author: SANDSTROM, Justice.

text:
    2001 ND 190
    STATE of North Dakota, Plaintiff and Appellee, v. Lesa M. KENSMOE, n/k/a Lesa Benedict, Defendant and Appellant.
    No. 20010183.
    Supreme Court of North Dakota.
    Dec. 5, 2001.

      Birch P. Burdick, State’s Attorney, Courthouse, Fargo, N.D., for plaintiff and appellee.
    William S. Kirschner, Las Cruces, N.M., for defendant and appellant.
    Robert P. Bennett, Attorney General’s Office, Bismarck, N.D., amicus curiae.
   SANDSTROM, Justice.

[¶ 1] Lesa Kensmoe (now known as Lesa Benedict) appealed from a Cass County District Court restitution order extending her probation period. Kensmoe also argue d N.D.C.C. § 29-08-28, authorizing a district court to apply bail posted by a third party to the defendant’s restitution, costs, or fines, is unconstitutional. Concluding the trial court acted within its statutory power in extending Kensmoe’s probation period and concluding Kensmoe did not properly preserve her constitutional challenge for appeal, we affirm.

I

[¶ 2] Lesa Kensmoe was convicted of theft of property, a class B felony, on June 3,1996. She was sentenced to ten years in prison, with nine years suspended. Following her release from prison, Kensmoe was placed under supervised probation for five years. Kensmoe’s probation included the payment of restitution in an amount to be determined at a subsequent restitution hearing.

[¶ 3] Kensmoe was not present at the July 26, 1996, restitution hearing at which the district court ordered Kensmoe to pay restitution of $24,000 at a rate of $200 per month following her release from custody. As of July 13, 2001, Kensmoe had paid a total of $1665.

[¶ 4] On March 19, 2001, the State filed a petition for revocation of probation, alleging Kensmoe had violated her probation by failing to pay the $200-per-month restitution. On July 5, 2001, Kensmoe filed a motion to vacate the restitution order because she was not present at the hearing and because she did not have the ability to pay the ordered restitution. Kensmoe also requested a new restitution hearing.

[¶ 5] On July 23, 2001, the district court granted Kensmoe’s motion to vacate the restitution order of June 3, 1996, because she was not present at the hearing. The district court also dismissed the State’s motion to revoke probation. On the same day, the district court entered a second restitution order based on the July 13, 2001, restitution hearing. Kensmoe was present at the July 13, 2001, restitution hearing. The district court found Kensmoe had the ability to pay $200 per month in restitution and good cause existed to extend Kensmoe’s probation period for five years. Accordingly, the district court' ordered Kensmoe to pay $200 per month in restitution. The district court also ordered the five hundred dollars of bail posted on Kensmoe’s behalf be applied to her restitution obligation. Kensmoe appealed from the district court’s second restitution order.

[¶ 6] The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-06.

II

[¶ 7] A district court is exercising its statutory powers when ordering restitution. N.D.C.C. § 12.1-32-08; State v. Vick, 1998 ND 214, ¶ 4, 587 N.W.2d 567. Our review of a restitution order is limited to whether the district court acted within the limits set by statute. Id. “This standard of review in a similar context has been called the abuse of discretion standard.” Id. “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” Myer v. Rygg, 2001 ND 123, ¶ 8, 630 N.W.2d 62.

[¶ 8] The district court imposed restitution as a condition of Kensmoe’s probation. North Dakota Century Code § 12.1-32-08(1) provides, in part:

Before imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof.

In revoking its original restitution order, the district court noted a restitution hearing is part of a sentencing, and a defendant has the right to be personally present at the hearing. The second restitution hearing was conducted within the district court’s statutory authority. N.D.C.C. § 12.1-32-08(1).

[¶ 9] Kensmoe argues the district court lacked the authority to “increase” her sentence because the district court acted outside the time limit imposed by N.D.R.Crim.P. 35. Rule 35, N.D.R.Crim. P., provides:

(a) Correction of Sentence. The sentencing court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
(b) Reduction of Sentence. The sentencing court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by that court of a mandate issued upon affir-mance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding a judgment of conviction or probation revocation.

Kensmoe confuses the nature of her restitution. Her restitution was a condition of her probation. The conditions of Ken-smoe’s probation were modified; her sentence was not. Therefore, her reliance upon N.D.R.Crim.P. 35 is misplaced.

[¶ 10] At the second restitution hearing, Kensmoe’s probation was extended for five' additional years. Generally, probation imposed for a felony may not exceed five years. N.D.C.C. § 12.3 — 32— 06.1(1). Extension of probation is authorized by statute. N.D.C.C. § 12.1-32-06.1(2).

[¶ 11] If restitution is imposed, “the court may, following a restitution hearing pursuant to section 12.1-32-08, impose an additional period of probation not to exceed five years.” N.D.C.C. § 12.1-32-06.1(2). The second restitution hearing was held “pursuant to section 12.1-32-08.” Contrary to Kensmoe’s assertions, section 12.1-32-08 does not require a restitution hearing to be held prior to a sentencing hearing. The district court acted within its statutory authority in extending Ken-smoe’s probation for an additional five years. N.D.C.C. § 12.1-32-06.1(2).

Ill

[¶ 12] Kensmoe argues the extension of her probation for five years is a violation of the state and federal constitutional provisions prohibiting double jeopardy. “The guarantee against double jeopardy protects a ‘criminal defendant’s ‘legitimate expectations’ of finality in his or her sentence.’” Davis v. State, 2001 ND 85, ¶ 10, 625 N.W.2d 855 (quoting State v. Lindgren, 483 N.W.2d 777, 779 (N.D.1992)). The constitutional provision ensures a criminal defendant “will not be subjected to multiple punishments for the same offense.” Davis, at ¶ 10 (citing State v. Jones, 418 N.W.2d 782, 784 (N.D.1988)).

[¶ 13] “A sentence which includes probation is not final.” Davis, at ¶ 11. “[T]he court may, following a restitution hearing pursuant to section 12.1-32-08, impose an additional period of probation not to exceed five years.” N.D.C.C. § 12.1-32-06.1(2). We have stated, resen-tencing a defendant to a harsher sentence after a violation of a condition of probation “does not subject him to multiple punishments for the same offense.” Davis, 2001 ND 85, ¶ 11, 625 N.W.2d 855. Likewise, an extension of a probation period does not subject a defendant to multiple punishments for the same offense. Kensmoe’s double jeopardy argument is without merit.

IV

[¶ 14] Under Rule 10(b), N.D.R.App.P., an appellant has the duty to provide this court with a transcript sufficient to allow “a meaningful and intelligent review of the alleged error.” Sabot v. Fargo Women’s Health Org., Inc., 500 N.W.2d 889, 892 (N.D.1993) (quoting Bye v. Elvick, 336 N.W.2d 106, 109 (N.D.1983)). “An appellant ‘assumes the consequences and the risk for the failure to file a complete transcript.’ ” City of Fargo v. Erickson, 1999 ND 145, ¶ 16, 598 N.W.2d 787 (quoting Sabot, 500 N.W.2d at 892; City of Fargo v. Bommersbach, 511 N.W.2d 563, 566 (N.D.1994)). “If the record on appeal does not allow for a meaningful and intelligent review of alleged error, we will decline review of the issue.” Sabot, at 892 (quoting Lithun v. DuPaul, 447 N.W.2d 297, 300 (N.D.1989)). Kensmoe has failed to file a transcript of the district court proceedings.

[¶ 15] Rule 10(g), N.D.R.App.P., provides for an agreed statement of the record in lieu of the record. There is no such statement.

V

[¶ 16] Kensmoe alleges N.D.C.C. § 29-08-28 is unconstitutional. Section 29-08-28 provides:

Except as otherwise provided in this section, moneys deposited as bail are the property of the defendant, whether deposited by the defendant or by a third person on the defendant’s behalf. If bail moneys are deposited by a third person, the person must be notified at the time of deposit that the moneys may be paid to the defendant upon final disposition of the case or applied to any fine, cost, or restitution imposed on the defendant. The person may direct, subject to further order of the judge, that the deposited moneys be released to that person upon final disposition of the case. When moneys are accepted by the court as bail, the judge shall order that the moneys received be deposited with the clerk of court. The clerk shall retain the moneys until the final order of the court disposing of the case. Upon release of the moneys held by the clerk, the moneys must be paid to the defendant or pursuant to the defendant’s written direction or, unless otherwise ordered by the judge, as directed by a person who deposited moneys on behalf of the defendant. In the ease of a conviction, the judge may order the moneys to be applied to any fine, cost, or restitution imposed on the defendant. The balance of the deposit, if any, must be paid to the defendant. Moneys deposited with the court or clerk of court as bail are exempt from garnishment, attachment, or execution.

