleged fraudulent statements but presented no evidence showing Messmer’s statements amounted to either fraud or deceit under N.D.C.C. §§ 9-03-08 or 9-10-02. The evidence presented at trial leads to the conclusion that Messmer’s statements did not rise to the level of fraud or deceit and the district court properly granted judgment as a matter of law.

IV

[¶ 17] We affirm the district court’s grant of summary judgment and judgment as a matter of law.

[¶ 18] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, JJ., and JAMES M. BEKKEN, D.J., concur.

I concur in the result. DANIEL J. CROTHERS.

[¶ 19] The Honorable JAMES M. BEKKEN, D. J., sitting in place of SANDSTROM, J., disqualified.


text:
    2006 ND 167
    The RAMSEY FINANCIAL CORPORATION, Plaintiff and Appellee v. John C. HAUGLAND, Ruth S. Haugland, Oscar Dammen and Lenora Dammen, Defendants and Appellants.
    No. 20050375.
    Supreme Court of North Dakota.
    July 26, 2006.
    Rehearing Denied Aug. 24, 2006.

      Joseph A. Turman (argued), DeMars & Turman, Fargo, N.D., and Evan F. Heus-tis (on brief), Ramsey National Bank & Trust Company, Devils Lake, N.D., for plaintiff and appellee.
    James P. Wang, Minnewaukan, N.D., for defendants and appellants.
   KAPSNER, Justice.

[¶ 1] John C. Haugland, Ruth S. Haugland, Oscar Dammen, and Lenora Dam-men appealed from a summary judgment ordering them to tender their shares of preferred stock in The Ramsey Financial Corporation (“Ramsey”) to Ramsey for $134.25 per share and dismissing their counterclaims against Ramsey. We dismiss the Dammens’ appeal because it is moot, and we affirm the judgment against the Hauglands because they failed to follow the procedures for asserting dissenting shareholder rights under the Business Corporation Act, N.D.C.C. ch. 10-19.1.

I

[¶ 2] Incorporated in August 1981, Ramsey is a bank holding company located in Devils Lake. Ramsey was authorized to issue 18,000 shares of cumulative non-voting preferred shares of stock and to issue common shares of stock. Through the years, the Hauglands acquired 521 shares of preferred stock and the Dammens acquired 8,377 shares of preferred stock.

[¶ 3] In June 2003, Ramsey’s board of directors informed the shareholders that a special meeting would be held on July 1, 2003, to allow them to discuss and vote on a proposed resolution which would amend the articles of incorporation to allow for the redemption of preferred stock. The proposed resolution stated redemption of the preferred stock would be in the best interests of the corporation because “the elimination of a second class of stock would enhance the corporation’s ability to elect Sub-chapter S status under the Internal Revenue Code, which is a long term goal of the corporation.” The notice of the special meeting further provided that “[a]l-though preferred shares are non-voting shares, holders of such shares will be permitted to vote on this issue since the proposed resolution affects their rights as stockholders.” A proposed resolution, which authorized the board of directors to amend the articles of incorporation to allow redemption of the preferred shares, was passed at the July 1, 2003, meeting. On October 8, 2003, the board of directors voted to pass a resolution to amend the articles of incorporation to permit Ramsey to purchase the outstanding shares of the preferred stock.

[¶ 4] On October 9, 2003, the board of directors gave notice of a second meeting of common and preferred shareholders on October 21, 2003, to permit the shareholders to vote on the resolution under N.D.C.C. § 10-19.1-19. The notice further provided:

In the event of a consenting vote on this Resolution, preferred shareholders who do not agree with the adoption of the Amendment have certain rights as dissenting shareholders set out in North Dakota Century Code 10-19.1-87 and 10-19.1-88, copies of which are enclosed for your information.

The notice stated the directors would announce at the meeting the price that would be paid for the preferred shares and the method used to establish the price, and the resolution provided that Ramsey would pay a dividend on all outstanding preferred shares on December 31, 2003, and that the redemption would occur on January 2, 2004.

