author: MARING, Justice.

text:
    2008 ND 39
    In the Interest of R.P., a Child. Tyrone J. Turner, Petitioner and Appellant v. R.P., Child, A.P., Mother, J.P., Father, Respondents and Appellees.
    No. 20070151.
    Supreme Court of North Dakota.
    Feb. 27, 2008.

      Tyrone J. Turner, Assistant State’s Attorney, Bismarck, N.D., for petitioner and appellant.
    Justin J. Vinje of Vinje Law Firm, Bismarck, N.D., for respondent and appellee.
   MARING, Justice.

[¶ 1] The State appeals a juvenile court order affirming a juvenile referee’s order granting the motion of R.P., a juvenile, to suppress the results of an Intoxilyzer test. R.P. was involved in an early morning traffic accident and taken into police custody because officers suspected he drove while under the influence of alcohol. R.P. contacted his mother on his cellular phone before being taken into police custody. RJP.’s mother arrived at the scene of the accident, and both of R.P.’s parents were present at the police station before the Intoxilyzer test was administered. The police would not, however, grant R.P.’s requests to talk to his parents.

[¶ 2] After being charged, R.P. moved to suppress the test results, claiming he had a statutory right to consult with his parents before submitting to chemical testing. A juvenile referee granted the motion, and the juvenile court affirmed the referee’s order. On appeal, the State argues R.P. did not have a statutory right to consult with his parents regarding whether to take the chemical test. We affirm the juvenile court order and hold that a juvenile has a statutory right to a reasonable opportunity to consult with a parent, guardian, custodian, or legal counsel before submitting to chemical testing when providing the opportunity to consult does not materially interfere with administration of the chemical test.

I

[¶ 3] At approximately 1:00 a.m. on February 3, 2007, R.P. was involved in a traffic accident. Bismarck police officer John Broeker responded to the accident. R.P. called his mother, A.P., from his cellular phone and asked her to come to the accident scene. His mother arrived near the time R.P. was placed in the rear passenger seat of a police vehicle.

[¶4] The juvenile referee found that the officer read the implied consent advisory to R.P. and asked R.P. to consent to an Intoxilyzer test while he was in the police vehicle. R.P. asked to speak to A.P., but was not allowed to do so at the accident scene. The officer transported R.P. to the police department. A.P. left the accident scene, drove home to pick up her husband, J.P., and drove to the police department. A.P. testified that she attempted to talk to her son both at the scene of the accident and again at the police department.

[¶ 5] A.P. and J.P. were taken to the room at the police department where R.P. was being held. The juvenile referee found they were not provided a reasonable opportunity to talk to their son out of the hearing of the police officer. The officer informed them that R.P. had no choice but to take the test or lose his driver’s license. The juvenile referee found that R.P.’s parents felt they had no options and no say in the matter. The juvenile referee found that granting R.P.’s request to talk to his parents prior to administration of chemical testing would not have interfered with the timely administration of the Intoxilyzer test; more than one-half hour remained after R.P.’s chemical test was taken.

[¶ 6] The juvenile referee concluded R.P. was not represented by nor allowed to consult with his parents or legal counsel. The juvenile referee found that R.P.’s parents were not able to represent him, and at no time were they provided a reasonable opportunity to consult with him prior to administration of the Intoxilyzer test. The juvenile referee granted R.P.’s motion to suppress and the juvenile court affirmed the referee’s order. The State appeals, arguing R.P. did not have a statutory right to consult with his parents regarding whether to take the Intoxilyzer test.

II

[¶ 7] Rule 52(a), N.D.R.Civ.P., instructs us to review a juvenile court’s factual findings under a clearly erroneous standard. In re R.W.S., 2007 ND 37, ¶ 8, 728 N.W.2d 326. Due regard is given to the opportunity of the juvenile court to judge the credibility of the witnesses. Id. “A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law.” Id.

[¶ 8] Questions of statutory interpretation are questions of law. Rojas v. Workforce Safety and Ins., 2006 ND 221, ¶ 13, 723 N.W.2d 403. Questions of law are reviewed de novo. Id. Our primary objective in statutory interpretation is to determine the legislature’s intent. Id. To determine the legislature’s intent, we look at the language of the statute itself and give it its plain, ordinary, and commonly understood meaning. Overboe v. Farm Credit Services, 2001 ND 58, ¶ 9, 623 N.W.2d 372. We interpret statutes in context and harmonize statutes whenever possible to avoid conflict between them. Rojas, at ¶ 13.

Ill

[¶ 9] This case centers on a juvenile’s right to consult with legal counsel, or a parent or legal guardian before deciding to take or refuse a chemical test. Our previous decisions regarding a juvenile’s general right to consult with counsel or a parent or legal guardian establish a juvenile cannot waive the right to counsel at custodial stages of proceedings unless the child is represented by a parent, guardian, or custodian; and the mere presence of a juvenile’s parent does not constitute “representation” of the juvenile. See, e.g., In re Z.C.B., 2003 ND 151, ¶ 13, 669 N.W.2d 478; In Interest of D.S., 263 N.W.2d 114, 119-20 (N.D.1978); In Interest of B.S., 496 N.W.2d 31, 33 (N.D.1993).

[¶ 10] Here, the specific issue we address is whether our present statutory scheme grants a juvenile a limited statutory right of parental involvement in deciding whether to submit to chemical testing after being taken into custody for driving while under the influence. The State argues that R.P.’s Intoxilyzer test results were improperly suppressed because a juvenile does not have a right to consult with his parents before deciding whether to consent to testing. R.P. asserts the Intox-ilyzer test results were properly suppressed because police officers violated his statutory right to consult with his parents regarding whether to submit to the Intoxi-lyzer test.

[¶11] Section 39-20-01, N.D.C.C., provides that any person who operates a vehicle on a public highway is deemed to have given consent, and shall consent, to a chemical test. A driver has a limited statutory- right to counsel under the implied consent statute: “An arrested person who asks to speak with an attorney before taking a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the test administration.” State v. Berger, 2001 ND 44, ¶ 17, 623 N.W.2d 25. A totality of the circumstances test is used to determine the reasonableness of the opportunity. Id. The remedy available to an individual who is denied the right to consult with counsel before submitting to an Intoxilyzer test is to file a motion to suppress the results of the test. See id. at ¶ 15.

[¶ 12] Our determination that a driver has a limited right to consult with an attorney before taking a chemical test was first announced in Kuntz v. State Hwy. Com’r, 405 N.W.2d 285 (N.D.1987). This limited right to consult with an attorney is based on an interpretation of the right to counsel under N.D.C.C. § 29-05-20. Kuntz, 405 N.W.2d at 287. Section 29-05-20, N.D.C.C., provides, “[t]he accused in all cases must be taken before a magistrate without unnecessary delay, and any attorney at law entitled to practice in the courts of record of this state, at the attorney’s request, may visit such person after that person’s arrest.” The determination that a driver has a limited right to consult with an attorney before taking a chemical test was also “underscored by constitutional due process principles.” Kuntz, 405 N.W.2d at 288.

[¶ 13] Juveniles are provided a statutory right to counsel by the Uniform Juvenile Court Act. See N.D.C.C. § 27-20-26. A juvenile is recognized as a member of a special class of citizens who may require additional legal protection. See . Olson v. N.D. Dep’t of Transp. Dir., 523 N.W.2d 258, 260 (N.D.1994). Section 27-20-26, N.D.C.C., provides, “Counsel must be provided for a child not represented by the child’s parent, guardian, or custodian at custodial, post-petition, and informal adjustment stages of proceedings under this chapter.” This statute imposes a mandatory duty to appoint counsel for a child not represented by a parent, guardian, or custodian. In Interest of D.S., 263 N.W.2d at 120. “A juvenile’s right to counsel may not be waived unless the child is represented by his parent, guardian, or custodian.” In re Z.C.B., 2003 ND 151, ¶ 13, 669 N.W.2d 478. A parent’s presence does not alone constitute representation. In Interest of B.S., 496 N.W.2d at 33. In order for a parent’s presence to constitute representation, a parent, at the very least, has to understand it is his or her role to advise the child and has to take an active role at the proceeding. See id. at 33-34.

[¶ 14] We have said that the purpose of the implied consent statute, N.D.C.C. § 39-20-01, as applied to a juvenile, “is to inform the parent or guardian why a minor is in custody and to allow the parent or guardian to be involved in the minor’s decision whether to consent to take a chemical test.” In re Z.C.B., 2003 ND 151, ¶ 17, 669 N.W.2d 478. In Olson v. N.D. Dep’t of Transp. Dir., 523 N.W.2d 258 (N.D.1994), we held that a juvenile has a limited statutory right of parental involvement in deciding whether to submit to chemical testing. “Neither the effort to reach a parent nor the successful contact of a parent may be used to ‘interfere with the administration of chemical testing.’ ” Id. at 260 (quoting N.D.C.C. § 39-20-01). “But, once an officer timely contacts a child’s parent, whether fortuitously or by design, the officer must comply with the statute’s directives.” Id.