Kensmoe asserts allowing bail posted by a third party to be applied to restitution, costs, or fines violates the Excessive Bail clause of both the North Dakota and the United States Constitutions. N.D. Const, art. I, § 11; U.S. Const, amend. VIII.

A

[¶ 17] Various “pre-condi-tions” must be met before presenting a constitutionality argument to this court. N.D. Guaranteed Student Loan Program v. Voigt, 513 N.W.2d 64, 66 (N.D.1994). “[A] question not raised or considered in the trial court cannot be raised for the first time on appeal.” Family Center Drug Store, Inc. v. N.D. State Bd. of Pharm., 181 N.W.2d 738, 745 (N.D.1970). This general rule applies to constitutional issues. Id. at 746; State v. Slapnicka, 376 N.W.2d 33, 36 (N.D.1985).

[¶ 18] This Court has outlined the numerous reasons for insisting a question be raised in the lower court before it may be heard on appeal.

“[WJhen an appellate court proceeds on a theory which was not advanced by the parties there is no fair opportunity for the litigants to meet the issues, and there is an increased chance that the appellate court will commit error.” In the Matter of the Application of Center State Bank, 276 N.W.2d 132, 134 (N.D.1979).
It is fundamental to the adversary process that each party be afforded an opportunity to bring up its “heavy artillery” in defense of or attack upon an issue, especially if the issue is of a constitutional nature. See So. Valley Grain Dealers v. Bd. of Cty. Com’rs, 257 N.W.2d 425 (N.D.1977). More importantly, however, is the danger of usurping the district court’s function in the judicial process. By deciding an issue not previously raised, we infringe upon the opportunity of the district court to consider the question as the court of first instance.
... Although we prefer to reach the merits of each question raised on appeal, we are reluctant to do so at the risk of thwarting an opportunity for all of the parties to develop adequate argument. We are also reluctant to diminish the role of the district court.

Caldis v. Bd. of County Comm’rs, 279 N.W.2d 665, 667 (N.D.1979).

[¶ 19] A party “must do more than merely assert that a statute is [unconstitutional] to appropriately raise a constitutional issue.” Swenson v. Northern Crop Ins., Inc., 498 N.W.2d 174, 178 (N.D.1993) (quoting State v. Tweed, 491 N.W.2d 412, 417 n. 5 (N.D.1992)). A party must “bring up the heavy artillery” when asserting constitutional claims. So. Valley Grain Dealers v. Bd. of County Comm’rs, 257 N.W.2d 425, 434 (N.D.1977).

[¶ 20] Here, the record is insufficient to allow us to review whether Kensmoe argued the constitutionality issue to the district court. Kensmoe filed no trial court brief on the issue. We are unable to ascertain whether Kensmoe “brought up the heavy artillery.” Kensmoe must “assume[ ] the consequences and the risk for the failure to file a complete transcript.” City of Fargo v. Erickson, 1999 ND 145, ¶ 16, 598 N.W.2d 787 (quoting Sabot, 500 N.W.2d at 892; City of Fargo v. Bommersbach, 511 N.W.2d 563, 566 (N.D.1994)). The record on appeal does not allow for a meaningful and intelligent review of the alleged constitutional infirmities of N.D.C.C. § 29-08-28. Accordingly, the issue was not properly preserved for appeal.

B

[¶ 21] When an issue has not been properly preserved for appeal, our review of the issue is limited, under N.D.R.Crim.P. 52(b), to whether the alleged error constitutes an obvious error affecting the substantial rights of the defendant. State v. Prigge, 437 N.W.2d 520, .521 (N.D.1989). As we recently stated, “[w]e exercise our power to consider obvious error cautiously and only in exceptional circumstances where the defendant has suffered serious injustice.” State v. Miller, 2001 ND 132, ¶ 25, 631 N.W.2d 587. “[T]o establish obvious error, the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights.” Id. “An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.” Id. An error must be affirmatively shown by the record. Id. at ¶ 26. Error is never presumed. Id.

[¶ 22] Again, our review is hampered by the lack of a complete record. The record does not affirmatively show the district court erred. The district court correctly presumed N.D.C.C. § 29-08-28 to be constitutional. State v. Tweed, 491 N.W.2d 412, 418 (N.D.1992) (a statute is presumed to be constitutional). Nor does the record show the alleged error was obvious. The record is void of any discussion concerning the constitutionality of N.D.C.C. § 29-08-28. Finally, the record does not show how Kensmoe’s “substantial rights” were affected. This is not a case where the trial court committed obvious error.

VI

[¶ 23] The district court’s restitution order is affirmed.

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


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2001 ND 187
    LENTHE INVESTMENTS, INC., a corporation, Plaintiff and Appellant, v. SERVICE OIL, INC., a corporation and Steven Dirk Lenthe, Defendants and Appellees.
    No. 20010085.
    Supreme Court of North Dakota.
    Dec. 5, 2001.

      Bruce H. Carlson, McNair, Larson & Carlson, Ltd., Fargo, ND, for plaintiff and appellant.
    Joseph A. Turman, DeMars & Turman, Fargo, ND, for defendants and appellees.
   MARING, Justice.

[¶ 1] Lenthe Investments, Inc., appeals from a judgment dated January 22, 2001, holding the parties entered into an enforceable agreement and declaring the terms of the lease. We affirm.

I

[¶ 2] Lenthe Investments, Inc., (“Lenthe Investments”) is a corporation owned by Reuben and Betty Lu Lenthe which owns a number of parcels of commercial property. One such parcel of property is located on Main Avenue in Fargo, North Dakota. Lenthe Investments leases a portion of this parcel to Kroll’s Kitchen, Inc., (“Kroll’s”) which operates a restaurant on the premises. The other portion of the parcel is leased to Service Oil, Inc., (“Service Oil”) which operates a Stamart gas station and convenience store on the premises. Service Oil is a corporation owned by Reuben Lenthe and Steven Dirk Lenthe, who is Reuben and Betty Lu’s son.

[¶3] Beginning in 1994, Betty Lu’s health began to deteriorate. In 1998, Reuben’s health began to deteriorate as well. In May of 1999, Susan Lenthe, who is Reuben and Betty Lu’s daughter, filed a petition in the district court for Clay County, Minnesota, seeking appointment of a general guardian for Reuben and Betty Lu. Steven Dirk Lenthe opposed the petition. A hearing on the petition was held on August 26,1999.

[¶ 4] At the beginning of the hearing, Susan, joined by Reuben and Betty Lu’s son, Roger Drew Lenthe, made a motion for summary judgment on the petition for guardianship. The court recessed to consider the motion. During the recess, the parties negotiated an agreement. After the recess, the parties discussed the agreement with the trial court. The hearing was adjourned, and the parties finalized the terms of the agreement in a document entitled “Stipulation and Agreement.”

[¶ 5] As part of the Stipulation and Agreement, Susan Lenthe and Roger Drew Lenthe would be appointed co-guardians of the estate of Reuben Lenthe, and Reuben’s interest in Service Oil would be sold according to the terms and conditions of a prior agreement between Reuben and Steven Dirk Lenthe. Additionally, the parties agreed “Lenthe Investment, Inc. shall enter into a lease with Service Oil, Inc. for that portion of the property commonly known and referred to as Sta-mart Service Station located at 2903 Main Avenue, Fargo, ND at a rental rate per square foot the same as and to the extent appropriate on and for the same length of term and other terms as Lenthe Investment, Inc. presently has with Kroll’s Kitchen, Inc.” The agreement was submitted to the trial court, and an order substantially incorporating the terms of the agreement was entered on September 17, 1999.