[¶ 5] Although the Hauglands and Dammens voted against the resolution at the October 21, 2003, meeting, the vast majority of shareholders voted for the resolution. On December 4, 2003, Ramsey notified its preferred shareholders that the redemption price per share on January 2, 2004, would be $134.25, as “determined by an independent appraisal.” On January 2, 2004, a notice of dissenting shareholders’ rights was sent to dissenting shareholders informing them that “[a]ny demand for payment under the shareholders’ rights set out by law and the accompanying stock certificates, must be sent [to Ramsey] by February 3, 2004.” This notice again informed the dissenting shareholders of their rights under N.D.C.C. §§ 10-19.1-87 and 10-19.1-88.

[¶ 6] On January 16, 2004, the Haug-lands sent Ramsey a letter refusing to convey their preferred shares of stock to the corporation. On February 3, 2004, the Dammens also sent Ramsey a letter stating that they refused to convey their preferred shares back to the corporation. The amendment to Ramsey’s articles of incorporation was filed with the Secretary of State on February 11, 2004. In September 2004, after the Hauglands and Dammens had failed to surrender their preferred shares to the corporation, Ramsey brought this declaratory judgment action against them seeking a declaration of “the respective duties and obligations of the parties.” The district court granted Ramsey’s motion for summary judgment, concluding the Hauglands and the Dam-mens “failed to exercise their dissenting shareholders rights as required by statute,” and as a result, they were entitled to the $134.25 per share determined to be the “fair value” of the shares by an independent third party appraiser. The court ordered the Hauglands and Dammens to tender their preferred shares to Ramsey, and dismissed their counterclaims against Ramsey.

II

[¶ 7] Under N.D.R.App.P. 42(c), Ramsey has informed this Court that approximately one month after the Dammens filed their notice of appeal, they presented their preferred shares to the corporation and received $134.25 per share as ordered by the district court. Ramsey argues the Dammens’ tender of shares and receipt of payment renders the controversy between the corporation and the Dammens moot. We agree.

[¶ 8] We will dismiss an appeal if the issues become moot or academic and no actual controversy is left to be determined. DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 10, 636 N.W.2d 432. An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief. Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 9, 651 N.W.2d 625. In re E.T., 2000 ND 174, ¶5, 617 N.W.2d 470.

[¶ 9] In Lyon v. Ford Motor Co., 2000 ND 12, ¶ 13, 604 N.W.2d 453, this Court held that a party who voluntarily pays a judgment against him waives the right to appeal from the judgment. In doing so, we overruled a line of older North Dakota cases holding that voluntary payment or satisfaction of a judgment does not waive the right to appeal, if repayment may be enforced or the effect of compliance may be otherwise undone in case of reversal, and unless the payment was intended as a compromise or there was an express agreement to not pursue an appeal. Id. at ¶¶ 7, 9, 10. One of the cases we overruled was Workman v. Salzer Lumber Co., 51 N.D. 280, 199 N.W. 769 (1924), in which this Court held the defendant’s voluntary return of property to the plaintiff after the lower court ordered the return of property did not constitute a waiver of the right to appeal. In this case, the Dammens returned the stock certificates to Ramsey and received payment for those shares, precisely what the district court ordered. Although the Dammens made no payment, voluntary acquiescence in a judgment also constitutes a waiver of the right to appeal, see, e.g., Messer v. Henlein, 72 N.D. 63, 66, 4 N.W.2d 587, 588-89 (1942); In re McKee’s Estate, 69 N.D. 203, 208, 285 N.W. 72, 74 (1939), and formal execution of a satisfaction of judgment is not a prerequisite for this principle to apply. See, e.g., McKee’s Estate; Grady v. Hansel, 57 N.D. 722, 725, 223 N.W. 937 (1929).

[¶ 10] While voluntary payment of or acquiescence in a judgment waives the right to appeal, payment or acquiescence under coercion or duress does not constitute a waiver. See Roland Township, 2002 ND 140, ¶ 13, 651 N.W.2d 625; Twogood v. Wentz, 2001 ND 167, ¶ 5, 634 N.W.2d 514; Lyon, 2000 ND 12, ¶ 14, 604 N.W.2d 453. When there is no showing other than that there was acquiescence in or payment of a judgment, a presumption arises that the acquiescence or payment was voluntary. Lyon, at ¶ 14. Here, there is no indication the Dammens’ compliance with the judgment was anything other than voluntary. Their tender of shares and receipt of payment are directly related to the merits of the case. Compare Twogood, at ¶¶ 7-8 (payment of cost judgment which did not in any way go to merits of case did not defeat right to appeal). We conclude the Dammens’ appeal is moot and we dismiss it.