[¶ 15] When Olson was decided, N.D.C.C. § 39-20-01 provided, in relevant part:

When a child is taken into custody for violating section 39-08-01 or an equivalent ordinance, the law enforcement officer shall diligently attempt to contact the child’s parent or legal guardian to explain the cause for the custody and the implied consent chemical testing requirements.

N.D.C.C. § 39-20-01 (1993).

[¶ 16] One year after the Olson opinion, N.D.C.C. § 39-20-01 was amended. See 1995 N.D. Sess. Laws ch. 299, § 2. The amended version of the statute does not include the word “diligently” and no longer requires an officer to explain the implied consent testing requirements to the juvenile’s parent or legal guardian. Under N.D.C.C. § 39-20-01 (1995),

When a person under the age of eighteen years is taken into custody for violating section 39-08-01 or an equivalent ordinance, the law enforcement officer shall attempt to contact the person’s parent or legal guardian to explain the cause for the custody.

The State contends that N.D.C.C. § 39-20-01 requires officers to attempt notification of parents when a juvenile is taken into custody for driving under the influence only to explain the cause for the custody. The State further argues that the 1995 amendment to N.D.C.C. § 39-20-01 was intended to eliminate the requirement of parental consultations announced in Olson v. N.D. Dep’t of Transp. Dir., 523 N.W.2d 258 (N.D.1994). Therefore, the State asserts law enforcement officers were not required to consult with R.P.’s parents about chemical testing under the current statutory scheme.

[¶ 17] R.P. argues that the 1995 amendment to N.D.C.C. § 39-20-01 did not deprive him of a statutory right to consult with his parents before submitting to chemical testing. R.P. asserts that the language deleted from N.D.C.C. § 39-20-01 in 1995 only relieved law enforcement from having to read the implied consent advisory to parents of juveniles. We agree.

[¶ 18] A closer examination of the Olson case and review of the legislative history regarding the 1995 amendment to N.D.C.C. § 39-20-01 supports our holding that the 1995 amendment to N.D.C.C. § 39-20-01 did not deprive juveniles of their right to consult with a parent before submitting to chemical testing.

[¶ 19] The present case is distinguishable from Olson. In Olson, law enforcement officers successfully contacted the mother of a juvenile under arrest for driving while under the influence of alcohol. Olson, 523 N.W.2d at 259. An officer told the mother that the juvenile was in custody and that the juvenile had been drinking and driving. Id. The officer did not read the implied consent advisory to the juvenile’s mother, nor did the juvenile speak to his mother. Id. After the officer spoke to the juvenile’s mother, the officer asked the juvenile if he would consent to a blood test. Id. The juvenile did not take the test. Id. The issue in Olson was not whether the juvenile had a right to consult with his parent before consenting to chemical testing; instead, the central issue was whether the juvenile’s refusal to take the chemical test was vitiated by the failure of the law enforcement officer to read the implied consent advisory to the juvenile’s parent once the parent was contacted by telephone. See id. at 260.

[¶ 20] The State correctly asserts that the legislature’s 1995 amendment is, in part, likely a response to the outcome of Olson. See Hearing on H.B. 1151 Before the House Transportation Committee, 54th N.D. Legis. ■ Sess. (Jan. 12, 1995) (testimony of Heidi Heitkamp, Attorney General) [“Hearing on H.B. 1151 ”]. However, it appears the legislature only intended to strike the requirement that officers read the implied consent advisory to a juvenile’s parent and remove the diligence requirement from officers’ obligation to attempt to contact a juvenile’s parent or legal guardian.

[¶ 21] Before the 1995 Legislative Assembly passed the bill amending N.D.C.C. § 39-20-01, Attorney General Heidi Heit-kamp presented prepared testimony to members of the legislature. See Hearing on H.B. 1151, supra (testimony of Heidi Heitkamp, Attorney General). In her testimony, she describes the Olson holding and explains the purpose of the amendment:

Section 2 of House Bill 1151 retains the responsibility of a law enforcement officer to make an effort to contact the parent of a person under the age of 18 years who has been taken into custody for violating N.D.C.C. § 39-08-01 or an equivalent ordinance. [House Bill 1151] deletes the requirement that the officer advise the parent of the implied consent chemical testing requirements. [It] specifically provides that the attempt to contact or the contacting of a parent or legal guardian is not a precondition to the admissibility of chemical test results or a finding of a consent to or refusal of chemical testing.

Id. While the legislative history reveals a legislative intent that the attempt by law enforcement to contact a parent should not be a precondition to the admissibility of chemical test results, it does not reveal, a legislative intent to eliminate a juvenile’s limited right to consult with his parents once they are successfully contacted. Neither the plain language of the amended statute nor the legislative history reveal a legislative intent to completely eliminate a juvenile’s limited right to consult with a parent, guardian, or custodian before deciding whether to consent to chemical testing.

IV

[¶ 22] The State acknowledges that a driver arrested for driving while under the influence has a limited right to consult with an attorney before undergoing chemical testing. The State points out that, in this case, R.P. did not ask to consult with an attorney; he asked to consult with his parents. The State argues R.P. did not have a statutory right to consult with his parents regarding whether to take the In-toxilyzer test. The ’State asserts the advice of a parent to a juvenile is not equal to that of an attorney. Thus, the officers in this case did not prevent R.P. from having an opportunity to speak to an attorney. The State further claims that, like an adult, a juvenile impliedly consents to the testing requirements when the individual applies for and receives a driver’s license. The State argues that a juvenile has a statutory right only to consult with an attorney before chemical testing, not a right to consult with a parent or another person of choice.

[¶ 23] R.P. contends that his position is bolstered by the law pertaining to non-juveniles. Other persons in custody for driving under the influence are provided a limited statutory right to consult with counsel before deciding whether to submit to chemical testing. R.P. argues that his right to consult with his parents is analogous to an adult’s right to consult with counsel. R.P. argues the right to consult with his parents before submitting to the Intoxilyzer test was triggered when he telephoned his parents after the accident. The contact with his parents was not initiated by the officers, but the fact the contact was fortuitous does not affect the analysis. The officer had enough time to allow R.P. to consult with his parents before the test without forgoing the officer’s goal of conducting a timely test. R.P.’s parents were already in the room and there was a significant window of time remaining after R.P. completed the Intoxi-lyzer test.

[¶ 24] We now hold coupled with our decision in Kuntz v. State Highway Com’r., 405 N.W.2d 285 (N.D.1987), that the right to counsel provision of the Uniform Juvenile Court Act, embodied in N.D.C.C. § 27-20-26, provides juveniles a limited right to counsel before deciding whether to consent to chemical testing under N.D.C.C. § 39-20-01. Like other drivers’ right to counsel before deciding whether to consent to chemical testing, a juvenile’s right to consult with counsel is a limited right. A juvenile must be given a reasonable opportunity to consult only if doing so does not materially interfere with the test administration. As is the case with judicial consideration of whether a non-juvenile had a reasonable opportunity to consult with his attorney, a totality of the circumstances test applies to determine the reasonableness of a juvenile’s opportunity to consult with his or her counsel, parent, guardian, or custodian.

[¶ 25] Here, R.P.’s parents were contacted, albeit by R.P. personally. His mother was at the scene of the accident, and both parents were at the police department while R.P. was in police custody. R.P. requested to speak to them before the Intoxilyzer test was administered. There was ample time to allow R.P. to speak to his parents and still administer a timely and accurate chemical test. The officers denied R.P. an opportunity to consult with his parents before he consented to the Intoxilyzer test. This denial was a violation of R.P.’s limited statutory right to consult with counsel or his parents because allowing R.P. a reasonable opportunity to speak to his parents would not have materially interfered with administration of the Intoxilyzer test. Suppression of the results of the Intoxilyzer test is the appropriate remedy for the officers’ violation of R.P.’s limited right to consult.

V

[¶ 26] We, therefore, conclude that the juvenile court did not err in affirming the referee’s order granting R.P.’s motion to suppress the results of his Intoxilyzer test. We affirm the juvenile court’s order affirming the juvenile referee’s order.

[¶ 27] GERALD W. VANDE WALLE, C.J., and DONOVAN J. FOUGHTY, D.J., and DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 28] The Honorable DONOVAN J. FOUGHTY, D.J., sitting in place of SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2008 ND 40
    Henry J. LANGER, Mary Ann Weiss, Plaintiffs, Appellants and Cross-Appellees and Josephine I. Pender, Plaintiff v. Lyle BARTHOLOMAY and Kelly A. Thompson, d/b/a B & T Farms, Defendants, Appellees and Cross-appellants.
    No. 20070056.
    Supreme Court of North Dakota.
    Feb. 29, 2008.
    Rehearing Denied April 14, 2008.

      Joel M. Fremstad (argued) and Kristi L. Haugen (on brief), Nilles, Ilvedson, Plam-beck & Seibo, Ltd., Fargo, N.D., for plaintiffs, appellants and cross-appellees.
    Jonathan T. Garaas, Garaas Law Firm, DeMores Office Park, Fargo, N.D., for defendants, appellees and cross-appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] Henry J. Langer and Mary Ann Weiss (“landowners”) appeal, and Lyle Bartholomay and Kelly A. Thompson, doing business as B & T Farms, cross-appeal from a judgment entered after a bench trial awarding B & T Farms $37,081.82 for the breach of a farm lease. We conclude the district court’s findings that B & T Farms did not breach the lease by producing sugar beets on the land, the landowners’ repudiation constituted an anticipatory breach of the lease, and the court’s award of damages are not clearly erroneous. We affirm the judgment.