[¶ 6] Subsequent to the entry of the order, Lenthe Investments sent a proposed lease to Service Oil. Service Oil rejected this lease because it required Service Oil to pay rent for the area under its fuel canopies. On January 24, 2000, Lenthe Investments filed a complaint seeking a declaratory judgment interpreting the provision of the order regarding the lease. After a bench trial, the trial court found “[o]n August 26, 1999, the parties entered into an enforceable agreement concerning the lease of the property occupied by Stamart at 2903 Main Avenue, Fargo, North Dakota.” Furthermore, the court concluded “[t]he terms of the lease are the same as the terms entered into between Lenthe Investment and Kroll’s Kitchen on June 29, 1999, and require Stamart to pay the same rental per square foot as Kroll’s Kitchen pays under its lease.” Additionally, the trial court concluded the “agreement does not include a requirement that Service Oil, Inc. pay a per foot rental charge for the area occupied by its gasoline and diesel canopies.” A judgment reflecting these findings and conclusions was entered on January 22, 2001, and Lenthe Investments appealed.

II

[¶ 7] Whether a contract exists is a question of fact. See Stout v. Fisher Indus., Inc., 1999 ND 218, ¶ 11, 603 N.W.2d 52; Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837, 842 (N.D.1996). Likewise, “whether a contract is intended to be a complete, final, and binding agreement” is also a question of fact. Jones, at 842. We review questions of fact under the clearly erroneous standard. Id. “Under that standard, 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, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Lonesome Dove Petroleum, Inc. v. Nelson, 2000 ND 104, ¶ 15, 611 N.W.2d 154.

. [¶ 8] Lenthe Investments argues the provision of the guardianship order regarding the lease was merely an agreement to agree and, therefore, was not an enforceable contract between the parties. Generally, once an agreement is merged into a judgment, “it is interpreted and enforced as a final judgment of the court, not as a separate contract between the parties.” Sullivan v. Quist, 506 N.W.2d 394, 399 (N.D.1993). However, because both parties relied exclusively on contract principles in their arguments before the trial court and this Court, we analyze the issues presented under contract principles. See Gravseth v. Farmers Union Oil Co. of Minot, 108 N.W.2d 785, 789 (N.D.1961) (jury instructions not challenged by specifications of error become the law of the case).

[¶ 9] “To create an enforceable contract, there must be a mutual intent to create a legal obligation.” Lire, Inc. v. Bob’s Pizza Inn Restaurants, Inc., 541 N.W.2d 432, 434 (N.D.1995). “The parties’ mutual assent to a contract is determined by their objective manifestations of contractual assent.” Moen v. Meidinger, 1998 ND 161, ¶ 6, 583 N.W.2d 634. “It is the words of the contract and the manifestations of assent which govern, not the secret intentions of the parties.” Amann v. Frederick, 257 N.W.2d 436, 439 (N.D.1977).

[¶ 10] Lenthe Investments argues that the stipulation at issue is an unenforceable agreement to agree because the phrase “to the extent appropriate,” as used in the stipulation, “begs for interpretation, and suggests that the parties would negotiate which terms of the Kroll’s lease would be appropriate for the Stamart lease.”

Generally, an agreement to agree is unenforceable because its terms are so indefinite it fails to show a mutual intent to create an enforceable obligation. An agreement to agree in the future which is not sufficiently definite to enable a court to give it an exact meaning is not an enforceable obligation. However, an agreement to agree is enforceable if its terms are reasonably certain and definite.

Stout, 1999 ND 218, ¶ 12, 603 N.W.2d 52 (citations and internal quotation marks omitted).

[¶ 11] The definiteness of terms has bearing on both the parties’ intent to be bound and on the finality of the agreement. 1 Corbin on Contracts § 2.8, at 131 (Rev. ed.1993). The issue of whether the parties intended the stipulation to be a contract or merely an agreement to negotiate the terms of a lease is a question of fact. See id. at 146 (“A transaction is complete when the parties mean it to be complete. It is a mere matter of interpretation of their expressions to each other, a question of fact.”).

[¶ 12] The evidence at trial established the Kroll’s Kitchen lease was in existence at the time of the guardianship hearing. This lease was incorporated by reference into the stipulation to provide the essential terms of the lease between Lenthe Investments and Service Oil. The evidence also established both parties were familiar with the terms of the Kroll’s Kitchen lease, the amount of rent Kroll’s paid under its lease, and the size of the building occupied by Kroll’s and Service Oil. Furthermore, the final version of the stipulation was composed after hours of negotiating between the parties. Additionally, the trial court had before it Susan Lenthe’s recitation of her understanding of the stipulation at the guardianship hearing:

SUSAN LENTHE: The new rental agreement for the property at 2901 Main Avenue in Fargo, which also includes 3001 and 3041, is the railroad property behind that same parcel, it would be the same $1,000.00 a month or $12,000.00 for the year, plus Lenthe Investment will also pay the real estate taxes on that property.
Then the third part of the agreement is that for the rental at the Stamart location there at 2903 Main Avenue, their rent will be based on the same dollars per square foot that is being paid by the Kroll’s Kitchen in the other half of the building. Agreed?
MR. DEMARS: Sounds right, Your Honor.
THE COURT: Okay
MR. NORDHOUGEN: She did a much better job than I did.
THE COURT: With that clarification, then, Susan, is that your understanding of the total agreement that’s been reached this morning?
SUSAN LENTHE: Yes, and I’m pleased.
THE COURT: And you’ve had enough time to talk that over with Mr. Klinger this morning?
SUSAN LENTHE: Yes.

Under these circumstances, the trial court’s finding that the stipulation constituted an enforceable contract between Lenthe Investments and Service Oil was not clearly erroneous.

Ill

[¶ 13] Lenthe Investments also argues even if the stipulation is an enforceable contract, we should remand this case because the trial court did not determine how the percentage rent provision contained in the Kroll’s Kitchen lease would be implemented in the Service Oil lease.

[¶ 14] The construction of a written contract to determine its legal effect is a question of law. See Jones, 546 N.W.2d at 842.

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

Lire, 541 N.W.2d at 438-34 (citations omitted).

[¶ 15] The provision of the guardianship order at issue in this case provides “Lenthe Investment, Inc. shall enter into a lease with Service Oil, Inc. for that portion of the property commonly known and referred to as StaMart Service Station located at 2903 Main Avenue, Fargo, North Dakota, at a rental rate per square foot the same as and to the extent appropriate on and for the same length of term and other terms as the lease Lenthe Investments, Inc. presently has with Kroll’s Kitchen, Inc. for 2901 Main Avenue, Fargo, North Dakota.” This provision does not distinguish between base rent or percentage rent. We conclude the language of the phrase “at a rental rate per square foot the same as and to the extent appropriate on and for the same length of term and other terms as the lease Lenthe Investments, Inc. presently has with Kroll’s Kitchen, Inc.,” indicates the parties intended Service Oil to pay the same base rent per square foot as Kroll’s Kitchen, as well as the same percentage rent per square foot as Kroll’s Kitchen. Therefore, the trial court’s conclusion that “[t]he terms of the lease are the same as the terms entered into between Lenthe Investment and Kroll’s Kitchen on June 29, 1999, and require Stamart to pay the same rental per square foot as Kroll’s Kitchen pays under its lease,” necessarily means Lenthe Investments must pay the same base rent per square foot as Kroll’s Kitchen, as well as the same percentage rent per square foot as Kroll’s Kitchen. We conclude the trial court did not err in its interpretation of the contract.

IV

[¶ 16] We, therefore, affirm the judgment of the trial court.