Ill

[¶ 11] The Hauglands argue the district court erred in granting summary judgment ordering them to tender their shares to Ramsey for the offered price of $134.25 per share. They contend the court should have determined the fair value of their shares.

[¶ 12] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no disputed genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Bernabucci v. Huber, 2006 ND 71, ¶ 14, 712 N.W.2d 323. Whether a district court properly granted summary judgment is a question of law that we review de novo on the entire record. Id.

A

[¶ 13] The Hauglands contend the district court erroneously concluded that the date of the shareholder vote, October 21, 2003, rather than the date the amendment to the articles of incorporation was accepted by the Secretary of State, February 11, 2004, triggered the application of the dissenting shareholders rights and the procedures for asserting those rights under N.D.C.C. ch. 10-19.1. According to the Hauglands, because N.D.C.C. § 10-19.1-24 provides the “articles of amendment are effective upon acceptance by the secretary of state or at another time within thirty days after acceptance if the articles of amendment so provide,” Ramsey was not authorized to seek redemption of the shares of stock until the amendment to the articles was filed and accepted by the Secretary of State. Resolution of this issue requires an examination of the statutes governing dissenting shareholders’ rights.

[¶ 14] Our duty in construing statutes is to ascertain the legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. §§ 1-02-02 and 1-02-03. If statutory language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit, because the legislature’s intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05. If statutory language is ambiguous, a court may resort to extrinsic aids, including legislative history, to interpret the statute. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to meanings that are different, but rational. Van Klootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 12, 665 N.W.2d 679. Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-07 and 1-02-38(2). We construe statutes in a practical manner and give consideration to the context of the statutes and the purposes for which they were enacted. N.D.C.C. § 1-02-03.

[¶ 15] The Business Corporation Act provides significant protections for dissenting shareholders under N.D.C.C. §§ 10-19.1-87 and 10-19.1-88, which contain procedures for shareholders to obtain the fair value of their shares in a corporation. Kaiser v. Kaiser, 555 N.W.2d 585, 588 (N.D.1996). Under N.D.C.C. § 10-19.1-87(l)(a)(l), “[a] shareholder of a corporation may dissent from, and obtain payment for the fair value of the shareholder’s shares in the event of, any of the following corporate actions: ... an amendment of the articles that materially and adversely affects the rights or preferences of the shares of a dissenting shareholder in that it: ... [a]lters or abolishes a preferential right of the shares.” Under this plain language, the amendment of Ramsey’s articles of incorporation to allow for the redemption of preferred shares gave the Hauglands dissenting shareholder rights under N.D.C.C. ch. 10-19.1.

[¶ 16] Section 10-19.1-88, N.D.C.C., details the procedural ladder for asserting dissenters’ rights:

2. If a corporation calls a shareholder meeting at which any action described in subsection 1 of section 10-19.1-87 is to be voted upon, the notice of the meeting shall inform each shareholder of the right to dissent and shall include a copy of section 10-19.1-87 and this section.
3. If the proposed action must be approved by the shareholders, and the corporation calls a meeting of shareholders, then a shareholder who is entitled to dissent under section 10-19.1-87 and who wishes to exercise dissenter’s rights shall file with the corporation before the vote on the proposed action a written notice of intent to demand the fair value of the shares owned by the shareholder and may not vote the shares in favor of the proposed action.
4. After the proposed action has been approved by the board and, if necessary, the shareholders, the corporation shall send to all shareholders who have complied with subsection 3, to all shareholders who did not sign or consent to a written action that gave effect to the action creating the right to obtain payment under section 10-19.1-87, and to all shareholders entitled to dissent if no shareholder vote was required, a notice that contains:
a. The address to which a demand for payment and share certificates must be sent in order to obtain payment and the date by which they must be received;
b. A form to be used to certify the date on which the shareholder, or the beneficial owner on whose behalf the shareholder dissents, acquired the shares or an interest in them and to demand payment; and
c. A copy of section 10-19.1-87 and this section.
5. In order to receive the fair value of shares, a dissenting shareholder must demand payment and deposit certificated shares within thirty days after the notice required by subsection 4 was given, but the dissenter retains all other rights of a shareholder until the proposed action takes effect.