I

[¶ 2] Langer, Weiss, and Josephine Pender own eight quarter-sections of farmland in Cass County, which they rent out. Langer manages the property and is responsible for soliciting prospective tenants and negotiating rental contracts.

[¶ 3] In 1999, the landowners began looking for a new tenant and accepted bids from interested farmers. They sent B <& T Farms a letter inviting a bid, which included information about the land and preferred payment terms, but did not disclose that the landowners did not want to rent to someone who planned to grow sugar beets on. the land. The landowners received a bid from B & T Farms, which said, “[d]ue to the low crop prices of wht [sic], corn, soybeans, and all other farm commodities. We are offering a bid of $57 per acre.” After some negotiations about the rental price, the landowners agreed to rent 1,176.3 acres of farmland to B & T Farms for $59 per acre for the 2000 through 2004 crop years. A one-page lease containing a description of the land and the negotiated terms was signed. In 2004, the parties negotiated a new lease. Under the new agreement, B & T Farms rented 1,190.9 acres of farmland for the 2005, 2006, and 2007 crop years at $70 per acre. Both leases contained a termination clause, which said, “both parties have the option to leave the contract with written notice by September 1, of each year.”

[¶4] In March 2005, the landowners learned B & T Farms was planning to grow sugar beets on the rental land. Lan-ger contacted Bartholomay and informed him he did not want sugar beets grown on the land. Langer and Bartholomay testified this was the first time they discussed Langer’s desire not to have sugar beets grown on the land. Langer testified he learned in April 2005, B & T Farms sublet approximately 140 acres of the rental land to another farmer for $110 per acre and sugar beets had been planted on that portion of the land.

[¶ 5] In an August 23, 2005, letter, the landowners advised B & T Farms the lease did not allow them to produce sugar beets or assign, sublet, or sharecrop the land. The landowners claimed B & T Farms were in breach of the lease, they threatened to sue if the dispute was not amicably resolved, and stated they would accept $15,000 to settle the matter. On September 9, 2005, B & T Farms sent the landowners a letter in response denying the lease did not allow subletting or the production of sugar beets. B & T Farms claimed they had fully honored the lease and the landowners’ claims were frivolous.

[¶ 6] On September 15, 2005, Langer sent B & T Farms a letter notifying them he was cancelling the lease. B & T Farms responded four days later, advising the landowners that cancelling the lease would constitute an anticipatory breach of the lease, requesting a retraction, and questioning- whether all three landowners agreed to terminate the lease. The landowners responded on September 26, 2005, confirming that Langer represents the landowners for purposes of dealing with B & T Farms and the landowners all agreed to cancel the lease, and claiming the notice of termination was timely and B & T Farms breached the lease.

[¶ 7] The landowners sued B & T Farms in November 2005, alleging B & T Farms breached the lease by growing sugar beets, seeking damages for the breach, and requesting declaratory relief holding the landowners timely terminated the lease. B & T Farms filed an answer and counterclaim, denying they breached the lease, and seeking damages for lost profits for the 2006 crop year arguing the landowners’ untimely notice of termination constituted an anticipatory breach of the lease. B & T Farms sought damages of $148,327.28, based on the amount of profits they would have lost if they had planted approximately 1,200 acres of soybeans on the landowners’ property during the 2006 crop year. B & T Farms claimed they would have planted 910.7 acres of food grade soybeans, which would have an average yield of 32 bushels per acre, and would have sold for a price of $8.03 per bushel. They claimed they would have planted “Roundup Ready” soybeans on the remaining 280.2 acres, which would average 32 bushels per acre, and would have sold for $5.43 per bushel. They calculated projected expenses of $150,795.74, which included the cost of seed, chemicals, insurance, fuel, rent, and repairs. Based on these calculations, B & T Farms claimed they would have a net profit of $148,327.28 for the 2006 crop year. B & T Farms relied on 2004 and 2005 Cass County average yields to calculate its estimated 2006 yields, and it used the market values of the two types of soybeans at the time of its counterclaim to estimate the value of the crops. Bar-tholomay and Thompson testified they had never grown the particular type of food grade soybeans used in their damage calculations, and they had never grown all soybeans on the landowners’ property. Bartholomay testified B & T Farms historically grew wheat, corn, soybeans, and barley on the landowners’ property. There was evidence B & T Farms only planted soybeans on 300 acres of the landowners’ farmland in prior years with a normal crop rotation.

[¶ 8] A bench trial was held in July 2006. The district court found the lease was fully integrated and unambiguous and the parties’ obligations under the terms of the lease were not subject to modification by circumstances or parol evidence, and therefore B & T Farms did not breach the lease. The court also found, “Plaintiffs argue custom and usage should dictate that the planting of sugar beets or subletting to others would be a basis for termination. The Court does not find that custom or usage has been proved by Plaintiffs under the circumstances of the case.” The court held the landowners’ repudiation constituted an anticipatory breach because time was of the essence and the landowners did not timely terminate the lease. The court awarded B & T Farms damages in the amount of $37,081.82 for lost profits, finding B & T Farms failed to provide credible evidence of all its lost profits:

The Court does not find it realistic that Defendants would have planted every acre to soybeans in 2006 when their historical rotation included wheat, corn and barley. No evidence was submitted relative to the Defendants’ history other than that they were good operators. The Court doesn’t doubt this. The tax returns were not helpful since they included income from more acres than the leased acres from Plaintiff. Three hundred acres is one-quarter of the leased acres. There is evidence that last year they planted 300 acres to soybeans. One-quarter of $148,327.28 is $37,081.82. As to the balance of the acreage, the Court does not find the Plaintiffs [sic] presented credible evidence on which it can make an award.

[¶ 9] On June 9, 2006, Pender died. Neither party moved to substitute her estate and the action against her was later dismissed.

II

[¶ 10] The landowners argue the district court erred in finding B & T Farms did not breach the lease by allowing sugar beets to be produced on the rental property. The landowners contend there was an implied agreement based on custom and usage that sugar beets would not be grown on the land. They argue there was evidence farmland is rented at a higher price when it is used to produce sugar beets, they declined a higher bid from another farmer who wanted to grow sugar beets, B & T Farms originally submitted a bid for a lower price which would not include growing sugar beets, and B & T Farms did not use the land to grow sugar beets during the first lease. They claim this is evidence of an implied agreement that B & T Farms would not use the land to produce sugar beets, and B & T Farms breached the agreement.

[¶ 11] A party has breached a contract when it fails to perform a contractual duty when it is due. WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 13, 730 N.W.2d 841. The burden of proving a breach occurred is on the party asserting the breach. Id. The district court’s finding about whether a party has breached a lease is a finding of fact subject to the clearly erroneous standard of review. Keller v. Bolding, 2004 ND 80, 1Í17, 678 N.W.2d 578. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 15.

[¶ 12] Contracts are construed to give effect to the parties’ mutual intent at the time the contract was formed, and if possible, we look to the writing alone to determine the parties’ intent. Fargo Foods, Inc. v. Bernabucci, 1999 ND 120, ¶ 13, 596 N.W.2d 38. Interpretation of a contract is a question of law, if the parties’ intent can be determined from the language of the contract alone. VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 34, 672 N.W.2d 445. Whether a contract is ambiguous is a question of law, which we review independently. Spagnolia v. Mo-nasky, 2003 ND 65, ¶ 10, 660 N.W.2d 223. A contract is ambiguous if rational arguments can be made for different interpretations. Id. If a contract is ambiguous, extrinsic evidence may be considered to determine the parties’ intent, and the terms of the contract and the parties’ intent become questions of fact. Id. “ ‘If a written contract is unambiguous, extrinsic evidence is not admissible to contradict the written language.’ ” VND, at ¶ 34 (quoting Prairieview Nursing Home v. North Dakota Dep’t of Human Servs., 1999 ND 142, ¶ 10, 598 N.W.2d 116). The rules of contract construction are also applied to leases. VND, at ¶ 34. A lease is generally construed most strongly against the lessor. Id.

[¶ 13] The district court found the language of the lease was not ambiguous and the parties’ obligations under the terms of the lease were clear and were not subject to modification by circumstances or parol evidence. The evidence is clear the parties never discussed whether B & T Farms could grow sugar beets on the land while negotiating the lease. Langer testified he did not discuss his desire not to have sugar beets grown on the land with B & T Farms until March 2005. The lease does not limit what crops the tenants may produce on the land, and the lease does not expressly provide that B & T Farms may not produce sugar beets on the land. We conclude the lease is not ambiguous and does not restrict which crops B & T Farms could produce on the rental land.