[¶ 17] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

      . Determining the amount of rent requires only a mathematical calculation. Cf. Metcalf v. Security Intern. Ins. Co., 261 N.W.2d 795, 802-03 (N.D.1977) (plaintiffs claim for interest was not uncertain so as to deny the claim where the interest was "ascertainable by calculation in accordance with the proper construction of the contractual agreement existing between Metcalf and Security"). According to the trial court's findings, Kroll's Kitchen occupies 6,579 square feet of the building while Service Oil occupies 3,275 square feet of the building. The trial court found Kroll’s Kitchen pays $3,750 per month, or $45,000 per year, in base rent and a percentage rent of 10% of its annual sales over $700,000. Based on these findings, Kroll's Kitchen pays $6.84 per square foot per year in base rent ($45,000/6,579 square feet). Therefore, according to the contractual agreement existing betwéen Service Oil and Lenthe Investments, Service Oil would pay a base rent of $22,401.00 per year ($6.84 x 3,275 square feet). The percentage rent Service Oil would pay is determined in the same manner. For example, if Kroll’s Kitchen pays percentage rent in a given year of $10,000, the percentage rent it would pay per square foot that year is $1.52 ($10,-000/6,579 square feet). Therefore, under the terms of the contract, the amount of percentage rent Service Oil would pay that year is $4,978.00 ($1.52 x 3,275 square feet).


author: VANDE WALLE, Chief Justice. KAPSNER, Justice,

text:
    2001 ND 192
    Irene BELLEFEUILLE, Plaintiff and Appellant, v. Duane E. BELLEFEUILLE, Defendant and Appellee.
    No. 20010028.
    Supreme Court of North Dakota.
    Dec. 5, 2001.

      Joanne H. Ottmar, Ottmar & Ottmar, Jamestown, ND, for plaintiff and appellant.
    Maureen Holman, Serkland Law Firm, Fargo, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Irene Bellefeuille appealed from the trial court’s order denying her motion under Rule 60(b), N.D.R.Civ.P., for relief from a divorce judgment, or, in the alternative, to reinstate Irene’s spousal support. We conclude the trial court did not abuse its discretion in refusing to grant relief from the 1979 divorce decree under N.D.R.Civ.P. 60(b)(v) & (vi). We further conclude the trial court correctly found it did not have jurisdiction to reinstate spousal support. We therefore affirm.

[¶ 2] Irene and Duane Bellefeuille were divorced by a judgment dated November 28, 1979. The divorce judgment incorporated the parties’ stipulation and property settlement agreement.

[¶ 3] Under the terms of the agreement, Irene was awarded possession of all of the household furniture and goods. Irene was also awarded possession of the couple’s 1977 Honda, while Duane was ordered to complete payments on the remaining car loan for the Honda. Duane was awarded the 1979 Chevrolet. Additionally, Irene and Duane agreed to sell their house and divide the proceeds equally.

[¶ 4] Duane was ordered to pay spousal support “during his lifetime” and “terminating] at the end of the 5th year following entry of the judgment decree granting the divorce or until the death of the wife, whichever shall first occur.” During the first two of the five years the amount to be paid was $450 per month. After the first two years the payments would drop to $300 per month for the remaining three years.

[¶ 5] Duane also agreed to pay Irene’s costs for tuition and school expenses during the five-year period, up to a total of $2,500. Further Duane agreed to assume all of the parties’ debts, to pay Irene’s attorney’s fees, and to maintain life insurance for Irene’s benefit for the five years.

[¶ 6] Though Irene was aware of Duane’s postal pension, it was not divided or otherwise addressed in the property agreement. Irene testified that she inquired about whether she had any rights to the pension and was told by her attorney that she did not. Thus, Duane retained the interest in his postal pension.

[¶ 7] The agreement was the product of a process which started in March of 1979 when Irene hired an attorney to begin divorce proceedings against her husband. Duane did not hire an attorney to represent him, but rather dealt directly with the attorney Irene had hired. ■ At the hearing resulting in the order for judgment, only Irene and her attorney were present; Duane did not attend.

[¶ 8] Following the divorce, Irene attended school, and Duane paid the full $2,500 as agreed. Irene completed her education and began work. Irene received spousal support for the full five years and in the full amount agreed upon. While she received spousal support, Irene did not attempt to modify the amount or duration of spousal support. Similarly, Irene made no attempt to have the property and debt allocation of the divorce judgment changed until she filed the motion here at issue.

[¶ 9] In 1999, Irene learned from a friend that she may have had a right to a portion of Duane’s postal pension. Upon consulting with an attorney, Irene learned that in the 1980s, after her divorce, the federal law governing the division of postal pensions had changed. Among other things, this change in the law apparently allowed for an ex-spouse to claim a surviv- or annuity. This opportunity was brief, however. Apparently an ex-spouse had a defined window of opportunity in which he or she could act. Though Duane was aware of the change in the law, Irene was not. Therefore, Irene did not take steps to avail herself of this opportunity.

[¶ 10] On September 28, 2000, nearly sixteen years after the last spousal support payment was made, Irene filed a N.D.R.Civ.P. 60(b)(v) & (vi) motion for relief from the divorce judgment. Irene moved in the alternative to amend the judgment by reinstating spousal support.

[¶ 11] The trial court denied the motion. The trial court held that a motion under N.D.R.Civ.P. 60(b) was inappropriate because so much time had passed and because Irene had been aware of the pension all along. The trial court further held it did not have jurisdiction to modify the spousal support, because the agreement had been fully performed and there was no reservation of jurisdiction in the divorce decree.

I N.D.R.Civ.P. 60(b) Motion

[¶ 12] Rule 60(b) motions are “left to the sound discretion of the trial court, and its decision whether to vacate the judgment will not be disturbed on appeal unless the court has abused its discretion.” Kopp v. Kopp, 2001 ND 41, ¶ 7, 622 N.W.2d 726. A trial court “abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner.” Id. In turn, a trial court “[a]cts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination.” Id.

[¶ 13] Rule 60(b) of the North Dakota Rules of Civil Procedure authorizes a trial court to provide relief from a final judgment or order under circumstances specified in the rule. Irene alleges two of these circumstances are present in this case.

[¶ 14] Irene contends relief is due her under either part (v) or part (vi) of N.D.R.Civ.P. 60(b). Rule 60(b)(v) provides for relief when “the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” Rule 60(b)(vi) permits a court to provide relief from a final judgment for “any other reason justifying relief from the operation of the judgment.” The trial court may, upon a finding of either of the above reasons, grant a Rule 60(b) motion.

[¶ 15] But Rule 60(b) “attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done, and accordingly ... should be invoked only when extraordinary circumstances are present.” Kopp v. Kopp, 2001 ND 41, ¶ 9, 622 N.W.2d 726. Thus, such motions “must be made within a reasonable time.” Id. at ¶ 7. “What constitutes a reasonable time varies from case to case and must be determined in each instance from the facts before the court.” Avco Financial Semces v. Schroeder, 318 N.W.2d 910, 912 (N.D.1982).

[¶ 16] Here the trial court held that the delay between judgment and motion, nearly twenty-one years, was “well beyond any standard of case law that would allow the reopening.” Irene, however, urges that she acted within a reasonable time because she filed her motion within a year of learning she may have had an interest in the pension by virtue of the change in federal law. The trial judge, however, correctly observed that one is presumed to know the law, e.g., Diegel v. City of West Fargo, 546 N.W.2d 367, 373 (N.D.1996), and Irene is thus presumed to have known of the change in federal law from the time the change was made and published, which was apparently sometime in the 1980s. Accordingly, in light of the circumstances of this case, we conclude the trial court did not abuse its discretion when it found twenty-one years to be an unreasonable time to grant relief from a judgment.

II Jurisdiction

[¶ 17] The second issue on appeal is whether or not the trial court erred in its conclusion that it lacked subject matter jurisdiction sufficient to modify the original spousal support order. This is a question of law, and therefore fully reviewable by this Court. See Allied Mutual Ins. Co. v. Director of North Dakota Department of Transportation, 1999 ND 2, ¶ 5 n. 1, 589 N.W.2d 201.

[¶ 18] This Court has explained “[i]f trial courts find no immediate need for awarding permanent spousal support, they should retain jurisdiction to do so beyond a temporary award, when facing uncertainty about the need for permanent support” thereby “leaving the award open for later modification.” van Oosting v. van Oosting, 521 N.W.2d 93, 101 (N.D.1994).

[¶ 19] When there has been an initial award of spousal support, however, the trial courts retain jurisdiction and may modify the award “[a]t least as long as spousal support continues.” See Quamme v. Bellino, 540 N.W.2d 142, 147 (N.D.1995). “If circumstances merit, before the rehabilitative spousal support ends, [one] may apply for further spousal support, or for reservation of jurisdiction over the issue.” Id.