[¶ 17] If a dissenting shareholder has complied with subsections 3, 4, and 5, the corporation must remit to the shareholder the amount the corporation estimates to be the fair value of the shares, plus interest, “[ajfter the corporate action takes effect, or after the corporation receives a valid demand for payment, whichever is later.” N.D.C.C. § 10-19.1-88(6). If a dissenter has complied with subsections 3, 4, and 5, the corporation must forward materials and a statement of the reason for withholding the remittance, and an offer to pay to the dissenter the amount listed in the materials. N.D.C.C. § 10-19.1-88(7). The dissenter may decline the offer “and demand payment under subsection 9,” but “[failure to do so entitles the dissenter only to the amount offered. If the dissenter makes demand, subsections 10 and 11 apply.” Id. A corporation must return all deposited certificates if it fails to remit within 60 days of the deposit of the certificates, but the corporation “may again give notice under subsections 4 and 5 and require deposit at a later time.” N.D.C.C. § 10-19.1-88(8). Section 10-19.1-88(9) and (10), N.D.C.C., provide in relevant part:

9. If a dissenter believes that the amount remitted under subsections 6, 7, and 8 is less than the fair value of the shares plus interest, the dissenter may give written notice to the corporation of the dissenter’s own estimate of the fair value of the shares plus interest, within thirty days after the corporation mails the remittance under subsections 6, 7, and 8, and demand payment of the difference. Otherwise, a dissenter is entitled only to the amount remitted by the corporation.
10. If the corporation receives a demand under subsection 9, it shall, within sixty days after receiving the demand, either pay to the dissenter the amount demanded or agreed to by the dissenter after a discussion with the corporation or file in court a petition requesting that the court determine the fair value of the shares plus interest.

[¶ 18] The Hauglands’ argument that Ramsey was not authorized to seek redemption of the preferred shares until the amendment to the articles of incorporation was accepted by the Secretary of State ignores the plain language of the statute. The progressive ladder of procedures for asserting dissenters’ rights can begin before an amendment becomes effective under N.D.C.C. § 10-19.1-24. Under N.D.C.C. § 10-19.1-88(4) (emphasis added), the corporation must send notice to all shareholders who complied with subsection 3 “[a]fter the proposed action has been approved by the board and, if necessary, the shareholders.” A proposed amendment to the articles is “adopted ... when approved by the affirmative vote of the shareholders.” N.D.C.C. § 10 — 19.1— 19(4)(a). Subsections 5 and 6 of N.D.C.C. § 10-19.1-88, relating to a dissenting-shareholder’s demand for payment, specifically refer to the effective date of the amendment, but recognize that the demand for payment may occur before the corporate action becomes effective. See N.D.C.C. § 10-19.1-88(5) (dissenting shareholder must demand payment and deposit certificated shares within 30 days after notice, “but the dissenter retains all other rights of a shareholder until the proposed action takes effect”); N.D.C.C. § 10-19.1-88(6) (corporation must remit payment to dissenting shareholders who have complied with the statutory requirements “[a]fter the corporate action takes effect, or after the corporation receives a valid demand for payment, whichever is later”).

[¶ 19] There is nothing unusual about a statutory scheme that allows the process of redeeming shares to begin before an amendment to the articles of incorporation giving the corporation the power to do so has been formally filed and accepted by the Secretary of State. The purpose of a requirement that the articles of incorporation and their amendments be made a public record is to provide a means of furnishing information to those who deal with the corporation. See, e.g., Ginsberg v. Lindel, 107 F.2d 721, 728 (8th Cir.1939); Higgins v. Hampshire Prods., 319 Mich. 674, 30 N.W.2d 390, 392 (1948); Brennan v. Minneapolis Soc’y for the Blind, Inc., 282 N.W.2d 515, 522 (Minn.1979); 7A C. Jones, Fletcher Cyclopedia of the Law of Private Corporations, § 3722.10, at p. 420 (2006 Rev. ed.). Under N.D.C.C. §§ 10-19.1-87 and 10-19.1-88, notice is required to be given to all shareholders and they must be informed of their statutory right to dissent. The Hauglands were afforded notice and had full knowledge of the proposed corporate action. -They voted against the- resolution at the October 21, 2003, meeting. In the context of corporate action involving shareholders with notice, delaying implementation of the procedures for exercising dissenting shareholders’ rights until an amendment to the articles' of incorporation is filed and accepted by the Secretary of State would exalt form over substance.