[¶ 14] However, unless an agreement is completely integrated, evidence of consistent additional terms is admissible. Felco, Inc. v. Doug’s North Hill Bottle Shop, Inc., 1998 ND 111, ¶ 18, 579 N.W.2d 576. The landowners claim essential elements of the agreement were not reduced to writing, but were implicitly understood between the parties as customs of farm leases in the geographic area. They claim an implied agreement about sugar beets does not contradict the written terms of the lease, and therefore evidence of the implied agreement should have been considered. The landowners argue B & T Farms knew they were not allowed to grow sugar beets on the land because Lan-ger did not accept a higher bid from a farmer who wanted to grow sugar beets, B & T Farms’ bid did not specifically list sugar beets as a crop they were planning to grow, B & T Farms did not grow sugar beets on the land during the 2000 through 2004 crop years, and B & T Farms’ bid was for a lower amount of rent than Lan-ger thought a farmer would bid if the farmer was planning to grow sugar beets. They claim the agreement not to use the land to produce sugar beets is implied based on custom and usage.

[¶ 15] This Court has addressed when custom and usage may be used to interpret a contract, and we said:

Custom and usage may be given effect as part of a written contract where the agreement is silent or ambiguous on a point, and where there is a well-established custom concerning a subject so that the parties may be presumed to have acted with reference to the custom. The custom or usage must be proved as any other fact. Whether or not a custom or usage exists is a question of fact.

VND, 2003 ND 198, ¶42, 672 N.W.2d 445 (quoting Hager v. Devils Lake Pub. Sch. Dist., 301 N.W.2d 630, 634 (N.D.1981) (citations omitted)).

[¶ 16] The district court found the landowners did not prove custom or usage under the circumstances of this case. While there was evidence about Langer’s desire not to rent the land to a farmer who planned to grow sugar beets, the district court concluded there was not an implied agreement based on custom and usage, and the evidence supports the court’s findings. Langer testified that rental prices are higher for farmland if the tenant plans to grow sugar beets, and he turned down an offer for a higher amount of rent because the prospective tenant planned to grow sugar beets. There was also testimony from Bartholomay that $70 per acre, which was the rental amount under the terms of the second lease, was consistent with the price of renting farmland to produce sugar beets. There was evidence submitted that the average rent in Cass County for non-irrigated crop land in 2005 was $55.60 per acre, and $56.70 in 2006. This evidence did not make a distinction between land used to produce sugar beets and land used to produce other commodities. The evidence supports the court’s finding that the landowners failed to prove custom and usage.

[¶ 17] We conclude the lease is not ambiguous, and the district court’s findings about custom and usage and that B & T Farms did not breach the lease are supported by the evidence and are not clearly erroneous.

Ill

[¶ 18] The landowners argue the district court erred in finding time was of the essence in exercising the option to terminate the lease and the landowners’ untimely notice constituted an anticipatory breach of the lease. The landowners argue the court erred in concluding time was of the essence, because the lease did not expressly make time of the essence and there was no evidence the parties intended that time was of the essence. The landowners claim they gave B & T Farms notice of their decision to terminate within a reasonable time.

[¶ 19] The district court held the landowners breached the lease because they did not provide timely notice of termination:

The letter sent by Plaintiffs’ attorney on August 23, 2006 was not proper notice of termination. It merely demanded $15,000 for the planting of sugar beets on certain acres. Proper notice of termination was sent on September 15, 2006, however, it was more than two weeks beyond the contract deadline. Accordingly, the Court concludes that the Plaintiffs breached the contract between the parties. Time was of the essence.

[¶ 20] Whether or not a contract requires performance at the exact time specified in the contract depends on whether or not time is of the essence. E.E.E. Inc. v. Hanson, 318 N.W.2d 101, 104 (N.D.1982). Section 9-07-23, N.D.C.C., states “[t]ime is of the essence of a contract if it is provided expressly by the terms of the contract or if such was the intention of the parties as disclosed thereby.” This Court has said unless the intent that time is of the essence is manifest from the face of the contract, whether the parties intended time to be of the essence is a question of fact. Keller v. Hummel, 334 N.W.2d 200, 203 (N.D.1983). “Where time is not of the essence, a reasonable delay in performance does not constitute a breach of contract; however, an unreasonable delay constitutes a breach and justifies the remedy of cancellation.” Id. What is a reasonable time is a question of fact. Id.

[¶21] However, an option is different. Time is generally of the essence in exercising an option, and the optionee must perform the terms of the option within the specified time and upon the terms and conditions provided in the agreement. In the Matter of the Estate of Thomas, 532 N.W.2d 676, 685 (N.D.1995). “ “When the optionee decides to exercise his option he must act unconditionally and precisely according to the terms of the option. When the acceptance is so made the optionor becomes bound. Nothing less will suffice unless the optionor waives one or more of the terms of the option.’ ” Fries v. Fries, 470 N.W.2d 232, 234 (N.D.1991) (quoting 1 Williston on Contracts, § 62, at 206 (1957)). Courts generally construe the attempt to exercise an option strictly and require exact compliance because the op-tionee is free to exercise the option if he chooses, but an optionor is bound to perform if the option is properly exercised. Fries, at 234. “ ‘An option is a mere offer, and acceptance thereof must be made within the time allowed, and in minute compliance with its terms, or the op-tionee’s rights thereunder will be lost, substantial compliance being insufficient to constitute an acceptance.’ ” Id. (quoting Gurunian v. Grossman, 831 Mich. 412, 49 N.W.2d 354, 357 (1951)). The same rules apply to an option in a lease. See Western Tire, Inc. v. Skrede, 307 N.W.2d 558, 563 (N.D.1981) (an option to renew the lease was not met because the manner and time period required for exercising the option was not complied with); 49 Am.Jur.2d Landlord and Tenant §§ 199-200 (2007); 15 Richard A. Lord, Williston on Contracts, § 46:12, at 459-68 (4th ed.2000). Courts in other jurisdictions have also applied these rules and have required exact compliance with the terms of the agreement to properly exercise an option, including an option to terminate a lease as well as an option to renew a lease. See, e.g., USA Network v. Jones Intercable, Inc., 729 F.Supp. 804, 309-10 (S.D.N.Y. 1990) (time of the essence in exercising option to terminate contract, notice of termination was ineffective because 12 days late); Vending Credit Corp. v. Trudy Toys Co., 5 Conn.Cir.Ct. 629, 260 A.2d 135, 137-38 (1969) (time is of the essence in exercising option to terminate lease); Piedmont Center 15, LLC v. Aquent, Inc., 286 Ga.App. 673, 649 S.E.2d 733, 735 (2007) (as a general rule time is of the essence in option contracts, applies to options to cancel a lease); Boody v. Giambra, 192 Misc.2d 128, 744 N.Y.S.2d 803, 809 (N.Y.Sup.Ct.2002) (time is of the essence in option to terminate contract); Western, Sav. Fund Soc’y of Phila. v. Southeastern Pa. Transp. Auth., 285 Pa.Super. 187, 427 A.2d 175, 178-79 (1981) (time is of the essence in option to renew lease).

[¶ 22] In this case, the lease provided that the option to terminate must be exercised by providing “written notice by September 1, of each year.” The option is not ambiguous. The district court found the landowners did not provide written notice of their intent to terminate the lease until September 15, 2005, and the evidence supports the court’s finding. Because the provision allowing either party to terminate the lease is an option in the lease, the option must be strictly construed and the landowners must have complied with all of the terms to exercise the option. The landowners argue if specifying a date in the lease makes time of the essence, all rental agreements related to farming would either impliedly or expressly include a “time is of the essence provision” and N.D.C.C. § 9-07-23 would be left without meaning. However, their argument is not persuasive; the landowners’ failure to comply with the time requirement resulted in a breach of the contract because the provision of the farm lease at issue is an option to terminate and options are strictly construed and require exact compliance. We conclude as a matter of law that time was of the essence, and therefore the landowners failed to give timely notice of their intent to exercise the option to terminate the lease.

[¶ 23] In cases involving contracts for real estate and leases, some courts have invoked their equitable powers and allowed an option to be exercised when the requirements for the option have not been met. See, e.g., Aickin v. Ocean View Invs. Co., Inc., 84 Hawai'i 447, 935 P.2d 992, 1000-02 (1997); Trollen v. City of Wabasha, 287 N.W.2d 645, 647-48 (Minn.1979). In Western Tire, 307 N.W.2d at 562, this Court acknowledged it may be appropriate in some circumstances to grant equitable relief and decline to strictly construe an option, but we declined to gránt équitable relief under the circumstances of that case. A court may invoke its equitable powers and an option may nevertheless be enforced even if the holder failed to exercise it within the specified time if: (1) the delay is slight, (2) the delay has not prejudiced the other party, and (3) a failure to grant relief would result in such hardship as to make literal enforcement of the option unconscionable. See Id. at 563. Equitable relief is generally granted in cases where a lessee has made valuable improvements to the property in expectation of renewing a lease, but the lessee’s notice to renew is slightly past the deadline, and the relief is necessary to avoid inequitable forfeiture or literal compliance is unconscionable. Andrews v. Blake, 205 Ariz. 236, 69 P.3d 7, 14-15 (2003).

[¶ 24] Although the landowners did not specifically request equitable relief, they did argue they provided notice of their intent to terminate the lease within a reasonable time because the delay was slight, they had raised their concerns with B & T Farms before September 1, and there is no evidence of prejudice. The landowners notice may have been reasonable if time was not of the essence, but there is insufficient evidence to conclude the failure to grant relief would result in an inequitable forfeiture or that literal compliance is unconscionable; therefore equitable relief is not appropriate under the circumstances of this case.