[¶ 20] In the present case the trial court did not retain jurisdiction within the divorce decree, nor is spousal support currently being paid. Under these facts the trial court did not have jurisdiction to modify the spousal support payments at this late date.

[¶ 21] The order denying the motion is affirmed.

[¶ 22] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., concur.

KAPSNER, Justice,

concurring and dissenting.

[¶ 23] I concur in the result and in the reasoning of Part I of the majority opinion. I must depart with the statement in ¶ 20 of the majority opinion which states “[u]nder these facts the trial court did not have jurisdiction to modify the spousal support payments at this late date.” Although I agree with the trial court’s decision not to provide for additional spousal support, it is not because of lack of jurisdiction. Prior to August 1, 2001, N.D.C.C. § 14-05-24 provided:

Permanent alimony — Division of property. When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively. The court from time to time may modify its orders in these respects.

[¶ 24] Case law made it clear the ability to modify the judgment pertained to spousal support, but not to property division. Kopp v. Kopp, 2001 ND 41, ¶ 5, 622 N.W.2d 726. With respect to spousal support, this Court has only recognized a lack of jurisdiction in the circumstance where there was neither an original award of spousal support nor a retention of jurisdiction to award support at a later date. Id.; Rudh v. Rudh, 517 N.W.2d 632, 633 (N.D.1994); Becker v. Becker, 262 N.W.2d 478, 484 (N.D.1978).

[¶ 25] We have also directed trial courts to explicitly retain jurisdiction when there is uncertainty about the future need for spousal support, van Oosting v. van Oosting, 521 N.W.2d 93, 101 (N.D.1994). However, we have never stated that in the absence of such explicit retention of jurisdiction a court lacks jurisdiction over motions to modify the judgment. In Quamme v. Bellino, the Court noted the jurisdiction to modify a support award continues “[a]t least as long as spousal support continues.” Quamme v. Bellino, 540 N.W.2d 142, 147 (N.D.1995). In Wheeler v. Wheeler, an original judgment reserved jurisdiction over support matters, but a second judgment incorporating a stipulation of the parties did not retain jurisdiction for further modifications of spousal support. Wheeler v. Wheeler, 548 N.W.2d 27, 29 (N.D.1996). In concluding the trial court had jurisdiction to modify the support provisions of the judgment, the Court stated:

On appeal, Gerridee first asserts that the district court lacked jurisdiction to modify the amended judgment. She argues that, while the original judgment included language specifically reserving continuing jurisdiction over support matters, the second stipulation and amended judgment deleted that language. Gerri-dee argues that jurisdiction to modify in the first appeal was premised upon this language in the original judgment, see Wheeler, supra, and deletion of that language was intended by the parties in their second stipulation to prevent further modification of the support provisions.
Gerridee has misread our opinion in the first appeal. We did not imply that jurisdiction to modify the original judgment was dependent upon an express reservation of continuing jurisdiction in the judgment. As we explained in Wheeler, a court’s continuing jurisdiction to modify ongoing spousal support is statutory.
We have interpreted that provision [N.D.C.C. § 14-05-24] to authorize modification of spousal support upon a showing of changed circumstances. E.g., Ramsdell v. Ramsdell, 454 N.W.2d 522 (N.D.1990); Schaff v. Schaff, 449 N.W.2d 570 (N.D.1989). This authority exists notwithstanding the decree contains the stipulation of the parties as to permanent alimony, although we have said the court “ ‘should be more reluctant to order a revision and modification of a decree where such a decree was based on agreement than where such decree is based on the finding of the court as to ability to pay.’ ” Eberhart v. Eberhart, 301 N.W.2d 137, 143 (N.D.1981), quoting Bryant v. Bryant, 102 N.W.2d 800, 807 (N.D.1960). We conclude the district court had jurisdiction to modify the support provisions of the judgment.

Id. at 29-30.

[¶ 26] Although the motion to modify in Wheeler was made at a time when there was ongoing spousal support, the above quoted language indicates the basis for jurisdiction arises not from the parties’ agreement nor from language retaining jurisdiction in the judgment but from the statute itself. See id.

[¶ 27] I am particularly reluctant to further restrict the jurisdiction of the courts to address spousal support by judicial decision when such a decision seems counter to the legislative recognition of continuing jurisdiction. Although the changes made to the statute which became effective on August 1, 2001, are not applicable to Ms. Bellefeuille’s motion, they are instructive of the legislature’s view of the scope of jurisdiction. The Legislative Assembly acknowledged the difference in jurisdiction to modify spousal support as opposed to property division by amending N.D.C.C. § 14-05-24 to deal only with property division and enacting N.D.C.C. § 14-05-24.1 to handle spousal support. 2001 N.D. Sess. Laws ch. 149, § 10. The latter section now provides:

Spousal support. Taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time. The court may modify its spousal support orders.

The language does not suggest an intent to further restrict the jurisdiction of the courts to amend spousal support and I would not so hold.

[¶ 28] MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ„ concur.-


author: KAPSNER, Justice.

text:
    2001 ND 186
    FORTIS BENEFITS INSURANCE COMPANY, Plaintiff and Appellee, v. Ann M. HAUER, Defendant and Appellant.
    No. 20010052.
    Supreme Court of North Dakota.
    Dec. 5, 2001.

      R. Kent Sellers (argued), Richard N. Bien (on brief), Lathrop & Gage L.C., Kansas City, MO, and Dennis William Lindquist (appeared), Mandan, ND, for plaintiff and appellee.
    Arnold V. Fleck, Fleck Law Office, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Ann Hauer appeals from a summary judgment ordering her to repay disability benefits to Fortis Benefits Insur-anee Company (“Fortis”). We affirm, concluding the district court correctly determined Hauer’s disability benefits received from Social Security and the North Dakota Teachers’ Fund for Retirement may be offset against the disability benefits available from Fortis.

I

[¶ 2] Hauer was employed as a teacher by the Bismarck Public School District. In 1993 she became permanently and totally disabled. In May 1993 Hauer began receiving monthly disability benefits of $1,861 from Fortis under a group policy which provided long-term disability benefits to employees of the School District.

[¶ 3] In February 1994, Hauer began receiving approximately $1,029 per month in Social Security disability benefits. She also received a lump sum payment for Social Security disability benefits retroactive to June 1993. Fortis began offsetting the monthly Social Security benefits against Hauer’s monthly benefits under the long-term disability policy, thereby lowering her monthly benefits to $832. Fortis also requested that Hauer repay it for overpayments represented by the Social Security lump sum payment. Hauer repaid that amount to Fortis.

[¶ 4] In April 1995 Hauer began receiving approximately $1,076 per month in disability benefits from the North Dakota Teachers’ Fund for Retirement (“Teachers’ Fund”). Hauer also received from the Teachers’ Fund a lump sum payment of disability benefits retroactive to November 1993. In May 1997 Fortis learned Hauer was receiving disability benefits from the Teachers’ Fund. Fortis thereafter discontinued paying benefits to Hauer, claiming Hauer’s monthly benefits from Social Security and the Teachers’ Fund totally offset her benefits due from Fortis. Based upon Hauer’s lump sum payment from the Teachers’ Fund, Fortis also requested that Hauer repay $33,213 it claimed it had overpaid her between November 1993 and May 1997.

[¶ 5] Hauer refused to repay Fortis, and Fortis brought this action seeking to recover the claimed overpayments. Hauer answered and filed a counterclaim alleging Fortis had improperly offset benefits due her under the policy. Fortis moved for summary judgment, and Hauer filed a cross-motion for summary judgment. The district court determined the Fortis disability policy allowed an offset of the disability benefits received from Social Security and the Teachers’ Fund. Summary judgment ordering Hauer to repay benefits was entered, and Hauer appealed.

II

[¶ 6] Resolution of this appeal turns upon interpretation of the policy provisions allowing offsetting of other disability benefits to reduce the monthly benefits due from Fortis.