[¶ 20] The Hauglands have not complied with the procedure for asserting dissenters’ rights under N.D.C.C. § 10-19.1-88. Although the Hauglands contend their January 16, 2004, letter to the corporation constituted a valid demand for payment, that communication cannot be fairly characterized as a demand for payment. The letter merely asserts that the corporation’s actions were illegal. The Hauglands have never demanded payment or deposited their certificated shares with the corporation. Consequently, the Hauglands are not entitled to a court determination of the fair value of their shares plus interest, but are entitled '“to the amount offered.” N.D.C.C. § 10-19.1-88(7). The district court correctly concluded the Hauglands were entitled to $134.25 per share from Ramsey for their shares of preferred stock.

B

[¶ 21] The Hauglands contend the district court erred in concluding they had no other remedy against Ramsey other than accepting the fair value of their stock under the procedure outlined in N.D.C.C. §§ 10-19.1-87 and 10-19.1-88.

[¶ 22] Section 10-19.1-87(4), N.D.C.C., states:

4. The shareholders of a corporation who have a right under this section to obtain payment for their shares do not have a right at law or in equity to have a corporate action described in subsection 1 set aside or rescinded, except when the corporate action is fraudulent with regard to the complaining shareholder or the corporation.

The legislature has declared “there is no common law in any case where the law is declared by the code.” N.D.C.C. § 1-01-06. Section 10-19.1-87(4), N.D.C.C., clearly provides that dissenting shareholders whose preferred shares have been altered or abolished, and have a right to obtain payment for their shares, have no right to have the corporate action set aside or rescinded unless the corporate action is fraudulent. Absent fraud, this provision makes the statutory procedure for asserting dissenters’ rights an exclusive remedy. See Hearing on S.B. 2011, S.B. 2107, and S.B. 2251 Before the Senate Industry, Business and Labor Committee, 49th N.D. Legis. Sess. (January 22, 1985) (“Analysis of Proposed North Dakota Business Corporation Act Revision”) (“When the remedy is exclusive, it is imperative that people know they have it in time to exercise it,” referring to the notice requirement in N.D.C.C. § 10-19.1-88). Although the Hauglands alleged in their answer and counterclaim that Ramsey acted fraudulently, they do not argue on appeal that they raised a genuine issue of material fact to preclude summary judgment dismissal of this claim. We conclude the district court did not err in ruling the Hauglands had no other remedy available to them to receive the fair value of their preferred shares.

C

[¶ 23] The Hauglands argue that the retroactive application of N.D.C.C. ch. 10-19.1 to their preferred shares of stock, which they obtained before the revised Business Corporation Act was enacted in 1985, violates N.D. Const, art. I, § 18, which provides: “No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed.” Although the Hauglands cited to the constitutional provision, they have given us no supporting authority or analysis. This is insufficient to raise the constitutional issue for our review. See, e.g., North Dakota Guaranteed Student Loan Program v. Voigt, 513 N.W.2d 64, 66 (N.D.1994).

IV

[¶ 24] We have considered the other issues raised and deem them to be either without merit or unnecessary to address in view of our disposition of this case. We dismiss the Dammens’ appeal and affirm the summary judgment.

[¶ 25] GERALD W. VANDE WALLE, C.J., BENNY A. GRAFF, S.J., WADE L. WEBB, D.J., and DALE V. SANDSTROM, J., concur.

[¶ 26] The Honorable Benny A. Graff, S.J., and the Honorable Wade L. Webb, D.J., sitting in place of Maring, J., and Crothers, J., disqualified.