[¶ 25] We conclude time was of the essence, and the district court’s finding that the landowners’ repudiation constituted an anticipatory breach of the lease is supported by the evidence and is not clearly erroneous.

IV

[¶ 26] Both parties appeal the district court’s damage award. The landowners argue the court erred in awarding damages because B & T Farms did not provide the best evidence available and the methodology used to calculate the damages is without legal and factual support. B & T Farms claim the district court erred in not awarding them the full amount of damages requested.

[¶ 27] “A [district] court’s determination of the amount of damages caused by a breach of contract is a finding of fact subject to the clearly erroneous standard of review.” Keller, 2004 ND 80, ¶ 22, 678 N.W.2d 578. When damages are an adequate remedy, they must be proved, and the difficulty in proving the amount does not preclude recovery. Livinggood v. Balsdon, 2006 ND 11, ¶ 8, 709 N.W.2d 723. “[WJhere damage obviously has been suffered, but there is no definite evidence available for an exact determination of the amount of damage resulting from a breach of contract, the best evidence which the circumstances will permit is all the law requires.” Id. Damages for lost profits are recoverable where they are reasonable and not speculative. Leingang v. City of Mandan Weed Bd., 468 N.W.2d 397, 398 (N.D.1991). In cases where the amount of damages may be hard to prove, “ ‘the amount of damages is to be left to the sound discretion of the finder of facts.’ ” Keller, at ¶ 21, (quoting B.W.S. Invs. v. Mid-Am Restaurants, Inc., 459 N.W.2d 759, 764 (N.D.1990)).

A

[¶ 28] The landowners argue the evidence does not support B & T Farms’ claims for damages and the methodology the court used to calculate the damages is without legal and factual support. The landowners claim B & T Farms’ hypothetical damages ignored their prior crop rotations, ignored the 2006 crop year weather conditions, contained projections for crops B & T Farms had not previously grown, contained yield averages unrelated to B & T Farms’ yields in prior years, and contained average and outdated prices for crop inputs that were not what B & T Farms actually paid. They argue B & T Farms did not present the best evidence available and should have offered evidence from their prior crop years or evidence of the 2006 crop year, which was underway at the time of trial, and they did not include all their expenses in their damage calculations. The landowners claim the district court relied on unsupported and speculative information to calculate B & T Farms’ damages.

[¶ 29] The landowners cite Keller, 2004 ND 80, 678 N.W.2d 578, in support of their claim that B & T Farms did not provide the best evidence of lost profits because they did not provide evidence of profits from prior years. In Keller, the injured party testified about what his average profits were over a five-year period, and this Court affirmed the district court’s decision to award damages, holding the evidence supported the court’s findings. Id. at ¶24. However, we did not say the best and only type of evidence that can be used to prove lost profits was evidence of prior years’ profits. While evidence of past profits is generally an appropriate method to calculate estimated future profits, there are many different methods that may be used, and whichever method is used must be reasonably accurate and provide a fair basis for calculating the damages. See 24 Richard A. Lord, Williston on Contracts, § 64:11, at 108 (4th ed.2002). “Where a plaintiff offers evidence estimating anticipated profits with reasonable certainty, they may be awarded.” Leingang, 468 N.W.2d at 398.

[¶ 30] B & T Farms provided evidence of county average yields for soybeans for the two crop years immediately preceding the trial. They provided evidence of the price of soybeans at the time they filed their counterclaim. They also provided evidence of their estimated expenses, and there was testimony supporting that evidence. While this evidence may not produce the exact amount of the damage resulting from the landowners’ breach, the best evidence the circumstances permit is all that is required, and “[w]here it is reasonably certain that substantial damages have resulted, mere uncertainty as to the exact amount will not preclude recovery.” See Keller, 2004 ND 80, ¶21, 678 N.W.2d 578. The method used in this case was reasonably accurate and provided a fair basis for calculating the lost profits. We are not left with a definite and firm conviction the district court’s damage calculations are clearly erroneous.

B

[¶ 31] B & T Farms argues the district court erred in not awarding them the full amount of damages requested. The landowners claim B & T Farms is not entitled to receive any damages because they tried to inflate their damages by claiming they were going to plant soybeans on the entire rental land in 2006.

[¶ 32] B & T Farms only presented evidence of lost profits for the production of soybeans. Bartholomay testified B & T Farms’ crop rotation changed little from year to year and they had never grown only one crop on the landowners’ property. Bartholomay also testified that if B & T Farms had continued to rent the landowners’ property in 2006 they probably would have maintained a normal crop rotation and would not have grown 1,200 acres of soybeans on the rental property. The district court concluded it was not reasonable, based on the evidence of B & T Farms’ historical growing practices, that they would have planted only soybeans on all 1,200 acres that were the subject of this farm lease. “In connection with the loss of prospective profits, the injured party can recover only to the extent that the evidence he produces affords a sufficient basis for estimating with reasonable certainty the amount of profits prevented by the wrongful breach of the contract.” Bergquist-Walker Real Estate, Inc. v. William Clairmont, Inc., 333 N.W.2d 414, 420 (N.D.1983). B & T Farms only provided evidence of the lost profits related to growing soybeans. There was evidence they only planted soybeans on one-fourth of the landowners’ property in the past during years of normal crop rotations, and they were likely to have a normal crop rotation in 2006 if they had continued renting the land. B & T Farms only presented evidence that provided a sufficient basis for estimating with reasonable certainty the amount of lost profits for the production of soybeans, and the district court calculated damages accordingly.

[¶ 33] B & T Farms failed to provide any proof of the remaining, amount of damages, and therefore the evidence did not provide a sufficient basis for estimating with a reasonable certainty the remaining amount of profits B & T Farms might lose due to the landowners’ breach. The district court concluded B & T Farms did not present credible evidence of its remaining damages. The evidence supports the court’s findings, and we are not left with a definite and firm conviction a mistake was made. We conclude the court’s findings are not clearly erroneous.

V

[¶ 34] We conclude the district court’s findings that B & T Farms did not breach the lease, the landowners repudiation constituted a breach of the lease, and its damage award are not clearly erroneous. We affirm the judgment.

[¶ 35] DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., and LAWRENCE A. LECLERC, and EVERETT NELS OLSON, S.J., concur.

[¶ 36] The Honorable LAWRENCE A. LECLERC, S.J., and the Honorable EVERETT NELS OLSON, S.J., sitting in place of CROTHERS, J., and KAPSNER, J., disqualified.


text:
    2008 ND 41
    Patricia A. SABO, Kathleen A. Varty, and Kent J. Keidel, Plaintiffs and Appellants v. Gene W. KEIDEL and Scott J. Keidel, Defendants and Appellees.
    No. 20070206.
    Supreme Court of North Dakota.
    March 3, 2008.

      H. Malcolm Pippin, Nilles, Ilvedson, Plambeck & Seibo, Ltd., Williston, N.D., for plaintiffs and appellants.
    Bruce A. Selinger, Kubik, Bogner, Ridl & Selinger, Dickinson, N.D., for defendants and appellees.
   MARING, Justice.

[¶ 1] Siblings Patricia Sabo, Kathleen Varty, and Kent Keidel (“Sabos”) appeal an amended judgment granting summary judgment to their brothers, Gene Keidel and Scott Keidel (“Keidels”), and dismissing their claims with prejudice. The underlying dispute between the Sabos and the Keidels involves an irrevocable trust established in 1985 by their parents, Vernon and Arlys Keidel, the corpus of which is real property (“trust lands”).

[¶ 2] The Sabos argue summary judgment was improper because the trust instrument creating the trust at issue is ambiguous. We conclude the trust instrument unambiguously grants Gene Keidel and Scott Keidel life estate interests in the trust lands. We, therefore, affirm the amended judgment granting the Keidels’ motion for summary judgment.

I

[¶ 3] The trust instrument designates Vernon and Arlys Keidel, both of whom are now deceased, as trustors. Gene Kei-del and Scott Keidel are designated as trustees. The trust instrument states, “Both Trustors and Trustees shall have a life estate on the Trust Lands.” The trustees are instructed to “determine the method of deriving the earnings from the land ..., handle the payment of debts, ... mortgage and invest and to disperse all income.” A quitclaim deed was registered conveying the real property to the trust. The life estates granted in the trust instrument are not mentioned in the registered quitclaim deed.

[¶ 4] The named beneficiaries of the trust are Vernon Keidel, Arlys Keidel, Kent Keidel, Jesse Keidel, Gene Keidel, Scott Keidel, Mary Mack, Patricia Sabo, and Kathleen Varty. The trust provides that the share of a primary beneficiary who dies will revert to the remaining beneficiaries. The sole remaining beneficiary is to dispose of the trust estate and divide the proceeds among the living children of the original beneficiaries. The beneficiaries are “to share equally in the corpus of the Trust.”