A

[¶ 7] Before considering offsets, Hauer was entitled to collect the “Schedule Amount” of $1,861 monthly in disability benefits under the policy. The policy provided that an “Offset Amount” would be deducted from the monthly “Schedule Amount”:

Offset Amount The Offset Amount is the sum of payments and benefits from the following sources paid or due the Person Insured. This sum will be determined for each month (or lesser period) for which a Long Term Disability Insurance benefit is paid. The Schedule Amount is directly reduced by this sum.
Sources of the Offset Amount
1. Periodic benefits designed to replace income lost because of disability that are paid or due the Person Insured from:
(d) the United States Social Security Act including benefits payable to the Person Insured on behalf of his or her dependents because of the Injury, sickness, or pregnancy of the Person Insured ....
(e) any Governmental Plan other than Social Security.
2. Retirement benefits, disability benefits, or periodic benefits in the nature of such benefits that are paid or due from a Policyholder-Sponsored Retirement Plan. Benefits which represent the Person Insured’s contributions will not be considered.

I'll 8] The policy also allows Fortis to demand repayment if it has overpaid benefits to the insured:

If after having made one or more payments under This Coverage;, We find that the amount of benefits or payments from other sources that We should have considered in computing the amount of such payment(s) is greater or less than what was actually considered, We will make an adjustment as follows:
2. If We have overpaid benefits, the overpayment must be refunded to Us by or on behalf of the Person Insured. We may, at Our option, reduce or eliminate future payments instead of requiring repayment in one sum. The Minimum Benefit will not apply during the period the overpayment is being repaid.

[¶ 9] Fortis argues that Hauer’s Social Security disability benefits are to be fully offset under section 1(d) of the offset provisions, and that Hauer’s Teachers’ Fund disability benefits are fully offset as a “Governmental Plan” under section 1(e). Hauer argues both the Social Security and Teachers’ Fund benefits are benefits paid from a “Policyholder-Sponsored Retirement Plan” under section 2 of the offset provisions. Because she paid one-half of the contributions into Social Security and the Teachers’ Fund, Hauer argues Fortis may only offset the one-half of those benefits which represent her employer’s contributions, but not the one-half which represent her contributions.

[¶ 10] The Fortis policy defines the relevant terms:

“Governmental Plan” means the United States Social Security Act, the Railroad Retirement Act, the Canadian Pension Plan, any plan provided under the laws of a state, province, or other political subdivision, including any public employee retirement plan or any teachers’ employment retirement plan, or any plan provided as an alternative to such acts or plans. |Emphasis added].
“Policyholder-Sponsored” means that the Policyholder (or an Associated Company) pays, directly or indirectly, all or a portion of the cost.
“Retirement Plan” means a formal or informal benefit plan or arrangement that provides retirement benefits, whether or not under an insurance or annuity contract. It does not include:
(1) a plan paid for entirely by the employee,
(2) a profit-sharing plan,
(3) a thrift plan,
(4) an individual retirement account (IRA)
(5) a tax sheltered annuity (TSA)
(6) a stock ownership plan, or
(7) a deferred compensation plan.

B

[¶ 11] Summary judgment is appropriate if the only issues to be resolved are questions of law. Rask v. Nodak Mut. Ins. Co., 2001 ND 94, ¶ 10, 626 N.W.2d 693; Ziegelmann v. TMG Life Ins. Co., 2000 ND 55, ¶ 5, 607 N.W.2d 898. Interpretation of an insurance policy is a question of law, which is fully reviewable on appeal. Rask, at ¶ 10; Center Mut. Ins. Co. v. Thompson, 2000 ND 192, ¶ 14, 618 N.W.2d 505. We review a trial court’s interpretation of an insurance policy by independently examining and construing the policy. Rask, at ¶ 10; DeCoteau v. Nodak Mut. Ins. Co., 2000 ND 3, ¶ 19, 603 N.W.2d 906.

[¶ 12] Our goal when interpreting insurance policies, as when construing other contracts, is to give effect to the mutual intention of the parties as it existed at the time of contracting. N.D.C.C. § 9-07-03; Ziegelmann, 2000 ND 55, ¶ 6, 607 N.W.2d 898. We look for that mutual intention first in the language of the insurance contract itself, and, if the policy language is clear on its face, there is no room for construction. Rask, 2001 ND 94, ¶ 10, 626 N.W.2d 693; DeCoteau, 2000 ND 3, ¶ 19, 603 N.W.2d 906. Although we regard insurance policies as adhesion contracts and resolve ambiguities in favor of the insured, we will not rewrite a contract to impose liability upon an insurer if the policy unambiguously precludes coverage. Ziegelmann, at ¶ 6. When the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability upon the insurer. Id.; Fisher v. American Family Mut. Ins. Co., 1998 ND 109, ¶ 6, 579 N.W.2d 599.

C

[¶ 13] The language of the Fortis policy clearly and unambiguously provides that Social Security disability benefits may be fully offset against the Schedule Amount. Section 1(d) of the offset provisions explicitly provides for offset of disability benefits received by the insured from “the United States Social Security Act.” Hauer’s Social Security disability benefits are clearly and unambiguously covered by that provision.

[¶ 14] Hauer attempts to argue the Social Security benefits may fall within the definition of a Policyholder-Sponsored Retirement Plan, and therefore only one-half of those benefits should be offset. However, when the policy language clearly and explicitly provides for full offset of Social Security disability benefits, we will not strain the language of the policy to impose liability upon the insurer. See Ziegelmann, 2000 ND 55, ¶ 6, 607 N.W.2d 898; Fisher, 1998 ND 109, ¶ 6, 579 N.W.2d 599.

[¶ 15] We conclude the district court did not err in determining Hauer’s Social Security disability benefits should be offset in full against the Schedule Amount under the policy.

D

[¶ 16] We also conclude Hauer’s Teachers’ Fund disability benefits may be fully offset against the Schedule Amount. Section 1(d) of the offset provisions explicitly provides for full offset of all disability benefits received by the insured from “any Governmental Plan.” The policy further provides that “any teachers’ employment retirement plan” is a “Governmental Plan.” This language is clear and unambiguous, and allows full offset of Hauer’s Teachers’ Fund disability benefits.

[¶ 17] Hauer asserts the Teachers’ Fund benefits fall within the definition of a Policyholder-Sponsored Retirement Plan. Again, we will not strain the language of the policy to impose liability upon the insurer when the policy language is clear and unambiguous on its face. Furthermore, it is a well-accepted rule of contract interpretation that when a conflict exists between a specific provision and a general provision in a contract, the specific provision ordinarily prevails over the general provision. See Oakes Farming Ass’n v. Matinson Bros., 318 N.W.2d 897, 908 (N.D.1982); Restatement (Second) of Contracts § 203(c) (1981); 5 Margaret N. Kniffen, Corbin on Contracts § 24.23 (rev. ed.1998); 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 32.10 (4th ed.1999); see also N.D.C.C. § 31-11-05(25) (“Particular expressions qualify those which are general”). The rationale for this rule of construction is explained in comment e to § 203 of the Restatement:

e. General and specific terms. People commonly use general language without a clear consciousness of its full scope and without awareness that an exception should be made. Attention and understanding are likely to be in better focus when language is specific or exact, and in case of conflict the specific or exact term is more likely to express the meaning of the parties with respect to the situation than the general language.

Here, a “teachers’ employment retirement plan” is specifically designated to be a “Governmental Plan” under the policy.

[¶ 18] We conclude the district court did not err in determining Hauer’s Teachers’ Fund disability benefits may be offset in full against the Schedule Amount under the policy.

Ill

[¶ 19] We have considered the remaining issues raised by Hauer and find them to be without merit. The summary judgment is affirmed.

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

      . Although the policy provided a $50 minimum monthly benefit, that minimum benefit did not apply during any period there was an overpayment being repaid.

      . We note the summary judgment did not explicitly state Hauer’s counterclaim was dismissed. It was clearly the district court’s intent, however, to dispose of the entire case. Fortis’s motion, which the court granted, sought judgment on Fortis's claims and dismissal of Hauer's counterclaim. Furthermore, the court’s determination on the merits that Fortis was entitled to offset the Social Security and Teachers' Fund benefits wholly resolved Hauer’s counterclaim, which was based entirely upon her allegation those benefits should not be offset. Under these circumstances, the summary judgment disposes of the counterclaim and constitutes a final judgment on all claims presented. Accordingly there is no jurisdictional problem under N.D.R.Civ.P. 54(b).


author: LAVORATO, Chief Justice. NEUMAN, Justice

text:
    STATE of Iowa, Appellee, v. James Edward HEARD, Appellant.
    No. 00-0106.
    Supreme Court of Iowa.
    Oct. 10, 2001.
    Rehearing Denied Dec. 5, 2001.

      Brett A. Nelson and William E. Blais of Nelson, Keys & Keys, P.C., Rock Island, IL, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, William E. Davis, County Attorney, and Jerald L. Feuerbach, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

The defendant, James Edward Heard, appealed his conviction of robbery in the second degree entered by the district court in a bench trial. He contended there was insufficient evidence for the conviction under the assault and the immediate-serious-injury alternatives in Iowa Code section 711.1 (1997). We transferred the case to the court of appeals, which reversed. We granted the State further review. Because we find there was sufficient evidence to convict under the assault alternative, we vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts and Proceedings.

The facts in this case are largely undisputed. In the early morning hours of May 29, 1999, Aimee Hahn was working alone at a Coastal Mart store in Davenport, Iowa. Coastal Mart is a gas station and convenience store.

At approximately 4:20 a.m., a movement outside caught Hahn’s attention. Due to remodeling, plastic was hanging in front of the store. Through the small space of window that remained, Hahn saw a person who then entered the store. The person— later identified as Heard — walked in wearing a paper bag over his head with eye-hole cutouts, large, heavy athletic or safety-type glasses, and white athletic socks over his hands.

As Heard entered the store, he said “Happy Halloween” or “trick or treat.” Hahn testified she could not recall which of the two phrases Heard actually used. Heard approached the counter behind which Hahn was standing and told her in a soft-spoken voice to “give him the money.” Hahn asked Heard to repeat what he had said because she could not hear him. After Heard repeated his demand, Hahn gave him all of the money — approximately $110 — from the cash register. Hahn could not recall whether she handed Heard the money or put it on the counter in front of him. Heard took the money.

Heard then told Hahn to remove money from underneath the cash register drawer. Hahn complied and gave Heard some additional money. When Heard asked if there was any more money in the store, Hahn lied and told him no.

Heard told Hahn to lie down on the floor, which she did. When she thought Heard was gone, Hahn grabbed the telephone, dialed 911 from her position on the floor, and reported the incident to the police. Hahn estimated the whole incident lasted less than one minute. Hahn testified that Heard made no physical movement toward her and made no express verbal threats of harm.

A short time later, the police stopped the pickup truck Heard was driving. The police brought Hahn to the scene, and she identified Heard. Following Heard’s arrest, the State charged him with second-degree robbery .and first-degree theft. See Iowa Code §§ 711.1, .3, 714.1, .2(1) (1997).

Before trial, the State dismissed the first-degree theft charge. The parties tried the case to the district court. The court found Heard guilty of second-degree robbery. In reaching its verdict, the court found that Heard entered the Coastal Mart store with the intention to commit theft. The court further found that

in carrying out his intention to commit a theft or to assist him in escaping from the scene after commission of the theft, the defendant did commit an assault on Aimee Hahn. Specifically, the defendant committed acts intended to place the clerk in fear of immediate physical contact which would be painful, injurious, insulting, or offensive.

The court found in the alternative that Heard had created “circumstances which would put Aimee Hahn in fear of immediate serious injury.”

Heard filed a motion for new trial. He contended the evidence did not support a robbery conviction because his actions did not constitute an assault, and he did not put Hahn in fear of or threaten her with immediate serious injury. The court denied Heard’s motion and sentenced him to an indeterminate term of ten years in prison.

Heard appealed, and we transferred the case to the court of appeals. The court of appeals reversed, finding that substantial evidence did not support the robbery conviction based on either assault or threat or fear of immediate serious injury.

We granted the State’s application for further review.

II.Issues.

Heard raises several issues in his appeal. However, his basic contention is that there is insufficient evidence to sustain his robbery conviction on the basis of assault or on the alternative basis of a threat or fear of immediate serious injury. Because we find sufficient evidence to sustain the conviction on the basis of assault, we limit our discussion to that issue.

III. Scope of Review.

We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of legal error. State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997). We will uphold a verdict if substantial record evidence supports it. Id. “Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.” Id.

“[W]e view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the” evidence in the record. Id. We consider all of the evidence in the record— not just the evidence that supports the verdict. Id.

Additionally, to the extent the appeal involves issues of statutory interpretation, a question of law, our review is for correction of legal error. State v. Knowles, 602 N.W.2d 800, 801 (Iowa 1999).

IV. Sufficiency of the Evidence to Sustain Robbery Conviction on Basis of Assault.

Iowa Code section 711.1 provides:

A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person’s escape from the scene thereof with or without the stolen property:
1. Commits an assault upon another.
2. Threatens another with or purposely puts another in fear of immediate serious injury.
3. Threatens to commit immediately any forcible felony.
It is immaterial to the question of guilt or innocence of robbery that the property was or was not actually stolen.

Iowa Code § 711.1. As mentioned, the district court found Heard guilty under the first and second robbery alternatives.

In finding Heard guilty of robbery under the assault alternative, the district court explained:

[T]he defendant committed acts intended to place the clerk in fear of immediate physical contact which would be painful, injurious, insulting, or offensive. At shortly after 4:00 a.m. the defendant placed a bag made into a mask over his head, slipped white athletic socks over his hands, walked past partially obscured windows and into a convenience store where a sole clerk was working. Although he spoke in a soft voice and did not touch the clerk, he asked for the money in the cash drawer and then told the clerk to he on the floor. Assault requires some overt act supplementing a threat. This defendant’s use of a bag over his head and socks over his hands signaled his intention to commit some unauthorized act, placing the clerk in fear that she would be harmed, injured or offended in some fashion if she failed to comply with his instructions to give him the money. A reasonable person in the shoes of this clerk would have expected to experience harm at the hands of the defendant under the existing facts and circumstances the defendant had created by dressing in this fashion. Even if the clerk were not afraid of the defendant, the assault element of a robbery charge is supported by evidence from which it could be inferred that the defendant’s alteration of his appearance and taking of property was not desired by the clerk and was therefore offensive to her. The defendant put the mask over his head and the socks on his hands to provide a non-verbal form of intimidation or threat so that the clerk would be placed in fear and comply with his demand for the money.

Heard contends that the district court erred in concluding that assault could be premised on an act that occurred outside the clerk’s presence and perception, ie., the physical act of placing the bag over his head and the socks on his hands. He additionally argues his mere disguised appearance could not give rise to an assault.

In explaining the basis for its finding, the district court was clearly relying on the following definition of assault:

Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

Iowa Code § 708.1(2).

We follow the definition of assault in Iowa Code section 708.1 when applying the assault alternative of robbery under Iowa Code section 711.1(1). State v. Ceaser, 585 N.W.2d 192, 194 (Iowa 1998). Assault requires an overt act. State v. Smith, 309 N.W.2d 454, 457 (Iowa 1981).

A. Whether acts occurring outside the presence and perception of the alleged victim can give rise to an assault. Heard contends the district court “erroneously found that an assault had been committed [on Hahn] by means of a covert, not overt, act from which no physical contact could reasonably be expected.” The State counters that in the context of robbery, “the court may examine the circumstances surrounding the demand for the property to determine whether the facts support a reasonable inference that the person implicitly threatened the immediate use of physical force if the victim did not comply with his demands.” In short, the State asserts that whether an assault occurred should be determined from the totality of the circumstances, not just from a single act.

The district court did not limit its finding of assault to Heard’s mere act of placing the paper bag over his head and the socks on his hands. Rather, the court found that Heard’s

use of a bag over his head and socks over his hands signaled his intention to commit some unauthorized act, placing the clerk in fear that she would be harmed, injured or offended in some fashion if she failed to comply with his instructions to give him the money.

(Emphasis added.)

We agree with the district court that the overt act in this case is not necessarily limited to the act of putting on the paper bag and socks. Heard’s first argument lacks merit.

B. Whether the disguised appearance could give rise to an assault. Heard’s next argument is that his disguised appearance could not give rise to an assault. This argument also implicates the principle that an assault requires an overt act. The argument proceeds on the premise that the assault alternative in section 708.1(2) requires some physical act, bodily movement, activity, or threatening gesture under circumstances in which physical contact is possible. Heard asserts that merely wearing a paper bag and socks would not constitute such action.