[¶ 5] In the time since their parents’ deaths, Gene Keidel and Scott Keidel have been occupying the trust lands and retaining any profits generated from the trust lands. The Sabos filed a complaint in district court, seeking relief including the removal of Gene Keidel and Scott Keidel as trustees, damages for amounts owed under the trust, and the completion of financial statements and accountings. At the district court, the Sabos alleged that Gene Keidel and Scott Keidel do not have life estate interests in the trust lands. The Sabos also maintained that the trust entitles all beneficiaries to share in the income from the trust lands, including any income generated before the deaths of Gene Keidel and Scott Keidel. The Kei-dels moved for summary judgment. At the motion hearing, the Sabos argued that the claim should survive the motion for summary judgment because the trust instrument is ambiguous.

[¶ 6] The district court partially granted the Keidels’ motion for summary judgment, concluding the trust instrument is unambiguous and Gene Keidel and Scott Keidel were not unjustly enriched. The initial judgment dismissed portions of the case without prejudice. The parties requested that the district court enter an amended judgment dismissing the entire case with prejudice. The district court dismissed the Sabos’ case in its entirety with prejudice and entered an amended judgment. The Sabos appeal.

II

[¶ 7] The issue in this case is whether the district court erred by granting the Keidels’ motion for summary judgment. “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.” Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615. Summary judgment is appropriate when either litigant is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c). Whether a district court properly granted summary judgment is a question of law we review de novo. Duemeland v. Norback, 2003 ND 1, ¶ 8, 655 N.W.2d 76. On appeal, the party opposing the motion for summary judgment is given the benefit of all favorable inferences that can reasonably be drawn from the evidence. Kondrad v. Bismarck Park Dist., 2003 ND 4, ¶4, 655 N.W.2d 411.

Ill

[¶ 8] The Sabos argue summary judgment was improper because the trust instrument is ambiguous. The Keidels argue summary judgment was proper because this case presents no issues of material fact. Whether a trust instrument is ambiguous is a question of law fully reviewable on appeal. Matter of Estate of Schmidt, 1997 ND 244, ¶ 13, 572 N.W.2d 430. Our primary objective in construing a trust instrument is ascertaining the set-tlor’s intent. Id. “When a trust instrument is unambiguous, the settlor’s intent is ascertained from the language of the document itself.” Id.

[¶ 9] The Sabos argue that the sentence, “Both Trustors and Trustees shall have a life estate on the Trust Lands,” is ambiguous. The Keidels contend, however, that the trust unambiguously gives Gene Keidel and Scott Keidel life estate interests in the trust lands. We agree with the Keidels. The sentence, “Both Trustors and Trustees shall have a life estate on the Trust Lands,” unambiguously grants a life estate in the trust lands to the “Trustors and Trustees.” The trust instrument designates Vernon and Arlys Keidel, both of whom are deceased, as trustors and Gene Keidel and Scott Keidel as trustees. Therefore, as trustees, Gene Keidel and Scott Keidel each have a life estate interest in the trust lands.

[¶ 10] The Sabos further argue that the quitclaim deed creates an ambiguity in the trust instrument because it does not mention the life estates. This argument must fail because the deeds are extrinsic evidence, and extrinsic evidence is not admissible to contradict the terms of an unambiguous trust instrument. See Eckes v. Richland County Social Services, 2001 ND 16, ¶ 8, 621 N.W.2d 851 (holding the settlor’s intent is to be ascertained from the language of the trust document when it is unambiguous); Duemeland, 2003 ND 1, ¶ 12, 655 N.W.2d 76 (holding if the language of a will is unambiguous, the testator’s intent must be determined from that language without resort to extrinsic evidence).

[¶ 11] Additionally, the Sabos argue that paragraphs four and five of the trust instrument are irreconcilable because a beneficiary could receive nothing if he or she is survived by Gene Keidel or Scott Keidel. Thus, they maintain the trust is ambiguous. The fact that trust beneficiaries may never have an interest in the trust corpus if they fail to survive the trustees does not create an ambiguity. The Sabos’ belief that the trustors wanted to leave a greater interest in the trust lands and profits therefrom to the trust beneficiaries does not create an ambiguity precluding disposition of the matter on summary judgment.

[¶ 12] The Sabos further contend the words “Trustees shall ... disperse all income” reflect their parents’ intention to have all of the children share equally in the profits of the trust lands. The Sabos claim the trustors did not intend to give Gene Keidel and Scott Keidel the income from the trust lands during their lifetimes. The Keidels assert they have no obligation to disperse any profits from the land to other trust beneficiaries during their lifetimes. Again, we agree with the Keidels. As holders of life estates in the trust property, Gene Keidel and Scott Keidel are able to use the trust lands in the same manner as owners in fee simple, except they cannot act to the injury of the inheritance. See N.D.C.C. § 47-02-33; Ruggles v. Sabe, 2003 ND 159, ¶ 3, 670 N.W.2d 356. A life estate holder’s interest in property includes both the right to possession and use including the right to profits generated by the property during the tenant’s life. Schroeder v. Buchholz, 2001 ND 36, ¶ 21, 622 N.W.2d 202. Therefore, Gene Keidel and Scott Keidel’s interest in the trust lands extends to income and profits generated by the trust lands during their fife-times, and the trust instrument imposes no obligation to share the income or profits with other trust beneficiaries.

IV

[¶ 13] The trust instrument is not ambiguous as to the fife estate interests of Gene Keidel and Scott Keidel; absent any ambiguity, there is no question of material fact which would preclude the case from being disposed of via summary judgment. We conclude the trust instrument unambiguously grants Gene Keidel and Scott Keidel fife estate interests in the trust lands. As holders of fife estates, they are entitled to profits from the trust lands during their lifetimes. We, therefore, affirm the amended judgment granting the Keidels’ motion for summary judgment.

[¶ 14] GERALD W. VANDE WALLE, C.J., ROBERT W. HOLTE, S.J., CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

[¶ 15] The Honorable ROBERT W. HOLTE, S.J., sitting in place of CROTHERS, J., disqualified.


author: ZINTER, Justice

text:
    2008 SD 13
    STATE of South Dakota, Plaintiff and Appellant, v. Chad John WILSON and John James Midmore, Defendants and Appellees.
    No. 24578.
    Supreme Court of South Dakota.
    Argued Jan. 8, 2008.
    Decided Feb. 13, 2008.
    Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Tracy L. Kelley, Custer County State’s Attorney, Custer, South Dakota, Michael R. Moore, Jeffrey M. Banks, Special Custer County Deputy State’s Attorneys, Huron, South Dakota, Attorneys for appellant.
    Robert Van Norman of Nooney Solay & Van Norman, Rapid City, South Dakota, Attorneys for appellees.
   ZINTER, Justice

[¶ 1.] This is an intermediate appeal from circuit court discovery proceedings in a criminal case. The circuit court was presented with the procedural question of how to protect work product and theories of the defense in contested proceedings involving defense requests for scientific testing of physical evidence. In some of the proceedings, the circuit court considered ex parte motions, briefs and affidavits. On occasion, the circuit court also conducted ex parte hearings, including one in which the court received expert testimony. Because we conclude that the circuit court, in attempting to balance the rights of all parties, nevertheless failed to follow statutory procedural requirements, we reverse and remand.

I.

[K2J On August 8, 2006, five people were shot at Legion Lake Lodge in Custer State Park during the Sturgis Motorcycle Rally. The victims were allegedly members of the Outlaw Motorcycle Club. Numerous witnesses identified the perpetrator as a passenger in a white Ford 350 pickup truck that was parked in the Lodge’s parking lot. The pickup was found abandoned hours later on a logging road not far from the Lodge. Later that evening, John James Midmore and Chad John Wilson (Defendants) were arrested for the shootings. Authorities searched the pickup and the scene of the shooting and located, among other things, a .40 caliber gun magazine, three .40 caliber semiautomatic pistols, and ammunition. During the subsequent investigation, authorities determined that Wilson leased the pickup, and that Midmore and Wilson were associated with the Hell’s Angels Motorcycle Club.

[¶ 3.] Beginning in November of 2006, the prosecution and defense began having difficulty arranging the scientific testing of physical evidence, in particular, the magazine and the pickup. In the course of those disputes, the circuit court and the defense began conducting ex parte communications through sealed motions (with sealed exhibits and affidavits of counsel), sealed briefs, and ex parte hearings, one of which involved court consideration of the Defendants’ experts’ testimony. According to the State, since September of 2006, the court conducted seven hearings, and the court engaged in ex parte communications in four of them. The issues discussed included joint representation of the Defendants, prosecution/defense disputes over scientific testing of the physical evidence, and venue of a potential trial. Although the issue in this appeal is limited to a sealed motion, brief and affidavits relating to scientific testing of the pickup, a chronological history of a number.of the ex parte motions, affidavits, and hearings is required to provide context.

[¶ 4.] The first ex parte communication, in November of 2006, occurred in a hearing on the issue of joint representation of the -Defendants. In an open hearing the circuit court stated, “I am going to have to address issues with counsel, which if disclosed to the State or anybody else, would violate their constitutional right to silence and their constitutional rights. I don’t know any other way to do it' unless [I] sneak back to my chambers and do it.... I understand people may have uproars about it, but I have no other choice at this time.” The State objected and attempted to relate evidence that it thought would create irreconcilable conflicts of interest, yet the circuit court resolved the matter in an ex parte hearing without participation by the State. In hindsight, a review of that transcript reflects that virtually everything said by the court, counsel, and the Defendants could have been disclosed in open court.

[¶ 5.] Shortly thereafter, the defense, in the open portion of that hearing, requested to be present when the State conducted tests on the magazine of one of the .40 caliber semiautomatic pistols, arguing that if any fingerprint testing was performed on the magazine, it would destroy evidence they desired to obtain. When the circuit court requested the defense to explain why the State’s testing would impair their ability to collect evidence from the magazine, the defense responded, “I can tell you in camera,” and, “I would be happy to file a document under seal setting forth what we are concerned about.” The circuit court responded, “I would appreciate if you would do that.”

[¶ 6.] The defense responded in February 2007, by filing an ex parte motion partly under seal for an order to allow its experts to be present during testing of the magazine. In a section that was not sealed, Defendants alleged that the State’s Attorney made several agreements that would have allowed the presence of a defense expert, but the State subsequently breached those representations and agreements. The defense also argued that the State’s testing altered some of the evidence such that defense testing could be compromised. Therefore, the defense requested that it be allowed to be present before any future testing.

[¶ 7.] On February 23, 2007, the circuit court, Defendants, and defense counsel participated in an ex parte hearing on this motion. The defense reiterated its request to be present at any future testing, and further requested that it be allowed to do independent testing before the State continued its tests. The defense also requested the court to order the State to answer a list of questions regarding the State’s evidence testing. Finally, those present engaged in a substantive discussion of change of venue. Notwithstanding the Defendants’ argument on appeal, our review of the record reflects that the substantive ex parte discussion on venue was not “limited” and “unremarkable.”

[¶ 8.] On March 14, 2007, the circuit court granted Defendants’ February ex parte motion for an order allowing its experts to be present during testing on the magazine. The court’s order required the State to refrain from further testing on the magazine and allowed Defendants’ experts to conduct independent testing. The order also required the State to provide an area at the State Crime Lab for the Defendants’ experts. Although the State’s experts were not allowed to dispute whether or not the defense’s testing would alter the evidence for the State’s testing purposes, the circuit court assured the State that, based on the judge’s personal experience with handguns, the defense’s testing of the magazine would not affect any testing the State wished to perform.

[¶ 9.] The State filed a motion to reconsider, a motion for stay of order, and a motion for a Daubert hearing. These motions were denied without hearing. Thereafter, on March 22, 2007, the State filed a petition for an intermediate appeal with this Court challenging the ex parte motion and hearing. This Court denied the State’s petition, expressing no opinion on the merits.

[¶ 10.] On May 14, 2007, the defense filed another ex parte motion (not under seal) to bring a gun magazine into the courthouse “for purposes of demonstration of disassembling a .40 caliber gun magazine[.]” The circuit court granted this motion, and on May 15, 2007, proceeded with another ex parte hearing. At this hearing, the court, defense witnesses, and defense counsel discussed in great detail how to disassemble the magazine and whether or not it would destroy evidence. An expert introduced the “demonstrative magazine” and showed the court how the defense’s experts proposed to disassemble the actual magazine. After this demonstration, the court allowed the defense to proceed with testing before the State, stating,

At this stage of the game, the Court has observed the disassembly of a magazine that is represented to be of the same kind and nature as that in question.... The court sees no reasonably conceivable way in which the magazine can be damaged or altered without that alteration being apparent, particularly if the disassembly and testing and reconstruction is done under the eye of a court-appointed monitor of some sort yet to be determined. The magazine itself is an exercise in simplicity and with proper photographing by the [S]tate before the test is done, the ability of the defense to run the test and to alter the magazine, should such a thing happen either by intent or accident, would be virtually— as near as the court can tell impossible to hide. So I don’t see the difficulty with that.

[¶ 11.] On June 21, 2007, the defense filed another ex parte motion (this time under seal) to test the pickup outside the presence of the State. In this motion, the defense disclosed the testing it sought to perform on the pickup. In support of the motion, the defense filed sealed ex parte affidavits from Defendants’ attorneys describing their view of certain communications and disputes between the defense and the State regarding access to the pickup for testing. They alleged that the State had failed to produce evidence, that the State was making demands upon the defense as a prerequisite to defense testing, and that the State had retracted prior agreements to make the pickup available. The defense finally disclosed a theory of its case that would support testing. On this occasion, the circuit court did not conduct an ex parte hearing, nor did it conduct any hearing at all. In fact, the State was not notified of the defense’s motion until June 27, 2007,' six days after the defense submitted it to the court. Affording no opportunity for the State to respond with a reply brief or a hearing, the circuit court granted Defendants’ motion on June 28.

[¶ 12.] The court’s order permits the defense and its experts to examine the pickup, collect evidence, and report the defense testing under seal to the court. The order further requires one of the attorneys for the Defendants to be present at all stages of the defense testing to record the tests conducted, the nature and extent of any changes made to the vehicle or items removed, and to ensure that the integrity of the vehicle is maintained in the same condition as when the Defendants first begin their tests.

[¶ 13.] As a result of these latest proceedings regarding the pickup, the State filed its second petition for an intermediate appeal, and this Court granted the State’s petition. A jury trial is currently stayed. The State appeals the process by which the circuit court considered and granted the defense’s motion concerning scientific testing of the pickup; and specifically, whether the circuit court abused its discretion in deciding this matter on a sealed, ex parte motion and ex parte affidavits without any opportunity for the State to present its views.

II.

[¶ 14.] This dispute involves application of criminal discovery statutes. “Statutory interpretation is a question of law, reviewed de novo.” State v. Burdick, 2006 SD 23, ¶ 6, 712 N.W.2d 5, 7. Matters of a circuit court’s actions under discovery statutes are reviewed under an abuse of discretion standard. Anderson v. Keller, 2007 SD 89, ¶ 5, 739 N.W.2d 35, 37.

III.

[¶ 15.] Because of the ex parte motion and lack of notice, the State indicates that it is unaware whether the circuit court conducted any ex parte hearings related to testing the pickup. Our review of the record provided indicates that the court did not conduct any ex parte hearings on this motion. The court did, however, conduct ex parte hearings regarding conflicts of interest, venue, discovery, and evidence testing of the magazine. The State argues that ex parte hearings relating to these issues were unauthorized. Because there has been a number of ex parte hearings, and because oral argument reflected it is likely that the disputes over ex parte hearings on testing have not been resolved, we briefly address the issue.

[¶ 16.] Ex parte communications are generally prohibited. “A judge must not independently investigate the facts in a case.” SD Code of Judicial Conduct, Canon 3B(7)(a) cmt., SDCL ch. 16-2 app. (1993). The Code of Judicial Conduct only allows a judge to engage in ex parte communications “that do not deal with substantive matters or issues on the merits,” and then only “when expressly authorized by law to do so.” Id., Canon 3(B)(7)(a),(e).

[¶ 17.] SDCL 23A-13-16 (Rule 16(d)(1)) is the relevant statute that authorizes ex parte discovery requests in certain limited circumstances. The statute provides:

Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

SDCL 23A-13-16 (emphasis added).

[¶ 18.] In our view, this statute requires a two-step process in which notice and a hearing (with both sides present) must be provided before ex parte discovery or testing is ordered and before ex parte evidence or affidavits are considered. As the Federal Rules of Criminal Procedure Advisory Committee notes, the analogous 1975 federal provision requires that a trial court should first “determine whether an ex parte proceeding is appropriate, bearing in mind that ex parte proceedings are disfavored and not to be encouraged.” Fed. R-Ceim. PROC. 16(d)(1) advisory committee’s note. Second, “it must determine whether a protective or modifying order shall issue.” Id. (citing House Report No. 04-247). These procedural requirements are found in the statutory language requiring a “sufficient showing” for the discovery request. Although the statute permits the court to consider ex parte evidence in making that showing, it does so only “upon motion,” which, absent statutory authorization, requires a hearing. It is only after a motion and hearing that ex parte evidence may be submitted to a court, and then, if the court permits it, only in the form of a “written statement.” SDCL 23A-13-16. There is, however, no authority to obtain discovery or resolve a discovery dispute entirely by sealed motion, ex parte evidence, ex parte hearing, and the examination of witnesses with only one party present. As we interpret the statute, the first step is to properly notice a motion to obtain the requested discovery/testing, and if necessary, a motion to present a sealed written statement in support of the discovery/testing sought. The court must then conduct an open hearing in which both parties can argue whether a sealed written statement may be submitted and ultimately whether the moving party has made a “sufficient showing” to justify the discovery/testing request.

[¶ 19.] In this case, the circuit court failed to follow this procedure regarding the defense request to conduct scientific testing on the pickup. Instead— absent any noticed motion and hearing— the court decided the ex parte motion on sealed affidavits that included sealed arguments of defense counsel arguing their position regarding the discovery dispute. Without a properly noticed motion and hearing, the court’s process allowed the defense to argue and resolve its discovery/testing dispute entirely with ex parte evidence. This procedure violated SDCL 23A-13-16, which plainly requires “a showing” and “a motion” to proceed in this manner. Although the defense argues this is a reasonable interpretation of the statute, such an interpretation would permit the prosecution as well as the defense to present their views of discovery disputes, including supporting ex parte evidence, without any notice or opportunity to be heard from the opposing party. Such an interpretation does not comport with basic understandings of due process.