The State contends the “overt act” required for an assault should not be limited to some type of physical action or movement on the part of the person committing the assault. Rather, the fact finder should consider the totality of the evidence bearing on that person’s actions, both verbal and nonverbal, in determining whether an assault occurred.

We have not previously defined overt act in the context of the assault alternative in section 708.1(2). Overt act has been defined as

[a]n open, manifest act from which criminality may be implied. An outward act done in pursuance and manifestation of an intent or design.

Black’s Law Dictionary 1104-05 (6th ed.1990); see also Chavez v. United States, 275 F.2d 813, 817 (9th Cir.1960) (“In criminal law an overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.”).

Although in the past we have defined the assault alternative in section 708.1(2) as a general intent crime, see State v. Ogan, 497 N.W.2d 902, 903 (Iowa 1993), we now hold this alternative is a specific-intent crime. We overrule Ogan and those cases that hold otherwise.

In Eggman v. Scurr, we distinguished between general criminal intent and specific intent:

When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a further consequence, we ask whether the defendant intended to do the prescribed act. This inténtion is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.

311 N.W.2d 77, 79 (Iowa 1981) (quoting P. Johnson, Criminal Law, 329 (1975)).

The section 708.1(2) definition of assault applicable here requires an act “intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.” This definition clearly requires an intent to achieve some additional consequence so as to qualify as a specific-intent crime under the Eggman definition.

We turn to the facts in this case. Heard came into the store in the early morning hours dressed in a manner that disguised his identity. He does not deny that his purpose in coming into the store was to obtain money. He demanded money while he was in close proximity to Hahn, who was alone. He took the money, told her to lie down, and then left.

Returning to the definition of overt act, we think these actions are certainly “open, manifest act[s] from which criminality may be implied” and “outward acts done in pursuance and manifestation of an intent or design.” From the totality of these facts, a fact finder could reasonably infer that by his actions — both verbal and nonverbal — Heard intended to place Hahn in fear of immediate physical contact that would be painful, injurious, or offensive if Hahn did not comply with his demand of money. See State v. Quick, 199 S.C. 256, 258,19 S.E.2d 101, 102 (1942) (holding that the existence of an overt act must be considered in light of the circumstances in which the act is taken and the inferences the fact finder may reasonably draw from those circumstances); see also Wharton’s Criminal Law § 182, at 427 (15th ed. 1994) (“If a defendant states that he will inflict an injury unless the victim complies with a certain condition, which defendant has no right to impose, an assault is committed whether or not the victim complies with the condition.”).

We conclude there was sufficient evidence to support Heard’s conviction for robbery under the assault alternative in section 711.1(1).

V. Disposition.

Because we conclude there was sufficient evidence to support Heard’s conviction for robbery under the assault alternative, we vacate the court of appeals decision and affirm the district court judgment.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

All justices concur except NEUMAN and LARSON, JJ., who concur specially.

NEUMAN, Justice

(concurring specially)-

I concur in the majority’s affirmance of James Heard’s robbery conviction. I write specially because I am convinced it is unnecessary and unwise to overrule settled case law to do so.

The record amply supports the trial court’s finding that Heard assaulted the sales clerk to further his intended theft of cash from the store’s cash register. The question is whether the assault alternative on which the State relies for the robbery conviction, Iowa Code section 708.1(2), necessarily requires the State to prove more than Heard’s general criminal intent to commit the assault. The majority insists it must because, by definition, an assault is an act “intended” to place another in fear of immediate contact, coupled with the apparent ability to execute the act. See Iowa Code § 708.1(2). In my view, the legislature’s use of the word “intended” does no more than state the obvious: to be considered criminal, the offensive act must be intentional, not accidental. Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997).

This court has long held that general intent is distinguished from specific intent by whether or not the definition of the proscribed act requires proof of defendant’s intent to do some further act or achieve some additional consequence. Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 1981). Put another way,

[s]pecific intent is present when from the circumstances the offender must have subjectively desired the prohibited result. General intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire to have accomplished such result.

Id. at 80 (quoting State v. Redmon, 244 N.W.2d 792, 797 (Iowa 1976)); accord Bacon, 567 N.W.2d at 417. Applying this rule, the court in Redmon observed that “[t]he difference between an assault and an assault with intent to inflict great bodily injury is the specific intent to inflict an aggravated injury.” Redmon, 244 N.W.2d at 797. In Bacon, a domestic abuse case, we explained that assault defined by section 708.1 is a general-intent crime because

[i]f the prohibited result may reasonably follow from the offender’s act, the offender is guilty of assault regardless of whether or not the offender subjectively desired the prohibited result. The offender need only be aware that he or she was doing the act. In addition, the offender must have done the act voluntarily, not by mistake or accident. In determining general intent, the fact finder may, but is not required, to conclude that the offender intends the natural results of his or her acts.

Bacon, 567 N.W.2d at 417; accord State v. Ogan, 497 N.W.2d 902, 903 (Iowa 1993).

Here the assault on the clerk was of the simple variety, not aggravated. Yet the majority now concludes that the definition of simple assault found at section 708.1(2) meets the “intent to achieve some additional consequence” test of Eggman. I strongly disagree. No additional or further consequence is contemplated by the definition of simple assault beyond the offensive act itself. Without naming what additional consequence section 708.1(2) allegedly requires “to qualify as a specific-intent crime,” the majority merely says it is so and overrules all cases holding to the contrary.

The consequences of the majority’s action are not insignificant. If assault under section 708.1(2) now requires proof of a specific intent to place another in fear of offensive physical contact, several assault offenses will require proof of two different specific intent elements. See, e.g., Iowa Code §§ 708.2(1) (assault with intent to inflict serious injury), 708.3 (assault while participating in a felony), 708.3A(1) (assault on various officers and officials), 709.11 (assault with intent to commit sexual abuse). More troublesome perhaps is the decision’s effect on lesser-included offenses, already a source of confusion. If assault is a special-intent crime, it appears that the uniform instruction making it a lesser-included offense of the general-intent crimes of murder and sexual assault may be rendered obsolete. If that is not the case, will the defenses of intoxication or diminished capacity apply to the lesser offense but not the greater? Cf. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (defenses of intoxication and diminished capacity not available to defendant charged with second-degree murder).

Even more problematic is the impact of the majority’s decision on the prosecution of crimes routinely involving alcohol, such as bar fights and, more importantly, domestic violence. Statewide, such convictions numbered in excess of 8000 for fiscal year 2001. As already noted, the defenses of intoxication and diminished responsibility are not available to a defendant charged with a general-intent crime because the defenses are pertinent only to the specific-intent elements of a crime. Id. If simple assault is a specific-intent crime, those defenses will be available. Given the cost and trouble of hiring experts to counter those defenses, however, it is evident that today’s decision will effectively eliminate the prosecution of assaults arising in the context of bar fights.

Of greater concern, permitting voluntary intoxication and diminished responsibility to be raised as defenses to domestic abuse assault will substantially undermine the protective purpose of our domestic abuse statutes, thereby contravening clear legislative intent. Cf. State v. Neuzil, 589 N.W.2d 708, 711 (Iowa 1999) (classification of stalking as general-intent crime requires proof of purposeful conduct but avoids substantial hurdle of proving defendant’s subjective intent, thereby permitting state intervention before harassment escalates to physical confrontation).

In short, I am convinced the court’s turnabout on the question of the intent required to prove assault is unnecessary in the context of this case and unsound from the standpoint of public policy. A legislative rewrite of the assault statute might remedy the problem in the long run, but confusion will reign in the meantime. Given the record before us, I see no reason to subject the bench, the bar and the public to that upheaval.

LARSON, J., joins this special concurrence.

      . For example, Iowa Code section 708.1 l(2)(a), the stalking statute, proscribes "purposefully engaging] in a course of conduct" that would cause a reasonable person to fear bodily injury, rather than using the "intended to place another in fear” language found in the assault statute, section 708.1(2). See Neuzil, 589 N.W.2d at 711 (proof of intent focuses on subjective motive whereas proof that a party engaged in proscribed conduct focuses solely on objective behavior).