[¶ 20.] The defense, however, contends that the circuit court was authorized to consider the ex parte motion and affidavits because of the following cumulative factors: (1) the motion contained its theory of defense and work product, (2) the defense and the State were engaged in a discovery dispute, (3) the defense was in a hurry to move the case forward, and (4) Defendants had been in jail for a year.

[¶ 21.] We recognize that some theories of defense and work product are protected from discovery. Nevertheless, under SDCL 23A-13-13 (Rule 16(b)(1)) and 23A-13-14 (Rule 16(b)(2)), protection for scientific testing of physical evidence is limited if it will be used in the defendant’s case-in-chief at trial or presented through witness testimony. SDCL 23A-13-13 provides that “the State may discover results of examinations and scientific tests the defendant ‘intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to his testimony.’ ” State v. Westerfield, 1997 SD 100, ¶ 15, 567 N.W.2d 863, 868. Furthermore, in State v. Guthrie, we noted that “[pjhysical evidence, whether exculpatory or inculpatory, cannot be withheld by a criminal defense attorney.” 2001 SD 89, ¶ 8, 631 N.W.2d 190, 194. Therefore, contrary to the defense’s assertion, the testing of the pickup does not necessarily implicate work product or defense theory protections that would justify disregard of the notice and hearing requirements of SDCL 23A-13-16.

[IT 22.] Furthermore, the State argues that it does not seek the test results: it only seeks to participate in proceedings regarding defense motions for testing of physical, scientific evidence. Regardless of the merits of the State’s argument, the Defendants’ reliance on defense theory and defense work product is premature and misplaced until the parties’ conflicting claims regarding access to the pickup for testing (and the evidence’s potential use at trial) are resolved in compliance with the discovery statutes.

[¶23.] So also, the discovery dispute with the State did not justify disregarding the procedural requirements of the statute. A party’s right to test physical evidence does not authorize the acquisition of testing rights through ex parte proceedings. At oral argument, the defense conceded that the dispute about the pickup is simply about access to test it. While it argued that information from a secret source justifies keeping the specific tests secret, the defense has presented no reason why its request to test and its request to submit a secret source sealed statement cannot be presented in an open hearing,where both parties are afforded an opportunity to be heard. And certainly, a hurry to engage in discovery, the Defendants’ incarceration, and the State’s completion of its testing do not justify a disregard of statutory procedural requirements.

[¶ 24.] The defense finally claims these proceedings are analogous to in camera reviews of documents, citing United States v. Pelton, 578 F.2d 701 (8th Cir.1978), cert denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978) and United States v. Felt, 491 F.Supp. 179 (D.D.C.1979). In Pelton, however, an in camera review of documents occurred only after a hearing and a subsequently authorized request to submit documents for in camera review in compliance with the federal equivalent of SDCL 23A-13-16. Similarly, in Felt, the district court reviewed privileged government documents in camera only after the defense had made a “showing of necessity” to require the court to examine the documents in camera. 491 F.Supp. at 184. These cases do not stand for the proposition that the defense may obtain discovery through ex parte motions and hearings without the motion and showing required in SDCL 23A-13-16.

[¶ 25.] We therefore conclude that the circuit court abused its discretion in granting discovery on ex parte motions, briefs, affidavits, and hearings. The circuit court’s order regarding testing of the pickup and sealing of the results is reversed and remanded for further proceedings in accordance with the appropriate discovery statutes.

[¶ 26.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . In response to this objection, both defense counsel and the court indicated that there would be no legal arguments made concerning the conflict of interest and they would only be discussing factual matters. Nevertheless, during the ex parte hearing, out-of-state defense counsel made disparaging remarks about the viability of some of the State’s legal issues. The same defense counsel also informed the court that he did not agree with the State’s theory of the case set forth at the grand jury proceedings.

      . We also observe that after the hearing reconvened in public, the State renewed its objection indicating that it was aware of evidence that it felt would create an inherent conflict within the trial setting, and that joint representation would be impossible without raising those conflicts. Although the circuit court responded that it was not the State’s “problem,” that is not the case. ’ The State has a right to provide input to ensure that a fair and impartial trial was held. The State’s obligation is not limited to the role of an advocate. The State also has a duty to ensure a fair trial. State v. Brandenburg, 344 N.W.2d 702, 705 (S.D.1984). See also United States v. Bagley, 473 U.S. 667, 675, n. 6, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (providing, "the prosecutor’s role transcends that of an adversary: he 'is the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ ”) (citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)).

      . The defense and the court discussed the option of trying the case in Rapid City instead of Custer, South Dakota. The court informed the defense that there was a larger jury pool in Rapid City and that jurors were more likely to attend jury duty. The court also discussed the possibility of the defense losing jurors in Custer due to the elderly pool and people taking vacation. The court elaborated on potential juror numbers under various scenarios, and although the circuit court stated that it would give the State a chance to be heard later, it also indicated how it would likely rule on a change of venue motion. We observe nothing in the transcript that required these ex parte communications.

      . On July 5, 2007 — after the State filed this petition for intermediate appeal — the defense submitted another motion and brief (partly under seal) for discovery and discovery compliance.

      . Fed.R.Crim.P. 16(d)(1) provides:
      At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party’s statement under seal.

      . Although the May 15, 2007 ex parte hearing regarding the magazine is not an issue on appeal, the circuit court heard expert testimony on testing the magazine. We previously stated that similar ex parte communications are improper. In State v. McCrary, 2004 SD 18, ¶ 32, 676 N.W.2d 116, 125, a trial judge initiated an ex parte contact with the victim’s therapist. At sentencing, the trial court made the following statement: “I took it upon myself to call [the victim’s therapist] and ask him one question and that was whether or not he had reason to believe ... that the child was not molested by the father and his answer was no.” Id. In concluding that this constituted reversible error, we stated:
      Any contact by the trial court with a witness or potential witness other than for scheduling or merely procedural matters should be accompanied with full due process protection for both parties such as advance notice and an opportunity to be heard SDCL ch 16-2. Code of Judicial conduct, Canon 3B(7). “A judge must not independently investigate the facts in a case.” Canon 3B(7)(a) cmt. Clearly this prohibition was not followed in this case and we need not ponder the effect of this ex parte contact. In O’Connor v. Leapley, 488 N.W.2d 421, 423 (S.D.1992) we held that "[i]f an ex parte communication is invited or initiated by the judge, no prejudice needs to be shown ... Prejudice is implicit in the judge’s invitation or initiation of an improper ex parte communication.” (citing State v. Barker, 227 Neb. 842, 420 N.W.2d 695, 699 (1988)).

        Id.

      We also noted, "[a] judge simply cannot be both a judge and [an attorney] searching out facts favorable to the [prosecution or defense] without abandoning his or her judicial neutrality." Id. ¶ 33, 676 N.W.2d at 125. SDCL 23A-13-16 does not provide an exception to this prohibition.

      . SDCL 23A-13-13 (Rule 16(b)(1)) provides, in relevant part:
      If the defendant requests disclosure under § 23A-13-3 or 23A-13-4, upon compliance with such request by the prosecuting attorney, the defendant, on written request of the prosecuting attorney, shall permit the prosecuting attorney to inspect and copy or photograph any results or reports ... of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to his testimony.
      (Emphasis added.)
      SDCL 23A-13-14 (Rule 16(b)(2)) provides:

        Except as to scientific or medical reports, § 23A-13-12 or 23A-13-13 does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prosecution or defense witnesses, or by prospective prosecution or defense witnesses, to the defendant, his agents or attorneys.
      (Emphasis added.)
      SDCL 23A-13-3 (Rule 16(a)(1)(C)) provides:
      Upon written request of the defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the prosecuting attorney and which are material to the preparation of his defense or intended for use by the prosecuting attorney as evidence in chief at the trial, or were obtained from or belong to the defendant.
      SDCL 23A-13-4 (Rule 16(a)(1)(D)) provides:
      Upon written request of a defendant, the prosecuting attorney shall permit a defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the prosecuting attorney, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and which are material to the preparation of the defense or are intended for use by a prosecuting attorney as evidence in chief at the trial.

      . This does not mean, of course, that the defense may not move to limit or restrict disclosure of defense theories or work product. Should the State seek such evidence under SDCL 23A-13-13, and should the defense contend the evidence involves defense theories or work product, the defense must move to limit disclosure in accordance with SDCL 23A-13-16.

      . As we noted on remand in State v. Guthrie, 2002 SD 138. ¶ 12. 654 N.W.2d 201. 205. the trial proceedings involved a purported suicide note held in the possession of defense counsel until the time of trial. The trial court found that the defense attorney "tried to ‘ambush’ the State with this purposed suicide note, hoping the State would not have time to refute the evidence.”

      .For this same reason, the defense’s argument that the information is protected by attorney-client privilege under SDCL 19-13-3 fails.